     In the United States Court of Federal Claims
                         NOT FOR PUBLICATION
                               No. 12-518C
                          (Filed: April 15, 2013)


**********************

BRADFORD METCALF,

                     Plaintiff,

v.

THE UNITED STATES,

                     Defendant,

**********************




                              _______________

                                 OPINION
                              _______________


BRUGGINK, Judge.

        This is a challenge to the reduction in veterans benefits that follows
after a disabled veteran is convicted of a felony and incarcerated. Plaintiff,
Bradford Metcalf, who appears pro se, filed a complaint in this court on
August 17, 2012, asserting, pursuant to statute and regulation, that he is not
receiving the correct amount of disability benefits and that the Bureau of
Prisons (“BOP”) wrongfully applied portions of his disability benefits to cover
his court costs and fines. In response, defendant filed a motion to dismiss for
lack of subject matter jurisdiction and for failure to state a claim for which
relief may be granted. The motion is fully briefed. Oral argument is
unnecessary. For the reasons described below, we grant defendant’s motion
to dismiss.
                              BACKGROUND 1

        Mr. Metcalf entered into military service in 1970. In 1972, Mr. Metcalf
was honorably discharged. At some point during his military career, Mr.
Metcalf was injured or developed a disease. In 1973, Mr. Metcalf applied to
the Department of Veterans Affairs (“VA”) for and was granted disability
benefits. The VA found that Mr. Metcalf was 10 percent disabled and
plaintiff’s disability benefits reflected that rate.

        In 1998, Mr. Metcalf was convicted of a felony and incarcerated.
Subsequently, the VA sent Mr. Metcalf a letter explaining that due to his
incarceration, his benefits would be reduced by 50 percent beginning on July
25, 1999, pursuant to regulation. This letter is stamped with a date of February
15, 2000. The amount of benefits that Mr. Metcalf received from the VA was
subsequently reduced. On November 27, 2001, Mr. Metcalf responded to the
letter and asked the VA to send him the text of the statute or regulation that
authorized the reduction in benefits. The VA sent Mr. Metcalf a letter on
January 31, 2003, which states that the applicable regulation was attached.
Mr. Metcalf asserts that the regulation was not attached. More than three years
after receiving the VA’s letter, Mr. Metcalf again inquired of the VA for the
text of the statute or regulation that granted authority to reduce his disability
benefits. Mr. Metcalf finally received a letter from the VA on March 18, 2008,
which cited the Code of Federal Regulations, Title 38, section 3.665 as the
relevant authority. Plaintiff was able to use that citation to obtain the text of
the regulation and corresponding statute through the prison’s computerized law
library.

       The relevant statute is 38 U.S.C. § 5313, which provides the following:

       [A]ny person who is entitled to compensation . . . and who is
       incarcerated in a Federal, State, local, or other penal institution
       or correctional facility for a period in excess of sixty days for
       conviction of a felony shall not be paid such compensation . . .
       for the period beginning on the sixty-first day of such



       1
        The facts are taken from plaintiff’s filings and are presumed correct.
We draw all reasonable inferences in plaintiff’s favor for the purposes of
defendant’s motion to dismiss. Henke v. United States, 60 F.3d 795, 797 (Fed.
Cir. 1995).

                                       2
       incarceration and ending on the day such incarceration ends, in
       an amount that exceeds—
       (A) in the case of a veteran with a service-connected disability
       rated at 20 percent or more, the rate of compensation payable
       under section 1114(a) of this title; or
       (B) in the case of a veteran with a service-connected disability
       not rated at 20 percent or more . . . one-half of the rate of
       compensation payable under section 1114(a) of this title.

