Murrhee v. Principi

• Decision Date: 14 April 2005
• Docket Number: No. 04-2228.,04-2228.
• Citation: 364 F.Supp.2d 782
• Parties: Allan E. MURRHEE, Plaintiff, v. Anthony PRINCIPI, Director of the Department of Veterans Affairs, and Linda Belton, Regional Director of the Department of Veterans Affairs, Defendants.
• Court: U.S. District Court — Central District of Illinois

364 F.Supp.2d 782

Allan E. MURRHEE, Plaintiff, v. Anthony PRINCIPI, Director of the Department of Veterans Affairs, and Linda Belton, Regional Director of the Department of Veterans Affairs, Defendants.

No. 04-2228.

United States District Court, C.D. Illinois, Urbana Division.

April 14, 2005.

COPYRIGHT MATERIAL OMITTED

Allan E. Murrhee, Danville, IL, pro se.

David H. Hoff, US Atty., Urbana, IL, for Defendants.

ORDER

BERNTHAL, United States Magistrate Judge.

In October 2004, Plaintiff, Allan Murrhee, acting pro se, filed a Complaint (# 2) against Defendants, Anthony Principi, Director of the Department of Veterans Affairs, and Linda Belton, Regional Director. In January 2005, Defendants filed a Second Motion To Dismiss Plaintiff's Complaint for Failure To State a Valid Cause of Action (# 20). After reviewing the parties' pleadings and memoranda, this Court GRANTS Defendants' Second Motion To Dismiss Plaintiff's Complaint for Failure To State a Valid Cause of Action (# 20).

I. Background

The following background is taken from the complaint. In 1980, Plaintiff applied for a nonservice-connected pension. In March 1981, the Regional Office (hereinafter "RO") of the Department of Veterans Affairs (hereinafter "DVA") awarded him benefits based on medical evidence showing that he was permanently and totally disabled from a spinal cord injury. The award included a special monthly pension based on his need for regular aid and attendants. Plaintiff married in September 1988. In June 1990, Plaintiff submitted an Improved Pension Eligibility Verification Report reflecting his income and his wife's income. In a decision letter dated September 1990, the RO terminated Plaintiff's monthly pension benefits effective April 1, 1990.

In September 1998, a congressman forwarded to the DVA a letter from Plaintiff and requested that the letter be treated as (1) a request for review of the termination of Plaintiff's pension benefits, and (2) a claim for payment of pension and aid and attendants benefits without regard to Plaintiff's wife's income. In December 1998, the RO determined that Plaintiff's wife's income may be excluded when calculating income for the purpose of establishing entitlement to pension benefits. As a result, the RO reinstated Plaintiff's pension benefits effective October 1, 1998.

Plaintiff then asked for his pension benefits to be restored for the period prior to October 1, 1998. Plaintiff contended that the RO had wrongfully terminated his pension benefits because the RO had either actual or constructive knowledge of the nature of Plaintiff's wife's income. It appears that Plaintiff's claim was ultimately successful because Plaintiff's complaint alleged as follows: "The imperiled pleader disspite the D.A.V.'s complicity omissions, sought and gained full reinstatement of his much needed aid and attendants benefits" (sic). (# 2, p. 7.)

Plaintiff's complaint alleges that Defendants denied him due process by making him wait eight years before his pension benefits were reinstated and by delaying for another four years after reinstating his benefits before paying him back benefits for the eight-year gap. Specifically, Plaintiff's complaint states as follows: "I submit the D.V.A's. complicity omissions caused the imperiled pleader to incur the insufficient due process which recklessly endangered the imperiled pleader" (sic). (# 2, p. 7.) His complaint also alleges: "Motion for judgment of reckless endangerment by the D.V.A. for failure to permit the imperiled pleader sufficient due process. Causing the imperiled pleader to grievously suffer the loss of much needed aid and attendants benefits thus entitling the imperiled pleader to reckless endangerment damage relief" (sic). (# 2, p. 10.) As a result of these delays, Plaintiff seeks damages in the amount of $8,000,000.

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." McCulley v. United States Dep't of Veterans Affairs, 851 F.Supp. 1271, 1276 (E.D.Wis.1994), quoting Unity Sav. Ass'n v. Fed. 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). Instead, the Court should "look beyond the jurisdiction allegations in the complaint and view whatever evidence has been submitted on the issue in determining whether in fact subject matter jurisdiction exists." Id. at 783. Where subject matter jurisdiction is at issue, the party invoking jurisdiction bears the burden of supporting the allegations of jurisdictional facts with competent proof. Id. at 783; McCulley, 851 F.Supp. at 1276.

