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# ORIGINAL
3Jn tbe Wniteb**~taten** 

# <!Court ofjf 

# eberal <!Claims

ANTHONY M. AUGUSTA, No. 18-562C (Filed: May 16, 2018) NOT FORPUBLICATION

Pro Se Plaintiff, 

# FILED MAY 162018 U.S. COURT OF FEDERAL CLAIMS

V. ) ) ) ) ) ) ) ) ) ) Rule 12(h)(3); Lack ofJurisdiction; Denial ofVeterans Benefits.
THE UNITED ST ATES,
Defendant.

### ~~~~~~~~~~~~-) 

### ORDER OFDISMISSAL
I. Introduction
The plaintiff, Mr. Anthony M. Augusta, alleges in his complaint that the Department ofVeterans Affairs ("VA") wrongfully deniedhis service-related disability claims on multiple occasions. Comp!. 'I) l, DocketNo. 1. He asserts that these denials violated his due process rights under the Fifth Amendment and violated Title I, Sec. 103 ofthe 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 plaintiffasserts 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 plaintifffiled a service-related disability claim with the VA on August 2, 2006. Comp!. 'I) 6. The plaintiffmaintains that because the VA illegally denied his claims, he has hadto file multiple times. Comp!. 'I) 6. The plaintiffasserts that the New York Regional Office ofthe VA denied the plaintiffs second claim in 2008, deeming it an 1151 tort claim2 overwhich it did not have

1Plaintiffmistakenly 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 4964jurisdiction.**Comp!.~** 6. The plaintiffalleges 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 plaintiffnotes 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 ifthey were being processed in a timely manner" and that 1,300 pieces ofimproperly unprocessed mail were discovered, including mail in support ofveterans' claims that shouldhave been added into the veterans' claim files.**Comp!.~** 6. The plaintifffiled a third claim in 2009, which he asserts remains in the appeals process.**Comp!.~** 6.
As a remedy, the plaintiffis seeking $1 million or, alternatively, a 100 percent disability award. Comp!.**~** 7. Plaintiffalso seeks an injunction and any otherremedy the court deems appropriate. Comp!.**~** 7.


### II. Standard ofReview
Jurisdiction represents a threshold matter that a court must resolve before it may proceed to the merits ofa case. 

### See, e.g., RuhrgasAGv. 

### Marathon Oil Co., 526 U.S. 574, 577 (1999); 

### Frazier v. 

### UnitedStates, 683 F. App'x 938, 939 (Fed. Cir. 2017). Under Rule 12(h)(3) ofthe Rules ofthe United States Court ofFederal Claims ("RCFC"), "[i]fthe court determines at any time that it lacks subject-matterjurisdiction, the court must dismiss the action." RCFC 12(h)(3). The Court ofFederal Claims may considerthe issue ofsubject matterjurisdiction 

### sua sponte. See Brady v. 

### UnitedStates, 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 matterjurisdiction. 

### Folden v. 

### UnitedStates, 379 F.3d 1344, 1354 (Fed. Cir. 2004) ("In deciding whether there is subject-matterjurisdiction, 'the allegations stated in the complaint are taken as true andjurisdiction is decided on the face ofthe pleadings."' (quoting 

### Shearin v. 

### UnitedStates, 992 F.2d 1195, 1195-96 (Fed. Cir. 1993))). Although the courtholds a complaint filed by a

### pro se plaintiffto "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 herburden ofproving, by a preponderance ofthe 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 ofmeeting the court'sjurisdictional requirements.")


### III. Jurisdiction
The Tucker Act grants the Court ofFederal Claimsjurisdiction "to render judgment upon any claim against the United States founded either upon the Constitution, or any Act ofCongress or any regulation ofan executive department, orupon any express or implied contract with the United States, or for liquidated orunliquidated damages in cases not sounding in tort." 28 U.S.C. § 1491(a)(l). The Tucker Act itself, however, 2\

"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 orderto come within thejurisdictionalreach and the waiver ofthe TuckerAct," a plaintiffmust 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. PlaintiffFails to Allege Any Claim Within This Court's Jurisdiction
This court does notpossess subject matterjurisdictionto adjudicate the plaintiffs claims regarding the denial ofhis 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 ofthe 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 ofVeterans' Appeals review appeals from such decisions. 38 U.S.C. § 7104(a).
The Veterans' Judicial Review Act vests the Court ofAppeals for Veterans Claims with "exclusivejurisdiction" regarding decisions ofthe Board ofVeterans' Appeals. 38 U.S.C. § 7252(a). 

### See also Sullivan v. UnitedStates, 46 Fed. CJ. 480, 487 (2000) ("to the extentthe plaintiffs are complainingthat their desired 100 percent rating was not awarded per Mr. Sullivan's previous claims and appeals to the VA, this court [the Court ofFederal Claims] is withoutjurisdiction to review those benefit-entitlement determinations by the VA, which is solely vested in the United States Court ofVeterans Appeals[.]"). Appeals from the Court ofAppeals for Veterans Claims fall within the exclusivejurisdiction of the Court ofAppeals for the Federal Circuit. 38 U.S.C. §§ 7292(a), (c). Therefore, the plaintiffs claims regarding the denial ofhis veterans' disability benefits do not fall within the subject matterjurisdiction ofthe Court ofFederal Claims. 

### See Janaskie v. UnitedStates, 77 Fed. Cl. 654, 657-58 (2007) ("Because the controlling statutes specify the fora where Plaintiffmay seek redress for the denial ofhis veterans' disability benefits and this Court is not among them, this Court Jacksjurisdiction over Plaintiffs claims for veterans' disability benefits."); 

### Davis v. UnitedStates, 36 Fed. CJ. 556, 559 (1996) ("this court does not havejurisdiction to review the denial ofveterans' benefits."). Additionally, to the extent that the plaintiffs complaint alleges violations ofhis due process rights, the Court ofFederal Claims "cannot adjudicate plaintiffs due process claims because they are based upon the VA's actions regarding his disability benefits." 

### Davis v. UnitedStates, 36 Fed. Cl. 556, 559 (1996). The plaintiffs "exclusive remedy lies in the Court ofVeterans Appeals." Id. Furthermore, it is well established that the Court ofFederal Claims does notpossessjurisdiction to adjudicate claims under the Due 

### 3

### Process clauses ofthe Fifth and Fourteenth Amendments because these constitutional provisions are not money-mandating. See Harvey 

### v. UnitedStates, 

### 683 F. App'x 942, 943 (Fed. Cir. 2017) ("The [Court ofFederal Claims'] limitedjurisdiction does not extend to claims brought under

... the Due Process clauses ofthe Fifth and Fourteenth Amendments, because they do not contain money-mandating provisions."); Smith 

### v. UnitedStates, 

### 709 F.3d 1114, 1116 (Fed. Cir. 2013) ("The law is well settled that the Due Process clauses ofboth the Fifth and Fourteenth Amendments do not mandate the payment ofmoney and thus do not provide a cause ofaction under the Tucker Act."). The plaintiffs allegations that the repeated denial ofhis veterans' disability benefits violated his due process rights does not give rise to a cause ofaction for monetary damages against the United States as required to establish this court'sjurisdiction under the Tucker Act. For these reasons, the court find that it lacks subject matterjurisdiction to adjudicate the plaintiffs claims.
V. Conclusion


### Because this court lacksjurisdictionto hear this case, the case must be DISMISSED. 

### The clerk is directed to enterjudgment accordingly. No costs

. IT IS SO ORDERED.



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# ~ANC H. FJRFSTO Senio Judge



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