Tyson v. United States

In the United States Court of Federal Claims

No. 24-734

Filed: December 11, 2024

***************************************

PATRICK TYSON, *

*

Plaintiff, *

*

v. *

*

UNITED STATES, *

*

Defendant. *

***************************************

Patrick Tyson, Celina, TX, pro se.

Laurel Don Havens, U.S. Department of Justice, Civil Division, Washington, DC, counsel for

Defendant.

OPINION AND ORDER

Dietz, Judge.

Pro se plaintiff, Patrick Tyson, claims that the Department of Veterans Affairs (“VA”)

failed to grant him a variety of disability and retirement benefits. He also claims entitlement to

Combat Retired Pay (“CRDP”) 1 and Combat-Related Special Compensation (“CRSC”). 2 The

government moves to dismiss Mr. Tyson’s complaint for lack of subject-matter jurisdiction

pursuant to Rule 12(b)(1) of the Rules of the United States Court of Federal Claims (“RCFC”)

and for failure to state a claim upon which relief may be granted pursuant to RCFC 12(b)(6). For

the reasons stated below, the Court GRANTS the government’s motion to dismiss.

I. BACKGROUND

Patrick Tyson is a Gulf War veteran, who served in the Navy from 1988 to 1992, and in

the Individual Navy Reserves from 1992 to 1996. Compl. [ECF 1] at 2; 3 Def.’s Mot. to Dismiss

1

CRDP permits “concurrent receipt” of military retired pay from the Department of Defense (“DoD”) and disability

payments from the VA. Hutchinson v. United States, 168 Fed. Cl. 504, 519 (2023), recons. denied, 171 Fed. Cl. 570

(2024); see 10 U.S.C. § 1414.

2

CRSC is a program that grants additional compensation to “retired veterans who establish that their disability is

attributable to a combat-related event.” Soto v. United States, 92 F.4th 1094, 1096 (Fed. Cir. 2024); see 10 U.S.C. §

1413a.

3

All page numbers in the parties’ briefs refer to the page numbers generated by the CM/ECF system.

[ECF 17] at 1. Mr. Tyson applied for and received service-connected disability benefits with a

100% disability rating for a total and permanent disability, effective February 19, 2008. [ECF 1]

at 2; [ECF 17] at 1. On March 6, 2023, the Veterans Benefits Administration Regional Office

granted Mr. Tyson special monthly compensation based on Housebound Status or Permanent

Need for Regular Aid and Attendance, effective February 17, 2023. Pl.’s Resp. [ECF 18] at 21-

22.

On May 8, 2024, Mr. Tyson filed the instant complaint alleging that the VA provided him

with basic compensation but failed to assess a higher monthly compensation rate for “wartime

Total disability, Housebound, Special Aid and Attendance, [CRDP, and CRSC].” [ECF 1] at 2.

Mr. Tyson claims that the higher monthly compensation rate for his housebound status “should

have been automatically assessed when evidence showed an increase in the service connected

disability” in 2008—the date of his original grant of service-connected disability benefits. [ECF

1] at 2; see also [ECF 18] at 3. Mr. Tyson further claims that he is entitled to “disability

retirement pay, commonly referred to as a Chapter 61 retirement in the form of CRDP,” [ECF

18] at 4, as well as CRSC and various other “statutory and regulatory entitlements,” [ECF 1] at

2; see also [ECF 18] at 3-5.

On July 25, 2024, the government filed a motion to dismiss Mr. Tyson’s complaint for

lack of subject-matter jurisdiction pursuant to RCFC 12(b)(1) and for failure to state a claim

upon which relief may be granted pursuant to RCFC 12(b)(6). [ECF 17]. The motion is fully

briefed. See [ECF 18]; Def.’s Reply [ECF 19].

