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YVONNE HICKMAN,

Pro Se

No. 15-66C

(Filed: August 4,2015)

FILED

)

)

)

Plaintiflf, ) Tucker Act; 28 U.S.C. $ 1491; Subject

) Matter Jurisdiction; RCFC 12(b)(1);

) Veterans Benefits; Motion for Recusal; 28

) U.S.C. $ ass(a)

THE LINITED STATES OF AMERICA, )

)

Defendant. )

)

)

)

Yvonne Hickman, Glen Bumie, MD, plaintiff pro se.

Matthew P. Roche, T'ial Attomey, with whom were Reginald T. Blades, Jr.,

Assistant Director, Robert E. Kirschman, Jr.,DirecIor, Benjamin C. Mizer, Acling

Assistant Attorney General, Commercial Litigation Branch, Civil Division,

United States Department of Justice, Washington, D.C., for defendant.

OPINIONAND ORDER

The plaintiff in this case, Yvonne Hickman, appearing p1q se, contends that the

government engaged in a pattern and practice ofcivil rights violations and conspired to deprive

her of due process of law and equal protection under the Fourteenth Amendment ofthe United

States Constitution. Compl. fl 3. According to Ms. Hickman, the United States Department of

Veterans Affairs ("VA"), relying on what she claims was a fraudulently obtained divorce from

her service-disabled husband, wrongfully denied or interiered with her "marital property rights,

spousal benefits and apportionment pay." Compl. fl 4. She claims entitlement to monetary

damages pursuant to the Federal Torts Claims Act (.'FTCA'), 28 U.S.C. S$ 1346(b), 2671-80, as

well as damages for interfering with her civil rights pursuant to 28 U.S.C. $ 1343(a)(1)-(a) and

42 U.S.C $ 1985(3). Compl. flll 3, 8.

This case is currently before the Court on plaintiff s motion for recusal of the

undersigned judge and the govemment's motion to dismiss plaintiff s complaint for lack of

subject matter jurisdiction pursuant to Rule 12(b)(1) ofthe Rules of the Court ofFederal Claims

AUG - 4 2015

U.S. COURT OF

FEDERALCLAIMS
C'RCFC'). For the reasons set forth below, plaintiff s motion seeking recusal is DENIED, and

the govemment's motion to dismiss for lack of subject matter jurisdiction is GRANTED.T

BACKGROUND2

On September 10,2007, the plaintiff manied Nathaniel Hickman. Compl. Ex. B at 1'

Mr. Hickman is a veteran of the Vietnam war who receives disability compensation benefits

from the VA for 100% service-connected post-traumatic stress disorder. Id. at 2. On December

4,2009, Ms. Hickman separated from Mr. Hickman. Id. at 4.

Thereafter, Ms. Hickman filed a claim for an apportionment of Mr. Hickman's VA

benefits. See Compl. Ex. A at 1 (VA letter acknowledging claim dated February 22'2010). On

March 8, 2010, Ms. Hickman submitted a request that the VA appoint a guardian to assist Mr'

Hickman in the handling of his affairs with the VA. Id. at 3 (Application for appointment of

guardian). In a statement submitted in support of her request, she alleged that Mr. Hickman was

not competent to manage his finances due to drug addiction and mental health problems. Id.

On April 1,2010, the VA's Atlanta Regional Office awarded Ms. Hickman $ 150 per

month as an apportionment of Mr. Hickman's VA benefits. Id. at 5. Thereafter, however, on

August 4, 2010, Mr. Hickman sued Ms. Hickman for a divorce in the Superior Court of Glynn

County, Georgia. Compl. Ex. B at 4-8 ("Domestic Relations Financial Affidavit"). Ms.

Hickman did not appear for a final hearing on Mr. Hickman's divorce action, and a final

judgment and decree ofdivorce was entered on September 13,2011. Id. at 13.

In the meantime, before the divorce decree was issued, Ms. Hickman filed a claim for an

increased apportionment of Mr. Hickman's benefits. Compl. Ex. A at 6 (August 29, 201 1 letter

from Atlanta Regional Office of the VA requesting additional information in connection with the

claim for an increased apportionment). This increase was not granted; instead, in light ofthe

Hickmans' divorce, the VA terminated Ms. Hickman's marital apportionment of Mr. Hickman's

benefits. Comp. Ex. A at 9-11.

