Brown v. Department of Veterans Affairs

• Decision Date: 11 September 2006
• Docket Number: Civil Action No. 05-40027-FDS.
• Citation: 451 F.Supp.2d 273
• Parties: David E. BROWN, Plaintiff, v. DEPARTMENT OF VETERANS AFFAIRS and Thomas O'Brien, Defendants.
• Court: U.S. District Court — District of Massachusetts

451 F.Supp.2d 273

David E. BROWN, Plaintiff, v. DEPARTMENT OF VETERANS AFFAIRS and Thomas O'Brien, Defendants.

Civil Action No. 05-40027-FDS.

United States District Court, D. Massachusetts.

September 11, 2006.

COPYRIGHT MATERIAL OMITTED

David E. Brown, Gardner, MA, pro se.

Jeffrey Mark Cohen, United States Attorney's Office, Boston, MA, for Defendant.

MEMORANDUM AND ORDER ON DEFENDANTS' MOTION TO DISMISS

SAYLOR, District Judge.

This matter arises out of plaintiff's apparent inability to qualify for certain veterans' benefits in connection with his military service-related disability. Plaintiff David E. Brown, proceeding pro se, contends that defendants the Department of Veterans Affairs ("VA") and Thomas O'Brien (identified only as a "veterans service manager") violated the Rehabilitation Act of 1973, 29 U.S.C. § 701 et seq., and the Fifth and Fourteenth Amendments of the United States Constitution by failing to provide him full disability benefits. Among other things, he seeks a judgment declaring that 38 U.S.C. § 5313(a)(2), which was enacted as part of the Veterans' Disability Compensation and Housing Benefits Amendments of 1980, is unconstitutional. He also seeks injunctive relief and a reinstatement of his full disability benefits, retroactive to March 1, 2004.

The VA has moved to dismiss the complaint for lack of subject matter jurisdiction and for failure to state a claim upon which relief can be granted pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). For the reasons that follow, defendants' motion to dismiss will be granted.

I. Background

The following are the relevant facts as alleged in plaintiff's amended complaint.

David E. Brown is a Vietnam veteran. He suffers from Post-Traumatic Stress Disorder ("PTSD"), apparently arising out of his military service, and is unable to maintain any gainful employment as a result. As of early 1998, he was receiving benefits from the VA at a 100% disability rate.

In July 1998, Brown was convicted in Massachusetts of two felony counts of assault and battery with a dangerous weapon and was incarcerated. Pursuant to 38 U.S.C. § 5313(a)(1), the. VA reduced his disability benefits to a 10% disability rate during his imprisonment. Under § 5313(a)(2), Brown is entitled to a reinstatement of full disability benefits upon his release from incarceration, participation in a work-release program, or residency in a half-way house.¹

Brown concedes that the VA's initial reduction in benefits was lawfill. His claim is based instead on the work-release provision of § 5313(a)(2). He contends that because he is within 18 months of eligibility for parole, he is eligible to participate in a work-release program under Massachusetts law.² However, he cannot participate in the program because of his disability, and because he cannot participate, he does not qualify for a full reinstatement of his benefits. Brown contends that his failure to receive full benefits under the circumstances is unlawful.

The complaint contains three counts: (1) an alleged violation of the Rehabilitation Act; (2) a Bivens claim against O'Brien; and (3) an alleged violation of the Fifth and Fourteenth Amendments. Brown seeks payment of his full disability benefits (retroactive to the date of his eligibility for work release) and injunctive and declaratory relief. Brown concedes that the Bivens claim is improper and consents to its dismissal. The remaining claims are discussed below.

II. Analysis

A. Standard of Review

Defendants move to dismiss for lack of subject-matter jurisdiction under Fed. R.Civ.P. 12(b)(1) and for failure to state a claim upon which relief can be granted under Fed.R.Civ.P. 12(b)(6). Although the motion is grounded in two different subsections of Rule 12, the standard of review is essentially the same. See McCloskey v. Mueller, 446 F.3d 262, 265-66 (1st Cir. 2006). Under either provision, the Court must construe the complaint liberally, accepting the plaintiffs well-pleaded facts as true and indulging all reasonable inferences therefrom. See, e.g., Dominion Energy Brayton Point, LLC v. Johnson, 443 F.3d 12, 16 (1st Cir.2006) (Rule 12(b)(1)); Redondo-Borges v. U.S. Dep't of Hous. & Urban Dev., 421 F.3d 1, 5 (1st Cir.2005) (Rule 12(b)(6)).³

The Court may relax the pleading standards somewhat for pro se litigants. See, e.g., Baxter v. Conte, 190 F.Supp.2d 123, 126 (D.Mass.2001). Nonetheless, the Court is not the plaintiffs advocate and will not "conjure up implied allegations," McDonald v. Hall, 610 F.2d 16, 19 (1st Cir.1979), in order to establish jurisdiction or to state an actionable claim. Pro se plaintiffs, like all parties, must "comply with the applicable procedural and `substantive rules of law, and dismissal remains appropriate when the court lacks jurisdiction over the claims." Overton v. Torruella, 183 F.Supp.2d 295, 303 (D.Mass.2001). The party invoking federal jurisdiction shoulders the burden of proving its existence. Aversa v. United States, 99 F.3d 1200, 1209 (1st Cir.1996); Murphy v. United States, 45 F.3d 520, 522 (1st Cir.1995).

