Eileen Manning v. United States

N OTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
EILEEN MANNING,
Plaintiff-Appellant
v.
UNITED STATES,
Defendant-Appellee
______________________
2022-1025
______________________
Appeal from the United States Court of Federal Claims
in No. 1:20-cv-01446-KCD, Judge Kathryn C. Davis.
______________________
Decided: March 3, 2022
______________________
EILEEN MANNING, Baltimore, MD, pro se.
MARIANA T ERESA ACEVEDO, Commercial Litigation
Branch, Civil Division, United States Department of Jus-
tice, Washington, DC, for defendant-appellee. Also repre-
sented by BRIAN M. B OYNTON, ELIZABETH MARIE H OSFORD,
P ATRICIA M. MC CARTHY .
______________________
Before N EWMAN, D YK, and REYNA, Circuit Judges.
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MANNING v. US 2
P ER CURIAM .
Eileen Manning appeals a decision of the Court of Fed-
eral Claims dismissing for lack of jurisdiction her com-
plaint for spousal Social Security benefits or enforcement
of an initial Merit Systems Protection Board (“Board” or
“MSPB”) decision. We affirm.
BACKGROUND
In December 1993, Manning retired from the Social Se-
curity Administration (“SSA”) after 40 years of service.
Manning receives a pension based on her earnings while
employed by SSA under the Civil Service Retirement Sys-
tem (“CSRS”).
On July 6, 1998, Manning applied for surviving-spouse
Social Security benefits. The SSA informed Manning that
she was not eligible for Social Security benefits under a law
known as the Government Pension Offset (“GPO”), 42
U.S.C. § 402(k)(5), that reduces a surviving spouse’s Social
Security entitlement by a percentage of the applicant’s gov-
ernment pension.
In December 2015, Manning filed a claim with the Of-
fice of Personnel Management (“OPM”) for surviving
spouse benefits. It appears to be agreed that “[e]mployees
who became eligible for retirement before December 1,
1982 are exempt from the GPO, even if they did not retire
at that time.” MSPB Initial Decision, Dkt. 8, at 23 n.3.
Manning argued to OPM that she was entitled to spousal
benefits and exempt from the GPO reduction because she
would have been eligible for early retirement under the
Voluntary Early Retirement Act (“VERA”) in 1979, which
provided at the time: “An employee who is separated from
the service . . . voluntarily, during a period when the
agency . . . is undergoing a major reduction in force . . . and
who is serving in such geographic areas as may be desig-
nated . . . after completing 25 years of service . . . is entitled
to a reduced annuity.” Pub. L. No. 93-39, 87 Stat. 73
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MANNING v. US 3
(applicable in 1979, codified as 5 U.S.C. § 8336(d)). In ini-
tial and final decisions in January 2016 and February
2017, OPM determined that Manning was ineligible for
early retirement under VERA and thus not exempt from
the GPO reduction. Manning appealed to the Board.
On July 31, 2017, in an initial decision, a Board admin-
istrative judge (“AJ”) held that Manning would have been
eligible for early retirement under VERA, reversing OPM’s
decision. On September 1, 2017, OPM petitioned for review
by the full Board. OPM argued that Manning’s claim for
Social Security benefits was not an appeal of an adminis-
trative action reviewable by the MSPB and that the initial
decision of the AJ should be vacated. OPM’s petition is still
pending before the full Board because the MSPB has not
had a quorum of Board members since the petition was
filed.
On October 19, 2020, with the petition for review at the
MSPB still pending, Manning filed the claim at issue
here—a suit in the Court of Federal Claims, where she
sought an order enforcing the AJ decision, or an award in
the amount of $160,000 for Social Security benefits owed,
plus cost of living adjustments and interest. The court dis-
missed Manning’s complaint, holding it lacked jurisdiction
over both of Manning’s claims.
Manning appeals. We have jurisdiction under
28 U.S.C. § 1295(a)(3).
D ISCUSSION
We review a dismissal for lack of subject matter juris-
diction de novo. Moyer v. United States, 190 F.3d 1314,
1317–18 (Fed. Cir. 1999). A plaintiff must establish subject
matter jurisdiction by a preponderance of the evidence. Es-
tes Exp. Lines v. United States, 739 F.3d 689, 692 (Fed. Cir.
2014).
Insofar as Manning sought Social Security benefits in
the Court of Federal Claims, that court is without
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MANNING v. US 4
jurisdiction to adjudicate claims for Social Security benefits
because Congress has established a specific procedure for
determining such claims at the SSA and in the district
court. Marcus v. United States, 909 F.2d 1470, 1471 (Fed.
Cir. 1990). As to Manning’s other theory that the Court of
Federal Claims could enforce the AJ’s decision, exclusive
authority to review determinations of MSPB AJs resides in
the full Board (where, as here, such review has been
sought) and with this court. 5 U.S.C. § 7703(b); 28 U.S.C.
§ 1295(a)(9).1
The Court of Federal Claims properly concluded that it
had no jurisdiction over either of Manning’s claims.
AFFIRMED
COSTS
No costs.
1 Also, in general, OPM has exclusive jurisdiction to
determine CSRS pension benefits and eligibility for VERA,
5 U.S.C. § 8336 (governing early retirement); § 8347
(granting OPM authority to administer subchapter govern-
ing Civil Service Retirement in §§ 8331–51), and the MSPB
reviews OPM’s determinations regarding benefits,
§ 8347(d)(1). We have no occasion to address OPM’s argu-
ment pending before the full Board that the MSPB lacks
jurisdiction in the circumstances of this case.
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