69 F.3d 967 (9th Cir. 1995), 94-15011, Hicks v. Small

Docket Nº:94-15011.
Citation:69 F.3d 967
Party Name:D.A.R. 14,206 Allen W. HICKS, Plaintiff-Appellant, v. Dr. Elisabeth SMALL, M.D., Defendant-Appellee.
Case Date:October 23, 1995
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit

Page 967

69 F.3d 967 (9th Cir. 1995)

D.A.R. 14,206

Allen W. HICKS, Plaintiff-Appellant,


Dr. Elisabeth SMALL, M.D., Defendant-Appellee.

No. 94-15011.

United States Court of Appeals, Ninth Circuit

October 23, 1995

Submitted Sept. 14, 1995.[*]

Page 968

George F. McNally, McNally & Rounds, Reno, Nevada, for plaintiff-appellant.

Shirley Smith, Assistant United States Attorney, Reno, Nevada, for defendant-appellee.

Appeal from the United States District Court for the District of Nevada.

Before: BEEZER and THOMPSON, Circuit Judges, and EZRA, District Judge. [**]

EZRA, District Judge:

This appeal presents two principal issues. First, does the Veterans' Judicial Review Act of 1988, 38 U.S.C. Sec. 7251 et seq. (1991) ("the VJRA"), provide an exclusive remedial structure that precludes Appellant from asserting a Bivens cause of action in district court? Second, did the district court properly determine that it lacked subject matter jurisdiction under 38 U.S.C. Sec. 511(a) (1991), to hear Appellant's state tort action brought under the Federal Tort Claims Act? We answer both of these questions in the affirmative.


Plaintiff-Appellant Hicks receives veterans benefits for a disability resulting from his service in Vietnam in 1968. In July through August 1988, Hicks received care at the Veteran's Administration Medical Center in Reno, Nevada. He contends that Defendant-Appellee Dr. Elisabeth Small prevented him from contacting his congressional representatives to complain about his treatment by Dr. Small specifically and the VA Medical Center at Reno, Nevada, generally. Hicks further alleges that Dr. Small attempted to reduce, and for a period of time succeeded in reducing, his benefits in retaliation for his complaints.

Page 969

Hicks' complaint alleges a Bivens 1 claim against Dr. Small for violation of his First and Fifth Amendment rights and a state tort claim of outrage, or intentional infliction of emotional distress. Dr. Small moved to dismiss on the grounds that the district court lacked subject matter jurisdiction over the Bivens claims and that the state tort claim was precluded by immunity.

The District Court of Nevada: (1) converted Dr. Small's Federal Rules of Civil Procedure 12(b)(1) motion to dismiss for lack of subject matter jurisdiction into a Federal Rule of Civil Procedure 12(b)(6) motion to dismiss for...

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