Diggs v. U.S. Dep't of Air Force, Case No.: 3:20-cv-16
| Decision Date | 23 February 2021 |
| Docket Number | Case No.: 3:20-cv-16 |
| Parties | WANDA LAYNE DIGGS, Plaintiff, v. UNITED STATES DEPARTMENT OF THE AIR FORCE, and THE DEPARTMENT OF VETERANS AFFAIRS, Defendants. |
| Court | U.S. District Court — Middle District of Tennessee |
Plaintiff Wanda Layne Diggs ("Ms. Diggs") filed this pro se action pursuant to 42 U.S.C. § 1983 alleging, inter alia, that Defendants United States Department of the Air Force and The Department of Veterans Affairs ("Defendants") violated her First, Ninth, Thirteenth, and Fourteenth Amendment rights. Docket No. 1, p. 3-4.
Pending before the Court is a Motion to Dismiss, filed by Defendants. Docket No. 11. Along with their Motion, Defendants have filed a supporting Memorandum of Law. Docket No. 12. Ms. Diggs filed a response to Defendants' Motion to Dismiss. Docket No. 23. For the reasons discussed below, the undersigned finds that this Court lacks subject matter jurisdiction over Ms. Diggs' claims. The undersigned therefore recommends that Defendants' Motion to Dismiss (Docket No. 11) be GRANTED.
Fed. R. Civ. P. 12(b)(1) provides that a complaint may be dismissed for lack of subject matter jurisdiction. A party seeking to dismiss a claim pursuant to Rule 12(b)(1) may engage in either, (1) a facial attack to the complaint; or (2) a factual attack on the allegations averred in the pleadings. United States v. Ritchie, 15 F. 3d 592, 598 (6th Cir. 1994); see Ohio Nat'l Life Ins. Co. v. United States, 922 F. 2d 320, 325 (6th Cir. 1990).
A facial attack is a challenge to the court's subject matter jurisdiction that takes the material allegations of the complaint as true and construes them in the light most favorable to the nonmoving party. See RMI Titanium Co. v. Westinghouse Elec. Corp., 78 F. 3d 1125, 1134-35 (6th Cir. 1996). On such an attack, the Court must take all material allegations in the complaint as true and construe them in the light most favorable to the nonmoving party. Ritchie, 15 F. 3d 592 at 598 (citing Scheuer v. Rhodes, 416 U.S. 232, 235-37 (1974)).
In contrast, a factual attack is "not a challenge to the sufficiency of the pleading's allegations, but a challenge to the factual existence of subject matter jurisdiction." United States v. Ritchie, 15 F. 3d 592, 598 (6th Cir. 1994); see also, Ohio Nat'l Life, 922 F. 2d at 325. Where the court considers a factual, rather than a facial, jurisdictional attack, it is free to weigh the evidence and resolve disputed questions of fact bearing on the court's jurisdiction. See Rogers v. Stratton Indus., Inc., 798 F. 2d 913, 915 (6th Cir. 1986); Ohio Nat'l Life, 922 F. 2d at 325. The district court's factual findings, however, do not bind the Court in future proceedings, and "[t]he res judicata effect of a 12(b)(1) motion is . . . limited to the jurisdictional issue." Ohio Nat'l Life, 922 F. 2d 320 at 325.
In this case, Defendants are making a facial attack of Ms. Diggs' claims, asserting that this Court lacks subject matter to hear her claims because of the Veterans' Judicial Review Act ("VJRA") and the Feres doctrine. See Docket 12, p. 5. Thus, we must take all material allegations in the complaint as true and construe them in the light most favorable to Ms. Diggs.
Under the Veterans' Judicial Review Act ("VJRA"), the "Secretary [of Veterans Affairs] shall decide all questions of law and fact necessary to a decision . . . that affects the provision of benefits by the Secretary to veterans . . .." 38 U.S.C. 511(a). "[T]he decision of the Secretary as to any such question shall be final and conclusive and may not be reviewed by any other official or by any court." Id. The Law further provides that 38 U.S.C. § 7104(a). The decisions of the Board of Veterans' Appeals (the "Board") is then reviewable by the Court of Appeals for Veterans Claims, which has the "exclusive jurisdiction to review decisions of the Board []." 38 U.S.C. § 7252(a).
Section 7252(c) further provides that decisions of the Court of Appeals for Veterans Claims are subject to review as provided in § 7292. Section 7292(a) states:
After a decision of the United States Court of Appeals for Veterans Claims is entered in a case, any party to the case may obtain a review of the decision with respect to the validity of a decision of the Court on a rule of law or of any statute or regulation . . . or any interpretation thereof . . . that was relied on by the Court in making the decision. Such review shall be obtained by filing a notice of appeal with the Court of Appeals for Veterans Claims within the time and in the manner prescribed for appeal to United States courts of appeals from United States district courts.
