NOT FOR PUBLICATION

BETTY ALEXIDOR,

Plaintiff,

v.

THE UNITED STATES OF AMERICA,

Defendant

. No. 21-2283 (Filed: April 1, 2022)

Betty Alexidor

, Pro Se , Pembroke Pines, FL.

Matney E. Rolfe , Trial Attorney, U.S. Department of Justice, Civil Division, Commercial Litigation Branch, Washington, D.C., with whom were Elizabeth M. Hosford , Assistant Director, Patricia McCarthy , Director, and Brian M. Boynton , Acting Assistant Atto rney General, for Defendant.



### OPINION AND ORDER

LERNER
, Judge

. Plaintiff Betty Alexidor, appearing pro se , filed a complaint in this Court on December 8, 2021, asserting claims relating to th e Office of Personnel Management’s (“OPM”) denial of her application for disa bility retirement benefits. Ms. Alexidor alleges that she earned these benefits through her previous employment with the United States Postal Service. Compl. (Docket No. 1). The Complaint contains sparse information, and the “Sta tement of the Claim” section includes only the notation, “NA.” Comp l. A-6. Liberally construed, the Complaint suggests the following claims: (1 ) OPM erred by denying Ms. Alexi dor’s disability retirement application; (2) OPM erred by refusing to correct her record “to reflect disability retirement status”; and possibly (3) the Me rit Systems Protection Board (“M SPB” or “the Board”) erred in upholding OPM’s decision. 1 Compl. A-5. Plaintiff seeks ba ck pay of disability retirement benefits in excess of $10,000, a refund of health benefit premium payments, and the correction of her employment record. Id. at A-7.

1 Courts must “lib erally construe[]” pro se pleadings, and “a pro se complaint, however inartfully pleaded, must be held to less stringent standards th an formal pleadings drafted by lawyers.” Erickson v. Pardus , 551 U.S. 89, 94–95 (2007) (per curiam) (quoting Estelle v. Gamble , 429 U.S. 97, 106 (1976)). However, “there is no ‘duty [on the part] of the trial court to create a claim which [a pl aintiff] has not spelled out in his [or her] pleading.” El v. United States

, 144 Fed. Cl. 741, 748 (Fed. Cl. 2019) (alt eration in original) (citing Lengen v. United States

, 100 Fed. Cl. 317, 328 (Fed. Cl. 2011)). 

# I n the United States Court of Federal Claims

### 2 On February 24, 2022, the Government timely moved to dismiss Plai ntiff’s cl aims for lack of subject matter jurisdiction pursuant to Ru le 12(b)(1) of the Rules of the Court of Federal Claims (“RCFC”). Def.’s Mot. (Docket No. 8). 2 Also before the Court are Plaintiff’s Motion for Leave to Proceed in forma pauperis (Docket No. 3) and Plaintif f’s Motion for Oral Argument (Docket No. 13). For the reasons discussed be low, the Court does not have subject matter jurisdiction over Plaintiff’s clai ms. Accordingly, Defendant’s Motion to Dismiss must be GRANTED

.



### I. Procedural Background

On October 21, 2021, OPM denied Ms. Alexidor’s application for di sability retirement benefits as untimely. Compl. A-5. On October 27, 2021, Ms. Alexidor filed an appeal with the MSPB. Pl.’s Ex. 2 (Docket No. 1-1). On D ecember 2, 2021, after filing a complaint in this Court, Ms. Alexidor filed a motion with the MS PB requesting that the Board stay the action pending resolution of her claims before this Cour t. Pl.’s Ex. 1. The pa rties’ exhibits do not indicate whether the MSPB ruled on this mo tion. Nevertheless, on January 31, 2022, the MSPB issued a ruling affirming OPM’s denial of Ms. Al exidor’s application for disability retirement benefits as untimely. Def.’s Ex. 4 (Docket No. 8-1).



### II. Legal Analysis
The Tucker Act provides this Court jurisdic tion over “any claim agai nst 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 Unite d States, or for liquidated or unliquidated damages in cases not sounding in tort.” 28 U.S.C. § 1491(a)(1). However, a complaint will be dismissed for failure to esta blish jurisdiction under the Tucker Act if the plaintiff “fail[s] to identify a ny statute or regulation that enti tles Plaintiff to receive money damages from the Government.” See
, e.g. , Sindram v. United States , 67 Fed. Cl. 788, 795 (2005). A court has no choice but to dismiss a complaint “in its entirety” when it finds that it lacks subject matter jurisdiction. Arbaugh v. Y&H Corp. , 546 U.S. 500, 502 (2006); see also RCFC 12(h).

Although courts must liberally construe pro se plaintiffs’ filings, pl aintiffs still bear the burden of establishing subject matter jurisdiction by a prepon derance of the evidence. Curry v. United States , 787 F. App’x 720, 722 (Fed. Cir. 2019) (citing Taylor v. United States , 303 F.3d 1357, 1359 (Fed. Cir. 2002); Kelley v. Sec’y, U.S. Dep’t of Labor , 812 F.2d 1378, 1380 (Fed. Cir. 1987)). Here, Plaintiff has not me t this burden and, accordingly, the Court must dismiss her Complaint.

First, the Court cannot rule on Ms. Alexidor’s claims rega rding OPM’s decision because only the MSPB has authority to hear appeals of OPM decisions regarding an employee’s benefits under the Federal Employee Retirement System. See 5 U.S.C. § 8461(e)(1); see also Pueschel v. United States , 297 F.3d 1371, 1378 (Fed. Cir. 2002) (citing McClary v. United States , 775 F.2d 280, 282 (Fed. Cir. 1985)) (stati ng that the Court of Appeals for the Federal Circuit has “long held that the Court of Federa l Claims does not have jurisdic tion over a case that could be

2 Plaintiff did not file a response to Defendant’s Motion to Dismiss.

### 3 heard by the MSPB”). In addition, to the extent Ms. Alexidor is also asking the Court to review the MSPB’s January 31, 2022 ruling affirming OPM’ s decision, this Court lacks jurisdiction to conduct such a review because the Federal Circu it, by statute, has exclusive jurisdiction over appeals of MSPB decisions re garding retirement matters. See 5 U.S.C. § 7703(b)(1); see also Lindahl v. Office of Personnel Management , 470 U.S. 768, 770 (1985).



### III. Conclusion
For the foregoing reasons, Defe ndant’s Motion to Dismiss is GRANTED and the case is DISMISSED with prejudice. Plaintiff’s Motion for Leave to Proceed in forma pauperis is GRANTED for the limited purpose of granting Defenda nt’s Motion to Dismi ss, and Plaintiff’s Motion for Oral argument is DENIED as moot. The Clerk of the Court is directed to enter judgment accordingly.

IT IS SO ORDERED.

s/ 

### Carolyn N. Lerner CAROLYN N. LERNER Jud g e