# ORIGI[\IAI

lln tllt. 

# @nitt! $itstts @ourt of

# ftltrul @lufmg No. 15-045C 

### (Filed: March 10,2015) 

### NOT FOR 

### PUBLICATION

RICHARD A. 

### CHICHAKLI,



### Plaintifl

THE LTNITED 

### STATES, 

# FILED
MAR 

## I 0 2015 U.S. COURT OF FEDERAL CLAIMS
Pro Se; Sua Sponte Dismissal 

### for Lack

### of Subject 

### Matter Jurisdiction; RCFC 12(hX3); 38 

### U.S.C. $ 51 1;

### Not 

### in Interest of Justice toTransfer under 28 U.S.C. 

# I IOJ 

### I
Defendant.

Richard 

### A. Chichakli, Brooklyn, 

### N.Y., pro se. 

### Daniel 

### K. Greene, 

### Trial Attorney, Commercial 

### Litigation Branch, 

### Civil Division, United States Department 

### of Justice, Washington, 

### D.C., for defendant. 

### OPINION 

### AND ORDER 

### CAMPBELL-SMITH, Chief Judge 

### Plaintiff, fuchard 

### A. Chichakli, is aveteran 

### who brings suit against the Department 

### of Veterans 

### Affairs 

### (VA)t for its decision to stop payment 

### of his

### disability 

# t In compliance 

### with the 

### court's rules,the 

### Clerk's Office has 

### identified the 

### United States asthe 

### party defendant. See 

### RCFC 10(a) 

### ("The 

### title of the 

### complaint must name

### all the parties

. . .

### with the 

### United States designated asthe 

### party defendant.

. .

