King v. United States

• Decision Date: 28 September 2012
• Docket Number: Cause No. 1:11CV224–LG–RHW.
• Citation: 901 F.Supp.2d 781
• Court: U.S. District Court — Southern District of Mississippi
• Parties: Philip M. KING, Plaintiff v. UNITED STATES of America, United States Department of Veterans Affairs, Eric K. Shinseki in his official capacity as the 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, and John Does 1–10, Defendants.

901 F.Supp.2d 781

Philip M. KING, Plaintiff

v.UNITED STATES of America, United States Department of Veterans Affairs, Eric K. Shinseki in his official capacity as the 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, and John Does 1–10, Defendants.

Cause No. 1:11CV224–LG–RHW.

United States District Court,

S.D. Mississippi,

Southern Division.

Sept. 28, 2012.

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

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

MEMORANDUM OPINION AND ORDER GRANTING DEFENDANTS' MOTION TO DISMISS

LOUIS GUIROLA, JR., Chief Judge.

BEFORE THE COURT is the Motion to Dismiss [17] filed by Defendants United States of America, 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, and Hilda L. Solis in her official capacity as Secretary of the United States Department of Labor. Defendants move to dismiss this action for lack of subject matter jurisdiction pursuant to Federal Rule of Civil Procedure 12(b)(1). Plaintiff Philip M. King has filed a response [21] in opposition to the motion, and Defendants have filed a reply [23]. The Court has reviewed the parties' briefs and the relevant law. For the reasons discussed below, the motion is granted.

Background

King was injured in Baghdad, Iraq, while serving the United States. He was diagnosed with ruptured discs in his neck and back, radiculopathy, and nerve entrapment in his arms and legs. As a result, the Department of Veterans Affairs (hereinafter “the VA”) awarded King a combined disability rating of eighty percent (80%). King sought to have his disability rating increased to one hundred percent (100%), and in the course of doing so, submitted information to the VA about his status as a recipient of social security disability and workers' compensation benefits. Instead of increasing King's disability rating, the VA terminated his benefits “based on an apparent misunderstanding ... regarding the ability to simultaneously receive VA benefits and workman's compensation benefits.” (Compl. 4 (¶ 13), ECF No. 1). Then, the VA Collection Department attempted to collect benefits from King that had already been paid to him. His Combat disability payments were also discontinued and terminated.

King sought to have his benefits reinstated by the VA. He provided letters in his support from the Department of Labor and his private insurer. He made multiple phone calls and sent correspondence to both agencies, but was denied any help. King submitted a Freedom of Information Act (FOIA) request relating to his benefits, and he claims that “individuals within the agencies removed certain key documents from his FOIA packet.” (Compl. 5 (¶ 21), ECF No. 1). ¹ According to the complaint, eventually King spoke directly with “Counsel for the VA,” and explained what had happened, and then the VA overturned its decision. (Compl. 5 (¶ 23), ECF No. 1). King received the benefits to which he was entitled in full, including back pay and interest. (Pl.'s Mem. 3, ECF No. 21).

King's complaint alleges claims pursuant to the Federal Tort Claims Act (FTCA), 28 U.S.C. § 2671 et seq., and 28 U.S.C. § 1346(b)(1), seeking damages for property and personal injuries he alleges were caused by the Defendants. He claims that as a result of the denial of his benefits, and the collection actions taken by Defendants, he suffered financial difficulties as well as personal and marital problems. King alleges that the VA's conduct constitutes abuse of process and interference with contractual rights under Mississippi law, and that under 28 U.S.C. § 2680(h), the United States is liable for damages. He further alleges claims of “common law maliceand actual malice,” “negligence and/or gross negligence,” and the common law tort of outrage. (Compl. 5–9 (¶¶ 24–57), ECF No. 1). King seeks compensatory and punitive damages and attorney's fees. ( Id. at 10.)

Defendants have filed a Motion to Dismiss pursuant to Federal Rule of Civil Procedure 12(b)(1). Defendants' motion makes two arguments: (1) under the Veterans Judicial Review Act, this Court does not have jurisdiction to review King's clams, which challenge the VA's decisions affecting King's veterans benefits, and (2) King's state law tort claims are barred by the doctrine of sovereign immunity under 28 U.S.C. § 2680(h).

