                         ORIG     NA
         3Jn tbe Wniteb $tates QCourt of jfeberal QClaitns
                                      No. 17-969C
                              (Filed: December 13, 2017)
                                                                                    FILED
                                                                                  DEC t 3 2017
                          )
CLAUDE PHILLIP VINCENT,   )                                                     U.S. COURT OF
                                                                               FEDERAL CLAIMS
                          )
               Plaintiff, )
                                                Motion to Dismiss, RCFC 12(b)(l);
                          )
                                                No Jurisdiction Over Tort,
v.                        )
                                                Discrimination, Criminal, or Veterans
                          )
                                                Benefits Claims; Transfer Would Be
THE UNITED STATES,        )
                                                Futile.
                          )
               Defendant. )
                          )
~~~~~~~~~)

Claude Phillip Vincent, Kernersville, NC, pro se.

David A. Levitt, Trial Attorney, with whom were Chad A. Readler, Acting Assistant
Attorney General, Robert E. Kirschman, Jr., Director, Deborah A. Bynum, Assistant
Director, Commercial Litigation Branch, Civil Division, United States Department of
Justice, Washington, DC, for defendant.

                                        OPINION

CAMPBELL-SMITH, Judge.

      The court has before it defendant's motion to dismiss, filed August 24, 2017,
which is brought pursuant to Rule 12(b)(l) of the Rules of the United States Court of
Federal Claims (RCFC), as well as plaintiffs motion to proceed in forma pauperis, filed
September 1, 2017. Def. 's Mot., ECF No. 8; Pl.'s Mot., ECF No. 9. 1 As regards
defendant's dispositive motion, plaintiff filed a corrected response brief, ECF No. 12,
which was followed by defendant's reply brief, ECF No. 13. The court also permitted
Mr. Vincent to file a sur-reply, ECF No. 15. For the reasons stated below, defendant's
motion is GRANTED, and plaintiffs motion is GRANTED for the limited purpose of
determining this court's jurisdiction over Mr. Vincent's claims.


        All document references and page citations are to the electronic record preserved
in the court's Case Management/Electronic Case Files (CM/ECF) system.




                               7017 1450 DODD 1346 0546
I.     Factual Background2

        Plaintiffs complaint alleges that he did not timely receive his July 2010 benefits
check from the Department of Veterans Affairs (VA), and that his efforts to obtain his
funds were frustrated by criminal and tortious misconduct of VA employees in the
regional VA office in Winston-Salem, North Carolina (VARO). See Comp!., ECF No. 1
at 2-3. Mr. Vincent attaches to the complaint extensive documentation of his efforts to
bring his accusations against these VARO employees to the attention. of various
authorities. See Comp!. App'x, ECF No. 1-1 at 2-39, 44. The prayer for relief contained
in the complaint is a succinct recitation of Mr. Vincent's claims:

       WHEREFORE, the demand for judgment of$350,000.00 should be
       awarded against the United States due to these acts of misconduct of these
       US Department of VA employees in their official roles and put an end to
       these retaliatory criminal violations of law.

ECF No. 1 at 3.

II.    Standard of Review

       A.     Pro Se Litigants

        The court acknowledges that Mr. Vincent is proceeding pro se, and is "not
expected to frame issues with the precision of a common law pleading." Roche v. U.S.
Postal Serv., 828 F.2d 1555, 1558 (Fed. Cir. 1987). Prose plaintiffs are entitled to a
liberal construction of their pleadings. See Haines v. Kerner, 404 U.S. 519, 520 (1972)
(requiring that allegations contained in a pro se complaint be held to "less stringent
standards than formal pleadings drafted by lawyers"). Accordingly, the court has
examined the complaint and plaintiffs briefs thoroughly to discern all of plaintiffs
claims and legal arguments.

