Coleman v. United States

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No. 13-431C

(Filed March 7,2014)

NOT FOR PUBLICATION

* * * * * * * )kt( * * *********** * * FILED

*

MAR ? 2014

CAROL COLEMAN,

Plaintiff, ,H;?8oo'u8lo?fit

THE UNITED STATES,

Defendant.

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MEMORANDUM OPINION AND ORDER

WOLSKI, Judge.

Plaintiff Carol Coleman, the widow of a deceased veteran, has brought this

case pro se, seeking an award of additional veterans' benefrts and associated

damages. The government has moved to dismiss this case under RuIe 12(bXl) of

the Rules of the United States Court of Federal Claims (RCFC), arguing the lack of

subject-matter jurisdiction. For the reasons stated below, defendant's motion to

dismiss is GRANTED.

I. BACKGROUND

Plaintiff was married to Mr. Chester R. Coleman, a veteran of the United

states Army and both the vietnam and GuIf wars, who separated from the military

on September 1, 2000. PI.'s Resp. App. B at 41; App. C at 3.1 On March 31' 2003

the U.S. Department of Veterans Affairs OA) evaluated Mr. Coleman's claim for

additional service-connected compensation and concluded that he suffered from

service-related peripheral neuropathy and sleep apnea. App. C at 1-6. The VA

I Plaintiffs response contained attachments which were not divided into separate

appendices. For ease of reference, the Court cites to the appendices generated in

ECF, with Apps. A, B, and C being ECF Nos. 8-1, 8-2, and 8'3, respectively.

determined that Mr. Coleman's service-related disabilities were "permanent and

totally disabling" and increased Mr. Coleman's monthly entitlement to $2,318 per

month. Id. at 3; App. B at 37. Mister Coleman died on September 8, 2004 due to

his service-related metastatic lung cancer. App. C at 7, 17.

On September 20,2004, plaintiff submitted an application for "Dependency

and Indemnity Compensation, Death Pension and Accrued Benefits By a Surviving

Spouse or Child" to the VA regional offrce in North Little Rock, Arkansas (RO). Id.

at 8. On December 7,2004 the RO informed plaintiff that she had been granted

dependency and indemnity compensation (DIC) and her husband's accrued benefits

for the month of September, but denied a death pension because the dependency

and indemnity compensation was the greater benefrt --- $993 as opposed to $567 per

month --- and plaintiff could not receive both. Id. at 12-14. The RO explained that

plaintiff could "elect to receive the lesser [death pension] benefit" if she chose but

that the VA default position was to provide the higher value benefit. Id. at 13.

Thus plaintiff received her husband's $2,366 disability payment in September 2004

and thereafter, starting on October 1,2004, began receiving a $993 per month DIC

payment. Id. att2-I3.

On May 15, 2010, plaintiff frled a second application for "[DIC], Death

Pension and Accrued Benefrts by a Surviving Spouse or Child" asserting that she

was presently receiving a "DlC-death pension" but was also entitled to a "death

pension and accrued benefits." Id'. at 19,26. The RO responded on June 15, 2010

stating that plaintiff was already receiving DIC at the (now increased) rate of

$1,154 per month. 1d. at27. The RO explained: "You may be entitled to a death

pension. However, the maximum rate for death pension is less than the DIC rate.

Therefore we have awarded you DIC as the greater benefit." 1d.

On November 13, 2010, plaintiff frled a "Statement in Support of Claim"

arguing that she should receive the $2,366 per month disability payment that her

husband was receiving when he died. Id. at 29-30. The RO responded that Mr.

Coleman's service-connected disability payment of $2,366 per month was distinct

from plaintiffs survivor benefrt and not payable to a surviving spouse. Id. atSl

("(DIC) is a benefit payable to dependents ofthe veteran when it has been

determined that they died of a service connected disability. This is the benefit you

are receiving in the amount of $1,154.00 per month. DIC is a set rate andis not

determined by the amount of compensation a veteran received. You are receiving

the maximum amount payable for DIC for a surviving spouse with no dependents.").

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Plaintiff submitted a notice of disagreement, on February 18, 2011,

challenging the RO's decision about her "periodic monetary benefits," which the RO

returned without response on March 14,2011, because it failed to "indicate the

specific determination with which [she] disagree[d]." Id. at 32-33. Plaintiff then

fiIed another "statement in support of claim" on June L, 2O1.I, to which the RO

responded with a "statement of the case" (SOC) on August 12, 2011. Id. ar 34-35.

The SOC summarized the history of plaintiffs frlings with the VA and advised

plaintiffofher appellate rights. Id. at 35-48.

