McCulley v. US Dept. of Veterans Affairs, 93-C-0405.

• Court: United States District Courts. 7th Circuit. United States District Court of Eastern District of Wisconsin
• Writing for the Court: WARREN, Senior
• Citation: 851 F. Supp. 1271
• Parties: Allen R. McCULLEY, Plaintiff, v. UNITED STATES DEPARTMENT OF VETERANS AFFAIRS and Douglas A. Wallin, Defendants.
• Docket Number: No. 93-C-0405.,93-C-0405.
• Decision Date: 10 May 1994

851 F. Supp. 1271

Allen R. McCULLEY, Plaintiff,
v.
UNITED STATES DEPARTMENT OF VETERANS AFFAIRS and Douglas A. Wallin, Defendants.

No. 93-C-0405.

United States District Court, E.D. Wisconsin.

May 10, 1994.

851 F. Supp. 1272

COPYRIGHT MATERIAL OMITTED

851 F. Supp. 1273

Allen R. McCulley, pro se

James L. Santelle, Asst. U.S. Atty., Milwaukee, WI, for defendants.

DECISION AND ORDER

WARREN, Senior District Judge.

Before the Court is the defendant's Motion to Dismiss or for Summary Judgment in the above-captioned matter. For the following reasons, the Court orders dismissal of this case for lack of subject matter jurisdiction pursuant to Federal Rule of Civil Procedure 12(b)(1) ("Rule 12(b)(1)").

I. FACTUAL AND PROCEDURAL BACKGROUND

Plaintiff Allen R. McCulley served in the United States Army from 1948 to 1962, when he was honorably discharged. (Maddox Aff.

851 F. Supp. 1274

at ¶ 3.) From 1968 to 1977, he filed numerous claims for compensation with defendant United States Department of Veteran's Affairs ("VA") for alleged service-connected medical conditions, (Id. at ¶ 1.);¹ he presently receives compensation for arterial hypertension evaluated as 20% disabling, chronic lumbosacral strain evaluated as 20% disabling, and atrophic left testicle due to mumps with orchiditis evaluated as 0% disabling.² (Id.) On April 10, 1975, the plaintiff underwent surgery to remove a "small leiomyoma" on his esophagus; the attending physician noted the presence of "a small hiatal hernia on gastrointestinal series without demonstrable reflux." (Pl. Mem. Opp'n Summ. J., Ex. 2.) On May 7, 1975, the plaintiff returned to the VA complaining of low back pain, weakness in his right arm, and "right vocal cord paralysis." (Id. at Ex. 2-A.) In February of 1982, he expressed to the VA his desire to establish service-connection for paralysis of the right vocal cord secondary to such surgery. (Maddox Aff. at ¶ 4, Ex. 1.) In June of 1982, the VA issued a Rating Decision holding that service-connection for such condition was not established under 38 U.S.C. § 351 (currently renumbered § 1151); the plaintiff filed a notice of disagreement. (Id.) In March of 1983, the plaintiff amended his claim to include service-connection for an adjunct condition, diabetes; in February of 1984, the VA issued a Rating Decision denying establishment of a service-connection for such condition. (Id.)

851 F. Supp. 1275

In April of 1988, the plaintiff filed three separate actions in Milwaukee County Circuit Court against various VA employees, two of which were immediately removed to the United States Court for the Eastern District of Wisconsin; the United States was substituted as defendant, and an amended complaint was filed alleging "defamation of character with malice aforethought" and a "false rating decision of 1974." (Def. Mem. Supp. Summ. J., Ex. A.) After a September 1988 status conference, the parties agreed to send the plaintiff's records to a VA Regional Office other than Wisconsin for evaluation. (Id., Ex. B.) On December 29, 1988, the Washington D.C. VA Regional Office issued a Rating Decision finding that "all rating decisions completed during the period 1974 through 1976 are consistent with the medical evidence," (Maddox Aff. at ¶ 5, Ex. 2); however, it also noted the "adult onset of diabetes mellitus, hiatal hernia with fair control, dysphagia and recurrent laryngeal nerve injuries due to previous esophageal surgery." (Pl. Mem. Opp'n Summ. J., Ex. 1-A.) The third above-referenced state action was removed to the United States District Court for the Eastern District of Wisconsin in June of 1989 and consolidated with the other two cases; the United States was again substituted as defendant. (Def. Mem. Supp. Summ. J., Ex. C.) The United States moved for, and was granted, summary judgment. (Id.) The Seventh Circuit affirmed, McCulley v. United States, 929 F.2d 703 (7th Cir.1991), and the United States Supreme Court denied certiorari. McCulley v. United States, ___ U.S. ___, 112 S.Ct. 207, 116 L.Ed.2d 165 reh'g denied, ___ U.S. ___, 112 S.Ct. 627, 116 L.Ed.2d 648 (1991).