       B.     Motions Brought under RCFC 12(b)(l)

       When reviewing a complaint to determine its jurisdiction over a plaintiffs claims,
this court must presume all undisputed factual allegations to be true and construe all
reasonable inferences in favor of the plaintiff. Scheuer v. Rhodes, 416 U.S. 232, 236
(1974), abrogated on other grounds by Harlow v. Fitzgerald, 457 U.S. 800 (1982);
Reynolds v. Army & Air Force Exch. Serv., 846 F.2d 746, 747 (Fed. Cir. 1988) (citations
omitted). However, plaintiff bears the burden of establishing subject matter jurisdiction,

2      The facts recited here are taken from the complaint and the documents attached
thereto, as well as from the facts alleged in plaintiffs corrected response brief, sur-reply
and attached exhibits. See ECF Nos. 1, 1-1, 12, 15.


                                              2
Alder Terrace, Inc. v. United States, 161F.3d1372, 1377 (Fed. Cir. 1998) (citing McNutt
v. Gen. Motors Acceptance Com. oflnd., 298 U.S. 178, 189 (1936)), and must do so by a
preponderance of the evidence, Reynolds, 846 F.2d at 748 (citations omitted). If
jurisdiction is found to be lacking, this court must dismiss the action. RCFC 12(h)(3).

       C.     Tucker Act Jurisdiction

       The Tucker Act delineates this court's jurisdiction. 28 U.S.C. § 1491 (2012).
That statute "confers jurisdiction upon the Court of Federal Claims over the specified
categories of actions brought against the United States." Fisher v. United States, 402
F.3d 1167, 1172 (Fed. Cir. 2005) (en bane) (citations omitted). These include money
damages claims against the federal government founded upon the Constitution, an act of
Congress, a regulation promulgated by an executive department, any express or implied
contract with the United States, or any claim for liquidated or unliquidated damages in
cases not sounding in tort. Id. (citing 28 U.S.C. § 149l(a)(l)).

        The Tucker Act concurrently "waives the Government's sovereign immunity for
those actions." Id. The statute does not, however, create a substantive cause of action or
right to recover money damages in the Court of Federal Claims. Id. "[T]o come within
the jurisdictional reach and the [sovereign immunity] waiver of the Tucker Act, a plaintiff
must identify a separate source of substantive law that creates the right to money
damages." Id. (citations omitted).

        In other words, the source underlying the cause of action must be
money-mandating, in that it '"can fairly be interpreted as mandating compensation by the
Federal Government for the damage sustained."' United States v. Testan, 424 U.S. 392,
400 (1976) (quoting Eastport S.S. Com. v. United States, 372 F.2d 1002, 1009 (Ct. Cl.
1967) and citing Mosca v. United States, 417 F.2d 1382, 1386 (Ct. Cl. 1969)). If the
provision relied upon is found to be money-mandating, the plaintiff need not rely upon a
waiver of sovereign immunity beyond the Tucker Act. Huston v. United States, 956 F .2d
259, 261 (Fed. Cir. 1992) (citing United States v. Mitchell, 463 U.S. 206, 218 (1983)). If,
on the other hand, no money-mandating source supports the cause of action, jurisdiction
is lacking and this court must dismiss the action. See id. at 261-62 (affirming the
dismissal of a claim where the statute relied upon by the plaintiff was not
money-mandating).

II.   Analysis

       A.    In Forma Pauperis Application

      The court rejected Mr. Vincent's first request for leave to proceed in forma
pauperis, ECF No. 3, because the application lacked essential information. See Order,
ECF No. 7. Plaintiff submitted a second application which supplied the missing



                                             3
information. ECF No. 9. The court finds that Mr. Vincent has shown sufficient
economic hardship to proceed in forma pauperis for the limited purpose of determining
the court's jurisdiction over his suit.

       B.     Jurisdictional Analysis

        The complaint seeks compensation for actions taken by the VARO employees
responsible for the administration of Mr. Vincent's veterans benefits, under a variety of
legal theories. The claims presented in the complaint, however, are not within the
jurisdiction of this court. The court first addresses the relevant limits on this court's
jurisdiction as they apply to the allegations presented in the complaint. The court then
turns to the new claim raised in plaintiffs corrected response brief. See ECF No. 12.

              1.      Claims Discerned in the Complaint

       Plaintiff asserts that his civil rights, protected by 42 U.S.C. § 1983 (2012), have
been violated by the VARO employees. ECF No. 1 at 4. Actions for civil rights
violations brought under section 1983 cannot be heard by this court. fh&, Marlin v.
