Jfn tbe fflniteb ~tates ~ourt of jfeberal ~laints 

No. 18-8830 

(Filed December 20, 2018) 

NOT FOR PUBLICATION 

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ANTHONY M. AUGUSTA, * 

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Plaintiff, * 

v. * 

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THE UNITED STATES, * 

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Defendant. * 

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MEMORANDUM OPINION AND ORDER 

The matter before this court is defendant's motion to dismiss this case. 

Anthony M. Augusta, acting pro se, brought this action alleging that the 

Department of Veteran Affairs (VA) violated his constitutional due process rights 

and the Veterans Claims Assistance Act, 38 U.S.C. §5103(a), in its handling of his 

claims for service-connected disability. The government moved for a dismissal of 

the complaint, pursuant to Rule 12(b)(l) of the Rules of the United States Court of 

Federal Claims (RCFC), on the ground that the doctrine of res judicata bars 

plaintiff from relitigating these claims. Alternatively, the government moved for 

dismissal of the complaint with prejudice on the ground that the court lacks subject 

matter jurisdiction over plaintiff's claims. For the reasons stated below, the court 

GRANTS defendant's motion to dismiss this case. 

I. BACKGROUND 

On April 16, 2018, Mr. Augusta filed his first complaint in this court against 

the United States for alleged violations of Fifth Amendment due process rights, the 

Veterans' Judicial Review Act, 1 and the Veterans Claims Assistance Act. Compl. 

'I[ 1, Augusta v. United States, No. 18-562 (Fed. Cl. Apr. 16, 2018), ECF No. 1 

(Augusta I Compl.). Mister Augusta based jurisdiction over his claims on the 

Tucker Act, 28 U.S.C. § 1491. Id. 'II 2. According to Mr. Augusta's first complaint in 

this court, he initially filed a service-related disability claim with the VA on August 

1 Pub. L. No. 100-687, 102 Stat. 4105 (1988). 

7018 □□ □ □□□ 1 1393 1112 
2, 2006. Id. ,r 6. Plaintiff subsequently filed claims with the VA multiple times 

because, according to plaintiff, the VA illegally denied his claims. Id. Mister 

Augusta states in his first complaint that the New York Regional Office of the VA 

denied plaintiff's second claim in 2008, for lack of subject matter jurisdiction over 

an "1151 Tort Claim." Id. Mister Augusta noted that "[t]his was the same year that 

the NY [RO] Regional Office was caught falsifying dates on claims, in order to make 

claims appear as if they were being processed in a timely manner," and alleged 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". Id. ,r 6. 

Plaintiff then filed a third claim with the VA in 2009. Id. This court sua sponte 

dismissed Mr. Augusta's first complaint for lack of subject-matter jurisdiction. See 

Augusta v. United States (Augusta I), No. 18-562C, 2018 WL 2227779, at *l (Fed. 

Cl. May 16, 2018). 

On June 19, 2018, plaintiff filed a nearly identical second complaint in this 

court. See, Compl. at 1-4. In his second complaint, plaintiff raises alleged violations 

by the United States of his Fifth Amendment due process rights and the Veterans 

Claims Assistance Act, as he did in his first complaint, but replaces the alleged 

violation of the Veterans' Judicial Review Act with an alleged violation of 

Fourteenth Amendment due process rights. Compare Compl. ,r 1 (including an 

allegation of violations of due process rights under the Fourteenth Amendment), 

with Augusta I Compl. ii 1 (including an allegation that the United States violated 

the Veterans' Judicial Review Act). Plaintiff adds an additional ground of 

jurisdiction in his new complaint, citing 42 U.S.C. § 1983, and states that the Court 

of Appeals for Veterans Claims has no jurisdiction over constitutional arguments. 

See Compl. ,r 2. 2 Finally, in his new complaint plaintiff also makes a reference to 

veterans' benefits as property interests. See Compl. ,r 6 (stating that, "disability 

benefits is [sic] a property right protected under the Fifth and Fourteenth 

Amendment[s] of the Constitution"). 3 

2 Section 1983 does not apply to actions of the federal government, see Hardin v. 

United States, No. 15-585C, 2015 WL 6437379, at *4 & n.5 (Fed. Cl. Oct. 22, 2015), 

and does not confer jurisdiction on our court, see Khalil v. United States, 133 Fed. 

