' ORIGINAL 

3Jn tbe Wniteb ~taten <!Court of jf eberal <!Claims 

ANTHONY M. AUGUSTA, 

No. 18-562C 

(Filed: May 16, 2018) 

NOT FOR PUBLICATION 

Pro Se Plaintiff, 

FILED 

MAY 1 6 2018 

U.S. COURT OF 

FEDERAL CLAIMS 

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Rule 12(h)(3); Lack of Jurisdiction; 

Denial of Veterans Benefits. 

THE UNITED ST A TES, 

Defendant. 

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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 claim2 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. 

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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 

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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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