Where a party challenges the constitutionality of a statute on its face, and further factual development is immaterial to dispositive legal issues, a complaint may be dismissed for failure to state a claim under Rule 12(b)(6). See Cook v. Rumsfeld, 429 F.Supp.2d 385, 387, 405 (D.Mass. 2006) (dismissal of a complaint for failure to state a claim under Rule 12(b)(6) is appropriate "where there are dispositive issues of law that bar the plaintiffs' claims even if they are able to prove the factual assertions made in the complaint.").

B. Judicial Review of VA Decisions

Congress has created a multi-tiered, comprehensive framework for the adjudication of veterans' disability benefits claims. See generally 38 U.S.C. chs. 5, 11, 51, 71, and 72. The process begins when a claimant files for benefits with a regional office of the VA. See id. at § 315 (establishing regional offices); Beamon v. Brown, 125 F.3d 965, 967 (6th Cir.1997). A claimant may appeal the denial of a benefits claim or other adverse decision to the Board of Veterans Appeals ("BVA"). 38 U.S.C. § 7104. BVA decisions constitute final decisions of the Secretary. Id.

Those decisions are not subject to judicial review in district courts. Id. at § 511.⁴ Instead, claimants may appeal BVA decisions only to the Court of Appeals for Veterans Claim ("CAVC"), an Article I court created by Congress. Id. at §§ 7251-52. The CAVC has exclusive jurisdiction to "decide all relevant questions of law, interpret constitutional, statutory, and regulatory provisions, and determine the meaning or applicability of the terms of an action of the Secretary." Id. at § 7261. An aggrieved party may then seek review in the Court of Appeals for the Federal Circuit, which reviews the CAVC decision "with respect to the validity of any statute or regulation . . . or any interpretation thereof (other than a determination as to a factual matter)." Id. at § 7292(a). The Federal Circuit has exclusive jurisdiction over appeals from CAVC. Id. at § 7292(c). Finally, parties may obtain Supreme Court review via petition for certiorari. Id. at § 7291.

In anticipation of an adverse benefits decision by the Secretary, Brown has eschewed the entire administrative process in an attempt to manufacture jurisdiction in this Court. His case is built on two faulty propositions: first, that the administrative process does not permit adjudication of statutory and constitutional claims and is therefore "wholly `inadequate' and `futile,'" and second, that because he has not filed a "formal" claim for restoration of benefits, he is not requesting this Court to review any "decision of the Secretary," and he is therefore not precluded from seeking relief (including restoration of benefits) in this Court.

The Court will address each of Brown's substantive claims in turn.

C. Rehabilitation Act Claim

Section 504 of the Rehabilitation Act provides, in relevant part, that "[n]o otherwise qualified individual with a disability . . . shall, solely by reason of her or his disability, . . . be denied the benefits of, or be subjected to discrimination . . . under any program or activity conducted by any Executive agency." 29 U.S.C. § 794. By its terms, the Act applies to agency action, not to acts of Congress. Accordingly, the Court will construe Brown's claim as a claim that 38 C.F.R. § 3.665, the VA regulation governing restoration of benefits to incarcerated veterans, violates the Rehabilitation Act.

That claim is plainly outside the jurisdiction of this Court. Congress has provided an exclusive mechanism for such challenges to VA regulations: to the extent the challenge is connected to a specific benefits claim, the claimant must proceed through the appeals process created by the Veterans' Judicial Review Act—first with the BVA, then CAVA, and finally, the Federal Circuit. Pub.L. No. 100-687, Tit. III, 102 Stat. 4105, 4113-4122 (1988) (codified in sections scattered throughout 38 U.S.C.). All other challenges "shall be in accordance with [the APA] and may be sought only in the United States Court of Appeals for the Federal Circuit." 38 U.S.C. § 502 (emphasis added).⁵

Accordingly, no matter how Brown characterizes his claim, it is beyond the jurisdiction of this Court. The Rehabilitation Act Claim will be dismissed.

D. Constitutional Claims

Brown fares no better with his constitutional claims. He alleges that § 5313(a)(2) violates the Fifth and Fourteenth Amendments of the Constitution; in the absence of any claim against a state actor, the Court construes the claim as alleging a violation of the equal protection guarantee of the Fifth Amendment.⁶ To the extent Brown challenges § 5313(a)(2) as the VA has interpreted and applied it, § 511 bars his claim and it will be dismissed accordingly. To the extent he makes a facial challenge to § 5313(a)(2), the complaint fails to state a claim upon which relief can be...