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                                          ORIGINAL
              3Jn tbe Wniteb ~taten <!Court of jfeberal <!Claims
                                            No. 18-562C                              FILED
                                       (Filed: May 16, 2018)
                                     NOT FOR PUBLICATION                            MAY 1 6 2018
                                                                                   U.S. COURT OF
                                                 )                                FEDERAL CLAIMS
     ANTHONY M. AUGUSTA,                         )
                                                 )
                           Pro Se Plaintiff,     )
                                                 )      Rule 12(h)(3); Lack of Jurisdiction;
     V.                                          )      Denial of Veterans Benefits.
                                                 )
        THE UNITED STA TES,                      )
                                                 )
                           Defendant.            )
    ~~~~~~~~~~~~-)

                                     ORDER OF DISMISSAL

    I.      Introduction

           The plaintiff, Mr. Anthony M. Augusta, alleges in his complaint that the
    Department of Veterans Affairs ("VA") wrongfully denied his service-related disability
    claims on multiple occasions. Comp!. 'I) l, Docket No. 1. He asserts that these denials
    violated his due process rights under the Fifth Amendment and violated Title I, Sec. 103
    of the Veterans' Judicial Review Act (38 U.S.C. §§ 5107-5109, Pub. L. 100-687, 1 102
    Stat. 4105) and the Veterans Claims Assistance Act (38 U.S.C. § 5103(a)). Id.

           The plaintiff asserts that the VA "has continually violated numerous laws
    regarding the [VA] claims process." Comp!. 'I) 6 (emphasis removed from original)
    (brackets in original). As far as this court is aware, the plaintiff filed a service-related
    disability claim with the VA on August 2, 2006. Comp!. 'I) 6. The plaintiff maintains that
    because the VA illegally denied his claims, he has had to file multiple times. Comp!. 'I) 6.
    The plaintiff asserts that the New York Regional Office of the VA denied the plaintiffs
    second claim in 2008, deeming it an 1151 tort claim 2 over which it did not have

    1
      Plaintiff mistakenly refers to Public Law 100-867. He also mistakenly refers to it as the
    Veteran Judicial Review Act. He also cites 38 U.S.C. § 5103A as opposed to 38 U.S.C §
    5103(a) for the Veterans Claims Assistance Act. See Comp!. 'I)!.
    2
      Under 38 U.S.C. § 1151, veterans may receive compensation for disabilities or death suffered
    at VA hospitals caused by medical treatment provided by the VA, subject to offset for any
    damages awarded under the Federal Tort Claims Act.
                                                                        7017 1450 DODD 1346 4964
jurisdiction. Comp!.~ 6. The plaintiff alleges 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." Comp!.~ 6. The plaintiff notes that this occurred in the
same year that the New York Regional Office "was caught falsifying dates on claims, in
order to make the claims appear as if they were being processed in a timely manner" and
that 1,300 pieces of improperly unprocessed mail were discovered, including mail in
support of veterans' claims that should have been added into the veterans' claim files.
 Comp!.~ 6. The plaintiff filed a third claim in 2009, which he asserts remains in the
appeals process. Comp!.~ 6.

       As a remedy, the plaintiff is seeking $1 million or, alternatively, a 100 percent
disability award. Comp!. ~ 7. Plaintiff also seeks an injunction and any other remedy the
court deems appropriate. Comp!. ~ 7.

II.    Standard of Review

     Jurisdiction represents a threshold matter that a court must resolve before it may
proceed to the merits of a case. See, e.g., Ruhrgas AG v. Marathon Oil Co., 526 U.S.
574, 577 (1999); Frazier v. United States, 683 F. App'x 938, 939 (Fed. Cir. 2017).
Under Rule 12(h)(3) of the Rules of the United States Court of Federal Claims
("RCFC"), "[i]fthe court determines at any time that it lacks subject-matter jurisdiction,
the court must dismiss the action." RCFC 12(h)(3). The Court of Federal Claims may
consider the issue of subject matter jurisdiction sua sponte. See Brady v. United States,
541 F. App'x 991, 993 (Fed. Cir. 2013). The court accepts as true the uncontested
allegations asserted in a plaintiffs complaint when determining whether there exists
subject matter jurisdiction. Folden v. United States, 379 F.3d 1344, 1354 (Fed. Cir.
2004) ("In deciding whether there is subject-matter jurisdiction, 'the allegations stated in
the complaint are taken as true and jurisdiction is decided on the face of the pleadings."'
(quoting Shearin v. United States, 992 F.2d 1195, 1195-96 (Fed. Cir. 1993))). Although
the court holds a complaint filed by a pro se plaintiff to "less stringent standards than
formal pleadings drafted by lawyers," Haines v. Kerner, 404 U.S. 519, 520 (1972), this
leniency does not excuse a pro se plaintiff "from his or her burden of proving, by a
preponderance of the evidence, that the court possesses [subject matter] jurisdiction."
Gravatt v. United States, 100 Fed. Cl. 279, 286 (2011). See also Colbert v. United States,
617 F. App'x 981, 983 (Fed. Cir. 2015) ("No plaintiff, prose or otherwise, may be
excused from the burden of meeting the court's jurisdictional requirements.")