38 U.S.C. § 5313(a)(1) (2006).2

       Section 1114(a) of Title 38 sets the rate of compensation referred to in
subparagraphs A and B above at $123 per month. 38 U.S.C. § 1114(a) (2006
& Supp. V 2011). The net effect of 38 U.S.C. § 5313, in conjunction with 38
U.S.C. § 1114(a), is that an incarcerated felon who has a disability rating of
less than 20 percent (like Mr. Metcalf) will only receive half of $123 per
month after the first sixty days of incarceration, until he or she is released.3

       Under 38 C.F.R. § 3.665, which implements 38 U.S.C. § 5313, veterans
disability benefits will be reduced if the incarcerated person is any one of the
following:

       (1) A person serving a period of incarceration for conviction of
       a felony committed after October 7, 1980.



       2
         There is no significant difference between 38 U.S.C. § 5313 (1993),
which was the version of the statute in effect when plaintiff’s disability
benefits were first reduced, and the current version of the statute.
       3
          Although 38 U.S.C. § 5313 sets the standard rate of disability benefits,
it is not the only statute, regulation, or circumstance that affects the amount of
money the incarcerated veteran ultimately receives. For example, plaintiff
alleges that some of his benefits have been withheld by the BOP to offset court
costs and fines through the BOP’s Financial Responsibility Program. See 18
U.S.C. § 3613 (2006) (permitting the United States to “enforce a judgment
imposing a fine” against “all property or rights to property of the person fined”
and describing as liens fines applied during sentencing pursuant to 18 U.S.C.
§ 3571 and restitution assessed under 18 U.S.C. §§ 2248, 2259, 2264, 2327,
3663, 3663A, or 3664).

                                        3
       (2) A person serving a period of incarceration after September
       30, 1980 (regardless of when the felony was committed) when
       the following conditions are met:
               (i) The person was incarcerated on October 1,
               1980; and
               (ii) An award of compensation . . . is approved
               after September 30, 1980.
       (3) A veteran who, on October 7, 1980, was incarcerated in a
       Federal, State, or local penal institution for a felony committed
       before that date, and who remains so incarcerated for a
       conviction of that felony as of December 27, 2001.

38 C.F.R. § 3.665(c) (2012).

        On March 10, 2009, Mr. Metcalf filed a claim with the VA asserting
that 38 U.S.C. § 5313 and 38 CFR § 3.665 had been misapplied. Plaintiff
sought approximately $6,000 in unpaid disability benefits because, he claimed,
the language of the statute and regulation did not apply to someone who began
receiving disability benefits prior to September 30, 1980. The VA denied
plaintiff’s claim on June 30, 2009, with the following explanation:

       Title 38 Code of Federal Regulations § 3.665(c) has two related
       clauses. As you pointed out, 3[.]665(c)(2) relates to awards of
       compensation made on or after September 30, 1980. However,
       3.665(c)(1), which applies to “a person serving a period of
       incarceration for a conviction of a felony committed after
       October 7, 1980,” relates specifically to your case where an
       award of compensation was made at any point and the veteran
       was incarcerated after October 7, 1980.

       The evidence shows that you were granted compensation
       benefits prior to September 30, 1980 and were incarcerated after
       October 7, 1980. Therefore, Title 38 Code of Federal
       Regulations § 3.665(c)(1) applies and the adjustment to your VA
       benefits is required by federal law.

Pl.’s Resp. to Def.’s Mot. to Dismiss Ex. I1. This letter contained an
attachment explaining the process plaintiff could follow if he disagreed with
the VA’s determination.



                                      4
        Mr. Metcalf asserted his disagreement with the VA’s decision in a letter
dated July 22, 2009. In response, the VA sent a letter to plaintiff dated
September 23, 2009, which further explained how to appeal. Then, on March
2, 2010, the VA sent a letter to Mr. Metcalf stating that it had erred by
providing Mr. Metcalf with information on how to appeal the June 30, 2009
letter because that letter was only informational and not decisional. The VA
explained that the action to reduce Mr. Metcalf’s benefits was taken ten years
earlier and, at that time, Mr. Metcalf was provided notice of such action and
his appeal rights. Mr. Metcalf had been given until September 18, 2001 to
appeal but he had not done so. In his March 17, 2010 letter, Mr. Metcalf
attempted to reassert his appeal and insisted that the agency had dealt
fraudulently with him, and that it did not became apparent to him until he
gained access to the statutes and regulations. There was no further
correspondence from the VA.