III. Analysis

Defendants argue that the Court should dismiss the case for lack of subject matter jurisdiction. Defendants contend that, under Rule 12(b)(1), subject matter jurisdiction is lacking because Section 511 of Title 38 precludes district courts from exercising subject matter jurisdiction. Section 511 replaced 38 U.S.C. § 211 following enactment of the Veterans' Judicial Review Act (hereinafter "VJRA") (Pub.L. No. 100-687, 102 Stat. 4105 (1988) (codified as amended in scattered sections of Title 38)).

As an initial matter, it is unclear whether Plaintiff intends to assert an action against the United States government or against employees of the government in their individual capacities. Therefore, the Court will address both claims.

A. Claims Against Employees in Their Individual Capacities

If Plaintiff intended to sue Defendants in their individual capacities rather than the United States government, he has failed to state a claim for which relief can be granted. A Bivens action may be maintained against government employees who are sued in their individual capacities. See Farmer v. Brennan, 511 U.S. 825, 851, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994); Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971). However, the United States Supreme Court has declined to create Bivens remedies when Congress has created "adequate remedial mechanisms for constitutional violations that may occur." Schweiker v. Chilicky, 487 U.S. 412, 423, 108 S.Ct. 2460, 101 L.Ed.2d 370 (1988). Here, the comprehensive remedial structure of the statute provides an adequate remedy for constitutional violations, and thus precludes Bivens claims. Hicks v. Small, 69 F.3d 967, 969 (9th Cir.1995); Marozsan v. United States, 849 F.Supp. 617, 646-47 (N.D.Ind.1994), aff'd, 90 F.3d 1284 (7th Cir.1996); Thomas v. Principi, 394 F.3d 970, 975-76 (holding that the combination of a comprehensive remedial system and statutory preclusion of judicial review of benefits disputes forecloses a Bivens action against VA employees for constitutional torts in the context of a dispute over veterans' benefits). Thus, to the extent that Plaintiff's complaint attempts to state claims against Defendants in their individual capacities, the Court must dismiss those claims pursuant to Rule 12(b)(6).

B. Doctrine of Sovereign Immunity

Under the doctrine of sovereign immunity, the United States may not be sued without its consent. Hercules, Inc. v. United States, 516 U.S. 417, 422, 116 S.Ct. 981, 134 L.Ed.2d 47 (1996); Amwest Sur. Ins. Co. v. United States, 28 F.3d 690, 694 (7th Cir.1994). Sovereign immunity acts as a jurisdictional bar, depriving courts of subject matter jurisdiction. United States v. Sherwood, 312 U.S. 584, 586-87, 61 S.Ct. 767, 85 L.Ed. 1058 (1941); Edwards v. United States Dep't of Justice, 43 F.3d 312, 317 (7th Cir.1994). This jurisdictional bar blocks suits which threaten "to impose upon the United States liability for money or property damages or some form of coercive injunctive relief." United States v. Rural Elec. Convenience Co-op. Co., 922 F.2d 429, 434 (7th Cir.1991). Furthermore, sovereign immunity "cannot be avoided by suing individual Federal departments, such as the VA." Helfgott v. United States, 891 F.Supp. 327, 329-30 (S.D.Miss.1994).

Congress may choose to waive sovereign immunity, but it must do so explicitly. In re Skupniewitz, 73 F.3d 702, 704 n. 1 (7th Cir.1996). Although creation of a private right of action may be inferred from a statute, a waiver of sovereign immunity may not be inferred; it must be expressed unequivocally. United States v. Mitchell, 445 U.S. 535, 538, 100 S.Ct. 1349, 63 L.Ed.2d 607 (1980); Jones v. Brown, 41 F.3d 634, 638 (Fed.Cir.1994). When Congress does waive sovereign immunity, it may limit the circumstances of such waiver. Courts should narrowly interpret the scope of a limited waiver. Lane v. Pena, 518 U.S. 187, 192, 116 S.Ct. 2092, 135 L.Ed.2d 486 (1996).

Waiver of sovereign immunity cannot be found in 28 U.S.C. § 1331 or the Administrative Procedures Act (hereinafter "APA"). Section 1331 creates federal question jurisdiction for "civil actions arising under the Constitution, laws, or treaties of the United States," but it does not waive sovereign immunity. Reed v. Reno, 146 F.3d 392, 397-98 (6th Cir.1998); Lonsdale v. United States, 919 F.2d 1440, 1443 (10th Cir.1990). The APA provides a limited waiver of sovereign immunity; however, it does not waive immunity from monetary damage awards. Lane, 518 U.S. at 196, 116 S.Ct. 2092. The APA provides as follows:

A person suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action within the meaning of a relevant statute, is entitled to judicial relief thereof. An action in a court of the United States seeking relief other than money damages and stating a claim that an agency or an officer or employee thereof acted or failed to act in an official capacity or under color of legal authority shall...