Meanwhile, on June 6, 2011, plaintiff frled a petition for extraordinary relief

with the United States Court of Appeals for Veterans' Claims (CAVC) asking for a

writ of mandamus. App. B at 30. The request was denied on October 31, 2011, the

court explaining that plaintiff had not exhausted her administrative remedies

within the VA; that she could still file a complaint with the Board of Veterans'

Appeals (the Board); and that nothing otherwise demonstrated a clear and

indisputable right to awit. Id at 30-31 (citing 38 U.S.C. $S 7105(d)(3), 7266).

Plaintiff filed an appeal of the CAVC's decision with the Federal Circuit on

November 29,2011. Id. at 9. The Federal Circuit affrrmed the CAVC's decision

denying the writ of mandamus on May IL,2012, because "Mrs. Coleman possesses

adequate alternative means to purse the relief she requests by direct appeal." Def.'s

Rep. Supp.'l App. at 13 (ECF No. 2012-7037).

Plaintiff filed a complaint with our court on June 27,2013, asking that her

VA benefit determination be adjusted to include her "deceased spouse's accrued

benefits, and his benefits awarded but unpaid at death" pursuant to 38 U.S.C.

$ 5121. Compl. at 2-3. She identified the Tucker Act, 28 U.S.C. S 1491, as the

source of our jurisdiction. Id. at I. In her response to defendant's motion to dismiss

plaintiff expanded the bases of her claim, stating that her "claim is founded upon

the 1st, 5[th], and 14[th] amendment[s ofl the United States Constitution. .. [as]

established in Isenhart u. Derwinsh[i], 3 [V]et. App[.] 177, I79 (1992)" and 38 C.F.R.

S$ 3.1000 and 3.152(aX1). Pl.'s Resp. at 2. Additionally, plaintiff alleged that the

government committed fraud and obstructed justice by tampering with evidence

and government documents, apparently referring to the redaction of personal

information from documents fiIed in her prior proceeding. Id. at 3.

Defendant filed a motion to dismiss the case under RCFC 120)(1) in lieu of

an answer, alleging that this court has no jurisdiction over claims for denied VA

benefrts. Def.'s Mot. to Dismiss at 4-5 (citing 38 U.S.C. $$ 511(a), 7IO (a),7292(c)).

After plaintiffs response to defendant's motion to dismiss expanded the bases ofher

claims, defendant replied that this court also lacked jurisdiction over the newly

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articulated claims. Def.'s Rep. at 4. Lastly, plaintiff argued that the Court cannot

transfer plaintiffs claims to another court because any tribunal that might have

jurisdiction is not a court to which this court may transfer a case pursuant to 28

U.S.C. S 1631. Mot. to Dismiss at 5-6.2 The Court addresses each point in order.

II. DISCUSSION

The Tucker Act, 28 U.S.C. $ 1a91(aX1), gives 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." Since the Tucker Act does

not create a substantive cause of action, "a plaintiff must identity a separate source

of substantive law that creates the right to money damages [from the federal

governmentl." United States u. Mitchell,463 U.S. 206,21U17 (1983) (explaining

that jurisdiction under the Tucker Act requires "some other source" of substantive

that "can fairly be interpreted as mandating compensation by the Federal

Government for the damages sustained") (citations omitted).

The process for reviewing a veteran's benefit determination is specifically

articulated in Title 38 of the United States Code. See 38 U.S.C. SS 511, 7251-7299

(the Veterans' Judicial Review Act of 1988). Spouses of deceased veterans initially

seek benefrts from their regional VA office. A regional VA decision may be appealed

to the Board within "one year from the date of mailing of notice of the result of

initial review or determination." 38 U.S.C. S 7105(bX1). The Board has exclusive

jurisdiction to hear appeals of any matter falling under 38 U.S.C. $ 51l(a).a

The CAVC has "exclusive jurisdiction to review decisions ofthe Board of

Veterans'Appeals."+ 38 U.S.C. 5 7252(a). Appeals from the Board to the CAVC

must be made within "120 days [of] the date on which notice of the decision is

2 Plaintiff was given leave to frle a sur-reply, which reiterated her assertion of

jurisdiction under the Tucker Act and to which the government responded.

3 Section 511(a) states that "The Secretary shall decide all questions oflaw and fact

necessary to a decision [affecting] benefits by the secretary to veterans or the

dependents or survivors of veterans." The exceptions enumerated in 38 U.S.C.

S 511(b) do not apply to this case. The Board, therefore, would have had jurisdiction

over plaintiffs initial appeal.

a Until 1988 when the CAVC was established, as stated by Congress, the VA stood

"in'splendid isolation as the single federal administrative agency whose major

functions are explicitly insulated from judicial review."' H.R.Rep. No. 100-963,

100th Cong., 2d Sess. 7O, reprinted in 1988 U.S.C.C.A.N. 5782,5797.

