NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
CLAUDE PHILLIP VINCENT,
Plaintiff-Appellant
v.
UNITED STATES,
Defendant-Appellee
______________________
2018-1352
______________________
Appeal from the United States Court of Federal
Claims in No. 1:17-cv-00969-PEC, Judge Patricia E.
Campbell-Smith.
______________________
Decided: May 4, 2018
______________________
CLAUDE PHILLIP VINCENT, Kernersville, NC, pro se.
DAVID ALAN LEVITT, Commercial Litigation Branch,
Civil Division, United States Department of Justice,
Washington, DC, for defendant-appellee. Also represent-
ed by CHAD A. READLER, ROBERT E. KIRSCHMAN, JR.,
DEBORAH A. BYNUM.
______________________
2 VINCENT v. UNITED STATES
Before PROST, Chief Judge, TARANTO and HUGHES, Circuit
Judges.
PER CURIAM.
Claude Vincent brought this case in the Court of Fed-
eral Claims. He claimed that he did not timely receive
one of his monthly disability-benefits checks from the
Department of Veterans Affairs (DVA) and that unlawful
and tortious conduct of DVA employees was responsible.
The Court of Federal Claims dismissed the case, conclud-
ing that Mr. Vincent did not state any claim that was
within its jurisdiction. Vincent v. United States,
135 Fed.
Cl. 330 (2017). We affirm.
I
Mr. Vincent served on active duty in the Navy be-
tween March 1972 and May 1976, and he later began
receiving monthly disability payments from DVA. In July
2010, DVA failed to deposit Mr. Vincent’s disability check
into his checking account. Mr. Vincent contacted the DVA
Regional Office in Winston Salem three times, requesting
a “tracer action” to locate the check. DVA informed him
after each request that he would receive a response from
the Department of the Treasury in thirty to forty days.
Mr. Vincent alleges that he independently contacted his
bank, which indicated that Treasury had informed it that
the July 2010 check had been returned to the Regional
Office and that DVA had not initiated any tracer actions.
Mr. Vincent filed a number of administrative complaints
with DVA and a civil rights complaint with the Depart-
ment of Justice. The record indicates that Mr. Vincent
received his July 2010 money in December 2010.
In July 2017, Mr. Vincent filed a complaint in the
United States Court of Federal Claims. In his complaint
Mr. Vincent asserted jurisdiction under the Tucker Act,
28 U.S.C. § 1491, and under the Federal Tort Claims Act
(FTCA),
28 U.S.C. § 1346(b)(1). He identified the follow-
VINCENT v. UNITED STATES 3
ing laws and regulations as supporting his claim: (1)
42
U.S.C. § 1983; (2)
18 U.S.C. § 1341; (3)
18 U.S.C. § 1343;
(4) Section 5 of the “Rehabilitation Act,”
29 U.S.C. § 794,
and (5) the FTCA,
28 U.S.C. §§ 1346(b)(1), 2671–80. After
the government moved to dismiss the complaint for lack
of jurisdiction, Mr. Vincent responded that his complaint
stated a claim for declaratory and injunctive relief pursu-
ant to
28 U.S.C. § 2675(a),
37 U.S.C. § 204, and Chapter
11 of Title 38. Mr. Vincent asked, “can the US Depart-
ment of Veterans Affairs allow their federal employees to
illegally withhold military compensation pay for six
months in defiance of 38 U.S.C. Chapter 11?” Gov’t Appx.
75. Mr. Vincent argued that the court has “[j]urisdiction
over military pay claims.” Id.; see also Gov’t Appx. 78. He
further stated that he was not asserting claims based on
criminal statutes (which he cited merely as “examples . . .
for informational purposes”) or based on civil rights
violations.
Id.
The Court of Federal Claims dismissed the case under
Rule 12(b)(1) of the Rules of the Court of Federal Claims.
Vincent, 135 Fed. Cl. at 332. First, the court held that it
lacked jurisdiction over the claims stated in Mr. Vincent’s
complaint: (1)
42 U.S.C. § 1983, (2)
18 U.S.C. § 1341, (3)
18 U.S.C. § 1343, (4)
29 U.S.C. § 794, and (5)
28 U.S.C.
§ 1346(b)(1).