### .). In his complaint, 

### Mr. Chichakli named asdefendant "Robert 

### McDonald, Secretary, 

### United States Department 

### of Veteran

### Affairs in 

### His 

### Official Capacity." Compl. 1, ECF 

### No. 1. Because asuit against afederal employee acting 

### in an

### official capacity is asuit against the 

### United States, the casecaption as reflected above is

### correct. See. e.g., Simanonok

### v. Simanonok, 

### glS F.2d 

### 947,950 (Fed.

### Cir. 1990) 

### ("[Plaintiff s] claims against thefederal defendants in 

### their 

### official capacities

. . . are 

### in effect suits brought against the 

### United States 

### itself.").

### benefits. According to 

### plaintiff, the

## vA madethis decision 

### while under the mistaken



### belief that he was 

### a,.fugitive 

### felon." Plaintiff seeks payment 

### of the

### wrongly withheld disability benefits, plus 

### interest. 

### Plaintiff brings his claim 

### without counsel. 

### In effect, 

### Mr. Chichakli requeststhat this court 

### review a benefits decision by the 

## VA. Butthis court lacks 

### jurisdiction over such a

### claim. See 38 

### U.S.C' $

### 511(2012). Although 

### Mr. 

### chichakli's claim might be pursued before the Board 

### of Veterans' Appeals (Board), 

### this court lacks authority totransfer 

### Mr. Chichakli's complaint to the Board. 

### Accordingly, 

### plaintiff s

### complaint is 

### DISMISSED for lack 

### of subject matter 

### jurisdiction pursuant to 

### Rule 

### l2(h)(3) of the Rules of the 

### u.S. court of Federal 

### claims (RCFC). 

# L Background 

### Mr. Chichakli was honorably discharged 

### from the 

### United States

### Army in May 1993. Compl. !l 3,Jan. 16,2015, ECF 

### No. 1. The

### VA subsequently granted 

### Mr. Chichakli a

### twenty percent 

### disability rating, and paid 

### him disability benehts

### from 1993 through 

### April 2005. Id.'ll1T 5-6.
In

### April 2005,the 

### Office of Foreign Assets 

### Control (OFAC) of the 

### United States Department of the Treasury placed sanctions on 

### Mr. Chichakli's assets' 

### Id'

### tl 10. Further tothe 

### OFAC sanctions, the

### VA stopped payment 

### of 

### Mr. Chichakli's disability benefits. Id. 

### !i 12. In response 

### to inquiries 

### by 

### Mr. Chichakli in 2005 and early 2006, the

### VA verbally informed him that 

### it had stopped his benefits "due to 

### information received 

### from the U.S. govemment 

### providing that 

### plaintiff is a

### [FUGITIVE 

### FELON]'" Id. 

### u 

### 14. In 

### April 2013, after another 

### inquiry from 

### Mr. Chichakli, the

### VA provided 

### him

### with an 

### official written statement denying the release

### of his

### disability 

### benefits. Id. lT

### 20.'
In January 2013, an 

### indictment against 

### plaintiff for various felonies was unsealed 

### in afederal 

### court. Id. 

### !l 18. Thereafter, he was arrested,

### tried, and 

### convicted' Id.

### flli 18, 

### 25. Hewas sentenced 

### in December 2014, id. 

### !l 25, and is 

### currently incarcerated. 

### Although 

### plaintiff acknowledges hewas 

### living outside the 

### United States between 2005 and the

### time of his 

### anest

### in20l3, he maintains that he was not charged 

### with any 

### criminal offense 

### prior to January 2013, and was thus not a

### fugitive

### felon. Id. 

### lflf 15, 

### 18,22-23. The 

### provision 

### of certain benefits to persons

### who are

### fugitive felons is 

### prohibited under 38 

# 2 In his 

### complaint, 

### Mr. Chichakli stated that he attached the

### April 2013

### VA response to his 

### complaint as 

### Exhibit

## A. There was no 

### Exhibit

### A attached to the 

### complaint, and the court 

### notified 

### Mr. Chichakli of the omission on February 

### 2,2015. Notice, ECF 

### No.

## 4. On 

### February 18, 2015, 

### Mr. Chichakli filed the

### April 2013

### VA resoonse. ECF 

### No. 6.

### U.S.C. $

### 53138 

### (2012). The payment 

### ofbenefits to veterans incarcerated

### for a

### felony is

authorized, but 

### limited by 38 

### U.S.C. S5313 (2012). 

### Mr. Chichakli filed his 

### complaint inthis court onJanuary 

### 16,2015' seeking payment 

### of the 

### disability benefits that have been 

### withheld since 2005,.pIus interest, costs 

### of his suit, and

### attomey's fees 

### "in the event 

### [he]
. . 

### .hire[s] Counsel"" Id. at 5. 

# II. Application to Proceed In Forma Pauperis On the same date he

### filed his complaint, 

### Mr. Chichakli 

### filed an application 

### to proceed 

### in forma 

### pauperis. 

### Appl. IFP, Jan. 16, 2015, ECF 

### No.

### 2. That application consisted 

### ofa motion, an

### affidavit affirming that he has no accessto assets, and asigned document granting the 

### institution in 

### which he is housed authorization 

### to: (1) send this court a

### "certified copy 

### of [his] prison account statement for the past 

### [s]ix [m]onths," and 

# 3 The court observesthat in his complaint, 

### Mr. Chichakli referred to an older action he believes is pending in this court stating: "subsequent tothe 

### imposition 

### of sanctions by 

### OFAC against 

### plaintiff, the

### VA stopped the medical 

### disability payment to

### plaintiff' An issue 

### which has been pending 

### for many years 

### in another 

### litigation, wherein the U.S. 

### Attomey had persuaded that 

### court that

### jurisdiction was solely 

### in the 

### court of Federal 

### Claims." Compl. 

### !l 12. 

### It appears that 

### plaintiff is 

### referring to adecision 

### of the 

### United States 

### Court

### ofAppeals for the 

### Fifth Circuit, see 

### Chichakli 

### v. Szubin, 546 F.3d 3 15 (5th 

### Cir. 2008), in 

### which that appellate court vacated a

### portion of the 

### district court's decision, 

### for lack of

### jurisdiction. 

### Chichakli alleged

### that

### the [OFAC's] blocking order had

### the effect 

### of destroying 

### his business,

### freezing 

### all of his accounts, 

### depriving 

### him of his automobile, and preventing use and 

### collection 

### of rents

### from rental property 

## for over

### two years. These

# allegations therefore

## fall[] under the exclusive 

### jurisdiction of the Court 

### of Federal Claims. Szubin, 546 F.3d at 317

. 

