In the United States Court of Federal Claims

No. 13-49 C

(Filed: April 22, 2013)

* * * * * * * * * * * * * * * * * * * * * *

RICHARD LEE PAIVA,

Plaintiff,

v.

THE UNITED STATES,

Defendant.

* * * * * * * * * * * * * * * * * * * * * *

ORDER

1

Plaintiff, Richard Lee Paiva, is a prisoner within the Rhode Island

Department of Corrections. He filed his complaint here on January 18, 2013.

In it he challenges a Social Security Administration (“SSA”) decision to

suspend his benefits. SSA recently informed plaintiff that it cannot pay him

until he is released from prison, citing the No Social Security Benefits for

Prisoners Act of 2009, Pub. L. No. 111-115, 123 Stat. 3029 (2009) (hereinafter

“the Act”). Plaintiff asserts that before the Act took effect, SSA determined

that it owed him benefits, and it made a payment. He contends the Act

therefore does not apply to him. Before the court is defendant’s motion to

dismiss for lack of jurisdiction.

2

 The facts are drawn from the complaint and plaintiff’s motion to amend the

1

complaint.

After defendant filed its motion, plaintiff filed a motion to amend the

2

complaint. The proposed changes do not invoke the court’s jurisdiction. The

plaintiff’s motion to dismiss is denied as moot.
Defendant correctly notes that only United States district courts have

jurisdiction to review claims for Social Security benefits. See 42 U.S.C. §

405(g), (h) (2006). The Tucker Act grants the Court of Federal Claims

jurisdiction to hear claims against the United States for money, 28 U.S.C.

1491(a)(1) (2006), but the court “has no jurisdiction under the Tucker Act over

claims to social security benefits.” Marcus v. United States, 909 F.2d 1470,

1471 (Fed. Cir. 1990) (internal citation omitted). We therefore do not have

jurisdiction over plaintiff’s complaint.

Nor will we transfer the complaint. A transferee court, in this case the

district court, must have jurisdiction for that to be appropriate. See 28 U.S.C.

§ 1631. Although district courts have subject matter jurisdiction over these

types of claims, jurisdiction only attaches under limited circumstances not

alleged here. The claimant either must obtain a final decision from SSA, see

42 U.S.C. 405(g), file a mandamus petition, see 28 U.S.C. § 1361, or assert

3

a constitutional violation, see Califano v. Sanders, 430 U.S. 99, 109 (1977).

4

The court also notes that transfer would appear to be futile in any event.

In Fowlkes v. Thomas, 667 F.3d 270 (2d Cir. 2012), a prisoner appealed the

denial of his post-judgment motion. The prisoner, who became entitled to

benefits before the Act took effect, had requested an order that would force

SSA to pay him. Id. at 270-71. The court of appeals held that SSA could not

make “any payment to an incarcerated individual.” Id. at 271. Those prisoners

are “covered by the Act, regardless of when the underlying obligation to pay

the individual arose.” Id.

Accordingly, defendant’s motion to dismiss is granted. The plaintiff’s

motion to dismiss is denied as moot. The Clerk of Court is directed to dismiss

A court may grant a waiver of the final decision requirement. See

3

Weinberger v. Salfi, 422 U.S. 749, 766-67 (1975). That waiver must be

granted by the district court.

Plaintiff states that he has no administrative remedy with SSA because the

4

agency only suspended his benefits rather than made a formal decision that

denied them. The regulations provide, however, that “[n]onpayment of your

benefits . . . because of your confinement in a jail, prison, or correctional

facility,” 20 C.F.R. § 404.902(t) (2012), is an “[i]nitial determination . . .

subject to administrative and judicial review.” Id. § 404.902.

2
the complaint for lack of jurisdiction and enter judgment for defendant. No

costs.

___________________

ERIC G. BRUGGINK,

Judge

3