Cl. 390, 392 (2017). 

3 To the extent that a claim might be construed as one falling under the Fifth 

Amendment Takings Clause, the Court notes that the Federal Circuit has held that 

veterans' benefits are not property interests under the Takings Clause. See Schism 

v. United States, 316 F.3d 1259, 1268 (Fed. Cir. 2002); see also Adams v. United 

States, 391 F.3d 1212, 1225 (Fed. Cir. 2004) (discussing federal employment 

benefits generally). 

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The government has moved to dismiss this case on the ground that the claims 

are barred by res judicata. Def.'s Mot. at 1. The government alternatively moves to 

dismiss the case due to this court's lack of subject-matter jurisdiction. Id. 

II. DISCUSSION 

A. Applicable Legal Standards 

Under RCFC 12(b)(l), a complaint must be dismissed when the court lacks 

jurisdiction over the complaint's subject matter. In considering a motion to dismiss 

for want of subject-matter jurisdiction, the court will normally accept as true all 

factual allegations made by the pleader and draw all reasonable inferences in a 

light most favorable to that party. See Scheuer v. Rhodes, 416 U.S. 232, 236 (1974); 

Pixton v. B&B Plastics, Inc., 291 F.3d 1324, 1326 (Fed. Cir. 2002). If the facts 

reveal any reasonable basis upon which the non-movant may prevail, dismissal is 

inappropriate. See Aerolineas Argentinas v. United States, 77 F.3d 1564, 1572 (Fed. 

Cir. 1996). A plaintiff has the burden of establishing the court's jurisdiction over 

his claim. See Reynolds v. Army & Air Force Exchange Service, 846 F.2d 746, 747-

48 (Fed. Cir. 1988). 

Pro se litigants are normally allowed great leeway in presenting their claims. 

Haines v. Kerner, 404 U.S. 519, 520-21 (1972). Although a court must afford 

leniency to the plaintiff who acts in a prose capacity, see, e.g., Castro v. United 

States, 540 U.S. 375, 381-82 (2003); Estelle v. Gamble, 429 U.S. 97, 106 (1976); 

Haines, 404 U.S. at 520-21, such a party is not exempt from the requirement that 

he plead facts sufficient to state a claim within the court's jurisdiction. 

A court must also dismiss a complaint that seeks to relitigate a matter that 

another court of competent jurisdiction has already decided. Under the doctrine of 

res judicata, a final judgment on the merits of an action precludes the parties or 

their privies from relitigating issues that the same parties or privies raised or could 

have raised in that action. See, e.g., Allen v. McCurry, 449 U.S. 90, 94 (1980); Int'l 

Air Response v. United States, 302 F.3d 1363, 1368 (Fed. Cir. 2002). 4 

4 As a technical matter, when the doctrine of res judicata is applied to the question 

of jurisdiction it is more appropriately categorized as concerning issue preclusion 

instead of claim preclusion. See Chisolm v. United States, 82 Fed. Cl. 185, 199, aff'd, 

298 F. App'x 957 (Fed. Cir. 2008). But in any event, the government is correct that 

its motion to dismiss this case, based on the doctrine of res judicata, presents a 

question regarding our jurisdiction. See, e.g., Verdone v. United States, No. 04-

801C, 2005 WL 6112626, at *3 (Fed. Cl. May 31, 2005). 

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B. Jurisdiction 

The Tucker Act confers subject matter jm·isdiction upon this court over "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) (2000). The Tucker Act itself, 

however, "does not create any substantive right enforceable against the United 

States for money damages". United States v. Testan, 424 U.S. 392, 398, reh'g 

denied, 425 U.S. 957 (1976)). For a plaintiff to come within the jurisdiction of the 

Tucker Act and its waiver of sovereign immunity, that plaintiff must also invoke a 

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). 

C. Res Judicata Bars this Complaint from Our Jurisdiction 

The complaint filed in this case is nearly identical to the complaint Mr. 

Augusta filed in this court on April 16, 2018, which was dismissed for lack of 

subject-matter jurisdiction. See Augusta I Compl.; Augusta I, 2018 WL 2227779, at 

*2-3. Plaintiff has filed both a response and, with the leave of this Court, a surreply to the points raised in the government's motion to dismiss the case. See Resp. 

to Mot. to Dismiss (Pl.'s Resp.), ECF No. 7; Pl.'s Sur-reply, ECF No. 10. His 

response to the government's motion serves to generally reassert the claims stated 

in his complaint and to note the liberal pleading standards afforded to plaintiffs. 