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mailed." 38 U.S.C. $ 7266(a). Decisions may then be appealed from the CAVC to

the United States Court ofAppeals for the Federal Circuit, which has exclusive

jurisdiction over such appeals. 38 U.S.C. $$ 7252(c), 7292; Gardner u. Brown, S F.3d

1456, 1458 (Fed. Cir. 1993). Federal Circuit decisions are subject to review by the

Supreme Court upon grant of certiorari. 38 U.S.C. $ 7 292(c).

The Veterans' Judicial Review Act thus makes explicitly clear the forum rn

which each successive appeal should be brought. Plaintiff could have appealed the

decision ofthe RO to the Board, the decision ofthe Board to the CAVC, and the

decision ofthe CAVC to the Federal Circuit, but at no time during plaintiffs various

claims and appeals did the Court of Federal Claims have jurisdiction. See Dauls u.

UtLited States,36 Fed. Cl. 556, 559 (1996) ('38 U.S.C. $ 511(a) precludes judicial

review of veterans' benefits determinations in this court."). The complaint seeks an

award of veterans' benefits, which are plainly beyond our court's power to give.

Nor is our jurisdiction established by the citations in plaintiffs opposition to

the government's motion. She relies on Isenhart, see Pl.'s Resp. at 2 (citing 3 Vet.

App. at 179), a decision from one ofthe courts ofproper jurisdiction (the CAVC,

then-named the U.S. Court of Veterans Appeals), which has nothing to do with our

jurisdiction.s Without factual elaboration and little explanation other than that the

VA did not give her both tlpes ofbenefits she seeks, she cites the First, Fifth, and

Fourteenth amendments to the U.S. Constitution as guaranteeing her "[e]qual

justice under Iaw and equal protection of the law." Id. But the First Amendment

does not obligate the federal government to pay damages. See United States u.

Connolly,716 F.2d 882, 887 (Fed. Cir. 1993) (citing Walton u. United States,2IS Ct.

Cl. 755, 757 (1977)). The Due Process Clause of the Fifth Amendment may only be

a basis for our jurisdiction when a claim seeks the return of money paid to the

federal government, under the rubric of an illegal exaction. See Aerolineas

Argentinas u. United States,77 F.3d 1564, 1573 (Fed. Cir. 1996); LeBlanc u. United

States,50 F.3d 1025, 1028 (Fed. Cir. 1995). And the Fourteenth Amendment

imposes limitations on the states, and not the federal government. See U.S. Const.

amend. XIV, S 1. Thus, these clauses and amendments are not money-mandating

and cannot be the basis of our court's iurisdiction.

5 Moreover, plaintiff seems to misunderstand Isenhart, as the decision held that the

form used to apply for DIC or a death pension must be processed as an application

for both benefits (which are alternatives to one another), and does not suggest that

an applicant is entitled to receive both types ofbenefits. See Isenhart,3 Vet. App.

at 179-80; see also 38 C.F.R. S 3.702(dX2) (explaining that a surviving spouse "may

elect to receive a death pension instead of'DIC (emphasis added)).

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Plaintiff also cites regulations regarding veterans' benefits, see Pl.'s Resp. at

2 (citine 38 C.F.R. 5S 3.152(a)(1), 3.1000), but such benefits, as we have seen above,

are not within our jurisdiction. See 38 U.S.C. $ 511(a). She also alleges that

defendant committed fraud, a tort, by "blotting out material reference numbers to

her material evidence," and obstructed justice, a crime, by "tampering with

government documents." PI.'s Resp. at 2-3. lt appears that plaintiff, who is

representing herself and understandably, as a non-lawyer, is not familiar with the

practice of redacting private information from documents that are filed for public

availability, is objecting to such redactions. But in any event, this court does not

have jurisdiction over tort claims against the federal government or criminal claims.

See 28 U.S.C. S ra91(a)(1) ("The United States Court of Federal Claims shall have

jurisdiction to render judgment upon any claim against the United States . . . not

sounding in tort."); Joshua u. United States, 17 F.3d 378, 379-80 (Fed. Cir. 1994);

McCullough u. United States,76 Fed. Cl. I, 4 (2006).

For the foregoing reasons, the government's motion to dismiss this case for

lack of subject-matter jurisdiction is GRANTED. Defendant appropriately notes

that this case cannot be transferred to another court of competent jurisdiction. Mot.

to Dismiss at 5. Under 28 U.S.C. $ 1631, a federal "court shall, if it is in the interest

ofjustice, transfer [a civil action] to any other such court in which the action or

appeal could have been brought." But under 28 U.S.C. $ 610, the Board is not a

court for purposes ofthe transfer provision and the Federal Circuit lacks

jurisdiction over appeals from a regional VA office pursuant to 28 U.S.C. $ 7292.

Thus, a transfer to either forum cannot be ordered.

III. CONCLUSION

For the reasons set forth above the Court GRANTS defendant's motion to

dismiss this case for a lack of subject matter jurisdiction. The Clerk shall close the

case. No costs shall be awarded.

IT IS SO ORDERED.

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