II. LEGAL STANDARDS OF REVIEW

A motion to dismiss for lack of subject-matter jurisdiction challenges “a court’s general

power to adjudicate in specific areas of substantive law,” Palmer v. United States, 168 F.3d

1310, 1313 (Fed. Cir. 1999), and a motion to dismiss for failure to state a claim upon which

relief may be granted asks “whether in a specific case a court is able to exercise its general power

with regard to the facts peculiar to the specific claim,” id. When the government moves to

dismiss a complaint under RCFC 12(b)(1), the plaintiff bears the burden of establishing subject-

matter jurisdiction by a preponderance of the evidence. Tolliver Grp., Inc. v. United States, 20

F.4th 771, 775 (Fed. Cir. 2021). When considering such a motion, the court “must assume that

all undisputed facts alleged in the complaint are true and must draw all reasonable inferences in

the non-movant’s favor.” Cal. Dep’t of Water Res. v. United States, 128 Fed. Cl. 603, 609

(2016) (citing Erickson v. Pardus, 551 U.S. 89, 94 (2007)). However, the “court accepts only

uncontroverted factual allegations as true for purposes of the motion.” U.S. Enrichment Corp. v.

United States, 121 Fed. Cl. 532, 534 (2015) (quoting Banks v. United States, 741 F.3d 1268,

1277 (Fed. Cir. 2014)). “The Court may look to evidence outside of the pleadings in order to

ascertain the propriety of its exercise of jurisdiction over a case.” HEALTHeSTATE, LLC v.

United States, 146 Fed. Cl. 681, 684 (2020). “[D]isputed facts outside the pleadings are subject

to the fact finding of the court.” Engage Learning, Inc. v. Salazar, 660 F.3d 1346, 1355 (Fed.

Cir. 2011) (citing Cedars-Sinai Med. Ctr. v. Watkins, 11 F.3d 1573, 1583-84 (Fed. Cir. 1993)).

“Whether the court possesses jurisdiction to decide the merits of a case is a threshold

matter.” Sandstone Assocs., Inc. v. United States, 146 Fed. Cl. 109, 112 (2019) (citing Steel Co.

v. Citizens for a Better Env’t, 523 U.S. 83, 94-95 (1998)). If the court determines that it lacks

2

subject-matter jurisdiction, it must dismiss the case. RCFC 12(h)(3); Arbaugh v. Y & H Corp.,

546 U.S. 500, 514 (2006).

To survive a motion to dismiss under RCFC 12(b)(6), “a complaint must contain

sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its

face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. v. Twombly, 550 U.S. 544,

570 (2007)). “[T]he tenet that a court must accept as true all of the allegations contained in a

complaint is inapplicable to legal conclusions.” Id.; see also Twombly, 550 U.S. at 555 (requiring

a pleading to offer “more than labels and conclusions”). “Threadbare recitals of the elements of a

cause of action, supported by mere conclusory statements, do not suffice.” Iqbal, 556 U.S. at

678 (citing Twombly, 550 U.S. at 555). Rather, a plaintiff must plead sufficient factual matter to

“raise a right to relief above the speculative level . . . .” Twombly, 550 U.S. at 555. The court

must also draw all reasonable inferences in favor of the non-moving party. Sommers Oil Co. v.

United States, 241 F.3d 1375, 1378 (Fed. Cir. 2001).

“Pleadings from pro se plaintiffs are held to a more lenient standard than pleadings

drafted by lawyers.” Thomas v. United States, 155 Fed. Cl. 772, 775 (2021) (citing Hughes v.

Rowe, 449 U.S. 5, 9 (1980)). However, the court does not construe its jurisdictional requirements

liberally, and “the court is allowed no discretion to bend the requirements of jurisdiction in

[a pro se plaintiff’s] favor.” Stanley v. United States, 107 Fed. Cl. 94, 98 (2012).

