        Jfn tbe fflniteb ~tates ~ourt of jfeberal ~laints
                                         No. 18-8830
                                  (Filed December 20, 2018)
                                  NOT FOR PUBLICATION

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                                           *
                                           *
ANTHONY M. AUGUSTA,                        *
                                           *
                     Plaintiff,            *
              v.                           *
                                           *
THE UNITED STATES,                         *
                                           *
                     Defendant.            *
                                           *
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                     MEMORANDUM OPINION AND ORDER

       The matter before this court is defendant's motion to dismiss this case.
Anthony M. Augusta, acting pro se, brought this action alleging that the
Department of Veteran Affairs (VA) violated his constitutional due process rights
and the Veterans Claims Assistance Act, 38 U.S.C. §5103(a), in its handling of his
claims for service-connected disability. The government moved for a dismissal of
the complaint, pursuant to Rule 12(b)(l) of the Rules of the United States Court of
Federal Claims (RCFC), on the ground that the doctrine of res judicata bars
plaintiff from relitigating these claims. Alternatively, the government moved for
dismissal of the complaint with prejudice on the ground that the court lacks subject
matter jurisdiction over plaintiff's claims. For the reasons stated below, the court
GRANTS defendant's motion to dismiss this case.

                                     I. BACKGROUND

         On April 16, 2018, Mr. Augusta filed his first complaint in this court against
the United States for alleged violations of Fifth Amendment due process rights, the
Veterans' Judicial Review Act, 1 and the Veterans Claims Assistance Act. Compl.
'I[ 1, Augusta v. United States, No. 18-562 (Fed. Cl. Apr. 16, 2018), ECF No. 1
(Augusta I Compl.). Mister Augusta based jurisdiction over his claims on the
Tucker Act, 28 U.S.C. § 1491. Id. 'II 2. According to Mr. Augusta's first complaint in
this court, he initially filed a service-related disability claim with the VA on August

1   Pub. L. No. 100-687, 102 Stat. 4105 (1988).

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2, 2006. Id. ,r 6. Plaintiff subsequently filed claims with the VA multiple times
because, according to plaintiff, the VA illegally denied his claims. Id. Mister
Augusta states in his first complaint that the New York Regional Office of the VA
denied plaintiff's second claim in 2008, for lack of subject matter jurisdiction over
an "1151 Tort Claim." Id. Mister Augusta noted that "[t]his was the same year that
the NY [RO] Regional Office was caught falsifying dates on claims, in order to make
claims appear as if they were being processed in a timely manner," and alleged that
the New York Regional Office "never worked on [his] disability claim" but "[i]nstead
waited one year and sent a denial to a[n] 1151 claim that did not exist". Id. ,r 6.
Plaintiff then filed a third claim with the VA in 2009. Id. This court sua sponte
dismissed Mr. Augusta's first complaint for lack of subject-matter jurisdiction. See
Augusta v. United States (Augusta I), No. 18-562C, 2018 WL 2227779, at *l (Fed.
Cl. May 16, 2018).

       On June 19, 2018, plaintiff filed a nearly identical second complaint in this
court. See, Compl. at 1-4. In his second complaint, plaintiff raises alleged violations
by the United States of his Fifth Amendment due process rights and the Veterans
Claims Assistance Act, as he did in his first complaint, but replaces the alleged
violation of the Veterans' Judicial Review Act with an alleged violation of
Fourteenth Amendment due process rights. Compare Compl. ,r 1 (including an
allegation of violations of due process rights under the Fourteenth Amendment),
with Augusta I Compl. ii 1 (including an allegation that the United States violated
the Veterans' Judicial Review Act). Plaintiff adds an additional ground of
jurisdiction in his new complaint, citing 42 U.S.C. § 1983, and states that the Court
of Appeals for Veterans Claims has no jurisdiction over constitutional arguments.
See Compl. ,r 2. 2 Finally, in his new complaint plaintiff also makes a reference to
veterans' benefits as property interests. See Compl. ,r 6 (stating that, "disability
benefits is [sic] a property right protected under the Fifth and Fourteenth
Amendment[s] of the Constitution"). 3




2Section 1983 does not apply to actions of the federal government, see Hardin v.
United States, No. 15-585C, 2015 WL 6437379, at *4 & n.5 (Fed. Cl. Oct. 22, 2015),
and does not confer jurisdiction on our court, see Khalil v. United States, 133 Fed.
Cl. 390, 392 (2017).

