NOT FOR PUBLICATION 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 Attorney 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 the Office of Personnel Management’s (“OPM”) 

denial of her application for disability 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 “Statement of the Claim” 

section includes only the notation, “NA.” Compl. A-6. Liberally construed, the Complaint 

suggests the following claims: (1) OPM erred by denying Ms. Alexidor’s disability retirement 

application; (2) OPM erred by refusing to correct her record “to reflect disability retirement 

status”; and possibly (3) the Merit Systems Protection Board (“MSPB” or “the Board”) erred in 

upholding OPM’s decision.1 Compl. A-5. Plaintiff seeks back 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 “liberally construe[]” pro se pleadings, and “a pro se complaint, however 

inartfully pleaded, must be held to less stringent standards than 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 plaintiff] has not spelled out in his [or her] pleading.” El v. United States, 

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

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

In the United States Court of Federal Claims
2 

On February 24, 2022, the Government timely moved to dismiss Plaintiff’s claims for 

lack of subject matter jurisdiction pursuant to Rule 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 Plaintiff’s Motion for Oral Argument 

(Docket No. 13). For the reasons discussed below, the Court does not have subject matter 

jurisdiction over Plaintiff’s claims. Accordingly, Defendant’s Motion to Dismiss must be 

GRANTED. 

I. Procedural Background 

On October 21, 2021, OPM denied Ms. Alexidor’s application for disability 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 December 2, 2021, after filing a complaint in this 

Court, Ms. Alexidor filed a motion with the MSPB requesting that the Board stay the action 

pending resolution of her claims before this Court. Pl.’s Ex. 1. The parties’ exhibits do not 

indicate whether the MSPB ruled on this motion. Nevertheless, on January 31, 2022, the MSPB 

issued a ruling affirming OPM’s denial of Ms. Alexidor’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 jurisdiction over “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. § 1491(a)(1). However, a 

complaint will be dismissed for failure to establish jurisdiction under the Tucker Act if the 

plaintiff “fail[s] to identify any statute or regulation that entitles 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, plaintiffs still bear the 

burden of establishing subject matter jurisdiction by a preponderance 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 met this burden and, accordingly, the Court must 

dismiss her Complaint. 

First, the Court cannot rule on Ms. Alexidor’s claims regarding 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)) (stating that the Court of Appeals for the Federal Circuit has

“long held that the Court of Federal Claims does not have jurisdiction 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 Circuit, by statute, has exclusive jurisdiction over 

appeals of MSPB decisions regarding 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, Defendant’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 Defendant’s Motion to Dismiss, 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 

Judge