On October 15,2012, the VA sent Ms. Hickman a letter providing her with an

opportunity to dispute the termination of her marital apportionment. Id. After Ms' Hickman

unsuccessfully appealed the termination with the VA's Atlanta Regional Office, id. at 12, Ms.

Hickman sought review in the Board of Veterans' Appeals ('BVA). Id. at 14. The disposition

of that request for review is not apparent from the complaint or its accompanying attachments.

On October 30, 2014, however, the VA Civilian Health and Medical program denied her claim

for medical benefits because she was not eligible on the date that the service was claimed.

Compl. fl 9; Compl. Ex. B at 14.

r Ms. Hickman has filed a motion to proceed in forma pauperis. The Court GRANTS

that motion for purposes ofdeciding the pending motion to dismiss.

2 The facts set forth in this section are based on the allegations in the complaint and the

exhibits attached to the complaint, which are all accepted as true for putposes ofdeciding the

sovernment's motion to dismiss.
On January 23, 2015, Ms. Hickman filed this action. The govemment filed its motion to

dismiss on March26,2015, ECF No. 6, to which Ms. Hickman responded on April 17 '2015,

ECF No. 7. After the goveDment filed its Reply Brief, ECF No. 8, Ms' Hickman sought to file a

document styled "Plaintiff s Response to Defendant's untimely Reply." The court directed the

clerk to retum this document to Ms. Hickman, in light of the fact that the courl's rules do not

provide a right to file a surreply and Ms. Hickman had not sought leave ofthe court to file such

a document. Order 1, May 22,2015, ECF No. 9. Plaintiff filed a response to the Court's order

in which she contended that the defendant had been permitted to file a second motion to dismiss

on April 8,2015 without the Court's leave. Pl.'sOpp'ntoCt. Order at l,June 15,2015, ECF

No. 10. Thereafter, on June 26,2015, Ms. Hickman filed a motion requesting that the

undersigned recuse herself from this case. Pl.'sNoticeto Recuse Judge Kaplan, ECFNo. 11

[hereinafter "Recusal Mot."].

DISCUSSION

L Plaintiff s Motion for Recusal

As noted above, the plaintiff has filed a motion requesting that the undersigned recuse

herself from this case. A judge must recuse herself "in any proceeding in which [the judge's]

impartiality might reasonably be questioned." 28 U.S.C. $ 455(a). This includes not only when

there is actual bias or prejudice, but also when there is the appearance ofpartiality. Id. This is

an objective test that mandates recusal "when a reasonable person, knowing all the facts, would

question the judge's impartiality." Allphin v. United States, 758 F.3d 1336, 1344 (Fed. Cir2014) (quoting Hewlett-Packard Co. v. Bausch & Lomb, Inc. , 882F.2d 1556, 1568 (Fed. Cir'

1989)).

A judge is presumed to be impartial, and plaintiff bears a "heavy burden" ofproving

otherwise. See Baldwin Hardware Com. v. Franksu Enter. Corp., 78 F.3d 550, 557 (Fed. Cir'

1996) (concluding appellants did not carry "the heavy burden" necessary to prove their recusal

claim). In that regard, "judicial rulings alone almost never constitute a valid basis for a bias or

parliality motion. . . . Almost invariably, they are proper grounds for appeal, not for recusal'"

Liteky v. United States, 510 U.S. 540, 555 (1994).

In this case, Ms. Hickman has requested recusal on the grounds that the undersigned

committed "intentional" legal error in "accept[ing] Defendant's untimely second motion without

leave ofcourt" and "fail[ing] to sanction Defendant's counsel as appropriate for his fraud upon

the court" pursuant to RCFC 11(b). Recusal Mot. 1. According to plaintifl these actions

establish that the undersigned judge "cannot carry out the duties ofadjudicating Plaintiff s case

without committing a fraudulent act." Id.