### To dispel any misunderstanding about the 

### Fifth Circuit's reference to

### this court 

### in its opinion, the court observes that 

### Mr. Chichakli's case before the 

### Fifth Circuit was case no. 07- 1085 I , and his case in the 

### District Court 

### for the 

### Northem 

### District of Texas was case no. 06- 

### 1546. 

### A review of PACER shows that neither case is now pending; both cases are 

### closed. Neither the 

### Fifth Circuit nor the 

### Northern 

### District of Texas transferred any 

### portion of 

### Mr. Chichakli's complainttothis 

### court. The 

### complaintthat isthe subject 

### of this 

### opinion, 

### filed on January 

### 16,2015, is 

### Mr. Chichakli's only pending matter in this court.

### (2) disburse the amounts duetothe court for 

### his

### filing fee, pursuant 

### to 28 

### U.S.C' $

1915(b) 

### (2012). Appl. IFP 

### 1-4. Defendant 

### filed no response to 

### Mr. Chichakli's motion'
The court notesthat 

### it has notyet received the 

### certified copy 

### of 

### Mr' Chichakli's prison account statement 

### from the 

### institution inwhich he is 

### housed. Nonetheless, asthe court does not

### wishto delay this decision, 

### it GRANTS Mr. Chichakli's motion 

### to proceed 

### in forma pauperis. 

# III. Legal Standards TheTucker 

### Act confers

### jurisdiction uponthis court over 

### "any claim against the 

### United States founded either uponthe 

### 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. 

### $ 

### lael(a)(1) (2012). However,

### just asCongress 

### statutorily conferred upon 

### this court

### jurisdiction to hear certain claims against the 

### United States, Congress has exercised its authority to place 

### jurisdiction over certain claims elsewhere 

## . See Massie 

### v. United States, 166 

### F.3d 1184, I 188 (Fed. 

### Cir. 1999). "There are, 

### of course, instances in 

### which courts frndthat congress has displaced Tucker 

### Act

### jurisdiction infavor 

### of some other remedial scheme." 

### Del-Rio Drilling Proerams. Inc. 

### v. United States, 146 

### F.3d 1358, 1367 (Fed' 

### Cir. 1998)' Subject-matter 

### jurisdiction, which "involves a

### court's power to hear a case," may "never be

### forfeited or

### waived." United States 

### v. Cotton, 535 U.S. 

### 625,630 

### (2002).\n evaluating subject-matter 

### jurisdiction, "the allegations stated inthe 

### complaint are taken as true and

### jurisdiction is decided on the face of the 

### pleadings." Folden 

### v. United States, 379 

### F.3d 1344, 

### \354 (Fed. 

### Cir. 2004) (internat quotation marks 

### omitted). The court may question its 

### own subject-matter 

### jurisdiction at any

### time. RCFC 12(hX3) 

### ("If the court determines at any

### time that 

### it lacks subject-matter 

### jurisdiction, the court must dismiss the 

### action."); Folden, 379 F.3d at 1354 ("Subject-matter 

### jurisdiction may be challenged at any

### time

. . .by the 

### court sua sponte.").
The 

### complaint 

### ofa pro se

### plaintiff is generally held to "less stringent standards than

### formal pleadings drafted 

### by 

### lawyers." Haines 

### v. Kerner, 404 

### U'S. 519,520 (1972) (per curiam). 

### A pro se

### plaintiff is entitled 

### to a 

### liberal construction of his pleading. Erickson 

### v. Pardus, 551 

### U.S. 89,94 

### (2007). However, the 

### "leniency [afforded to a pro se 

### litigant] with respect to mere 

### formalities" does not 

### permit acourt

### to "take a liberal 

### view of

. . . [a]

### jurisdictional requirement and set a

### different rulefor pro se

### litigants'" Kelley v. Sec'v. U.S. 

### Dep't of 

### Labor,812F.2d 1378, 1380 (Fed. 

### Cir. 1987).

### IV. Discussion



# A. Subject 

### Matter Jurisdiction
The

### crux of 

### Mr. Chichakli's claim isthat the

### VA made a mistake when 

### it decided to stop payment 

### of his 

### disability benefrts 

### in

### 2005. He asks this court to review the

### VA's decision and order the

### VA to pay 

### him his

### wrongly withheld 

### benefits.This court, however, has no

### jurisdiction to 

### review any

### VA benefits decision, regardless of whether the decision was 

### conect. Pursuant to 38 

### U.S.C. $ 511, no court may 

### review a benefits decision made by the

## VA. 38 

### U.S.C. $511(a) 

### ("[T]he decision 

### of the Secretary asto any [decision that affects the 

### provision 

### ofbenefits] shall be

### final and conclusive and may not be reviewed 

### by any other 

### official or 

### by any 

### court

. . . 

