Metcalf v. United States
| Decision Date | 15 April 2013 |
| Docket Number | No. 12-518C,12-518C |
| Parties | BRADFORD METCALF, Plaintiff, v. THE UNITED STATES, Defendant |
| Court | U.S. Claims Court |
NOT FOR PUBLICATION
This is a challenge to the reduction in veterans benefits that follows after a disabled veteran is convicted of a felony and incarcerated. Plaintiff, Bradford Metcalf, who appears pro se, filed a complaint in this court on August 17, 2012, asserting, pursuant to statute and regulation, that he is not receiving the correct amount of disability benefits and that the Bureau of Prisons ("BOP") wrongfully applied portions of his disability benefits to cover his court costs and fines. In response, defendant filed a motion to dismiss for lack of subject matter jurisdiction and for failure to state a claim for which relief may be granted. The motion is fully briefed. Oral argument is unnecessary. For the reasons described below, we grant defendant's motion to dismiss.
Mr. Metcalf entered into military service in 1970. In 1972, Mr. Metcalf was honorably discharged. At some point during his military career, Mr. Metcalf was injured or developed a disease. In 1973, Mr. Metcalf applied to the Department of Veterans Affairs ("VA") for and was granted disability benefits. The VA found that Mr. Metcalf was 10 percent disabled and plaintiff's disability benefits reflected that rate.
In 1998, Mr. Metcalf was convicted of a felony and incarcerated. Subsequently, the VA sent Mr. Metcalf a letter explaining that due to his incarceration, his benefits would be reduced by 50 percent beginning on July 25, 1999, pursuant to regulation. This letter is stamped with a date of February 15, 2000. The amount of benefits that Mr. Metcalf received from the VA was subsequently reduced. On November 27, 2001, Mr. Metcalf responded to the letter and asked the VA to send him the text of the statute or regulation that authorized the reduction in benefits. The VA sent Mr. Metcalf a letter on January 31, 2003, which states that the applicable regulation was attached. Mr. Metcalf asserts that the regulation was not attached. More than three years after receiving the VA's letter, Mr. Metcalf again inquired of the VA for the text of the statute or regulation that granted authority to reduce his disability benefits. Mr. Metcalf finally received a letter from the VA on March 18, 2008, which cited the Code of Federal Regulations, Title 38, section 3.665 as the relevant authority. Plaintiff was able to use that citation to obtain the text of the regulation and corresponding statute through the prison's computerized law library.
The relevant statute is 38 U.S.C. § 5313, which provides the following:
38 U.S.C. § 5313(a)(1) (2006).2
Section 1114(a) of Title 38 sets the rate of compensation referred to in subparagraphs A and B above at $123 per month. 38 U.S.C. § 1114(a) (2006 & Supp. V 2011). The net effect of 38 U.S.C. § 5313, in conjunction with 38 U.S.C. § 1114(a), is that an incarcerated felon who has a disability rating of less than 20 percent (like Mr. Metcalf) will only receive half of $123 per month after the first sixty days of incarceration, until he or she is released.3
Under 38 C.F.R. § 3.665, which implements 38 U.S.C. § 5313, veterans disability benefits will be reduced if the incarcerated person is any one of the following:
On March 10, 2009, Mr. Metcalf filed a claim with the VA asserting that 38 U.S.C. § 5313 and 38 CFR § 3.665 had been misapplied. Plaintiff sought approximately $6,000 in unpaid disability benefits because, he claimed, the language of the statute and regulation did not apply to someone who began receiving disability benefits prior to September 30, 1980. The VA denied plaintiff's claim on June 30, 2009, with the following explanation:
Pl.'s Resp. to Def.'s Mot. to Dismiss Ex. I1. This letter contained an attachment explaining the process plaintiff could follow if he disagreed with the VA's determination.
Mr. Metcalf asserted his disagreement with the VA's decision in a letter dated July 22, 2009. In response, the VA sent a letter to plaintiff dated September 23, 2009, which further explained how to appeal. Then, on March 2, 2010, the VA sent a letter to Mr. Metcalf stating that it had erred by providing Mr. Metcalf with information on how to appeal the June 30, 2009 letter because that letter was only informational and not decisional. The VA explained that the action to reduce Mr. Metcalf's benefits was taken ten years earlier and, at that time, Mr. Metcalf was provided notice of such action and his appeal rights. Mr. Metcalf had been given until September 18, 2001 to appeal but he had not done so. In his March 17, 2010 letter, Mr. Metcalf attempted to reassert his appeal and insisted that the agency had dealt fraudulently with him, and that it did not became apparent to him until he gained access to the statutes and regulations. There was no further correspondence from the VA.
Plaintiff filed his petition in this court on August 17, 2012, seeking review of the VA's action reducing his benefits. Plaintiff also requests back pay in the amount of approximately $12,000, a determination that his future benefits should be assessed at the 10-percent rate, and an order directing the BOP to cease withholding portions of his disability benefits. We are unable to grant plaintiff the relief he seeks for the reasons explained below.
We read plaintiff's complaint as articulating five theories for why he should prevail. See Haines v. Kerner, 404, U.S. 519, 520 (1972) (). "While a pro se plaintiff is held to a less stringent standard than that of a plaintiff represented by an attorney, the pro se plaintiff, nevertheless, bears the burden of establishing the Court's jurisdiction by a preponderance of the evidence." Riles v. United States, 93 Fed. Cl. 163, 165 (2010) (citing Hughes v. Rowe, 449 U.S. 5, 9 (1980); Taylor v. United States, 303 F.3d 1357, 1359 (Fed. Cir. 2002)); see Henke, 60 F.3d at 799 (). We must determine whether we have jurisdiction over any of plaintiff's claims.
Under the Tucker Act, we have limited jurisdiction to adjudicate "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)(1) (2006). While the Tucker Act constitutes a waiver of sovereign immunity, it does not give rise to a substantive cause of action. See United States v. Mitchell, 463 U.S. 206, 216 (1983). "[I]n order to come within the jurisdictional reach and the waiver of the Tucker Act, a plaintiff must identify a separate source of substantive law that creates the right to money damages." Fisher v. United States, 402 F.3d 1167, 1172 (Fed. Cir. 2005) (en banc). A source of law is money-mandating if it is "reasonably amendable to the reading that it mandates a right of recovery in damages." United States v. White Mountain Apache Tribe, 537 U.S. 465, 473 (2003). Additionally, a plaintiff must make "a non-frivolous assertion that it is within the class of plaintiffs entitled to recover under the money-mandating source." Jan's Helicopter Serv. Inc. v. Fed. Aviation Admin., 525 F.3d 1299, 1307 (Fed. Cir. 2008). In sum, we have jurisdiction when a claim falls within the waiver of sovereign immunity described in the Tucker Act, if that claim is based on a substantive money-mandating source of law, and if plaintiff is within...
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