# In the United States Court of Federal Claims

No. 10

- 157 (Filed: May 17, 2022 )

NOT FOR PUBLICATION

************************************** PETER SOFMAN, et al

. , *

*

Plaintiff s
, *

*

v. *

*

THE UNITED STATES, *

*

Defendant. *

************************************** Pro Se ; Equitable Relief; Tax Refund Claim; Lack of Subject

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

.

Peter Sofman , Stamford, CT

, pro se

.

Jason Bergmann , U.S. Department of Justice, Tax Division, Washington, DC, counsel for

Defendant

.

MEMORANDUM OPINION AND O RDER

DIETZ, Judge

.

T he government seeks to dismiss r equest for relief numbers (3) and (4) of Plaintiffs ’

c omplaint for lack of subject matter jurisdiction pursuant to Rule 12(b)(1) of the Rules of the

United States Court of Federal Claims (“RCFC”)

. The government argues that these “separate (non

- monetary) claims for equitable relief” should be dismissed because the Court is not authorized to award the declaratory and injunctive relief sought by P laintiffs. Def.’s Mot. to

Dismiss at 2 , ECF No. 170 . For the reasons stated below, the government’s motion to dismiss is

GRANT ED

.

This case has a lengthy procedural history, and familiarity with its background is presumed. See

, e.g. , Balestra v. United States , 803 F.3d 1363 (Fed. Cir. 2015) ( affirming the

dismissal of the p laintiffs’ claims); Koopmann v. United States

, 151 Fed. Cl. 336, 337

- 38 (2020), on reconsideration in part

, 151 Fed. Cl. 751 (2021) (dismissing seventeen plaintiffs’ claims for failure to prosecute). Stated b riefly

, this cas e involves a group of retired United Airlines pilots

, proceeding pro se , seeking individual refund s of Federal Insurance Contributions Act ( “ FICA ” )

taxes that were paid on nonqualified deferred compensation benefits , which were never received

due to the bankrupt c y of their employer, United Airlines

. See Compl. at 3

- 5 , ECF No. 1

. I n addition to a refund of overpaid FICA taxes , Plaintiffs also seek:2

(3) J udgment that the statute, [26 U.S.C. §] 3121 (v)(2) is so vague that it does not specifically enumerat e the practices that are either required or prohibited, so the ordinary employer does not know whether the law requires a funded plan and transfer of wealth, or whether a promise of future income is a taxable event . The Regulations force the latter choice on the employer.

(4) Declaratory judgment that excess taxes be refunded to all Retired United Pilots who suffered losses due to the intentionally vague wording of the statute. The Agency should be notified that its interpretation of Title 26 [U.S.C.] § 31 21 (v)(2) is wrong, and ordered to follow 28 U.S.C. § 1346(a)(1) requiring refunds of all [United Airline s ] retirees’ excessively and improperly collected taxes. Such an order would be ancillary to the Court’s de novo disposition of one or more Plaintiff

c laims, and not an independent Declarative Judgment.

Id. at 17 (emphasis and internal citation omitted) . T he government moves to dismiss request for

relief numbers (3) and (4) arguing

, inter alia

, that these requests s eek declaratory and injunctive relief that this Court lacks jurisdiction to award

. 1 Def.’s Mot. to Dismiss at 2. T he Court agrees and accordingly dismisses request for relief number s (3) and (4) of the Complaint

.

The United States Court of Federal Claims has limited jurisdiction. Brown v. United

States , 105 F.3d 621, 623 ( Fed. Cir. 1997). The Court’s jurisdiction is established by the Tucker Act, which states, in relevant part, that this Court :

[S] hall have jurisdiction to render j udgment upon 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 da mages in cases not sounding

in tort.

