King v. U.S. Dep't of Veterans Affairs

• Decision Date: 23 August 2013
• Docket Number: No. 12–60835.,12–60835.
• Citation: 728 F.3d 410
• Parties: Phillip M. KING, Plaintiff–Appellant, v. UNITED STATES DEPARTMENT OF VETERANS AFFAIRS; Eric K. Shinseki, in his official capacity as Secretary of the United States Department of Veterans Affairs; United States Department of Labor; Hilda L. Solis, in her official capacity as Secretary of the United States Department of Labor; John Does 1–10; United States of America, Defendants–Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

728 F.3d 410

Phillip M. KING, Plaintiff–Appellant,

v.UNITED STATES DEPARTMENT OF VETERANS AFFAIRS; Eric K. Shinseki, in his official capacity as Secretary of the United States Department of Veterans Affairs; United States Department of Labor; Hilda L. Solis, in her official capacity as Secretary of the United States Department of Labor; John Does 1–10; United States of America, Defendants–Appellees.

No. 12–60835.

United States Court of Appeals, Fifth Circuit.

Aug. 23, 2013.

Stephen W. Dummer, Deutsch, Kerrigan & Stiles, LLP, Gulfport, MS, for Plaintiff–Appellant.

Stephen R. Graben, Assistant U.S. Attorney, U.S. Attorney's Office, Gulfport, MS, for Defendants–Appellees.

Appeal from the United States District Court for the Southern District of Mississippi.

Before ELROD and HIGGINSON, Circuit Judges, and MARTINEZ, District Judge.^*

JENNIFER WALKER ELROD, Circuit Judge:

This is an action under the Federal Tort Claims Act (“FTCA”), 28 U.S.C. §§ 1346(b)(1), 2671–80 (2006), in which Philip M. King (“King”) seeks compensatory damages for loss of property and personal injuries allegedly caused by the negligence and malice of the United States Department of Veterans Affairs and others (collectively, “the VA”). The VA moved to dismiss King's claims, contending that the Veterans Judicial Review Act (“VJRA”), 38 U.S.C. § 511 (2006), and alternatively the United States' sovereign immunity, barred the district court from exercising jurisdiction over King's claims. The district court granted the VA's motion to dismiss. We AFFIRM.

I.

King suffered injury in Iraq while serving in the United States Armed Forces. Based on his diagnosis of ruptured discs in his neck and back, radiculopathy, and nerve entrapment in his arms and legs, King applied for veterans' benefits. In January 2006, the VA awarded him benefits based on an 80% service-connected disability rating. King disagreed with his rating, believing it should be increased to 100%; accordingly, he submitted additional information in support of an increase, including his status as a recipient of workers' compensation benefits through his private insurance company. In July 2007, rather than increasing King's disability rating, the VA terminated his benefits based on an apparent misunderstanding regarding his ability to receive simultaneously VA benefits and workers' compensation benefits under the Defense Base Act, 42 U.S.C. § 1651 (2006).

In seeking reinstatement of his benefits, King submitted to the VA letters of support from both the Department of Labor and his private insurer. The VA did not change its decision, however. To the contrary, it attempted to recover from King the benefits it previously paid to him. King continued his attempts to resolve the situation with phone calls, letters, e-mails, and additional documentation. King also submitted a Freedom of Information Act (FOIA) request related to his benefits. Eventually, King spoke on the telephone with an attorney for the VA who took action to reinstate King's benefits.¹ In March 2008, eight months after it terminated King's benefits, the VA retroactively awarded King a 100% disability rating and reinstated his benefits based on that rating. King alleges that the VA sent him a letter admitting that it had “erroneously terminated [his] benefits,” but he concedes that the VA eventually paid him all of the correct back payments and interest.

King filed an administrative claim in 2010. He alleged that the VA acted unlawfully and that he sustained damages based on the loss of his benefits for eight months. After hearing nothing in response to his administrative claim, King sued the VA in May 2011, asserting state-law tort claims. ² The VA moved to dismiss King's claims for lack of subject-matter jurisdiction under Rule 12(b)(1). It contended that King's exclusive avenue for redress was by appeal to the United States Court of Appeals for Veterans Claims, and that sovereign immunity barred King's state-law tort claims. The district court agreed. It granted the VA's motion to dismiss, concluding that (1) the VJRA foreclosed it from exercising jurisdiction over King's claims, and (2) alternatively, the United States' sovereign immunity barred King's claims because they fell within an exception to the FTCA's waiver of immunity. King timely appealed.

II.

