909 F2d 1470 Marcus v. United States

909 F.2d 1470

30 Soc.Sec.Rep.Ser. 582, Unempl.Ins.Rep. CCH 15825A
Gilbert L. MARCUS, Plaintiff-Appellant,
The UNITED STATES, Defendant-Appellee.

No. 90-5049.

United States Court of Appeals,
Federal Circuit.

July 30, 1990.

Gilbert L. Marcus, pro se.

Steven J. Gillingham, Dept. of Justice, Washington, D.C., for defendant-appellee. With him on the brief were Stuart M. Gerson, Asst. Atty. Gen., David M. Cohen, Director, and Thomas W. Petersen, Asst. Director, of counsel were Donald A. Gonya, Chief Counsel, Office of the Gen. Counsel, Social Sec. Admin., A. George Lowe, Deputy Chief Counsel and Robert Crowe.

Before NIES, Chief Judge,* BENNETT, Senior Circuit Judge, and BREWSTER, Judge.**

NIES, Chief Judge.

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Gilbert L. Marcus appeals from the Claims Court's order, Marcus v. United States, No. 688-89 C (December 20, 1989) (Bruggink, J.), dismissing his claim for lack of jurisdiction. Although entitled a "Writ of Habeas Corpus Ad Respondum", appellant seeks a reversal of the decision by the Commissioner of Social Security denying an award of social security disability benefits. Construing appellant's pleading in a light most favorable to him, that is, as a claim for social security disability benefits, we hold that the Claims Court has no jurisdiction under the Tucker Act, 28 U.S.C. Sec. 1491(a)(1) (1988), over claims to social security benefits, even considering appellant's assertions that he is entitled to relief under the Constitution. See Weinberger v. Salfi, 422 U.S. 749, 756-767, 95 S.Ct. 2457, 2462-2467, 45 L.Ed.2d 522 (1975); (42 U.S.C. Secs. 405(g) and (h) (1982) require that action for social security benefits must be brought in district court); cf. Alabama Hospital Ass'n v. United States, 228 Ct.Cl. 176, 656 F.2d 606 (1981). The judgment of the Claims Court is, therefore,




Chief Judge Nies assumed the position of Chief Judge on June 27, 1990


Judge Rudi M. Brewster of the United States District Court for the Southern District of California, sitting by designation