       Plaintiff filed his petition in this court on August 17, 2012, seeking
review of the VA’s action reducing his benefits. Plaintiff also requests back
pay in the amount of approximately $12,000, a determination that his future
benefits should be assessed at the 10-percent rate, and an order directing the
BOP to cease withholding portions of his disability benefits. We are unable
to grant plaintiff the relief he seeks for the reasons explained below.

                                 DISCUSSION

I.     Jurisdiction

        We read plaintiff’s complaint as articulating five theories for why he
should prevail. See Haines v. Kerner, 404, U.S. 519, 520 (1972) (stating that
general allegations made by a pro se plaintiff are held to a “less stringent
standard[] than formal pleadings drafted by lawyers”). “While a pro se
plaintiff is held to a less stringent standard than that of a plaintiff represented
by an attorney, the pro se plaintiff, nevertheless, bears the burden of
establishing the Court’s jurisdiction by a preponderance of the evidence.”
Riles v. United States, 93 Fed. Cl. 163, 165 (2010) (citing Hughes v. Rowe,
449 U.S. 5, 9 (1980); Taylor v. United States, 303 F.3d 1357, 1359 (Fed. Cir.
2002)); see Henke, 60 F.3d at 799 (“The fact that [plaintiff] acted pro se in the
drafting of his complaint may explain its ambiguities, but it does not excuse
its failures, if such there be.”). We must determine whether we have
jurisdiction over any of plaintiff’s claims.



                                        5
        Under the Tucker Act, we have limited jurisdiction to adjudicate “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)(1)
(2006). While the Tucker Act constitutes a waiver of sovereign immunity, it
does not give rise to a substantive cause of action. See United States v.
Mitchell, 463 U.S. 206, 216 (1983). “[I]n order to come within the
jurisdictional reach and the waiver of the Tucker Act, a plaintiff must identify
a separate source of substantive law that creates the right to money damages.”
Fisher v. United States, 402 F.3d 1167, 1172 (Fed. Cir. 2005) (en banc). A
source of law is money-mandating if it is “reasonably amendable to the reading
that it mandates a right of recovery in damages.” United States v. White
Mountain Apache Tribe, 537 U.S. 465, 473 (2003). Additionally, a plaintiff
must make “a non-frivolous assertion that it is within the class of plaintiffs
entitled to recover under the money-mandating source.” Jan’s Helicopter
Serv. Inc. v. Fed. Aviation Admin., 525 F.3d 1299, 1307 (Fed. Cir. 2008). In
sum, we have jurisdiction when a claim falls within the waiver of sovereign
immunity described in the Tucker Act, if that claim is based on a substantive
money-mandating source of law, and if plaintiff is within the class that is
entitled to recover under that source of law.

        First, plaintiff claims that the VA did not treat prisoners consistently in
calculating veterans benefits. The basis for his claim is that 38 U.S.C. § 5313
awards higher payments to those with a disability rating of 20 percent or more.
He asserts that this constitutes a violation of the Constitution, specifically, the
Equal Protection Clause of the Fourteenth Amendment. That provision has
been held not to be money-mandating, however, and therefore it cannot be the
basis of our jurisdiction. LeBlanc v. United States, 50 F.3d 1025, 1028 (Fed.
Cir. 1995); see Davis v. United States, 36 Fed. Cl. 556, 559 (1996) (holding
that this court lacked jurisdiction to adjudicate plaintiff’s due process claims
because the source of law was not money-mandating and constitutional claims
based on the VA’s actions regarding disability benefits may be pursued only
through the VA’s established process).4



       4
         Insofar as plaintiff’s first argument could be described as challenging
the VA’s practice of calculating the reduced rate of disability benefits for
incarcerated felons, that claim would fail to generate jurisdiction in this court
for the same reasons that we lack jurisdiction over plaintiff’s third argument.