Id. at 334. Second, the court held that it
lacked jurisdiction over the claims described in Mr. Vin-
cent’s briefing in response to the motion to dismiss.
Id. at
335. In particular, the court explained, even if Mr. Vin-
cent were to have amended his complaint, it would lack
jurisdiction over Mr. Vincent’s claim under
37 U.S.C.
§ 204 because “nowhere in the complaint or plaintiff’s
briefs is there a reference to active duty military service
within this court’s six-year limitations period,” and it
would lack jurisdiction over Mr. Vincent’s claim under 38
U.S.C. Chapter 11 because it does not have jurisdiction
over such Title 38 benefits claims.
Id. Finally, the court
rejected Mr. Vincent’s argument that his claim “sounds in
4 VINCENT v. UNITED STATES
contract.”
Id. (“There is no contract-based jurisdiction in
this court for military pay or veterans benefits.”). Having
found no jurisdiction, the court then ruled that it would be
futile to transfer Mr. Vincent’s tort claims to federal
district court: any such tort claims were untimely because
this action was not filed “within the time-window for a
timely FTCA suit in a federal district court.”
Id. at 336.
Mr. Vincent timely appealed to this court. We have
jurisdiction under
28 U.S.C. § 1295(a)(3).
II
A
The Court of Federal Claims, under the Tucker Act,
has “jurisdiction to render judgment upon any claim
against the United States founded either upon the Consti-
tution, 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). The Tucker Act is “only a jurisdic-
tional statute; it does not create any substantive right
enforceable against the United States for money damag-
es.” United States v. Testan,
424 U.S. 392, 398 (1976).
For jurisdiction to exist over any of the claims here, Mr.
Vincent “must demonstrate that the source of substantive
law he relies upon ‘can fairly be interpreted as mandating
compensation by the Federal Government for the damag-
es sustained.’” United States v. Mitchell,
463 U.S. 206,
216–17 (1983) (quoting Testan,
424 U.S. at 400).
This court reviews the dismissal for lack of jurisdic-
tion in this case de novo. See Diaz v. United States,
853
F.3d 1355, 1357 (Fed. Cir. 2017). “In determining juris-
diction, a court must accept as true all undisputed facts
asserted in the plaintiff’s complaint and draw all reason-
able inferences in favor of the plaintiff.” Trusted Integra-
VINCENT v. UNITED STATES 5
tion, Inc. v. United States,
659 F.3d 1159, 1163 (Fed. Cir.
2011).
B
In his appeal to this court, Mr. Vincent makes several
efforts to establish an applicable source of monetary
obligation, all in some way related to the contention that
the alleged wrongs involve military pay. Appellant Br. 1.
We limit our discussion to these arguments; we do not
address other issues discussed by the Court of Federal
Claims. We conclude that the court’s dismissal of Mr.
Vincent’s claims was correct.
A specific military pay statute invoked by Mr. Vincent
as a source of a money-mandating obligation is
37 U.S.C.
§ 204. That statute addresses pay for “(1) a member of a
uniformed service who is on active duty; and (2) a member
of a uniformed service, or a member of the National
Guard who is not a Reserve of the Army or the Air Force,
who is participating in full-time training, training duty
with pay, or other full-time duty, provided by law,”
37
U.S.C. § 204(a), and a member “of a reserve component of
a uniformed service,”
id. §§ 204(g)–(h). But nothing in the
complaint, or Mr. Vincent’s assertions in response to the
motion to dismiss, indicates that Mr. Vincent, in July
2010, was in any status listed in § 204, or that he was in
such status any time within the six-year statute of limita-
tions. See
28 U.S.C. § 2501; Martinez v. United States,
333 F.3d 1295, 1303–04 (Fed. Cir. 2003) (en banc); see also
Jackson v. United States, 664 F. App’x 922, 924–25 (Fed.