On February 4, 1992, the plaintiff requested disability compensation from the VA under § 1151 for "residuals of esophageal surgery performed by the VA Hospital — Milwaukee in 1975"; he submitted additional documents on February 19, 1992 asking to "reopen his claim for service-connected ... laryngeal nerve injury due to esophageal surgery" and requesting "compensation for diabetes, and a hiatal hernia in addition to service-related low back pain." (Maddox Aff. at ¶ 6, Ex. 3-4.) On March 11, 1992, the VA notified the plaintiff that it was suspending the adjudication of all claims involving a potential denial of service-connection disabilities until the Court of Appeals for the Federal Circuit reviewed the United States Court of Veterans Appeals decision in Gardner v. Derwinski, 1 Vet.App. 584 (1991), which invalidated a provision in 38 C.F.R. § 3.358 used by the VA in deciding § 1151 claims. (Id. at ¶ 7-8, Ex. 5-7.) On February 25 and April 6, 1993, the VA notified the plaintiff that his claim remained suspended pending an appellate ruling in Gardner. (Id. at ¶ 9, Ex. 8-9.)³

On April 22, 1993, the plaintiff, acting pro se, brought the instant action against the VA and Douglas A. Wallin, Adjudication Officer for the Wisconsin VA Regional Office, alleging that he suffers the following ten (10) disabilities due to complications from his esophageal surgery: "1. recurrent laryngeal nerve injuries, 2. paralysis of right vocal cord, 3. hiatal hernia, 4. dysphagia, 5. gastroenteritis, 6. diverticulitis, 7. diabetes mellitus, 8. psychophysiological reaction manifested by anxiety with somatic complaints, 9. function bowel syndrome and 10. intervertebral disc syndrome." According to the plaintiff, the defendants' refusal to comply with § 1151 violates his Fourteenth Amendment right to Equal Protection, and he seeks "service-connected disabilities compensation for injuries, the residual of injuries and aggravation of an injury as the result of hospitalization, medical and surgical treatment, ... and damages for suffering, grave grievous, mental anguish and pain, lost sic of job, ... and punitive damages." (Compl. at 4.) On June 22, 1993, the defendants filed the instant motion; the plaintiff responded on July 14, 1991, and the defendants replied on July 28, 1993.⁴

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II. STANDARD OF REVIEW

"Rule 12(b)(1) requires that an action be dismissed if the court lacks jurisdiction over the subject matter of the lawsuit." Unity Sav. Ass'n v. Federal Sav. & Loan Ins. Corp., 573 F.Supp. 137, 140 n. 4 (N.D.Ill. 1983). When ruling on such a motion, the Court "is not bound to accept as true the allegations of the complaint which tend to establish jurisdiction where a party properly raises a factual question concerning the jurisdiction of the ... court to proceed with the action." Grafon Corp. v. Hausermann, 602 F.2d 781, 783 (7th Cir.1979); Chicago Dist. Council of Carpenters Pension Fund v. Kustom Line Garage Door Co., 1989 WL 152531 (N.D.Ill. Dec. 11, 1989). Instead, the Court should "look beyond the jurisdictional allegations in the complaint and view whatever evidence has been submitted on the issue in determining whether in fact subject matter jurisdiction exists." Grafon, 602 F.2d at 783; Chicago Dist., 1989 WL 152531, at *1. Where subject matter jurisdiction is at issue, "the party invoking jurisdiction has the burden of supporting the allegations of jurisdictional facts by competent proof." Grafon, 602 F.2d at 783; Geiger v. United States, 1989 WL 31100 (N.D.Ill. March 28, 1989). See also Western Transp. Co. v. Couzens Warehouse & Dist., Inc., 695 F.2d 1033, 1038 (7th Cir.1982); Nuclear Eng'g Co. v. Scott, 660 F.2d 241, 252 (7th Cir.1981). Unlike a Rule 12(b)(6) motion, a Rule 12(b)(1) motion cannot "evolve into a dismissal for summary judgment pursuant to Rule 56." Capitol Leasing Co. v. Federal Deposit Ins. Corp., 999 F.2d 188, 191 (7th Cir.1993); Crawford v. United States, 796 F.2d 924, 928 (7th Cir. 1986).

Rule 12(b)(6) authorizes the Court to dismiss a case "for failure to state a claim upon which relief can be granted." Unlike a Rule 12(b)(1) motion, the Court must accept as true all well-pleaded factual allegations contained in the plaintiff's complaint, viewing all reasonable inferences in the light most favorable to the plaintiff. Hishon v. King & Spalding, 467 U.S. 69, 73, 104 S.Ct. 2229, 2233, 81 L.Ed.2d 59 (1984); Gillman v. Burlington N. R.R. Co., 878 F.2d 1020, 1022 (7th Cir.1989); Republic Steel Corp. v. Pennsylvania Eng'g Corp., 785 F.2d 174, 177 n. 2 (7th Cir.1986). The complaint, however, must set forth factual allegations adequate to establish the essential elements of his or her claim, see Benson v. Cady, 761 F.2d 335, 338 (7th Cir.1985); Sutliff, Inc. v. Donovan Co., Inc., 727 F.2d 648, 654 (7th Cir.1984), and legal conclusions lacking adequate support should not be considered. Benson, 761 F.2d at 338. The Court must deny such a motion unless it appears beyond doubt that the plaintiff is unable to prove any set of facts which would entitle him or her to relief. Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 101-02, 2 L.Ed.2d 80 (1957); Benson, 761 F.2d at 338. The Court's inquiry is generally limited to the factual allegations contained within the four corners of the complaint, see, e.g., Hill v. Trustees of Indiana Univ., 537 F.2d 248, 251 (7th Cir.1976); however, "if ... matters outside the pleading are presented to and not excluded by the court," a Rule 12(b)(6) motion must be treated as a Rule 56 Motion for Summary Judgment. See Capitol Leasing, 999 F.2d at 191; R.J.R. Services, Inc. v. Aetna Casualty and Sur. Co., 895 F.2d 279, 281 (7th Cir.1989); Winslow v. Walters, 815 F.2d 1114, 1116 (7th Cir.1987).

Rule 56(c), in turn, deems summary judgment appropriate "if the pleadings, depositions, answers to interrogatories, and admissions on file,...