                                        6
       Plaintiff’s second claim is that the BOP violated 38 U.S.C. §
5301(a)(1), when it began withholding a portion of his benefits. That code
section provides the following:

       Payments of benefits due or to become due under any law
       administered by the Secretary shall not be assignable except to
       the extent specifically authorized by law, and such payments
       made to, or on account of, a beneficiary shall be exempt from
       taxation, shall be exempt from the claim of creditors, and shall
       not be liable to attachment, levy, or seizure by or under any legal
       or equitable process whatever, either before or after receipt by
       the beneficiary. The preceding sentence shall not apply to
       claims of the United States arising under such laws . . . .

38 U.S.C. § 5301(a)(1) (2006) (emphasis added). Plaintiff requests that we
enjoin the BOP from garnishing his VA benefits. Apparently some of the
amounts withheld offset plaintiff’s court costs and fines.5

       As defendant correctly points out, we lack jurisdiction to grant the
equitable relief that plaintiff seeks. “Except in strictly limited circumstances,
see 28 U.S.C. § 1491(b)(2), there is no provision in the Tucker Act authorizing




       5
          To the extent that plaintiff were to request a refund for monies
withheld by the BOP under a theory of illegal exaction, we would have
jurisdiction to hear such a claim. Norman v. United States, 429 F.3d 1081,
1095 (Fed. Cir. 2005); Eastport S.S. Corp. v. United States, 372 F.2d 1002,
1007 (Ct. Cl. 1967) (describing an illegal exaction claim as one that “assert[s]
that the value sued for was improperly paid, exacted, or taken from the
claimant in contravention of the Constitution, a statute, or a regulation”).
Rather than giving plaintiff a basis for making a claim against the government,
however, 38 U.S.C. § 5301(a)(1) and 18 U.S.C. § 3613 have the opposite
effect. They eliminate any bar to the Federal Government attaching or seizing
VA benefits. Additionally, the claim appears to be barred by the statute of
limitations. The main events that plaintiff complains of began in 1999.
Plaintiff has not alleged the specific date of garnishment. In light of
defendant’s assertion that the limitations period has run, and plaintiff’s burden
of proof on this issue, we are entitled to assume that the limitations period has
run. See discussion infra Part II.

                                       7
the Court of Federal Claims to order equitable relief.” Massie v. United States,
226 F.3d 1318, 1321 (Fed. Cir. 2000).

       Plaintiff’s third argument is the same one that he asserted before the
VA, namely that 38 U.S.C. § 5313 and 38 C.F.R. § 3.665 were misapplied 6 in
his case because he began receiving disability benefits before September 30,
1980. Defendant asserts that “Congress precludes courts, other than the
Veterans Court or the Federal Circuit, from reviewing [] veterans benefit
determinations.” Def.’s Mot. to Dismiss 3-4. Defendant’s argument is
grounded in 38 U.S.C. § 511, which provides:

       (a) The Secretary [of Veterans Affairs] shall decide all questions
       of law and fact necessary to a decision by the Secretary under a
       law that affects the provision of benefits by the Secretary to
       veterans or the dependents or survivors of veterans. Subject to
       subsection (b), the decision of the Secretary as to any such
       question shall be final and conclusive and may not be reviewed
       by an other official or by any court, whether by an action in the
       nature of a mandamus or otherwise.