Cir. 2016). And to the extent that Mr. Vincent is alleging,
as the basis for his pay claim under Section 204, that he
was unlawfully discharged in 1976, such a claim is barred
by the statute limitations. Section 204 therefore cannot
apply here.
Mr. Vincent also invokes
38 U.S.C. § 1110, which pro-
vides for payment to veterans “[f]or disability resulting
from personal injury suffered or disease contracted in line
6 VINCENT v. UNITED STATES
of duty, or for aggravation of a preexisting injury suffered
or disease contracted in line of duty, in the active mili-
tary, naval, or air service, during a period of war . . . .”
Mr. Vincent’s grievance here concerns a disability pay-
ment that he eventually received. He is seeking some-
thing more, but if he is seeking it under Section 1110, this
is a claim that must proceed through the statutorily
prescribed route of review for such statutory benefits—a
route that runs through the Court of Appeals for Veterans
Claims (Veterans Court). See, e.g.,
38 U.S.C. § 511(a)
(Secretary action), § 7104 (Board of Veterans’ Appeals),
§ 7252 (Veterans Court). The Court of Federal Claims
lacks jurisdiction to hear a claim for benefits under Sec-
tion 1110 or comparable Title 38 provisions. See, e.g.,
Sindram v. United States, 130 F. App’x 456, 458 (Fed. Cir.
2005) (“The [Veterans Judicial Review Act of 1988] pro-
vides that an appeal to the Veterans Court is the exclu-
sive judicial remedy for the denial of a veteran’s benefits,
thereby preempting Tucker Act jurisdiction over the
plaintiff’s claims.”).
Mr. Vincent appears to argue that he is entitled to re-
tirement compensation. This contention, made only on
reply in this court and not in the Court of Federal Claims,
comes too late. And the claim lacks merit as a ground for
Tucker Act jurisdiction. To be eligible for active duty
retirement, an individual must have at least 20 years of
active service. See Howell v. Howell,
137 S. Ct. 1400,
1402–03 (2017). Mr. Vincent served on active duty in the
military from 1972 to 1976. Gov’t Appx. 75. To the extent
that he is challenging his release from active duty as an
improper involuntary release, his claim is barred, at a
minimum, by the six-year statute of limitations restrict-
ing Tucker Act jurisdiction. See
28 U.S.C. § 2501; see also
Martinez,
333 F.3d at 1304. To the extent that Mr. Vin-
cent’s challenge is that he was entitled to disability re-
tirement pay under
10 U.S.C. § 1201, his claim is not ripe
because he has not presented this claim to a Navy board,
VINCENT v. UNITED STATES 7
as required. See Chambers v. United States,
417 F.3d
1218, 1224–25 (Fed. Cir. 2005) (“Unlike claims for unlaw-
ful discharge . . . claims of entitlement to disability re-
tirement pay generally do not accrue until the appropriate
military board either finally denies such a claim or refus-
es to hear it.”); see also Malcolm v. United States, 690 F.
App’x 687, 689 (Fed. Cir. 2017).
Mr. Vincent asserts a contract right to military pay,
but the Court of Federal Claims correctly ruled that
military pay is controlled by statute, not contract. See
Schism v. United States,
316 F.3d 1259, 1271 (Fed. Cir.
2002) (en banc); Jackson, 664 F. App’x at 925. And to the
extent that Mr. Vincent asserts torts in connection with a
characterization of his claim as one for military pay, the
Court of Federal Claims lacked jurisdiction over Mr.
Vincent’s claim. Congress gave jurisdiction over FTCA
claims to the district courts, not the Court of Federal
Claims.
28 U.S.C. §§ 1346(b)(1), 2674; see also
28 U.S.C.
§ 1491(a)(1) (Tucker Act language excluding cases “sound-
ing in tort”). 1
III
For the foregoing reasons, we affirm the judgment of
the Court of Federal Claims.
No costs.
AFFIRMED
1 Mr. Vincent has not challenged the trial court’s
determination that it lacked authority to transfer his
claim under the Federal Tort Claims Act pursuant to
28
U.S.C. § 1631.