United States, 63 Fed. Cl. 475, 476 (2005) (citations omitted). Thus, plaintiffs claims
based on section 1983 must be dismissed for lack of subject matter jurisdiction.

       Plaintiff also accuses the VARO employees of violations of the mail and wire
fraud criminal statues, titled "Frauds and swindles," 18 U.S.C. § 1341 (2012), and "Fraud
by wire, radio, or television," 18 U.S.C. § 1343 (2012). ECF No. 1at4. This court has
no jurisdiction over claims founded on violations of federal criminal law. Campbell v.
United States, 229 Ct. Cl. 706, 707 (1981). Thus, plaintiff's claims based on sections
1341 and 1343 must be dismissed for lack of subject matter jurisdiction.

        Plaintiff also references the protections against discrimination afforded individuals
with disabilities by the Rehabilitation Act of 1973. ECF No. 1at4; see 29 U.S.C. § 794
(2012). This court cannot review discrimination claims brought under that statute. See,
"'-&, Sageman v. United States, 82 Fed. Cl. 367, 371 (2008) (citation omitted). Thus,
plaintiffs claims based on discrimination prohibited by the Rehabilitation Act of 1973
must be dismissed for lack of subject matter jurisdiction.

        Finally, Mr. Vincent relies on the Federal Tort Claims Act (FTCA), 28 U.S.C.
§ 1346(b)(l) (2012), as a basis for his suit. ECF No. 1 at 4; ECF No. 12 at 4.
Unfortunately for plaintiff, not only are FTCA suits under the exclusive jurisdiction of
the federal district courts, not this court, but tort claims are also specifically excluded
from the jurisdiction of this court by the Tucker Act. See 28 U.S.C. § 1491(a)(l)
(limiting this court's jurisdiction to "cases not sounding in tort"); Rothing v. United
States, 132 Fed. Cl. 387, 390 (2017) (dismissing FTCA claim because of the exclusive
jurisdiction of the federal district courts over FTCA claims). Thus, plaintiffs claims
founded on the FTCA must be dismissed for lack of subject matter jurisdiction.


                                              4
              2.     Claim Raised in Plaintiffs Corrected Response Brief

        In plaintiffs response to the government's jurisdictional arguments presented in
defendant's motion to dismiss, plaintiffrecharacterizes his claim as one for "military
compensation pay." ECF No. 12 at 1, 4-5. Mr. Vincent specifically disavows presenting
a tort claim, a claim based on violations of criminal law, or a discrimination claim. Id. at
4. Rather, plaintiff avers that the question before the court is:

       "[C]an the US Department of Veterans Affairs allow their federal
       employees to illegally withhold military compensation pay for six months
       in defiance of 38 U.S.C. Chapter 11 ?"

Id. at 1; see also ECF No. 15 at 1 ("Can the VA allow its employees to violate the pay
statutes in 37 USC 204 and 38 USC 1110-1118?").

        It is unclear whether plaintiff is attempting to amend his complaint or is trying to
clarify the limited focus of his claims. Neither approach permits this court to reach the
merits of plaintiffs claims. Were the court to consider the complaint to be amended to
assert a claim for military pay under 37 U.S.C. § 204 (2012), ECF No. 12 at 1, that claim
would be frivolous because nowhere in the complaint or plaintiffs briefs is there a
reference to active duty military service within this court's six-year limitations period.
Indeed, Mr. Vincent acknowledges that his military service ended in 1976. Id. at 1.
Plaintiff has thus failed to meet his burden to establish jurisdiction over any military pay
claim that might be stated in his suit before this court.

        An amended complaint founded on Chapter 11 of Title 38 of the United States
Code would also fail to establish jurisdiction in this court for plaintiffs claims. That
chapter is titled "Compensation for Service-Connected Disability or Death," 38 U.S.C. pt.
II, ch. 11 (2012), and plaintiff points specifically to Wartime Disability Compensation,
id.§§ 1110-1118. See ECF No. 12 at 1, 4; ECF No. 15 at 1-2. "This Court does not have
any jurisdiction over veteran[s] benefit claims." West v. United States, 103 Fed. Cl. 55,
63 (2012) (citing Jackson v. United States, 80 Fed. Cl. 560, 565-66 (2008)). Thus, even
if plaintiff recharacterized his suit as one for the recovery of veterans benefits, that claim
would not be within this court's jurisdiction.

