# Jfn tbe fflniteb ~tates ~ourt ofjfeberal ~laints
No. 18-8830 (Filed December 20, 2018) NOT FOR PUBLICATION



### ************************ 

### * * ANTHONY M. AUGUSTA, 

### * * Plaintiff, 

### *
v. 

### * * THE UNITED STATES, 

### * * Defendant. 

### * * ************************

MEMORANDUM OPINIONAND ORDER

The matterbefore this court is defendant's motion to dismiss this case. Anthony M. Augusta, actingpro se, brought this action alleging that the Department ofVeteran Affairs (VA) violated his constitutional due process rights and the Veterans Claims Assistance Act, 38 U.S.C. §5103(a), in its handling ofhis claims for service-connected disability. The government moved for a dismissal of the complaint, pursuantto Rule 12(b)(l) ofthe Rules ofthe United States Court of Federal Claims (RCFC), on the ground that the doctrine ofresjudicata bars plaintifffrom relitigating these claims. Alternatively, the government moved for dismissal ofthe complaint withprejudice on the ground that the court lacks subject matterjurisdictionover plaintiff's claims. For the reasons statedbelow, the court 

### GRANTS defendant's motion to dismiss this case.


### I. BACKGROUND

On April 16, 2018, Mr. Augusta filed his first complaintin this court against the United States for alleged violations ofFifth 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 basedjurisdiction over his claims on the TuckerAct, 28 U.S.C. § 1491. Id. 

### 'II 2. According to Mr. Augusta's first complaintin this court, he initially filed a service-related disability claim with the VA onAugust

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

7018**□□ □** **□□□ 1**  1393 11122, 2006. 

### Id. 

## ,r 6. Plaintiffsubsequentlyfiled 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 ofthe VA denied plaintiff's second claim in 2008, for lack ofsubject matterjurisdictionover 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 ifthey were beingprocessed 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. Plaintiffthen filed a third claim with the VA in 2009. Id. This court sua sponte dismissed Mr. Augusta's first complaint for lack ofsubject-matterjurisdiction. See Augusta v. United States (Augusta I), No. 18-562C, 2018 WL 2227779, at *l (Fed. Cl. May 16, 2018).

On June 19, 2018, plaintifffiled a nearly identical second complaint in this court. See, Compl. at 1-4. In his second complaint, plaintiffraises alleged violations by the United States ofhis Fifth Amendment due process rights and the Veterans Claims Assistance Act, as he did in his first complaint, butreplaces the alleged violation ofthe Veterans' Judicial Review Act with an alleged violation of FourteenthAmendment due process rights. Compare Compl. 

## ,r 1 (including an allegation ofviolations ofdue process rights under the FourteenthAmendment), withAugustaI Compl. 

### ii 1 (including an allegation that the United States violated the Veterans' Judicial Review Act). Plaintiffadds an additional ground of jurisdictionin his new complaint, citing 42 U.S.C. § 1983, and states that the Court ofAppeals for Veterans Claims has nojurisdiction over constitutional arguments. See Compl. 

## ,r 2. 2 Finally, in his new complaintplaintiffalso makes a reference to veterans' benefits as propertyinterests. See Compl. 

## ,r 6 (statingthat, "disability benefits is [sic] a property right protectedunder the Fifth and Fourteenth Amendment[s] ofthe Constitution"). 3

2 Section 1983 does not apply to actions ofthe 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 conferjurisdiction 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 Circuithas 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 alsoAdams v. United States, 391 F.3d 1212, 1225 (Fed. Cir. 2004) (discussing federal employment benefits generally). -2-The government has moved to dismiss this case on the ground that the claims
are barredby 

### resjudicata. Def.'s Mot. at 1. The government alternatively moves to dismiss the case due to this court's lack ofsubject-matterjurisdiction. 

### Id.



### II. DISCUSSION
A. Applicable Legal Standards

Under RCFC 12(b)(l), a complaint mustbe dismissed when the court lacks jurisdiction over the complaint's subject matter. In considering a motion to dismiss for want ofsubject-matterjurisdiction, 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&BPlastics, Inc., 291 F.3d 1324, 1326 (Fed. Cir. 2002). Ifthe facts reveal any reasonable basis upon which the non-movant may prevail, dismissal is inappropriate. 

### SeeAerolineasArgentinas v. United States, 77 F.3d 1564, 1572 (Fed. Cir. 1996). A plaintiffhas the burden ofestablishing the court'sjurisdiction over his claim. 

### See Reynolds v. Army 

### &AirForce 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 plaintiffwho 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'sjurisdiction.

A court must also dismiss a complaint that seeks to relitigate a matter that another court ofcompetentjurisdictionhas already decided. Under the doctrine of


### resjudicata, a finaljudgment on the merits ofan actionprecludes 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 AirResponse v. United States, 302 F.3d 1363, 1368 (Fed. Cir. 2002). 4

4 As a technical matter, when the doctrine of

### resjudicata is applied to the question ofjurisdiction it is more appropriately categorized as concerning issue preclusion instead ofclaim preclusion. 