38 U.S.C. § 511(a). We have “‘repeatedly held that [the United States Court
of Federal Claims] has no jurisdiction to hear claims for denial of veterans
benefits.’” Smalls v. United States, 87 Fed. Cl. 300, 306 (2009) (quoting
Jackson v. United States, 80 Fed. Cl. 560, 566 (2008) (citing Ferreiro v.
United States, 72 Fed. Cl. 1, 6 (2006) aff’d 501 F.3d 1349 (Fed. Cir. 2007);
Van Allen v. United States, 66 Fed. Cl. 294, 296 (2005))); see United States v.
Bournes, 133 S. Ct. 12, 18 (2012) (“The Tucker Act is displaced, however,
when a law assertedly imposing monetary liability on the United States
contains its own judicial remedies.”). Instead, the VA, which administers
veterans benefits, receives the veteran’s application, decides whether and at
what rate to pay disability benefits, and processes the veteran’s disagreement



       6
        Plaintiff actually uses the word “fraud” to describe the manner in
which 38 U.S.C. § 5313 and 38 C.F.R. § 3.665 were applied to his case. A
claim for fraud sounds in tort. See Brown v. United States, 105 F.3d 621, 623
(Fed. Cir. 1997). The Tucker Act explicitly excludes causes of actions
sounding in tort from its waiver of sovereign immunity. 28 U.S.C. §
1491(a)(1). Thus, we do not have jurisdiction to entertain plaintiff’s claims of
fraud. Brown, 105 F.3d at 623.

                                       8
with said decision. 38 U.S.C. § 511(a); see Smalls, 87 Fed. Cl. at 306
(describing the procedure for appealing a decision regarding veterans benefits).
The veteran must assert his disagreement and appeal within one year. 38
U.S.C. § 7105(b)(1). In response to the veteran’s disagreement with the initial
determination, the Board of Veterans Affairs will reevaluate the claim and
issue a final decision. 38 U.S.C. § 7104. If the veteran is not satisfied with the
decision of the Board of Veterans Affairs, he may exercise his right to appeal
within 120 days to the Court of Appeals for Veterans Claims. 38 U.S.C. §§
7252, 7266. Some unfavorable decisions may then be appealed to the Court
of Appeals for the Federal Circuit. 38 U.S.C. § 7292; see Wanless v. Shinseki,
618 F.3d 1333, 1334-36 (Fed. Cir. 2010) (affirming the Court of Appeals for
Veterans Claims’ decision maintaining plaintiff’s reduction in disability
benefits due to his status as an incarcerated felon). Noticeably absent from this
sequence of appeals is review by the United States Court of Federal Claims.
See Jackson v. United States, 242 F. App’x 698, 700-701 (Fed. Cir. 2007) (per
curiam) (citing Van Allen, 66 Fed. Cl. at 295-96). Thus, we do not have
jurisdiction to assess the merits of plaintiff’s claim that the VA misapplied the
law when it reduced his disability benefits.

        Fourth, plaintiff argues that 38 C.F.R. § 3.665 is void for vagueness.
As defendant points out, any direct challenge to the regulation pursuant to 38
U.S.C. § 502 should have been directed to the Court of Appeals for the Federal
Circuit: “An action for judicial review under 38 U.S.C. § 502 of a rule or
regulation of the Department of Veterans Affairs must be filed with the clerk
within 60 days after issuance of the rule or regulation or denial of a request for
amendment or waiver of the rule or regulation.” United States Court of
Appeals for the Federal Circuit Rules of Practice, Rule 47.12 (2011). Again,
plaintiff’s theory is not properly before this court. See Davis v. United States,
36 Fed. Cl. 556, 559 (1996).

        Finally, plaintiff alleges that the United States Government is
contractually obligated to pay plaintiff the full amount of his VA benefits
because he signed a contract when he entered the military in 1970 and because
38 U.S.C. § 5313 had not been adopted at that time and was therefore not part
of the contractual “bargain.” Persons who entered into military service at that
time expected to receive disability benefits under the conditions established as
of 1970, according to plaintiff. Plaintiff characterizes 38 U.S.C. § 5313 as an
ex post facto law which should not bind him because he did not have the
opportunity to consider its significance when he entered the military.