Although not entirely clear, plaintiffs motion for recusal appears to have been provoked

by the Court's May 22,2015 order directing the retum to plaintiff of the document lodged with

the Clerk and styled "Plaintiff s Response to Defendant's Untimely Reply." See Order 1; Pl.'s

Opp'n to Ct. Order at 1 . Thus, she asserts that while the defendant was allegedly permitted to

file a second motion to dismiss on April 8, 2015, without requesting the leave ofcourt, plaintiff

was not given a similar opporlunity when she responded to "corect the record" in her "Response
io Defendant's Untimely Reply" which the court directed the clerk to retum to her unfiled. Pl.'s

Opp'n to Ct. Order at l.

Plaintiff s basis for requesting recusal-that the defendant was allowed to file a second

motion to dismiss on April 8, 2015 or file pleadings out of time-is not supported by the record.

The government has frled only one motion to dismiss in this action and that motion was timely

filed under the rules of this Courl.l

In any event, as noted above, priorjudicial rulings alone "almost never constitute a valid

basis for a bias or partiality motion." Litekv, 510 U.S. at 555. Because a reasonable person

would not question the undersigned's impartiality based on the matters raised by the plaintiff, the

undersigned will not recuse herself from this case. Therefore, plaintiff s motion seeking recusal

is DENIED.

II. Defendant's Motion to Dismiss for Lack of Subject Matter Jurisdiction

A. Standard of Review for Motion to Dismiss

In deciding a motion to dismiss for lack of subject-matter jurisdiction, the Court

presumes all undisputed factual allegations to be true and conshues all reasonable inferences in

favor ofthe plaintiff. Scheuer v. Rhodes,416 U.S.232,236 (1974). Jurisdiction is a threshold

issue, and as such, "a court must satisff itselfthat it hasjurisdiction to hear and decide a case

before proceeding to the merits." Ultra-Precision Mfg.. Ltd. v. Ford Motor co., 338 F.3d 1353,

1356 (Fed. Cir.2003). The plaintiff bears the burden of establishing subj ect matter jurisdiction,

Alder Terrace. Inc. v. United States, 161 F.3d 1372, 1377 (Fed. Cir. 1998), and must do so by a

preponderance ofthe evidence. Brandt v. united states, 710 F.3d 1369,1373 (Fed. Cir. 2013)'

If defendant challenges jurisdiction, the plaintiff cannot merely rely upon allegations in the

complaint, but must instead bring forth relevant, competent proofto establish jurisdiction by a

preponderance of the evidence. McNutt v. Gen. Motors Acceptance Com , 298 U.S. 178' 189

(1936); see also Cedars-Sinai Medical Ctr. V. Watkins, 11 F.3d 1573,1584 (1993).

While a pro se plaintiff s pleadings are held to "less stringent standards than formal

pleadings drafted by lawyers," Haines v. Kerner, 404 U.S. 519,520 (1972), even pro se plaintiffs

must persuade the Court that jurisdictional requirements have been met. Bemard v. United

states, 59 Fed. Cl. 497 ,500 (2004), affd, 98 F. App'x 860 (Fed. cir. 2004).

3 Plaintiff filed her complaint on J anuary 23,2015, and the defendant filed a motion to

dismiss pursuant to RCFC 12(b)(1) on March 26, 20i5 in accordance with RCFC 12(a)(l),

which allows the defendant 60 days to file a responsive pleading to plaintiffs complaint. Under

RCFC 7.2(bX1), plaintiff had 28 days to file a response to defendant's motion, which she timely

filed on April 17,2015. Under RCFC 7.2(b)(2), defendant had 14 days to file a reply to

plaintiff s response, which defendant timely filed on May 4, 2015. As stated in the Court's May

22,2015 order, the rules do not provide for any other pleadings in connection with a motion to

dismiss. Thus, plaintiff was required to ask the permission ofthe Court to file a response to the

govemment's reply, which she did not do.
B. Application of Standard in This Case

The Court ofFederal Claims has jurisdiction under the Tucker Act to hear "any claim

against the united states founded either upon the constitution, or any Act of congress or any

regulation of an executive department, or upon any express or implied contract with the United

States, or for liquidated or unliquidated damages in cases not sounding in tort." 28 U.S.C. $