III.    Jurisdiction

       The Tucker Act grants the Court of Federal Claims jurisdiction "to render
judgment upon 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). The Tucker Act itself, however,

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    "does not create any substantive right enforceable against the United States for money
    damages." United States v. Testan, 424 U.S. 392, 398 (1976). Thus, "in order to come
    within the jurisdictional reach and the waiver of the Tucker Act," a plaintiff must also
    pinpoint a pertinent 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).

    IV.    Plaintiff Fails to Allege Any Claim Within This Court's Jurisdiction

           This court does not possess subject matter jurisdiction to adjudicate the plaintiffs
    claims regarding the denial of his veterans' disability benefits.

            The VA administers veterans' disability benefits. 38 U.S.C. § 1710. A veteran
    must first file a veterans' disability benefit application with the Secretary of the VA, and
    the relevant VA regional office makes a decision as to whether the veteran is entitled to
    disability benefits. 38 U.S.C. § 5101(a), 38 U.S.C. § 511. Additionally, first the
    Secretary and then the Board of Veterans' Appeals review appeals from such decisions.
    38 U.S.C. § 7104(a).

           The Veterans' Judicial Review Act vests the Court of Appeals for Veterans Claims
    with "exclusive jurisdiction" regarding decisions of the Board of Veterans' Appeals. 38
    U.S.C. § 7252(a). See also Sullivan v. United States, 46 Fed. CJ. 480, 487 (2000) ("to the
    extent the plaintiffs are complaining that their desired 100 percent rating was not awarded
    per Mr. Sullivan's previous claims and appeals to the VA, this court [the Court of Federal
    Claims] is without jurisdiction to review those benefit-entitlement determinations by the
    VA, which is solely vested in the United States Court of Veterans Appeals[.]"). Appeals
    from the Court of Appeals for Veterans Claims fall within the exclusive jurisdiction of
    the Court of Appeals for the Federal Circuit. 38 U.S.C. §§ 7292(a), (c).

           Therefore, the plaintiffs claims regarding the denial of his veterans' disability
    benefits do not fall within the subject matter jurisdiction of the Court of Federal Claims.
    See Janaskie v. United States, 77 Fed. Cl. 654, 657-58 (2007) ("Because the controlling
    statutes specify the fora where Plaintiff may seek redress for the denial of his veterans'
    disability benefits and this Court is not among them, this Court Jacks jurisdiction over
    Plaintiffs claims for veterans' disability benefits."); Davis v. United States, 36 Fed. CJ.
    556, 559 ( 1996) ("this court does not have jurisdiction to review the denial of veterans'
    benefits.").

            Additionally, to the extent that the plaintiffs complaint alleges violations of his
    due process rights, the Court of Federal Claims "cannot adjudicate plaintiffs due process
    claims because they are based upon the VA's actions regarding his disability benefits."
    Davis v. United States, 36 Fed. Cl. 556, 559 (1996). The plaintiffs "exclusive remedy
    lies in the Court of Veterans Appeals." Id. Furthermore, it is well established that the
    Court of Federal Claims does not possess jurisdiction to adjudicate claims under the Due

                                                  3
Process clauses of the Fifth and Fourteenth Amendments because these constitutional
provisions are not money-mandating. See Harvey v. United States, 683 F. App'x 942,
943 (Fed. Cir. 2017) ("The [Court of Federal Claims'] limitedjurisdiction does not
extend to claims brought under ... the Due Process clauses of the Fifth and Fourteenth
Amendments, because they do not contain money-mandating provisions."); Smith v.
United States, 709 F.3d 1114, 1116 (Fed. Cir. 2013) ("The law is well settled that the
Due Process clauses of both the Fifth and Fourteenth Amendments do not mandate the
payment of money and thus do not provide a cause of action under the Tucker Act.").
The plaintiffs allegations that the repeated denial of his veterans' disability benefits
violated his due process rights does not give rise to a cause of action for monetary
damages against the United States as required to establish this court's jurisdiction under
the Tucker Act. For these reasons, the court find that it lacks subject matter jurisdiction
to adjudicate the plaintiffs claims.

V.   Conclusion

    Because this court lacks jurisdiction to hear this case, the case must be
DISMISSED. The clerk is directed to enter judgment accordingly. No costs .

       IT IS SO ORDERED.                                        /
                                                                .


                                                          ~ANC     H. FJRFSTO
                                                           Senio Judge




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