### See Chisolm v. United States, 82 Fed. Cl. 185, 199, aff'd, 298 F. App'x 957 (Fed. Cir. 2008). Butin any event, the government is correct that its motion to dismiss this case, based on the doctrine of

### resjudicata, presents a question regarding ourjurisdiction. 

### See, e.g., Verdone v. United States, No. 04- 801C, 2005 WL 6112626, at *3 (Fed. Cl. May 31, 2005).

- 3

-B. Jurisdiction

The TuckerAct confers subject matterjm·isdictionupon this court over "any claim against the United States founded either upon the Constitution, or any act of Congress or any regulation ofan 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 plaintiffto come within thejurisdiction ofthe Tucker Act and its waiver ofsovereign immunity, that plaintiffmust also invoke a money-mandating federal statute, regulation, contract, or Constitutionalprovision "that creates the right to money damages." Fisher 

### v. United States, 402 F.3d 1167, 1172 (Fed. Cir. 2005).

C. 

### ResJudicata Bars this Complaintfrom Our Jurisdiction

The complaint filed in this case is nearly identical to the complaintMr. Augusta filed in this court onApril 16, 2018, whichwas dismissed for lack of subject-matterjurisdiction. SeeAugustaI Compl.;AugustaI, 2018 WL 2227779, at *2-3. Plaintiffhas filed both a response and, with the leave ofthis 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 resjudicata and collateral estoppel, but he does not seriously contend that his claims are not barredby the application ofthese doctrines. See Pl.'s Surreply at 1-4. Nevertheless, in light ofMr. Augusta'sprose status, the Court has undertaken the analysis to determine whether his claims are barredby resjudicata.

Plaintiffunquestionably seeks to relitigate his claims that the VA's denials of his service-related disability applications constituted violations ofhis due process rights under the FifthAmendment and ofthe 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 ofhis due process rights under the Fourteenth Amendment. Id. The first two claims were already decided against him on the basis ofsubject matterjurisdictionin this court. SeeAugustaI, 2018 WL 2227779, at *2-3. Mister Augusta is thus barred from relitigating the issue ofsubject-matter jurisdiction ofthese 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 FourteenthAmendment relates to the same underlying facts about the VA's denials ofhis applications for service-related disability and is thus also barredby the doctrine ofresjudicata. Id. Accordingly, the court may not exercisejurisdiction

- 4

-because the matter ofjurisdiction has alreadybeen determined by our court in a finaljudgment. 

### Id. Dismissal is thus required on this basis.



### D. The Court Lacks Jurisdiction over Plaintiff's Claims

Were the court not barredby the doctrine of

### resjudicata from revisitingthe question ofour court'sjurisdiction, it would stillbe compelled to find a lack of jurisdiction over the subject matter ofthis case. Plaintiffraises claims ofdue process violations under the Fifth and FourteenthAmendments. Compl. 

## ii 1.5 But the Due Process clauses ofthe Fifth and FourteenthAmendments are not moneymandating, and thus their violation would notbe within our court'sjurisdiction. 

### See LeBlanc v. United States, 50 F.3d 1025, 1028 (Fed. Cir. 1995) (holding that the Due Process clause ofFifth and FourteenthAmendments are not moneymandating).6

Plaintiffalso alleges a violation ofthe Veterans ClaimAssistance Act, 38 U.S.C. §5103(a). CompL ,ii. But this also falls outside ofour court'sjurisdiction. 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 reviewedby the Court ofAppeals for Veterans Claims, which has "exclusivejurisdiction" regarding decisions ofthe Board ofVeteran's Appeals. 38 U.S.C. 7252(a). This court has repeatedly held that it lacksjurisdiction 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 Courtfinds that itlacks subject-matterjurisdiction
over the allegations inMr. Augusta's complaint. Thus, dismissal is required.



### III. CONCLUSION

Because the court lacks subject matterjurisdiction over the plaintiffs' claims, the government's motion to dismiss this case is hereby 

### GRANTED. Plaintiff's application to proceed 

### informapauperis is also 

### GRANTED. The Clerk shall close the file.

• The Court notes that the first section ofthe FourteenthAmendment, which includes the Due Process clause, does not restrict the federal government. 

### See San FranciscoArts 

### &Athletics, Inc. v. United States Olympic Comm., 483 U.S. 522, 542 n.21 (1987).

s The Due Process Clause ofthe FifthAmendment may only be a basis for our jurisdictionwhen a claim concerns an illegal exaction. 

### SeeAerolineasArgentinas 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). Plaintiffalleges no such claim in this case.

- 5

-

### IT IS SO ORDERED.

- 6

-