1a91(a)(1) (2012). The Tucker Act waives the sovereign immunity of the United States to allow

a suit for money damages, United States v. Mitchell, 463 U.S. 206'212 (1983), but it does not

confer any substantive rights. united states v. Testan,424U.5.392,398 (1976). Therefore, a

plaintilf seeking to invoke the court's Tucker Actjurisdiction must identify an independent

source ofa substantive right to money damages from the United States arising out ofa contract,

statute, regulation or constitutional provision. Jan's Helicopter Serv.. Inc. v. Fed. Aviation

Admin., 525 F.3d 1299, 1306 (Fed. Cir. 2008).

"Not every claim invoking the Constitution, a federal statute, or a regulation is

cognizable under the Tucker Act." Mitchell, 463 U.S. at 216. "[T]he claimant must demonstrate

that the source of substantive law he relies upon 'can fairly be interpreted as mandating

compensation by the Federal Govemment for the damages sustained."' ld at216-l1 (quoting

Testan,424 U.S. at 400). In this case, Ms. Hickman has failed to meet her burden of

demonstrating this Court's jurisdiction over her claims.

Ms. Hickman's prima.ry contention is that the VA wrongfully terminated her marital

apportionment and other VA benefits based on what she claims is an invalid divorce decree.

compl. fl 7. Pl.'s Resp. 5-6. Specifically, she contends that the divorce decree was fraudulent

because her husband lacked legal capacity to represent himself at the time of the divorce and that

the court granting the divorce was a lawyer sitting pro hac vice. Id.; Compl. t| 7; see also Ga.

Code Ann $ 15-6- 14 (201 5) (authorizing an attorney who is not a judge to "exercise all functions

of ajudge" in specified circumstances).

This Court, of course, lacks jurisdiction to review the validity of a divorce decree issued

by a Georgia court under Georgia law. More to the point, this Court lacks jurisdiction over

veterans' benefits claims. See 38 U.S.C. $ 511(a) (stating that decisions by the Secretary are

"final and conclusive and may not be reviewed by any other official or by any court," subject to

certain exceptions); see also Trevino v. United States, 1 13 Fed. Cl. 204,209 (2013) (holding that

the United States Court ofFederal Claims does not have jurisdiction over claims for denial of

veterans' benefits), af?d,557 Fed. App'x 995 (Fed. Cir.2014). Instead, denial of an application

for benefits may only be appealed to the BVA. See 38 U.S.C. $ 710a(a) ("All questions in a

matter which under section 51 1(a) ofthis title is subject to decision by the Secretary shall be

subject to one review on appeal to the Secretary. Final decisions on such appeals shall be made

by the [BVA]."). BVA decisions, in tum, may only be appealed to the United States Court of

Appeals for Veterans Claims. See 38 U.S.C. $ 7252(a) ("The Court of Appeals for Veterans

Claims shall have exclusive jurisdiction to review decisions of the [BVA]."). Decisions ofthat

court are then reviewable by the United States Court of Appeals for the Federal Circuit. See 3 8

U.S.C. $ 7292(c) (grriing the United States Court ofAppeals for the Federal Circuit exclusive

jurisdiction to review the denial of veterans' benefits by the United States Court ofAppeals for

Veterans Claims).
Nor does this Court have jurisdiction over Ms. Hickman's claims based on the Federal

Tort Claims Act ("FTCA"). See Compl. fl 2 (alleging that "this court has the authority to grant

monetary relief under 28 U.S.C. $ 1346(b)'). Although the FTCA "waives sovereign immunity

as to claims arising in tort," it expressly vests federal district courts with "exclusive jurisdiction"

to entertain those claims. Awad v. United States, 301 F.3d 1367,1372 (Fed. Cir. 2002); see also

28 u.s.c. $ 1346(b).