3 To the extent that a claim might be construed as one falling under the Fifth
Amendment Takings Clause, the Court notes that the Federal Circuit has held that
veterans' benefits are not property interests under the Takings Clause. See Schism
v. United States, 316 F.3d 1259, 1268 (Fed. Cir. 2002); see also Adams v. United
States, 391 F.3d 1212, 1225 (Fed. Cir. 2004) (discussing federal employment
benefits generally).
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      The government has moved to dismiss this case on the ground that the claims
are barred by res judicata. Def.'s Mot. at 1. The government alternatively moves to
dismiss the case due to this court's lack of subject-matter jurisdiction. Id.

                                 II. DISCUSSION

A. Applicable Legal Standards

       Under RCFC 12(b)(l), a complaint must be dismissed when the court lacks
jurisdiction over the complaint's subject matter. In considering a motion to dismiss
for want of subject-matter jurisdiction, the court will normally accept as true all
factual allegations made by the pleader and draw all reasonable inferences in a
light most favorable to that party. See Scheuer v. Rhodes, 416 U.S. 232, 236 (1974);
Pixton v. B&B Plastics, Inc., 291 F.3d 1324, 1326 (Fed. Cir. 2002). If the facts
reveal any reasonable basis upon which the non-movant may prevail, dismissal is
inappropriate. See Aerolineas Argentinas v. United States, 77 F.3d 1564, 1572 (Fed.
Cir. 1996). A plaintiff has the burden of establishing the court's jurisdiction over
his claim. See Reynolds v. Army & Air Force Exchange Service, 846 F.2d 746, 747-
48 (Fed. Cir. 1988).

       Pro se litigants are normally allowed great leeway in presenting their claims.
Haines v. Kerner, 404 U.S. 519, 520-21 (1972). Although a court must afford
leniency to the plaintiff who acts in a prose capacity, see, e.g., Castro v. United
States, 540 U.S. 375, 381-82 (2003); Estelle v. Gamble, 429 U.S. 97, 106 (1976);
Haines, 404 U.S. at 520-21, such a party is not exempt from the requirement that
he plead facts sufficient to state a claim within the court's jurisdiction.

       A court must also dismiss a complaint that seeks to relitigate a matter that
another court of competent jurisdiction has already decided. Under the doctrine of
res judicata, a final judgment on the merits of an action precludes the parties or
their privies from relitigating issues that the same parties or privies raised or could
have raised in that action. See, e.g., Allen v. McCurry, 449 U.S. 90, 94 (1980); Int'l
Air Response v. United States, 302 F.3d 1363, 1368 (Fed. Cir. 2002). 4




4 As a technical matter, when the doctrine of res judicata is applied to the question
of jurisdiction it is more appropriately categorized as concerning issue preclusion
instead of claim preclusion. See Chisolm v. United States, 82 Fed. Cl. 185, 199, aff'd,
298 F. App'x 957 (Fed. Cir. 2008). But in any event, the government is correct that
its motion to dismiss this case, based on the doctrine of res judicata, presents a
question regarding our jurisdiction. See, e.g., Verdone v. United States, No. 04-
801C, 2005 WL 6112626, at *3 (Fed. Cl. May 31, 2005).

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B. Jurisdiction

       The Tucker Act confers subject matter jm·isdiction upon this court 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)(l) (2000). The Tucker Act itself,
however, "does not create any substantive right enforceable against the United
States for money damages". United States v. Testan, 424 U.S. 392, 398, reh'g
denied, 425 U.S. 957 (1976)). For a plaintiff to come within the jurisdiction of the
Tucker Act and its waiver of sovereign immunity, that plaintiff must also invoke a
money-mandating federal statute, regulation, contract, or Constitutional provision
"that creates the right to money damages." Fisher v. United States, 402 F.3d 1167,
1172 (Fed. Cir. 2005).