III. ANALYSIS

The government argues that this Court lacks jurisdiction to hear claims for denial of

veteran benefits and that, therefore, the Court should dismiss Mr. Tyson’s veteran benefits claims

for lack of jurisdiction. [ECF 17] at 1. The government also argues that the Court should dismiss

Mr. Tyson’s claims for CRSC and CRDP for failure to state a claim upon which relief may be

granted because Mr. Tyson has not alleged his retiree status, as required to receive such statutory

entitlements. Id. at 4. As explained below, the Court agrees with the government.

A. The Government’s Motion to Dismiss Pursuant to RCFC 12(b)(1)

This Court has limited jurisdiction. Brown v. United States, 105 F.3d 621, 623 (Fed. Cir.

1997); see also Massie v. United States, 226 F.3d 1318, 1321 (Fed. Cir. 2000). The Tucker Act

grants this Court jurisdiction 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). The Tucker Act, however, is “merely a

jurisdictional statute and does not create a substantive cause of action.” Rick’s Mushrooms Serv.,

Inc. v. United States, 521 F.3d 1338, 1343 (Fed. Cir. 2008) (citing United States v. Testan, 424

U.S. 392, 398 (1976)). To establish subject-matter jurisdiction in this Court, a plaintiff must

identify a “substantive right created by some money-mandating constitutional provision, statute

or regulation that has been violated, or an express or implied contract with the United States.”

Thomas, 155 Fed. Cl. at 775-76 (internal quotation marks omitted). However, even if a plaintiff

identifies a money-mandating statute, there still may exist a jurisdictional issue that precludes

this Court from exercising its authority over a claim. See Bargsley v. United States, 120 Fed. Cl.

3

619, 631 (2015). Namely, where a “‘specific and comprehensive scheme for administrative and

judicial review’ is provided by Congress, the Court of Federal Claims’ Tucker Act jurisdiction

over the subject matter covered by the scheme is preempted.” Id. at 630 (quoting Vereda, Ltda. v.

United States, 271 F.3d 1367, 1375 (Fed. Cir. 2001)).

The Veterans’ Judicial Review Act (“VJRA”) of 1988 establishes one such scheme that

preempts Tucker Act jurisdiction. El Malik v. United States, 170 Fed. Cl. 590, 594-95 (2024);

see also Kalick v. United States, 541 F. App’x 1000, 1001 (Fed. Cir. 2013). Under the VJRA, a

decision regarding the award of veteran benefits shall be made by the Secretary of the VA, and

“shall be final and conclusive and may not be reviewed by any other official or by any court,

whether by an action in the nature of mandamus or otherwise.” 38 U.S.C. § 511. “A challenge to

a VA decision on veterans’ benefits must be made at the Board of Veterans’ Appeals, and those

decisions are appealable only to the Court of Appeals for Veterans Claims and then the Federal

Circuit, not to the Court of Federal Claims.” El Malik, 170 Fed. Cl. at 594-95 (citing Kalick, 541

F. App’x at 1001); see also Davis v. United States, 36 Fed. Cl. 556, 559 (1996) (stating that

under the VJRA “the exclusive remedy for the denial of veterans’ benefits is to appeal to the

Court of Veterans Appeals” and that “[j]urisdiction for appeals from the Court of Veterans

Appeals lies exclusively in the United Court of Appeals for the Federal Circuit”). Consequently,

this Court does not have the authority to hear claims for veteran disability benefits and related

entitlements. See Hickman v. United States, 122 Fed. Cl. 645, 650 (2015); Trevino v. United

States, 113 Fed. Cl. 204, 209 (2013), aff’d, 557 F. App’x 995 (Fed. Cir. 2014).

Mr. Tyson’s claims primarily relate to service-connected disability benefits administered

by the VA. [ECF 1] at 2. For instance, he alleges that the VA failed to grant him higher Special

Monthly Compensation, disability housing grants, automobile allowance and adaptive equipment

grants, Servicemembers’ Group Life Insurance Traumatic Injury Protection (“TSGLI”)

payments, the Veteran Readiness and Employment Program’s Independent Living Program

services, Service-Disabled Veterans Life Insurance, education benefits, a pension, and the

participation of his spouse in the Program of Comprehensive Assistance for Family Caregivers.