### .") (emphasis added).
Jurisdiction to 

### review a

### VA benefits decision lies solely 

### with the Board 

## of Veterans' 

### Appeals.a 38 

### U.S.C. g 7104 

### (2012). Review

### of a Board decision is available 

### first in the 

### court of Appeals 

### for veterans 

### claims, and then inthe

### court of Appeals for the Federal 

### Circuit. 38 

### U.S.C. $$ 7252

### &7292 (2012). This is

### well-settled law; there is no shortage 

### ofdecisions holding that this court lacks 

### jurisdiction to 

### review a

### VA benefits decision, andthat the

### first level 

### review of such adecision lies solely 

### with the 

### Board. See. 9.,g., 

### Kalick v. 

### United States, 541 F.

### App'x 1000, 1001 (Fed. 

### Cir. 2013) (per curiam) 

### (affirming dismissal under 38 

### U.S.C. $ 511, and

### finding that any challenge 

### to a

### VA benefits decision must be brought to the Board of Veterans' Appeals); 

### Metcalf v. 

### United States, 

### No. 12-518,2013

### WL 1517821, at 

### *5 (Fed. 

### Cl.

### Apr. 15,2013) (dismissing incarcerated veteran's 

### claim that the

### VA improperly reduced 

### disability benefits, 

### for lack 

### ofjurisdiction under 38 

### U.S.C. $

### 511(a). Thus, under 38 

### U.S.C. $ 511, this court lacks 

### jurisdiction to hear 

### Mr' Chichakli's claim against the

### VA. 

# B. Transfer Under 28 

### U.S.C. $ 1631 Whenthis court determinesthat 

### it lacks

### jurisdiction, it must transfer the case to a court where the action could have been brought 

### ifsuch transfer 

### "is in the interest

### of justice." 28 

### U.S.C. $ 1631 (2012); see also Tex. Peanut Farmers 

### v' United States, 409 

### F.3d 1370, 1374-75 (Fed. 

### Cir. 2005) (stating that the

### trial court may order transfer sua 

### sponte). This court's authority to

### tansfer a case, however, is 

### limited; atransfer may be made 

### only to 

### "courts of appeals and 

### district courts of the 

### United States, the 

### United States 

### District Court for the 

### District of the Canal Zone, the 

### District Court 

### of Guam, the 

### District Court 

### of the

### Virgin Islands,

. . . and the Court 

### of International 

### Trade'" 28 U.S.C. $ 610 

# a Instructions on how 

### to appeal a

### VA benefits determination to the Board are on its 

### website. Board of Veterans' Appeals, 

### http://www.bva.va.gov/How-Do-I-APPEAl'asp'(2012\.


### This court thus lacks authority totransfer 

### Mr. Chichakli's claim to the Board

## of

Veterans' Appeals, as

### it is not 

### identified as atransferee 

### court inthe 

### goveming statute. See 28 

### U.S.C. $ 610. 

# V. Conclusion For theforegoing reasons, the 

### courl 

### GRANTS Mr. Chichakli's motion to proceed 

### in forma 

### pauperis. Pursuant to 28 U. S.C. $ 1915(b), the 

### Clerk shall assess, as a

### partial payment 

### of the 

### court's 

### filing fee, an 

### initial sum of 

### twenty percent of the greater

## of(l) the average 

### monthly deposits to his account, or (2) the average 

### monthly balance in his account

### for the 

### six-month period immediately preceding the

### filing of his 

### complaint' See 

### $ 

### 1915(bXl). Thereafter, 

### Mr. Chichakli shall be required to make 

### monthly payments 

### of twenty percent of the preceding 

### month's income creditedto his 

### account. $ 1915(bX2). The agency having custody of 

### plaintiff shall forward payments 

### from 

### plaintiff saccount 

### to the 

### Clerk of the 

### Court ofFederal Claims each time the account balance exceeds $10 

### until the

### filing fees are 

### paid. Id. The court finds that 

### it lacks 

### jurisdiction over 

### plaintiff sclaims, and that 

### it is 

### not in the interest

### ofjustice to transfer the 

### complaint. 

### Plaintiff s

### complaint is 

### DISMISSED without prejudice pursuant to 

### RCFC 12(h)(3). The 

### Clerk 

### of Court

### will enter

### judgment for defendant. No costs. 

### IT IS SO

### ORDERED.



### ATRICIAE. CAMPB Chief Judge