We review de novo the district court's dismissal for lack of subject-matter jurisdiction under Rule 12(b)(1). Ballew v. Cont'l Airlines, Inc., 668 F.3d 777, 781 (5th Cir.2012) (citations omitted). As the party asserting jurisdiction, King “bears the burden of proof for a 12(b)(1) motion to dismiss.” See id. (citation omitted). To meet that burden, King “must prove by a preponderance of the evidence that the court has jurisdiction based on the complaint and evidence.” See id. (citation omitted). We may determine that subject-matter jurisdiction is lacking based on “(1) the complaint alone; (2) the complaint supplemented by undisputed facts evidenced in the record; or (3) the complaint supplemented by undisputed facts plus the court's resolution of disputed facts.” Ramming v. United States, 281 F.3d 158, 161 (5th Cir.2001) (citing Barrera–Montenegro v. United States, 74 F.3d 657, 659 (5th Cir.1996)). Ultimately, we may affirm the district court's dismissal on any ground the record supports. Moncrief Oil Int'l Inc. v. OAO Gazprom, 481 F.3d 309, 311 (5th Cir.2007).

III.

King's arguments fall into two categories relevant to our decision: First, King contends that the district court erred in holding that it lacked subject-matter jurisdiction based on the VJRA. Second and alternatively, King asserts that the Administrative Procedure Act (“APA”) provides a basis for the district court to assert jurisdiction over his claims. For the reasons below, we conclude that the district court correctly rejected these arguments and dismissed King's claims.³

A.

The VJRA cabins judicial review of veterans' benefits determinations. Specifically, section 511(a) provides that:

The Secretary shall decide all questions of law and fact necessary to a decision by the Secretary under a law that affects the provision of benefits by the Secretary to veterans or the dependents or survivors of veterans. Subject to subsection (b), the 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,

whether by an action in the nature of mandamus or otherwise.

38 U.S.C. § 511(a) (2006) (emphasis added).⁴ As this court explained in Zuspann v. Brown, other provisions in the VJRA establish “an exclusive review procedure” for veterans to appeal benefits decisions:

The VJRA allows veterans to appeal benefits determinations to the Board of Veterans' Appeals. Jurisdiction to review the Board's decisions is conferred exclusively on the Court of Veterans Appeals. The United States Court of Appeals for the Federal Circuit has exclusive jurisdiction to review the decisions of the Court of Veterans Appeals. Congress expressly gave the Federal Circuit Court of Appeals “exclusive jurisdiction” to “interpret constitutional and statutory provisions, to the extent presented and necessary to a decision.”

60 F.3d 1156, 1158–59 (5th Cir.1995) (footnotes omitted). Under these provisions, the district court lacked jurisdiction if King's claims amounted to an appeal of the VA's benefits decisions. The district court concluded that they did, and we agree.

King's primary argument on appeal is that the district court need not delve into the VA's benefits decisions because the VA admitted that it “erroneously terminated [his] benefits.” Even if the VA admitted error, however, it did not admit to negligence, much less malice. To award King damages based on his complaint, the district court would have to analyze whether the VA's agents knew or should have known that the denial of King's benefits was wrong. That analysis would involve questions of law and fact related to the VA's benefits decisions, and those are issues that section 511 places outside the district court's jurisdiction. Persuasive authority illustrates this point.

The Third Circuit's decision in Dambach v. United States is particularly instructive. 211 Fed.Appx. 105 (3d Cir.2006) (unpublished but persuasive). There, a veteran endured a “nine-year odyssey to win disability benefits from the [VA].” Id. at 106. He then sued the VA under the FTCA, alleging that his claim for benefits “was wrongfully denied more than thirteen times ... [because of] the failure to consider established or admitted facts ... and finally and most importantly the failure to apply controlling federal statutory law.” Id. at 107 (alterations in original). In affirming the district court's dismissal based on section 511, the Dambach court reasoned that the veteran's claims fell outside the district court's jurisdiction because they “challenge[d] earlier denials of a claim for benefits as well as related decisions on questions of fact and law.” Id. at 108. The same holds true here. King bases his claims on the VA's earlier denials of his benefits. Moreover, just as the veteran in Dambach challenged the VA's “failure to consider established [and] admitted facts ... [and] to apply controlling federal statutory law,” id. at 107, King challenges the VA's failure to consider the facts in his letters and e-mails and to apply correctly the Defense Base Act.

The district court's dismissal also comports with the reasoning in Price v. United States, 228 F.3d 420, 421–22 (D.C.Cir.2000). The veteran in Price sued the VA alleging that it wrongfully failed to comply with its legal obligation to reimburse him for certain medical expenses and caused him additional harm when it sought to collect unpaid medical bills on behalf of medical service providers. 228 F.3d at 421. In affirming the district court's dismissal of the veteran's claims for lack of subject-matter jurisdiction, the Price court explained that section 511 foreclosed...