                                        9
        Although defendant does not directly respond to this argument, we need
no assistance in discerning its shortcomings. The assertion that 38 U.S.C. §
5313 is an improper ex post facto law amounts to a direct challenge to the
constitutionality of the statute and thus is not a claim based on enforcement of
veterans benefit provisions to obtain money. We therefore do not possess
jurisdiction to entertain such an argument. See LeBlanc, 50 F.3d at 1028. In
any event,“The only specific bar in the Constitution is against ex post facto
criminal laws.” Hosp. Data Ctr. of S.C., Inc. v. United States, 225 Ct. Cl. 158,
163 n.9 (1980) (citing U.S. Const. art. I, § 9, cl. 3; Ky. Union Co. v. Kentucky,
219 U.S. 140, 153 (1911)). Perhaps more basically, while we have jurisdiction
over general claims based on a contract with the United States, 28 U.S.C. §
1491(a)(1), plaintiff’s right to receive disability benefits is fixed by statute and
not by contract. See United States v. Larionoff, 431 U.S. 864, 869 (1977)
(“[T]he rights of affected services members must be determined by reference
to the statutes and regulations . . . rather than ordinary contract principles.”);
Bell v. United States, 366 U.S. 393, 401 (1961) (“[C]ommon-law rules
governing private contracts have no place in the area of military pay. A
soldier’s entitlement to pay is dependent upon statutory right.”). Finally, as we
explain below, the statute of limitations prevents us from exercising any
jurisdiction we might otherwise possess.

II.    Statute of Limitations

        Even if a money-mandating source of law were available to offer the
requested relief, the statute of limitations would bar us from examining the
merits of plaintiff’s claims. Under the Tucker Act, “[e]very claim of which the
United States Court of Federal Claims has jurisdiction shall be barred unless
the petition thereon is filed within six years after such claim first accrues.” 28
U.S.C. § 2501. The statute of limitations operates as a jurisdictional bar; the
waiver of sovereign immunity contained in the Tucker Act is conditioned upon
suit being brought within six years after the claim accrues. Sabree v. United
States, 90 Fed. Cl. 683, 691 (2009) (citing Caguas Cent. Fed. Sav. Bank v.
United States, 215 F.3d 1304, 1310 (Fed. Cir. 2000)). Generally, “a claim
accrues when all events necessary to fix the Government’s liability have
occurred,” L.L.S. Leasing Corp. v. United States, 695 F.2d 1359, 1365 (Fed.
Cir. 1982), and “the plaintiff was or should have been aware of their
existence,” Hopland Band of Pomo Indians v. United States, 855 F.2d 1573,
1577 (Fed. Cir. 1988). The requirement that plaintiff know or should have
known applies only to the material facts that give rise to the claim. Hopland
Band, 855 F.2d at 1577.

                                        10
        Defendant asserts that plaintiff’s claim accrued in 1999 when the VA
reduced Mr. Metcalf’s benefits because that was the governmental action on
which the alleged liability is premised. Plaintiff argues that his claims should
not be barred by the statute of limitations because he did not gain access to the
applicable statutes and regulation and thereby discover the alleged “fraud”
until 2008. However, “subjective ignorance of the law giving rise to [the]
claim, even if predicated on misleading statements relating to those legal
rights, does not toll the accrual of the statute of limitation.” Shoshone Indian
Tribe of Wind River Reservation, Wyo. v. United States, 672 F.3d 1021, 1032
(Fed. Cir. 2012). Although plaintiff did not know the legal basis for the
action, he knew that his benefits had been reduced in 1999. Even if we set the
date of accrual in 2000, when the letter from the VA explained to Mr. Metcalf
the reason for the reduction in his benefits, Mr. Metcalf’s complaint would
have been untimely after 2006. When plaintiff filed his complaint in 2012,
however, he was well past the six-year limitation period. Accordingly, Mr.
Metcalf’s claims are barred by the statute of limitations.

                                CONCLUSION

      For the reasons stated, we lack jurisdiction over plaintiff’s claims.
Defendant’s motion to dismiss is granted. Plaintiff’s complaint is hereby
dismissed pursuant to Rule 12(b)(1). The Clerk is directed to enter judgment
accordingly. No costs.




                                            ERIC G. BRUGGINK
                                            Judge




                                       11