28 U.S.C. § 1491(a)(1) (20 18 ). The Tucker Act “does not create a substantive cause of action” but rather requires a plaintiff to “identify a substantive source of law that creates the right to recover money damages against the United States.” Rick’s Mushroom Serv. , Inc. v. United

States , 521 F.3d. 1338, 1343 (Fed. Cir. 2008). “ Although a pro se plaintiff’s complaint is held to a less stringent standard than those prepared by counsel, pro se litigants are not excused from meeting jurisdictional requirements.” Spengler v. United States , 68 8 F. App’x 917, 920 (Fed. Cir. 2017) ( internal citations omitted).

This Court does not have authority to grant the equitable relief sought by Plaintiffs in

their request for relief numbers (3) and (4)

. Although this Court has jurisdiction over tax refund claims, Russell v. United States , 78 Fed. Cl. 281, 286 (2007)

, it lacks “independent jurisdiction

1 The government also moves to dismiss on the grounds that requests for relief number (3) and (4) are barred by the

Anti

- Injunction Act and tax exception to the Declaratory Judgment Act, the plaintiffs lack standing to seek the requested injunctive and decl aratory relief, and the plaintiffs’ attempt to request refunds to “all UAL retirees” is an improper attempt to pursue a class action. Def.’s Mot. to Dismiss at 2. Because this Court lacks jurisdiction to grant the requested declaratory relief, the Court do es not reach these additional grounds for dismissal.3

over . . . claims for equitable relief,” except in limited circumstances

. Brown , 105 F.3d at 624.

Under t he Tucker Act, outside of bid protests, e quitable relief is only available when it is
“incidental of and collateral to” a money judgment. See 28 U.S.C. § 1491(a)(2); James v.
Caldera , 159 F.3d 573, 580 (Fed. Cir. 1998). T he Tucker Act further limits the Court’s authority to provide equitable relief that is incidental of and collateral to a money judgment to “ orders directing restoration to office or position, placement in appropriate duty or retirement status, and

correcti on of applicable records .” 28 U.S.C. § 1491(a)(2). Thus, while the Court may consider Plaintiffs’ monetary claims for refund s of overpaid FICA taxes (subject to certain jurisdictional prerequisites)

, the equitable relief requested by Plaintiffs in request s for relief numbers (3) and (4) falls clearly outside of the Court’s jurisdiction

. See Brown , 105 F.3d at 624; Schlabach v.

United States , 97 Fed. Cl. 232, 233

- 34 (2011) ; Marcinkowsky v. United States , 44 Fed. Cl. 610, 613 (1999)

.

The only Plaintiff who is active in this case that respond ed to the government’s motion to

dismiss was Peter Sofman. See Pl.’s Resp. at 7 , ECF No. 182

. A fter conceding to the dismissal of request for relief number (3), Mr. Sofman argue s against dismiss al of request for relief number (4) on the grounds that the IRS’s denial of the Plaintiffs’ due process rights in interpreting and applying § 3121(v)(2) provides a separate source of substantive law that creates a right to money damages. See id. at 2

- 7. T his ar gumen t , however, does not change the wording and substance of request for relief number (4) in the c omplaint, which seeks equitable relief that falls outside of this Court’s jurisdiction. Further, t o the extent Mr. Sofman assert s that request for relief number (4) is intended as a separate claim for monetary relief arising from a denial of due process in relation to the IRS’s handling of the individual tax refund requests

, it is well

- established that due

process violations do not provide th is Court with jurisdiction because the Due Process Clause of

the Fifth Amendment do es not mandate payment of money by the government. See LeBlanc v.

United States , 50 F.3d 1025, 1028 (Fed. Cir. 1995); Collins v. United States , 67 F.3d 284, 288 ( Fed. Cir. 1995) (collecting cases); Wolffing v. United States , 144 Fed. Cl. 626, 639 (2019).

For these reasons
, the government ’s motion to dismiss is GRANTED

. Request for relief

numbers (3) and (4) are dismissed from Plaintiffs’ c omplaint for lack of subject

- matter jurisdiction pursuant to RCFC 12(b)(1).

IT IS SO ORDERED.

s/ Thompson M. Dietz THOMPSON M. DIETZ, Judge