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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NOT FOR PUBLICATION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 to Transfer 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 a veteran 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 as the party defendant. See RCFC 10(a) ("The title of the complaint must name all

the parties . . . with the United States designated as the party defendant. . . .). In his

complaint, Mr. Chichakli named as defendant "Robert McDonald, Secretary, United

States Department of Veteran Affairs in His Official Capacity." Compl. 1, ECF No. 1.

Because a suit against a federal employee acting in an official capacity is a suit against

the United States, the case caption as reflected above is correct. See. e.g., Simanonok v.

Simanonok, glS F.2d 947,950 (Fed. Cir. 1990) ("[Plaintiff s] claims against the federal

defendants in their official capacities . . . are in effect suits brought against the United

States itself.").
benefits. According to plaintiff, the vA made this 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 requests that this court review a benefits decision by the

VA. But this 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 to transfer 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

to the 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 a federal court. Id. !l 18. Thereafter, he was arrested, tried, and convicted' Id. flli 18,

25. He was sentenced in December 2014, id. !l 25, and is currently incarcerated.

Although plaintiff acknowledges he was 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. S 5313 (2012).

Mr. Chichakli filed his complaint in this court on January 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 access to assets, and a signed

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 observes that in his complaint, Mr. Chichakli referred to an older action

he believes is pending in this court stating: "subsequent to the 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 a decision 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 complaint to this court. The complaint that is the subject

of this opinion, filed on January 16,2015, is Mr. Chichakli's only pending matter in this

court.
(2) disburse the amounts due to the 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 notes that it has not yet received the certified copy of Mr' Chichakli's

prison account statement from the institution in which he is housed. Nonetheless, as the

court does not wish to delay this decision, it GRANTS Mr. Chichakli's motion to

proceed in forma pauperis.

III. Legal Standards

The Tucker Act confers jurisdiction upon 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. $ lael(a)(1) (2012).

However, just as Congress 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 frnd that

congress has displaced Tucker Act jurisdiction in favor 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 subj ect-matter jurisdiction, "the allegations stated in the 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 a court to "take a liberal view

of . . . [a] jurisdictional requirement and set a different rule for 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 is that 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 as to 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 in the 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, and that the first level review of such a decision 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

When this court determines that 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; a transfer 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 to transfer Mr. Chichakli's claim to the Board of

Veterans' Appeals, as it is not identified as a transferee court in the goveming statute.

See 28 U.S.C. $ 610.

V. Conclusion

For the foregoing 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 credited to his account. $ 1915(bX2).

The agency having custody of plaintiff shall forward payments from plaintiff s account 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 s claims, 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