C. Res Judicata Bars this Complaint from Our Jurisdiction

       The complaint filed in this case is nearly identical to the complaint Mr.
Augusta filed in this court on April 16, 2018, which was dismissed for lack of
subject-matter jurisdiction. See Augusta I Compl.; Augusta I, 2018 WL 2227779, at
*2-3. Plaintiff has filed both a response and, with the leave of this Court, a sur-
reply to the points raised in the government's motion to dismiss the case. See Resp.
to Mot. to Dismiss (Pl.'s Resp.), ECF No. 7; Pl.'s Sur-reply, ECF No. 10. His
response to the government's motion serves to generally reassert the claims stated
in his complaint and to note the liberal pleading standards afforded to plaintiffs.
See Pl.'s Resp. at 1-5. In plaintiff's sur-reply, he at least mentions the relevant
prongs under res judicata and collateral estoppel, but he does not seriously contend
that his claims are not barred by the application of these doctrines. See Pl.'s Sur-
reply at 1-4. Nevertheless, in light of Mr. Augusta's prose status, the Court has
undertaken the analysis to determine whether his claims are barred by res judicata.

       Plaintiff unquestionably seeks to relitigate his claims that the VA's denials of
his service-related disability applications constituted violations of his due process
rights under the Fifth Amendment and of the Veterans Claims Assistance Act, 38
U.S.C. §5103(a). Compl. ,1 1. He also now alleges that these same denials by the
VA amounted to a violation of his due process rights under the Fourteenth
Amendment. Id. The first two claims were already decided against him on the
basis of subject matter jurisdiction in this court. See Augusta I, 2018 WL 2227779,
at *2-3. Mister Augusta is thus barred from relitigating the issue of subject-matter
jurisdiction of these claims, which he brought in his first action. See, e.g., Int'lAir
Response, 302 F.3d at 1368. The third claim he raises as to due process under the
Fourteenth Amendment relates to the same underlying facts about the VA's denials
of his applications for service-related disability and is thus also barred by the
doctrine of res judicata. Id. Accordingly, the court may not exercise jurisdiction

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because the matter of jurisdiction has already been determined by our court in a
final judgment. Id. Dismissal is thus required on this basis.

D. The Court Lacks Jurisdiction over Plaintiff's Claims

       Were the court not barred by the doctrine of res judicata from revisiting the
question of our court's jurisdiction, it would still be compelled to find a lack of
jurisdiction over the subject matter of this case. Plaintiff raises claims of due
process violations under the Fifth and Fourteenth Amendments. Compl. ii 1.5 But
the Due Process clauses of the Fifth and Fourteenth Amendments are not money-
mandating, and thus their violation would not be within our court's jurisdiction.
See LeBlanc v. United States, 50 F.3d 1025, 1028 (Fed. Cir. 1995) (holding that the
Due Process clause of Fifth and Fourteenth Amendments are not money-
mandating).6

       Plaintiff also alleges a violation of the Veterans Claim Assistance Act, 38
U.S.C. §5103(a). CompL ,ii. But this also falls outside of our court's jurisdiction.
After a VA Regional Office has made a decision, the Secretary and the Board of
Veterans' Appeals review such decisions. 28 U.S.C § 7104(a). It is then reviewed by
the Court of Appeals for Veterans Claims, which has "exclusive jurisdiction"
regarding decisions of the Board of Veteran's Appeals. 38 U.S.C. 7252(a). This
court has repeatedly held that it lacks jurisdiction over veterans' disability benefits.
See Janaskie v. United States, 77 Fed. CL 654, 657-58 (2007); Sullivan v. United
States, 46 Fed. CL 480, 487 (2000).

       For these reasons, the Court finds that it lacks subject-matter jurisdiction
over the allegations in Mr. Augusta's complaint. Thus, dismissal is required.

                                 III. CONCLUSION

        Because the court lacks subject matter jurisdiction over the plaintiffs' claims,
the government's motion to dismiss this case is hereby GRANTED. Plaintiff's
application to proceed in forma pauperis is also GRANTED. The Clerk shall close
the file.

• The Court notes that the first section of the Fourteenth Amendment, which
includes the Due Process clause, does not restrict the federal government. See San
Francisco Arts & Athletics, Inc. v. United States Olympic Comm., 483 U.S. 522, 542
n.21 (1987).

s The Due Process Clause of the Fifth Amendment may only be a basis for our
jurisdiction when a claim concerns an illegal exaction. See Aerolineas Argentinas v.
United States, 77 F.3d 1564, 1573 (Fed. Cir. 1996); Coleman v. United States, No.
13-431, 2014 WL 949984, at *3 (Fed. CL Mar. 7, 2014). Plaintiff alleges no such
claim in this case.
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IT IS SO ORDERED.




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