Allen v. Shinseki, CIVIL NO.: WDQ-12-0269

• Decision Date: 07 December 2012
• Docket Number: CIVIL NO.: WDQ-12-0269
• Parties: TOMMIE LEE ALLEN, Plaintiff, v. ERIC SHINSEKI, Defendant.
• Court: U.S. District Court — District of Maryland

TOMMIE LEE ALLEN, Plaintiff, v. ERIC SHINSEKI, Defendant.

CIVIL NO.: WDQ-12-0269

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND, NORTHERN DIVISION

Date: December 7, 2012

MEMORANDUM OPINION

Tommie Lee Allen,¹ pro se, sued Secretary of Veterans Affairs Eric Shinseki in the Maryland District Court for Baltimore City. ECF No. 2. Allen alleged, inter alia, that the U.S. Department of Veterans Affairs (the "VA") has wrongfully designated him as incompetent and appointed a fiduciary to manage his benefits. See id. On January 27, 2012, Shinseki removed the action to this Court. ECF No. 1. For the following reasons, the Court will grant Shinseki's motion to dismiss (ECF No. 15)² and deny Allen's motion for "judgment" (ECF No. 14).³

I. Background⁴

Allen was born in 1955 and currently resides in Baltimore, Maryland. ECF No. 2 at 1; ECF No. 11-2 at 3. From October 15, 1973 to October 14, 1976, he served in the Armed Forces of the United States. ECF No. 11-2 at 3. Allen was honorably discharged. Id. From November 3, 1994 to September 9, 1995, Allen was an outpatient at Fulton State Hospital in Fulton, Missouri. See ECF No. 15-2 at 4. Allen's treatment reports indicated that he suffered from "major depressive reaction" and delusions. Id.

On or about October 2, 1995, Allen filed a claim with the VA for service-connected⁵ disability compensation and nonservice-connected pension. ECF No. 15-2 at 4, 5. On May 20, 1996, the VA's St. Louis, Missouri Regional Office ("RO") notified Allen by letter that it had denied his disability claim. Id. at 2. An enclosed rating decision,⁶ dated May 7, 1996, explained that neither Allen's service medical records nor his outpatient treatment reports from Fulton State Hospital contained evidence that Allen's depression occurred during--or was caused by--his military service. Id. at 4.⁷ The following day, the St. Louis RO rendered a separate rating decision, in which it proposed that Allen be deemed incompetent⁸ to administer VA disbursements. ECF No. 15-3 at 2. The May 8 decision acknowledged the VA'spresumption in favor of competency. Id. The presumption was rebutted in Allen's case, by a "definite finding" of incompetency by a physician. Id.

On January 6, 1998, Allen filed a new application⁹ for benefits in which he claimed entitlement to service-connected disability and nonservice-connected "permanent and total" disability, both for bipolar disorder. ECF No. 15-4 at 4, 6, 9. On February 13, 1998, the VA responded by letter, stating:

We have received a medical report showing that you may need help taking care of your VA benefits. Because of this report, we plan to consider you incompetent. By incompetent we mean that your disabilities make it hard for you to take care of your VA benefits. If we find you "incompetent," your benefits may be paid to someone else for you.

ECF No. 15-5 at 2 (emphasis in original). The VA informed Allen that it would render a final decision in 60 days, during which he could challenge the finding of incompetency by submitting new medical evidence or requesting a personal hearing. Id.

On May 21, 1998, after 60 days, the VA issued another rating decision. ECF No. 15-6 at 2. The May 21 decision explained that Allen was entitled to a "permanent and total nonservice connected disability evaluation for pension purposes" and officially held that Allen was incompetent to handledisbursement of those funds. Id.¹⁰ On July 10, 1998, VA Adjudication Officer Jerry Mitchell informed Allen that the VA would take "the necessary actions" to determine if his benefits should be paid to a third party on Allen's behalf. ECF No. 15-7 at 2. Since the late 1990s, the VA has appointed several fiduciaries to manage Allen's benefits. E.g., ECF No. 2 at 10, 11.

On January 29, 2010, Allen requested that the Roanoke, Virginia RO reconsider the VA's incompetency determination. ECF No. 15-9 at 2. Allen also submitted a letter from Licensed Independent Clinical Social Worker ("LICSW") Barbara Garrett. Id. at 4. Garrett wrote, "After meeting with [Allen] and evaluating him, it is my professional opinion that [he] is competent and capable enough to handle his own personal and financial affairs." Id. The VA responded in February 4 and April 29, 2010 letters. ECF No. 15-10 at 2-3, 8. Although it acknowledged Garrett's recommendation, the VA concluded thatAllen remained incompetent. Id. at 8.¹¹ The VA informed Allen of his right to appeal the decision within one year of the April 29 letter. Id.

Although the record is unclear, it appears that Allen wrote to U.S. Representative Elijah Cummings in 2011 to express concerns about the VA's fiduciary appointment. ECF No. 2 at 5. On December 2, 2011, Congressman Cummings informed Allen that the VA had provided this response:

Mr. Allen's fiduciary case has been under the jurisdiction of the Waco . . . RO for a number of years. Mr. Allen came to our office beginning in July 2011 and we forwarded his concerns about his fiduciary, who resides in Texas, to the Waco RO. Waco issued a request for a regularly scheduled 3 year field examination for the Baltimore RO to visit Mr. Allen on September 2, 2011. We visited Mr. Allen and completed the field examination on October 31, 2011.