King responds that he is not seeking review of his benefits, and therefore he lacks standing to appeal to the Court of Veterans Appeals. (Pl.'s Mem. 9, ECF No. 21). King claims he “is seeking compensation for damages he sustained as a result of individual torts ... in addition to the benefit award already received.” ( Id. at 3.) King further submits that he alleges state law claims that are properly before this Court, and that “policy espoused by Congress” in the Administrative Procedure Act and the FTCA “clearly require judicial review” when veterans “will be assisted by resolution of the issue.” ( Id.)

Discussion

Standard of Review

In ruling on a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(1), “the district court has the power to dismiss for lack of subject matter jurisdiction on any one of three separate bases: (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.” Williamson v. Tucker, 645 F.2d 404, 413 (5th Cir.1981). The plaintiff, as the party asserting jurisdiction, bears the burden of proof that jurisdiction exists. Ramming v. United States, 281 F.3d 158, 161 (5th Cir.2001); see also Lowe v. Ingalls Shipbuilding, 723 F.2d 1173, 1177 (5th Cir.1984). “[A] motion to dismiss for lack of subject matter jurisdiction should be granted only if it appears certain that the plaintiff cannot prove any set of facts in support of his claim that would entitle plaintiff to relief.” Ramming, 281 F.3d at 161 (citing Home Builders Ass'n of Miss., Inc. v. City of Madison, 143 F.3d 1006, 1010 (5th Cir.1998)). The Court liberally construes King's complaint in reviewing the Motion to Dismiss.

Subject Matter Jurisdiction and the Veterans Judicial Review Act

The Veterans Judicial Review Act (VJRA) provides “a specific appellate review mechanism” for claims related to veterans' benefits. Hicks v. Veterans Admin., 961 F.2d 1367, 1369 (8th Cir.1992). Enacted in 1988, the VJRA “provided veterans with their day in court.” Bates v. Nicholson, 398 F.3d 1355, 1363 (2005) (citing Forshey v. Principi, 284 F.3d 1335, 1344–45 (Fed.Cir.2002) (en banc) (additional citation omitted)). While the VJRA “continued to broadly bar judicial review of benefits decisions” under § 511(a),² it made changes to the existing structure for the administrative review of such decisions, and created a new Article I Court, the Court of Veterans Appeals. The Court of Veterans Appeals provided for “independent judicial review of the Board's final decision” regarding benefits claims. Id. at 1364. The effect of the VJRA “was to generally place judicial review of Secretarial decisions ‘under a law that affects the provision of benefits' within the specialized review process.” Id. As a matter of policy, “Congress plainly preferred this approach” because it placed the review of veterans' claims in an independent court, rather than district courts that “lacked the necessary expertise.” Id.

Under the statutory scheme of the VJRA, a veteran may appeal the Secretary's initial decision to the Board of Veterans' Appeals, and from there to the United States Court of Appeals for Veterans Claims (“CVA”), and then to the United States Court of Appeals for the Federal Circuit. Hicks, 961 F.2d at 1369.See also Larrabee by Jones v. Derwinski, 968 F.2d 1497 (2nd Cir.1992) (discussing legislative history of the VJRA).

In their Motion to Dismiss, Defendants assert that while King couches his complaint in terms of tort violations, he essentially seeks review of the agency's decisions regarding his benefits, and therefore his claims are not properly in this Court. They argue that “the gravamen of [King's] Complaint is that he was wrongfully denied veterans' benefits for a period of time,” and this Court is precluded from reviewing the VA's determinations under 38 U.S.C. § 511(a). (Defs.' Mem. 9, ECF No. 18).

The crux of King's complaint is that he was injured, financially and otherwise, when his benefits were terminated, and that he continued to be injured by the VA's subsequent refusal to reinstate those benefits, and again when the VA Collection Department sought to recover benefits already paid to him. He alleges that these actions were a result of either the negligence—or worse, malice—of the federal employees who were reviewing his claim or otherwise making decisions regarding his benefits. Taking the allegations in King's complaint as true, the Plaintiff vividly describes a frustrating, and at times, torturous administrative ordeal. However, based on the language of 38 U.S.C. § 511(a), the authorities cited in the parties' briefs, and additional case law reviewed by the Court, the Court finds that it lacks subject matter jurisdiction.

Judicial review of the VA's determinations with respect to veterans' benefits is limited by 38 U.S.C. § 511(a). That statute provides:

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...