                                                                        FILED
                                                             United States Court of Appeals
                                                                     Tenth Circuit

                                                                  October 28, 2009
                     UNITED STATES COURT OF APPEALS
                                                  Elisabeth A. Shumaker
                                                                     Clerk of Court
                            FOR THE TENTH CIRCUIT


    R. WAYNE JOHNSON,

                Plaintiff-Appellant,

    v.                                                    No. 09-7054
                                                (D.C. No. 6:08-CV-00430-RAW)
    DEPARTMENT OF VETERANS                                (E.D. Okla.)
    AFFAIRS,

                Defendant-Appellee.


                             ORDER AND JUDGMENT *


Before TACHA, ANDERSON, and EBEL, Circuit Judges.



         Plaintiff R. Wayne Johnson appeals the district court’s dismissal of his

action based on lack of subject matter jurisdiction and res judicata. Exercising

jurisdiction under 28 U.S.C. § 1291, we affirm.




*
       After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument. This order and judgment is
not binding precedent, except under the doctrines of law of the case, res judicata,
and collateral estoppel. It may be cited, however, for its persuasive value
consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
                                   Background

      Mr. Johnson, a Marine veteran, filed a pro se complaint alleging that

Congress violated separation-of-powers principles when it enacted legislation that

vests exclusive jurisdiction over veterans benefits decisions in two

executive-branch bodies—the regional offices of the Department of Veterans

Affairs (VA) and the Board of Veterans’ Appeals (BVA). 1 He also argued that

38 C.F.R. § 3.665, which limits benefits for certain convicted felons, cannot be

applied to him constitutionally because it was promulgated after his felony

offense, which occurred in 1977. For relief, he asked the district court to rule that

an adverse benefits decision based on the regulation violated not only

separation-of-powers principles but the takings and due-process clauses of the

Fifth Amendment. And he requested the district court to order defendant to “pay

him his 30% illegally taken in 1983- to date- via VOID statutes—and issue him

3[0]% checks monthly, with interest thereon.” R. at 11.

      Noting that Mr. Johnson could have raised his constitutional challenges in

an appeal from the jurisdictional dismissal of a previous action challenging the

1
      We note that two of the statutes Mr. Johnson identified as the object of his
challenge, 38 U.S.C. §§ 5109A and 7111, concern the standard of review for
decisions rendered by the Secretary of Veterans Benefits and the BVA, not the
authority of the regional VA offices or the BVA over benefits decisions. The
relevant jurisdictional statutes are discussed below. Further, the third statute he
named, 38 U.S.C. § 5331, is nonexistent; it appears that, as in a prior action, he
may have been challenging 38 U.S.C. § 5313, “Limitation on payment of
compensation and dependency and indemnity compensation to persons
incarcerated for conviction of a felony.”

                                         -2-
adverse benefits decision, the district court issued a show-cause order regarding

res judicata. The court also instructed Mr. Johnson to address the court’s lack of

subject matter jurisdiction under 38 U.S.C. § 7252(a), which provides that “[t]he

Court of Appeals for Veterans Claims shall have exclusive jurisdiction to review

decisions of the [BVA].”

      Mr. Johnson and defendant Department of Veterans Affairs (VA) filed

responses to the show-cause order. After considering the responses, the district

court concluded that it lacked subject matter jurisdiction and that the claims were

barred on res judicata grounds. Specifically, the court looked to the substance of

the claims, particularly the requested relief, and found that the claims were not a

facial constitutional challenge to the statutes and regulation but an attack on a

benefits decision cloaked in constitutional terms. The district court explained that

under 38 U.S.C. § 7104, Mr. Johnson’s only option was to appeal the initial

benefits decision of the regional VA office to the BVA, and that under 38 U.S.C.

§§ 511 and 7252(a), BVA decisions are not subject to review in the district courts

but only in the United States Court of Appeals for Veterans Claims (CAVC), an

Article I court, whose decision is only appealable to the United States Court of

Appeals for the Federal Circuit under 38 U.S.C. § 7292(c). 2 This exclusive


2
       Section 511 vests authority over benefits decisions in the Secretary of
Veterans Benefits and provides for limited review under, inter alia, chapter 72 of
Title 38, which includes §§ 7252 and 7292. Further review in the United States
Supreme Court upon certiorari is available under § 7292(c).

                                          -3-
jurisdictional pathway was created by Congress in the Veterans’ Judicial Review

Act, Pub. L. No. 100-687, 102 Stat. 4105 (1988) (VJRA). The district court also

concluded that Mr. Johnson’s constitutional claims were barred by res judicata

because they could have been raised in his prior suit concerning the adverse

benefits decision. This pro se appeal followed. Our review is de novo. See

Youren v. Tintic Sch. Dist., 343 F.3d 1296, 1305 (10th Cir. 2003) (subject matter

jurisdiction); MACTEC, Inc. v. Gorelick, 427 F.3d 821, 831 (10th Cir. 2005) (res

judicata).