Similarly, this Court does not possess jurisdiction to entertain Ms. Hickman's remaining

tort claims on any other basis. See Compl. fl 5 (accusing the VA of conspiracy to commit fraud,

as well as fraudulent misrepresentation and concealment). "The plain language of the Tucker

Act excludes from the Court of Federal Claims jurisdiction claims sounding in tort'" Rick's

Mushroom Serv.. Inc. v. United States, 521 F.3d 1338, 1343 (Fed. Cir.2008) (citing 28 U.S.C. $

1491(a)(l). Indeed, the Tucker Act expressly limits this Court's jurisdiction to claims for

damages "not sounding in tort." 28U.S.C. $1491(a)(l). See Shearin v. United States,992F.2d

1195,1197 (Fed. Cir. 1993). Ms. Hickman's various tort claims of misrepresentation, fraud, and

conspiracy must, therefore, be dismissed for lack of subject-matter jurisdiction. See Berdick v.

United States, 612F.2d 533, 536 (Fed. Cir. 1979) (conspiracy is a torl); Jumah v. United States,

90 Fed. Cl. 603, 607-08 (2009) (misrepresentation is a tort that falls outside this Court's

jurisdiction); Phang v. United States, 87 Fed. Cl. 321, 325 (2009) (no jurisdiction over fraud

claims that sound in tort).

Ms. Hickman's claims under the Due Process and Equal Protection Clauses are similarly

beyond this Court's j urisdiction as those constitutional provisions are not money mandating. See

LeBlanc v. United States, 50 F.3d 1025,1028 (Fed. Cir. 1995) (holding that "alleg[ed] violations

of [plaintiff s] rights under the Due Process Clauses ofthe Fifth and Fourteenth Amendments,

[and] the Equal Protection Clause ofthe Fourteenth Amendment" are not "a sufficient basis for

jurisdiction because they do not mandate payment of money by the Govemment"); Camrth v.

United States, 627 F .2d 1068, 1081 (Ct. CI. 1980) (holding that the Court does not possess

jurisdiction "over claims based upon the Due Process and Equal Protection guarantees of the

Fifth Amendment, because these constitutional provisions do not obligate the Federal ovemment

to pay money damages").4

Finally, this Court does not possess jurisdiction to entertain claims for damages based on

civil rights violations brought pursuant to 28 U.S.C. $ 13a3(a)Q)-(a) and 42 U.S.C' S 1985(3),

because jurisdiction over such claims resides exclusively in the district courts. See 28 U.S.C.

$ 13a3(a) (stating that "district courts shall have original jurisdiction" over civil claims brought

pursuant to 42 U.S.C. $ 1985); Del Rio v. United States, 87 Fed. Cl. 536, 540 (2009); Marlin v.

4 In her response to plaintiff s motion to dismiss, Ms. Hickman alleged for the first time

that the government violated her First Amendment rights. Pl.'s Resp. 8 ("Plaintiffl'sl claims are

pursuant to the U.S. Constitution involving the First Amendment, the prohibited practice that

prevented Plaintiff the right to petition the government in redress regarding a pro hac vice

divorce."). The Court also lacks jurisdiction over this claim. The First Amendment is not a

money mandating provision of the Constitution. United States v. Connolly,716 F.2d 882, 886-

87 (Fed. Cir. 1983) ("We agree with the Court of Claims that the first amendment, standing

alone, cannot be so interpreted as to command the payment of money.").
United States, 63 Fed. Cl. 475,476 (2005). Thus, to the extent that Ms. Hickman relies on 42

U.S.C. $ 1985(3) in conjunction with 28 U.S.C. $ l3a3(a)(l)-(a) as a source of substantive law

that provides a right to money damages, her reliance on those provisions is misplaced. See

Shame v. United States, 112 Fed. CL 468,476 (2013) (holding that ,,jwisdiction to hear such a

claim belongs exclusively to the district courts, and the Court of Federal Claims is not a district

court" (intemal citations omitted)).

CONCLUSION

For the reasons set forth above, plaintiff s motion for the undersigned judge to recuse

herself is DENI[,D, the govemment's motion to dismiss under RCFC 12(bX1) is GRANTED,

and plaintiff s complaint is DISMISSED without prejudice for lack of subject matter

jurisdiction. Each side shall bear its own costs. The clerk of the court is directed to enter

judgment accordingly.

IT IS SO ORDERED.

L/L -

ELAINE D. KAPLAN

Judge