Id. Mr. Tyson also alleges that the VA deprived him and his spouse of the ability to “access[] or

convert” their TSGLI and Family Servicemembers’ Group Life Insurance policies. Id. However,

because such benefits are administered by the VA and governed by VA statutes and regulations,

they fall under statutory schemes that preempt Tucker Act jurisdiction. See El Malik, 170 Fed.

Cl. at 594-95. As a result, Mr. Tyson’s veteran benefit claims fall outside of this Court’s

jurisdiction and must be dismissed. 4

4

Mr. Tyson argues that “disability pay claims are not benefit cases but are bi-products of resolved benefit cases,”

[ECF 18] at 6, and that “[o]nce these cases are resolved such as in [his] case with an assigned rating . . . the statutory

entitlements under that rating become bi-product, which in this case is money-owed and or money-mandating

claims,” id. The Court is not persuaded. The entitlements referenced by Mr. Tyson—even if they were to flow from

his assigned rating—fall within the VA’s “specific and comprehensive” statutory scheme, which preempts Tucker

Act jurisdiction. See El Malik, 170 Fed. Cl. at 594-96 (holding that this Court cannot “determine whether the VA

acted properly in handling [the veteran’s] requests for benefits” because such a claim “must be handled through the

VA appeals process”).

4

B. The Government’s Motion to Dismiss Pursuant to RCFC 12(b)(6)

Mr. Tyson also alleges entitlements to CRSC and CRDP, [ECF 1] at 2, both of which are

administered by the DoD rather than the VA, see Staten v. United States, No. 22-732, 2023 WL

28987, at *3 (Fed. Cl. Jan. 3, 2023) (“military disability pay claims are distinct from claims for

benefits administered by the VA”); Martin v. United States, 133 Fed. Cl. 248, 251-52 (2017)

(CRSC eligibility is determined by the DoD); Haddock v. United States, 135 Fed. Cl. 82, 84

(2017) (the CRDP program is administered by the DoD). Thus, claims regarding CRSC and

CRDP do not fall under the VA’s comprehensive scheme for review and are within this Court’s

subject-matter jurisdiction. See Adams v. United States, 126 Fed. Cl. 645, 656 (2016) (holding

that 10 U.S.C. § 1413a is a money mandating statute), aff’d, 696 F. App’x 511 (Fed. Cir. 2017);

Wheless v. United States, 173 Fed. Cl. 215, 218 (2024) (finding that 10 U.S.C. § 1414 is a

money-mandating statute). However, a veteran must be a military retiree to be entitled to CRSC

or CRDP. For CRSC, a veteran must demonstrate that he is “entitled to retired pay” and “has a

combat-related disability.” Strahler v. United States, 158 Fed. Cl. 584, 588 (2022) (quoting 10

U.S.C. § 1413a(c)(1) (emphasis added)). Additionally, for CRDP, a veteran must be entitled to

“retired pay” and “veterans’ disability compensation for a qualifying service-connected

disability.” 10 U.S.C. § 1414(a)(1) (emphasis added); see also Hutchinson v. United States, 168

Fed. Cl. 504, 519 (2023), recons. denied, 171 Fed Cl. 570 (2024).

Mr. Tyson contends that the VA failed to “automatically assess[]” CRSC and CRDP after

finding that he had a service-connected disability. [ECF 1] at 2. However, Mr. Tyson fails to

plead his retiree status to demonstrate a plausible entitlement to CRSC and CRDP. See [ECFs 1,

18]. Mr. Tyson also fails to dispute the government’s contention that he is not a retiree. While

the government provided Mr. Tyson’s “Certificate of Release or Discharge from Active Duty,”

which indicates that he was honorably released from active duty, and a letter from the U.S. Navy

CRSC Board, which indicates that Mr. Tyson “does not have a retired pay account at [Defense

Finance and Accounting Services (‘DFAS’)] Cleveland,” [ECF 17] at 4, 10, Mr. Tyson fails to

provide any statement or other evidence showing his retiree status. 5 Thus, Mr. Tyson has failed

to plead his retiree status—a precondition to claiming CRSC or CRDP.