        Finally, the court notes that Mr. Vincent suggests that his claim sounds in contract:
"This [veterans benefits] statu[t] e enforces the contract between the parties, the VA and
plaintiff, that authorizes payment for service connected injuries in war time ... conflict
(1972-1976)." ECFNo. 12 at 1; see also ECF No. 15 at 1 ("My complaint on the docket
is about a missing compensation check ... which is declared to be, by Statute, as being
Military Pay that was based on the contractual agreement enforceable by the Military Pay
Statutes due to my being injured while on active duty in war time while serving my
country under the 'Oath of Enlistment' sworn to by the Defendant and Plaintiff upon
entrance in the US Military service."). Binding precedent contradicts this type of


                                              5
jurisdictional allegation: "The Supreme Court has recognized the irrelevance of contract
law for members of the military many times, stating, for example, that 'common-law
rules governing private contracts have no place in the area of military pay."' Schism v.
United States, 316 F.3d 1259, 1271 (Fed. Cir. 2002) (en bane) (quoting Bell v. United
States, 366 U.S. 393, 401 (1961)). There is no contract-based jurisdiction in this court for
military pay or veterans benefits. See id. Thus, plaintiff has failed to establish this
court's jurisdiction over his complaint, despite his invocation of contract law.

        The court is sympathetic with disabled veterans who do not timely receive their
benefit checks. There is no jurisdiction in this court, however, to provide monetary
remedies for such a problem. Mr. Vincent's claim is, by its nature, most accurately
described as a claim for compensation founded on the alleged negligence or other tortious
conduct by VA employees. See Katz v. Cisneros, 16 F.3d 1204, 1207 (Fed. Cir. 1994)
("Regardless of the characterization of the case ascribed by [a plaintiff] in its complaint,
we look to the true nature of the action in determining the existence or not of
jurisdiction.") (citations omitted). Plaintiffs tort claim cannot be heard in this court, for
the reasons explained in this opinion.

III.   Transfer Would Be Futile

        The court considers whether it would be in the interest of justice to transfer this
suit to another federal court. This court's power to transfer cases to a federal district
court is governed by 28 U.S.C. § 1631 (2012):

       Whenever a civil action is filed in a coutt as defined in section 610 of this
       title or an appeal, including a petition for review of administrative action, is
       noticed for or filed with such a court and that court finds that there is a want
       of jurisdiction, the court shall, if it is in the interest of justice, transfer such
       action or appeal to any other such court in which the action or appeal could
       have been brought at the time it was filed or noticed, and the action or
       appeal shall proceed as if it had been filed in or noticed for the court to
       which it is transferred on the date upon which it was actually filed in or
       noticed for the court from which it is transferred.




                                                6
Id. (emphasis added). As defendant notes, the filing date of the complaint in this court
does not fall within the time-window for a timely FTCA suit in a federal district court.
ECF No. 8 at 8. Thus, transfer to a federal district court, where the complaint would be
summarily dismissed on timeliness grounds, is not in the interest of justice. This court
cannot transfer Mr. Vincent's claims to a federal district court.

IV.    Conclusion

       For the reasons stated in this opinion, plaintiffs claims must be dismissed for lack
of subject matter jurisdiction under RCFC 12(b )(1). In addition, transfer of Mr.
Vincent's claims would be futile. Accordingly,

       (1)    The court GRANTS plaintiffs application for leave to proceed in forma
              pauperis, ECF No. 9, filed September 1, 2017, for the limited purpose of
              determining this court's jurisdiction over plaintiffs suit;

       (2)    Defendant's motion to dismiss, ECF No. 8, filed September 1, 2017, is
              GRANTED; and

       (3)    The Clerk of the Court shall ENTER final judgment for defendant,
              DISMISSING plaintiffs complaint, without prejudice.

      IT IS SO ORDERED.



                                             ~h~ PATRICIAG
                                                 Judge




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