In the United States Court of Federal Claims

No. 20-620T

Filed: January 14, 2021

NOT FOR PUBLICATION

STEVEN ERICH HUBBARD,

Plaintiff,

v.

THE UNITED STATES,

Defendant.

Stuart J. Bassin, Bassin Law Firm, Washington, D.C., for Plaintiff. 

Patrick Phippen, Trial Attorney, Tax Division, with whom were G. Robson Stewart, Assistant 

Chief, David Pincus, Chief, Court of Federal Claims Section, and Richard Zuckerman, Principal 

Deputy Assistant Attorney General, U.S. Department of Justice, Washington, D.C., for 

Defendant.

ORDER

TAPP, Judge.

In this tax case, Steven Erich Hubbard (“Hubbard”), filed a Complaint against the United 

States requesting damages from unpaid credit under the Coronavirus Aid, Relief, and Economic 

Security (CARES) Act. (Compl., ECF No. 1; Am. Compl. ECF No. 9). The United States moves 

to dismiss Hubbard’s Complaint, averring that he has now received the sought relief, thus there 

is no live controversy to adjudicate and this Court is stripped of subject matter jurisdiction. (See 

Def.’s Mot., ECF No. 28). Having reviewed the record, the Court GRANTS the United States’ 

Motion. 

The burden of establishing subject matter jurisdiction rests with the plaintiff, who must 

do so by a preponderance of the evidence. Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 

(1992); Reynolds v. Army & Air Force Exch. Serv., 846 F.2d 746, 748 (Fed. Cir. 1988). This 

Court’s jurisdiction to entertain claims and grant relief depends on the extent to which the United 

States has waived sovereign immunity. United States v. Testan, 424 U.S. 392, 399 (1976). When 

faced with a motion to dismiss for lack of subject matter jurisdiction pursuant to RCFC 12(b)(1), 

the Court must assume that all undisputed facts alleged in the complaint are true and draw all 

reasonable inferences in the plaintiff’s favor. Scheuer v. Rhodes, 416 U.S. 232, 236 (1974); see 

also Henke v. United States, 60 F.3d 795, 797 (Fed. Cir. 1995). The movant, however, may 

challenge the truth of any facts upon which jurisdiction depends. See Raymark Indus. v. United 

States, 15 Cl. Ct. 334, 338 (1988). If it does, the plaintiff must come forward with a prima facie 
2 

showing of jurisdiction. Id. The plaintiff cannot rely only on its allegations. See Hornback v. 

United States, 52 Fed. Cl. 374, 377 (2002). Moreover, the Court may look to evidence outside of 

the pleadings to ascertain the propriety of its exercise of jurisdiction over a case. Rocovich v. 

United States, 933 F.2d 991, 994 (Fed. Cir. 1991), aff’d in relevant part, Martinez v. United 

States, 281 F.3d 1376 (Fed. Cir. 2002). If the Court determines at any time that subject matter 

jurisdiction is lacking, it must dismiss the complaint. See RCFC 12(h)(3). 

Article III, § 2 of the United States Constitution limits the jurisdiction of the federal 

courts to “Cases” and “Controversies,” and as a result, “federal courts are without power to 

decide questions that cannot affect the rights of litigants in the case before them.” North 

Carolina v. Rice, 404 U.S. 244, 246 (1971); see also Anderson v. United States, 344 F.3d 1343, 

1350 n.1 (Fed. Cir. 2003) (“The Court of Federal Claims, though an Article I court . . . applies 

the same standing requirements enforced by other federal courts created under Article III.”). If a 

live controversy ceases to exist and the case becomes moot, this Court loses jurisdiction and 

cannot proceed. As long as the parties have a concrete interest, however small, in the outcome of 

the litigation, the case is not moot. Knox v. Service Employees, 567 U.S. 298, 307–308 (2012). 

Thus, the dispute between the parties in a case must remain alive until its ultimate disposition.

Here, the United States asserts that Hubbard has already received the $1,200 advance 

refund of the 2020 recovery rebate under the CARES Act. (Def.’s Mot. at 4). In support of its 

position, the United States attaches an Account Transcript from the Internal Revenue Service 

indicating that a $1,200 tax credit had been issued. (Def.’s Mot. App. 4). Accordingly, there is no 

live controversy, and this Court lacks subject matter jurisdiction to entertain Hubbard’s amended 

complaint. (Def.’s Mot. at 4). Hubbard responds partially opposing the United States’ Motion, 

though it is apparent that its opposition is solely based on the award of filing fees.1

 (See 

generally Pl.’s Resp., ECF No. 29). In fact, Hubbard states that “the Government paid the 

requested credit in full . . ., acknowledging that Mr. Hubbard was entitled to the relief he sought 

in this case. That portion of the parties’ dispute is now resolved.” (Id. at 1–3). Because this case

is predicated on a requested credit that Hubbard admits has since been issued, the underlying 

issue is resolved. Therefore, there remains no case or controversy and the action must be 

dismissed. 

Without a case or controversy, this Court lacks jurisdiction to hear Hubbard’s claims. 

Thus, the United States’ Motion to Dismiss is GRANTED and Hubbard’s Complaint is 

dismissed. The Clerk is directed to enter judgment accordingly. 

IT IS SO ORDERED.

s/ David A. Tapp 

 DAVID A. TAPP, Judge

1 By separate order entered on January 12, 2021, the Court denied Hubbard’s Motion for Bill of 

Costs as premature. (ECF No. 32).