Mr. Tyson further contends that CRSC payments “cannot be adequately added until . . .

[DFAS] correctly initiate[s] and assess[es his] Chapter 61 disability retirement pay or []CRDP.”

[ECF 18] at 5. However, military disability status, retirement pay decisions, and general

corrections to military records are entrusted to the Secretary of the service member’s military

department, who delegates authority to specific military boards. See Pope v. United States, 77

Fed. Cl. 737, 741-42 (2007); Janaskie v. United States, 77 Fed. Cl. 654, 658 (2007); see also 10

U.S.C. § 1201(a). Therefore, DFAS does not have the authority to determine retiree status or

entitlement to retirement pay. Furthermore, the Court “has no jurisdiction over disability

retirement claims until a military board evaluates a service member’s entitlement to such

5

In his response, Mr. Tyson directs the Court to “Note Completed Forms and Multiple Request made to DFAS and

DOD/NAVY).” [ECF 18] at 5. However, there is no evidence of such submissions. Furthermore, if, as Mr. Tyson

implies, the correct authority is in the process of making an initial determination, the Court still lacks jurisdiction to

hear his claims for CRSC, CRDP, or other related military retired pay claims because a military board has yet to

make an initial evaluation of his entitlement. See Chambers v. United States, 417 F.3d 1218, 1225 (Fed. Cir. 2005).

5

retirement in the first instance.” Chambers v. United States, 417 F.3d 1218, 1225 (Fed. Cir.

2005). Consequently, even under the “lenient” standard afforded to pro se plaintiffs, Mr. Tyson

has failed to plead sufficient facts to “allow[] the court to draw the reasonable inference” of his

entitlement to CRSC, CRDP or disability retirement pay, Ashcroft, 556 U.S. at 663, and the

Court must dismiss these claims under RCFC 12(b)(6). 6

IV. CONCLUSION

In sum, the Court finds it lacks subject-matter jurisdiction to hear Mr. Tyson’s veteran

benefits claims and that Mr. Tyson has failed to sufficiently state a claim for entitlements to

CRSC and CRDP. Accordingly, the Court GRANTS the government’s motion to dismiss, [ECF

17]. The Clerk of the Court is directed to enter judgment consistent with this Opinion and Order.

IT IS SO ORDERED.

s/ Thompson M. Dietz

Thompson M. Dietz, Judge

6

Mr. Tyson also alleges that the VA “denied and deprived [him] of various benefits that are automatically allotted,”

including “Direct Hire Authority,” and “10-point Veteran Preference in Federal Hiring.” [ECF 1] at 2. However, the

relevant statute for “Direct-Hire Authority” only provides authority for “agencies to appoint . . . candidates directly

to positions.” 5 U.S.C. § 3304(a)(3). It does not provide an entitlement to benefits. With respect to Mr. Tyson’s

veteran preference claim, the Federal Circuit has held that this Court “does not have jurisdiction to grant relief for

denial of a veterans’ preference” in violation of the Veterans Preference Act. Turner v. United States, No. 97-5087,

1997 WL 656965, at *2 (Fed. Cir. Oct. 9, 1997). Finally, Mr. Tyson raises “a claim for money due under the Federal

Employment Retirement System (FERS)” in his Response to the government’s Motion to Dismiss, [ECF 18] at 4-5,

but the Court lacks jurisdiction over FERS claims, Hasan v. United States, 171 Fed. Cl. 167, 171 (2024).

6