38 U.S.C. § 7292(a). Subsection (c) further states that the "United States Court of Appeals for the Federal Circuit shall have exclusive jurisdiction to review and decide any challenge to the validity of any statute or regulation or any interpretation thereof." 38 U.S.C. § 7292(c).
The Sixth Circuit has held that the text of the VJRA and the "extensive legislative history" of the VRJA demonstrate Congress's intent to make the process outlined above the exclusive source of review in veterans' benefits claims. Beamon v. Brown, 125 F. 3d 965, 970 (6th Cir. 1997).In making this determination, the Sixth Circuit explained that § 511 creates "broad preclusion of judicial review of VA decisions." Id. Accordingly, the Sixth Circuit has held that the VJRA deprives district courts of subject matter jurisdiction over VA decisions relating to a plaintiff's benefits claim, including constitutional issues. Id. at 970-974. See also Newsom v. Dep't of Veterans Affairs, 8 F. App'x 470, 471 (6th Cir. 2001)( that the district court lacked subject matter jurisdiction because Congress had given exclusive jurisdiction over claims regarding veterans benefits with the Court of Veterans Appeals); Thompson v. Veterans Affairs, 20 F. App'x 367, 369 (6th Cir. 2001)( that the VRJA precludes district courts from reviewing decisions on veteran's benefits, including constitutional challenges to the procedures); Aikens v. U.S. Dep't of Veterans Affairs, 2010 U.S. Dist. LEXIS 13653, 2010 WL 625369, (E.D. Tenn. Feb. 17, 2010)("[N]o decision that affects the provision of veterans benefits may be reviewed by any court by mandamus or otherwise.")
The "United States, as sovereign, is immune from suit save as it consents to be sued." United States v. Sherwood, 312 U.S. 584, 586 (1941). The FTCA, which provides that the "United States shall be liable, respecting the provisions of this title relating to tort claims, in the same manner and to the same extent as a private individual under like circumstances," 28 U.S.C. § 2674, acts as a waiver of the federal government's sovereign immunity in limited contexts and "is the exclusive remedy for suits against the United States or its agencies sounding in tort." Himes v. United States, 645 F. 3d 771, 776 (6th Cir. 2011) (citing 28 U.S.C. § 2679(a)); Young v. United States, 71 F. 3d 1238, 1241 (6th Cir. 1995). This exclusive remedy further extends to the negligent or wrongful acts or omissions of any federal employee while acting within the scope of his or her employment. 28 U.S.C. § 2679(b)(1).
The FTCA's waiver of the United States' immunity from suit for torts committed by federal employees is limited and is subject to several conditions. See Ellison v. United States, 531 F. 3d 359, 361 (6th Cir. 2008). One of these conditions is that the claimant must present his claim in writing to the appropriate agency within two years of the date the claim accrued. 28 U.S.C. § 2401(b); United States v. Kwai Fun Wong, 575 U.S. 402, 410 (2015); United States v. Kubrick, 444 U.S. 111, 113 (1979); Blakely v. United States, 276 F. 3d 853, 865 (6th Cir. 2002). The general rule is that a tort claim under the FTCA accrues at the time of a plaintiff's injury. Kubrick, 444 U.S. at 120; Hertz v. United States, 560 F. 3d 616, 618 (6th Cir. 2009). When a plaintiff knows, or in the exercise of reasonable diligence should know, of the fact that he has been injured and who has caused his injury, his claim has accrued, regardless of whether he knows the legal basis for such a claim. Hertz, 560 F. 3d at 618-19.
However, the FTCA excludes from this waiver of immunity "any claim arising out of combatant activities of the military, or naval forces, or the Coast Guard, during time of war." See 28 U.S.C. § 2680 (j). In Feres v. United States, the Supreme Court significantly broadened this exception, ruling that "the Government is not liable under the Federal Tort Claims Act for injuries to servicemen where the injuries arise out of or are in the course of activity incident to service." 340 U.S. at 146; Fleming v. United States Postal Service, 186 F. 3d 697, 699 (6th Cir. 1999); Lovely v. United States, 570 F. 3d 788, 782 (6th Cir. 2009) (citations omitted). The phrase "incident to service" is not limited to military training and combat. Major v. United States, 835 F. 2d 641; 644-45 (6th Cir. 1987).
Review of these Supreme Court precedents makes it clear that in recent years the Court has embarked on a course dedicated to broadening the Feres doctrine to encompass, at a minimum, all injuries suffered by military personnel that are even remotely related to the ... individual's status as a member of the military, without regard to the location of the event, the status (military or civilian) of the tortfeasor, or any nexus between the injury-producing event and the...
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