Kalick v. United States

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
ANDREW P. KALICK,
Plaintiff-Appellant,
v.
UNITED STATES,
Defendant-Appellee.
______________________
2013-5065
______________________
Appeal from the United States Court of Federal
Claims in No. 12-CV-783, Chief Judge Emily C. Hewitt.
______________________
Decided: November 13, 2013
______________________
ANDREW P. KALICK, of Mt. Ephraim, New Jersey, pro
se.
SETH W. GREENE, Trial Attorney, Civil Division,
Commercial Litigation Branch, United States Depart-
ment of Justice, of Washington, DC, for defendant-
appellee. With him on the brief were STUART F. DELERY,
Acting Assistant Attorney General, JEANNE E. DAVIDSON,
Director, and PATRICIA M. MCCARTHY, Assistant Director.
Of counsel were MICHAEL J. TIMINSKI, Deputy Assistant
General Counsel, and ANNA ELAZAN, Attorney, United
2 KALICK v. US
States Department of Veterans Affairs, of Washington,
DC.
______________________
Before REYNA, TARANTO, and CHEN, Circuit Judges.
PER CURIAM.
Andrew Kalick appeals the Court of Federal Claims’
decision that it lacked subject matter jurisdiction over Mr.
Kalick’s suit alleging that the United States Department
of Veterans Affairs (“VA”) erroneously denied him disabil-
ity benefits. Kalick v. United States, 109 Fed. Cl. 551
(2013). For the reasons set forth below, we affirm.
I. BACKGROUND
Mr. Kalick is a veteran of the United States Army.
He applied to the VA for disability benefits for “bi-lateral
foot disabilities” that he believed were connected to his
military service. Id. at 554–55. The VA’s determination
on his application is not in the record, but Mr. Kalick
contends that the VA found his injuries to be service-
connected, yet assigned him a 0% disability rating.
Mr. Kalick sought review of the VA’s decision by the
Court of Federal Claims, asserting his entitlement to
disability compensation under 38 U.S.C. § 1110. Id. at
555. On the government’s motion, the court dismissed the
complaint for lack of jurisdiction, holding that 38 U.S.C.
§ 511 and other provisions of Title 38, U.S. Code, require
that any challenges to initial VA benefit decisions proceed
through the Board of Veterans’ Appeals (“BVA”) and the
United States Court of Appeals for Veterans Claims (with
review then in this court). Id. at 556–58. Additionally,
the court denied Mr. Kalick’s alternative request to trans-
fer his action to a district court or to this court. Id. at
559–61.
Mr. Kalick timely appealed the decision. We have ju-
risdiction under 28 U.S.C. § 1295(a)(3).
KALICK v. US 3
II. DISCUSSION
Whether the Court of Federal Claims possesses juris-
diction over a claim is a question of law subject to de novo
review. Western Co. of N. Am. v. United States, 323 F.3d
1024, 1029 (Fed. Cir. 2003).
Mr. Kalick raises an individual challenge to the VA’s
decision to assign him a 0% disability rating. The Veter-
ans Judicial Review Act of 1988 (“VJRA”) establishes the
appellate review process for individual challenges to VA
benefits determinations. See 38 U.S.C. §§ 7104(a),
7266(a). Courts have uniformly ruled that the VJRA
provides the exclusive regime for reviewing denials of
veteran benefits. See, e.g., Jackson v. United States,
242 Fed. App’x 698, 700–01 (Fed. Cir. 2007); Zuspann v.
Brown, 60 F.3d 1156, 1158–59 (5th Cir. 1995); Sugrue v.
Derwinski, 26 F.3d 8, 10–11 (2d Cir. 1994); Hicks v.
Veterans Admin., 961 F.2d 1367, 1369–70 (8th Cir. 1992).
Under the VJRA, an individual challenge to the VA’s
initial benefits determination must be brought by filing a
notice of disagreement (“NOD”) with the BVA within one
year of the determination. 38 U.S.C. §§ 7104(a), 7105(a).
BVA decisions are subject to review only by the Court of
Appeals for Veterans Claims. 38 U.S.C. § 7266(a). Thus,
as we have previously noted, “the [VA’s] decisions can be
appealed only to the Court of Appeals for Veterans
Claims, not to the Court of Federal Claims.” Jackson, 242
Fed. App’x at 701. Therefore, the Court of Federal Claims
properly found that it lacked subject matter jurisdiction
over Mr. Kalick’s suit.
Mr. Kalick’s reliance on Sabo v. United States,
102 Fed. Cl. 619 (2011), is misplaced. Sabo concerned a
claim for disability retirement pay brought under
10 U.S.C. § 1201, a different statute than at issue here.
This court has found section 1201 to be a money-
mandating statute, thereby conferring jurisdiction on the
Court of Federal Claims for claims arising under that
4 KALICK v. US
statute. See Chambers v. United States, 417 F.3d 1218,
1223 (Fed. Cir. 2005); Fisher v. United States, 402 F.3d
1167, 1174–75 (Fed. Cir. 2005). Mr. Kalick’s disability
benefits claim, however, arises under 38 U.S.C. § 1110.
As explained above, Title 38 establishes an exclusive
remedial procedure for review of VA disability benefits
decisions. In light of that detailed statutory scheme, Mr.
Kalick must seek review of his claim through the VJRA’s
procedures; it is irrelevant whether section 1110 is a
money-mandating statute, an issue we need not decide.
See United States v. Bormes, 133 S. Ct. 12, 18 (2012)
(explaining that jurisdiction under Tucker Act is dis-
placed when money-mandating statute contains its own
judicial remedies).
Furthermore, the Court of Federal Claims did not
abuse its discretion by declining to transfer Mr. Kalick’s
suit to a district court or to us. See Rick’s Mushroom
Serv., Inc. v. United States, 521 F.3d 1338, 1342 (Fed. Cir.
2008) (reviewing decision to transfer claim for abuse of
discretion). First, Mr. Kalick’s constitutional claims are
based on the VA’s decision regarding his individual bene-
fits claim, and precedent uniformly holds that district
courts lack jurisdiction over such allegations. Zuspann,
60 F.3d at 1159 (“Since the enactment of the VJRA,
federal courts have refused to entertain constitutional
claims if they are based on the VA’s actions in a particu-
lar case.”). Second, this case does not qualify as one
which this court enjoys original jurisdiction to hear: that
is, claims brought under 38 U.S.C. § 502 that allege an
agency violated 5 U.S.C. § 552(a)(1)’s publication re-
quirements or 5 U.S.C. § 553’s notice-and-comment rule-
making requirements. Mr. Kalick alleges neither and,
thus, transfer to our court would be inappropriate. See
Hilario v. Sec’y, Dep’t of Veterans Affairs, 937 F.2d 586,
589 (Fed. Cir. 1991) (finding that this court lacks original
jurisdiction over a “challenge [to] the VA’s application of
the veterans’ benefits statutes to the facts of his particu-
KALICK v. US 5
lar claim”). 1 The Court of Federal Claims thus acted well
within its discretion in denying the motion to transfer.
We have considered Mr. Kalick’s remaining argu-
ments and conclude they are without merit. For the
foregoing reasons, the decision of the Court of Federal
Claims is affirmed.
AFFIRMED
COSTS
No costs.
1 It appears that Mr. Kalick also requests that we
toll a deadline for filing a future claim under the Adminis-
trative Procedure Act (“APA”). Appellant’s Br. 13. We
decline to afford such equitable relief prospectively by
tolling the filing deadline for an unfiled claim.