                                     Discussion

      On appeal, Mr. Johnson first takes issue with the district court’s

characterization of his claims as challenges to the adverse benefits decision. He

contends that instead, he challenges the authority of Congress to pass the

jurisdictional statutes confining review to the regional VA offices and the BVA as

a violation of the separation of powers. Even giving Mr. Johnson’s pro se filings

a liberal reading, see Trackwell v. U.S. Gov’t, 472 F.3d 1242, 1243 (10th Cir.

2007), we agree with the district court’s characterization of his claims.

      To determine the nature of a claim, courts examine the substance of a

plaintiff’s allegations, not merely the labels applied to them. Weaver v. United

States, 98 F.3d 518, 520 (10th Cir. 1996). As noted above, Mr. Johnson asked the

district court to order defendants to reinstate the full amount of his benefits

without reduction under 38 C.F.R. § 3.665. And in his appellate brief, framed as

                                         -4-
a “threshold issue,” he argues that the year of his felony offense, 1977, is a “key”

fact because, he claims, crimes committed before 1980 do not fall within the

benefits-limiting provisions of 38 C.F.R. § 3.665. 3 Aplt. Br. at 4. Mr. Johnson’s

emphasis on this “threshold issue” reinforces the fact that his claims stem from

the VA’s alleged error in reducing his benefits under the regulation. Thus,

despite being couched as constitutional challenges to statutes and a regulation, the

claims function only as a means to contest the adverse benefits decision. As the

district court properly explained, constitutional challenges to a benefits decision

are subject to review only through the jurisdictional scheme established in the

VJRA described above. See Beamon v. Brown, 125 F.3d 965, 970-72 (6th Cir.

1997); see also Hall v. U.S. Dep’t of Veterans’ [sic] Affairs, 85 F.3d 532, 534-35

(11th Cir. 1996) (constitutional challenge to benefit reduction under 38 C.F.R.

§ 3.665); cf. Burkins v. United States, 112 F.3d 444, 447 (10th Cir. 1997)

(explaining statutory sequence of appellate review in BVA, CAVC, and Federal

Circuit). While the BVA lacks power to determine constitutional questions


3
       Mr. Johnson apparently bases his argument on § 3.665(c)(1), which
mandates a reduction in benefits for “person[s] serving a period of incarceration
for a conviction of a felony committed after October 7, 1980.” We note, without
expressing an opinion on its applicability here, that the regulation also applies to
“a veteran who, on October 7, 1980, was incarcerated . . . for a felony committed
before that date, and who remains so incarcerated for a conviction of a felony as
of December 27, 2001.” Id. § 3.665(c)(3). Mr. Johnson’s filings suggest he
committed a felony before October 7, 1980, and that he was incarcerated for it,
but provide no indication that he did not remain incarcerated for that felony on
the operative dates in § 3.665(c)(3).

                                         -5-
regarding veterans benefits, Johnson v. Robison, 415 U.S. 361, 368 (1974),

Congress has granted such power to the CAVC and the Federal Circuit, see

38 U.S.C. § 7261(a)(1) (authorizing CAVC to “decide all relevant questions of

law [and] interpret constitutional, statutory, and regulatory provisions”); id.

§ 7292(c)-(d) (vesting exclusive jurisdiction in Federal Circuit to review

challenges to validity and constitutionality of statutes and regulations brought in

appeal from CAVC decision).

      Mr. Johnson appears to be laboring under a misconception that federal

district courts have unlimited jurisdiction and that Congress may not erode it by

legislation. The law is to the contrary: “Federal courts are courts of limited

jurisdiction; they are empowered to hear only those cases authorized and defined

in the Constitution which have been entrusted to them under a jurisdictional grant

by Congress.” Henry v. Office of Thrift Supervision, 43 F.3d 507, 511 (10th Cir.

1994). In the case of veterans benefits decisions, Congress has established the

exclusive jurisdictional scheme described above, which authorizes review only in

the BVA, the CAVC, the Federal Circuit, and the United States Supreme Court. 4

Furthermore, Mr. Johnson mistakenly places heavy reliance on the following

4
       In Hall, the Eleventh Circuit expressed concern whether district courts, in
light of the passage of the VJRA in 1988, continue to have jurisdiction over facial
challenges to the constitutionality of statutes affecting veterans benefits under
Johnson v. Robison, 415 U.S. 361 (1974). See Hall, 85 F.3d at 534-35. Because
we conclude that Mr. Johnson’s claims do not present facial challenges to any
statutes governing veterans benefits, we need not resolve whether Johnson v.
Robison remains good law.

                                          -6-
principle: “Congress cannot vest review of the decisions of Article III courts in

officials of the Executive Branch.” Miller v. French, 530 U.S. 327, 343 (2000)

(discussing Hayburn’s Case, 2 U.S. (2 Dall) 408 (1792)). This principle has no

application here because the VJRA does not place the judgment of any Article III

court under executive-branch review.

      Having concluded that the district court lacked jurisdiction under the

VJRA, we need not address the other basis of the court’s disposition, res judicata.

                                    Conclusion

      The judgment of the district court is AFFIRMED.


                                                    Entered for the Court



                                                    David M. Ebel
                                                    Circuit Judge




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