See Pl.'s Resp. at 1-5. In plaintiff's sur-reply, he at least mentions the relevant 

prongs under res judicata and collateral estoppel, but he does not seriously contend 

that his claims are not barred by the application of these doctrines. See Pl.'s Surreply at 1-4. Nevertheless, in light of Mr. Augusta's prose status, the Court has 

undertaken the analysis to determine whether his claims are barred by res judicata. 

Plaintiff unquestionably seeks to relitigate his claims that the V A's denials of 

his service-related disability applications constituted violations of his due process 

rights under the Fifth Amendment and of the Veterans Claims Assistance Act, 38 

U.S.C. §5103(a). Compl. ,1 1. He also now alleges that these same denials by the 

VA amounted to a violation of his due process rights under the Fourteenth 

Amendment. Id. The first two claims were already decided against him on the 

basis of subject matter jurisdiction in this court. See Augusta I, 2018 WL 2227779, 

at *2-3. Mister Augusta is thus barred from relitigating the issue of subject-matter 

jurisdiction of these claims, which he brought in his first action. See, e.g., Int'lAir 

Response, 302 F.3d at 1368. The third claim he raises as to due process under the 

Fourteenth Amendment relates to the same underlying facts about the VA's denials 

of his applications for service-related disability and is thus also barred by the 

doctrine of res judicata. Id. Accordingly, the court may not exercise jurisdiction 

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because the matter of jurisdiction has already been determined by our court in a 

final judgment. Id. Dismissal is thus required on this basis. 

D. The Court Lacks Jurisdiction over Plaintiff's Claims 

Were the court not barred by the doctrine of res judicata from revisiting the 

question of our court's jurisdiction, it would still be compelled to find a lack of 

jurisdiction over the subject matter of this case. Plaintiff raises claims of due 

process violations under the Fifth and Fourteenth Amendments. Compl. ii 1.5 But 

the Due Process clauses of the Fifth and Fourteenth Amendments are not moneymandating, and thus their violation would not be within our court's jurisdiction. 

See LeBlanc v. United States, 50 F.3d 1025, 1028 (Fed. Cir. 1995) (holding that the 

Due Process clause of Fifth and Fourteenth Amendments are not moneymandating).6 

Plaintiff also alleges a violation of the Veterans Claim Assistance Act, 38 

U.S.C. §5103(a). CompL ,ii. But this also falls outside of our court's jurisdiction. 

After a VA Regional Office has made a decision, the Secretary and the Board of 

Veterans' Appeals review such decisions. 28 U.S.C § 7104(a). It is then reviewed by 

the Court of Appeals for Veterans Claims, which has "exclusive jurisdiction" 

regarding decisions of the Board of Veteran's Appeals. 38 U.S.C. 7252(a). This 

court has repeatedly held that it lacks jurisdiction over veterans' disability benefits. 

See Janaskie v. United States, 77 Fed. CL 654, 657-58 (2007); Sullivan v. United 

States, 46 Fed. CL 480, 487 (2000). 

For these reasons, the Court finds that it lacks subject-matter jurisdiction 

over the allegations in Mr. Augusta's complaint. Thus, dismissal is required. 

III. CONCLUSION 

Because the court lacks subject matter jurisdiction over the plaintiffs' claims, 

the government's motion to dismiss this case is hereby GRANTED. Plaintiff's 

application to proceed in forma pauperis is also GRANTED. The Clerk shall close 

the file. 

• The Court notes that the first section of the Fourteenth Amendment, which 

includes the Due Process clause, does not restrict the federal government. See San 

Francisco Arts & Athletics, Inc. v. United States Olympic Comm., 483 U.S. 522, 542 

n.21 (1987). 

s The Due Process Clause of the Fifth Amendment may only be a basis for our 

jurisdiction when a claim concerns an illegal exaction. See Aerolineas Argentinas v. 

United States, 77 F.3d 1564, 1573 (Fed. Cir. 1996); Coleman v. United States, No. 

13-431, 2014 WL 949984, at *3 (Fed. CL Mar. 7, 2014). Plaintiff alleges no such 

claim in this case. 

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IT IS SO ORDERED. 

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