The Baltimore RO felt it was in the best interests of the Veteran to appoint a payee in Maryland, considering he has lived here for several years and in light of his complaints against his previous fiduciary. A copy of the field exam was forwarded to the Waco RO and they are to notify the previous fiduciary of the assignment of a new fiduciary and forward the fiduciary file to the Baltimore RO . . . .

ECF No. 2 at 4.

On December 15, 2011, Allen filed suit in the District Court of Maryland for Baltimore City. ECF No. 2. Allen'scomplaint "protest[s]" the VA's "dangerous fiduciary systems," which have caused him "great losses," and requests receipt of his monthly income of $1125. Id.¹² On January 27, 2012, Shinseki removed the action to this Court. ECF No. I.¹³ On February 22, 2012, Allen filed a supplement to his complaint. ECF No. 11. On March 26, 2012, Allen moved "for judgment." ECF No. 14.

On March 28, 2012, Shinseki timely moved to dismiss under Rule 12(b)(1), (5), and (6) of the Federal Rules of CivilProcedure. ECF No. 15; see ECF No. 13. On March 29, 2012, Shinseki filed a supplement to his motion to dismiss. ECF No. 17. On April 10, 2012, Allen filed a second "motion for judgment." ECF No. 18. On April 11, 2012, Shinseki responded to Allen's second motion for judgment. ECF No. 19.¹⁴ On April 26, 2012, Allen filed a supplement to his second motion for judgment. ECF No. 20. On June 12, 2012, Allen filed a second supplement to his second motion for judgment. ECF No. 21. On July 11, 2012, Allen moved for a speedy trial. ECF No. 22. On October 31, 2012, Allen filed a supplement to his speedy trial motion. ECF No. 23.

II. Analysis

Shinseki has moved to dismiss for insufficient service of process, lack of subject matter jurisdiction, and failure to state a claim. ECF No. 15. Because Allen is a pro se litigant, his filings will be construed liberally, even if his arguments and pleadings are "inartful[]." Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per curiam) (internal quotation marks omitted).

A. Insufficient Service of Process

1. Standard of Review

Under Fed. R. Civ. P. 12(b)(5), a defendant may move to dismiss for insufficient service of process. If service iscontested, the plaintiff "bears the burden of establishing [its] validity." O'Meara v. Waters, 464 F. Supp. 2d 474, 476 (D. Md. 2006). "In cases removed to federal court, state law determines whether service of process was properly effected prior to removal." Ngabo v. Le Pain Quotidien, No. DKC 11-0096, 2011 WL 978654, at *1 (D. Md. Mar. 17, 2011). Under Maryland law, service is made upon a federal officer or agency by serving the "United States" and the officer or agency. Md. Rule 3-124(n). Service is made upon the United States by "serving the [U.S.] Attorney for the District of Maryland . . . and by serving the Attorney General of the United States at Washington, District of Columbia." Md. Rule 3-124(m).

"Generally, when service of process gives the defendant actual notice of the pending action, the courts may construe [the applicable rules of service] liberally." O'Meara, 464 F. Supp. 2d at 476. But the "plain requirements for the means of effecting service may not be ignored." Id. Although insufficient service of process does not necessarily warrant dismissal, the court may dismiss the complaint or quash the service, thereby permitting the plaintiff to attempt to properly serve the defendant. See Vorhees v. Fischer & Krecke, 697 F.2d 574, 576 (4th Cir. 1983).

2. Shinseki's Motion

Shinseki has moved to dismiss for insufficient service of process. ECF No. 15. Because Shinseki has actual notice of Allen's complaint, see O'Meara, 464 F. Supp. 2d at 476, the Court will not dismiss the complaint on this ground. See Vorhees, 697 F.2d at 576.

B. Subject Matter Jurisdiction

1. Standard of Review

Under Fed. R. Civ. P. 12(b)(1), the Court must dismiss an action if it discovers it lacks subject matter jurisdiction. The plaintiff has the burden of proving the Court has jurisdiction, and the Court must make all reasonable inferences in the plaintiff's favor. Khoury v. Meserve, 268 F. Supp. 2d 600, 606 (D. Md. 2003), aff'd, 85 F. App'x 960 (4th Cir. 2004). The Court may "look beyond the pleadings" to decide whether it has subject matter jurisdiction, but it must presume that the factual allegations in the complaint are true. Id.

2. Shinseki's Motion

Shinseki argues that this Court lacks subject matter jurisdiction over Allen's claim because the United States has not waived its sovereign immunity, ECF No. 15-1 at 4-7, and because 38 U.S.C. § 511 bars Allen's claim, id. at 7-15.¹⁵

a. Sovereign Immunity

"It is axiomatic that the United States may not be sued without its consent." United States v. Mitchell, 463 U.S. 206, 212 (1983)....