Stephen Durr v. United States

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
STEPHEN DURR,
Plaintiff-Appellant
v.
UNITED STATES,
Defendant-Appellee
______________________
2021-1388
______________________
Appeal from the United States Court of Federal Claims
in No. 1:20-cv-01121-CFL, Senior Judge Charles F. Lettow.
______________________
Decided: June 9, 2021
______________________
STEPHEN D URR, Chicago, IL, pro se.
K ELLY A. K RYSTYNIAK , Commercial Litigation Branch,
Civil Division, United States Department of Justice, Wash-
ington, DC, for defendant-appellee. Also represented by
BRIAN M. BOYNTON , ROBERT EDWARD K IRSCHMAN , JR.,
D OUGLAS K. M ICKLE.
______________________
Before M OORE, Chief Judge, SCHALL and O’M ALLEY,
Circuit Judges.
Case: 21-1388 Document: 20 Page: 1 Filed: 06/09/2021

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DURR v. US 2
PER C URIAM.
Stephen Durr appeals a final decision of the United
States Court of Federal Claims dismissing his complaint
for lack of subject matter jurisdiction. Appx. 2–6.1 Because
the Claims Court correctly determined that it lacked sub-
ject matter jurisdiction, we affirm.
I
Mr. Durr served in the United States Army from 1989
until 1993. In 1993, he was placed on the Temporary Dis-
ability Retired List based on mental illness, and in 1994,
he was discharged. Appx. 3. Twice after his discharge,
Mr. Durr sought vocational rehabilitation benefits from
the Department of Veterans Affairs (VA). Id. But the VA
never responded. Id. Mr. Durr, therefore, sued the govern-
ment in the Claims Court for failing to adjudicate his ben-
efits claims. He sought $44,000,000 in damages, alleging
the VA violated federal statutes, federal regulations, the
Due Process Clause of the Fifth Amendment to the United
States Constitution; and the Due Process Clause, the
Equal Protection Clause, and the Privileges and Immuni-
ties Clause of the Fourteenth Amendment. Appx. 3, 8–9.
On the government’s motion, the Claims Court dis-
missed Mr. Durr’s complaint for lack of subject matter ju-
risdiction. It interpreted Mr. Durr’s claims as seeking
veterans’ benefits, which it held were not within the Claims
Court’s jurisdiction. Appx. 5–6. It also recognized that
Mr. Durr might have been seeking back pay and held that,
if he was making such a claim, it was untimely. Id. (citing
28 U.S.C. § 2501). Mr. Durr appeals. We have jurisdiction
under 28 U.S.C. § 1295(a)(3).
1 “Appx.” denotes the appendix attached to
Mr. Durr’s opening brief.
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DURR v. US 3
II
We review Claims Court decisions regarding subject
matter jurisdiction de novo. FloorPro, Inc. v. United States,
680 F.3d 1377, 1380 (Fed. Cir. 2012). The Tucker Act
grants the Claims Court jurisdiction over claims 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
within the United States, or for liquidated or unliquidated
damages in cases not sounding in tort.” 28 U.S.C.
§ 1491(a)(1). But “[n]ot every claim invoking the Constitu-
tion, a federal statute, or a regulation is cognizable under
the Tucker Act. The claim must be one for money damages
against the United States, and the claimant must demon-
strate that the source of substantive law he relies upon can
fairly be interpreted as mandating compensation by the
Federal Government for the damages sustained.” United
States v. Mitchell, 463 U.S. 206, 216–17 (1983) (citations
and quotations omitted).
On appeal, Mr. Durr clarifies that any “claim for back-
pay [is] irrelevant to the current claim.” Informal Reply
Br. at 3. He explains, instead, that his claims are “founded
on the Due Process Clause” of the Fifth Amendment, and
that his citations to the Fourteenth Amendment before the
Claims Court were in error. Informal Op. Br. at 5–6; Infor-
mal Reply Br. at 1. He also alleges that his application for
vocational benefits are still pending before the VA because
the VA never adjudicated them, that any adjudication
would be futile now, and that his claim is therefore based
on a loss of benefits. Informal Op. Br. at 7–8.
Under either Mr. Durr’s Due Process framing or his
benefits framing, the Claims Court lacked jurisdiction over
his claims. For his claims brought under the Due Process
Clause, the Claims Court lacks jurisdiction because that
Clause does not mandate compensation. LeBlanc v. United
States, 50 F.3d 1025, 1028 (Fed. Cir. 1995) (holding Claims
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DURR v. US 4
Court lacks jurisdiction over Fifth-Amendment Claims be-
cause it is not money mandating). For his claims seeking
veterans’ benefits, Mr. Durr has alleged that the United
States violated 38 U.S.C. §§ 3102, 3106, and 3107 and var-
ious related regulations providing training and rehabilita-
tion benefits for veterans. See Appx. 8 and Informal Op.
Br. at 3. But the Secretary of Veterans Affairs, not the
Claims Court, has exclusive power to “decide all questions
of law and fact necessary to a decision by the Secretary un-
der a law that affects the provision of benefits by the Sec-
retary to veterans.” 38 U.S.C. § 511; see also 38 U.S.C.
§§ 7104, 7252, 7292 (providing for review of that decision).
The Claims Court, therefore, had no authority to review
Mr. Durr’s claim for veterans’ benefits.2 Therefore, the
Claims Court correctly held that it lacked subject matter
jurisdiction. Accordingly, we affirm the Claims Court’s dis-
missal of Mr. Durr’s complaint.
AFFIRMED
COSTS
No costs.
2 To the extent the VA’s delay is tantamount to a fail-
ure to adjudicate Mr. Durr’s claims, his avenue for relief is
via a request for a writ of mandamus filed with the Vet-
eran’s Court.
Case: 21-1388 Document: 20 Page: 4 Filed: 06/09/2021

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