Thomas v. Principi

• Decision Date: 14 January 2005
• Docket Number: No. 03-5182.,03-5182.
• Citation: 394 F.3d 970
• Parties: Oscar L. THOMAS, Appellant v. Anthony J. PRINCIPI, Secretary, Department of Veterans Affairs, et al., Appellees
• Court: U.S. Court of Appeals — District of Columbia Circuit

394 F.3d 970

Oscar L. THOMAS, Appellant v. Anthony J. PRINCIPI, Secretary, Department of Veterans Affairs, et al., Appellees

No. 03-5182.

United States Court of Appeals, District of Columbia Circuit.

Argued November 12, 2004.

Decided January 14, 2005.

Appeal from the United States District Court for the District of Columbia (No. 02cv01743).

Matthew T. Reinhard, appointed by the court, argued the cause as amicus curiae in support of appellant. With him on the briefs was Alan I. Horowitz.

Oscar L. Thomas, pro se, filed briefs for appellant.

Pamela D. Huff, Assistant U.S. Attorney, argued the cause for appellees. With her on the brief were Kenneth L. Wainstein, U.S. Attorney, and Michael J. Ryan, Assistant U.S. Attorney.

Before: GINSBURG, Chief Judge, and TATEL and ROBERTS, Circuit Judges.

TATEL, Circuit Judge.

The Veterans' Judicial Review Act not only provides that the Secretary of Veterans Affairs "shall decide all questions of law and fact necessary to a decision ... under a law that affects the provision of benefits," but also bars district courts from reviewing such decisions. In this case, we must decide whether this provision deprives the district court of jurisdiction over an action brought pursuant to the Federal Tort Claims Act by a veteran asserting (among other things) that the VA failed to inform him that a VA doctor had diagnosed him with schizophrenia. Because adjudicating this claim would not require the district court to review a question "necessary to a decision ... under a law that affects the provision of benefits," we reverse the district court's dismissal of the complaint and remand for further proceedings consistent with this opinion.

I.

Reviewing the district court's dismissal of the complaint for lack of subject matter jurisdiction and failure to state a claim, see Fed.R.Civ.P. 12(b)(1), (6), "we construe the complaint liberally, granting plaintiff the benefit of all inferences that can be derived from the facts alleged." Barr v. Clinton, 370 F.3d 1196, 1199 (D.C.Cir.2004) (internal quotation marks omitted). Viewed through that lens, the record reveals the following.

Appellant Oscar L. Thomas, following his honorable discharge from the United States Army, filed for mental and physical disability benefits with the Department of Veterans Affairs in 1989. Two years later, a VA doctor concluded that Thomas had "persistent auditory hallucinosis which is troubling, so a diagnosis of schizophrenia is the most likely correct diagnosis. Some of the other adjunct symptoms are not present, however, but this will be the working diagnosis for him. He has slight social and industrial disability resulting from this." The VA nevertheless denied Thomas's claim, stating in a letter to him that a "final diagnosis was not made." Neither the rating decision nor the doctor's report was mentioned in the letter or attached to it. See Thomas v. Principi, 265 F.Supp.2d 35, 37 (D.D.C.2003); see also Appellee's Br. at 4.

Thomas pursued a variety of appeals and claims for benefits. Not until 1999, however, some eight years after the VA doctor saw him, did the VA reveal to Thomas that the doctor had diagnosed him with schizophrenia. Alleging that the VA had wrongfully withheld notice of his diagnosis, thereby severely limiting his ability to pursue his livelihood, Thomas appealed to the Board of Veterans' Appeals. That appeal remains pending.

In 2001, Thomas filed an administrative tort claim — a prerequisite to bringing suit under the Federal Tort Claims Act ("FTCA"), 28 U.S.C. § 2675(a). Like Thomas's appeal to the Board, this claim asserted that the VA's failure to disclose the schizophrenia diagnosis and to treat him resulted in greater medical problems, denial of state and federal benefits, and loss of income, including earning capacity. Although the administrative tort claim also remains pending, the VA is deemed to have finally denied the claim because it failed to "make a final disposition of [the] claim within six months after it [was] filed." See id.; see also Thomas, 265 F.Supp.2d at 38.

Acting pro se, Thomas filed suit in the United States District Court for the District of Columbia, alleging that the VA had committed medical malpractice and caused him intentional emotional distress by failing to inform him of the working diagnosis of schizophrenia. In addition to these FTCA claims, the forty-four-page complaint alleges Privacy Act violations, constitutional violations by the VA and several VA employees, defamation, fraud, loss of consortium, and estoppel. In his prayer for relief, Thomas requested compensatory and punitive damages of over one billion dollars from both the government and individual VA employees.

The VA moved to dismiss, or alternatively for summary judgment. Among other things, the VA argued that Thomas's FTCA claim was jurisdictionally barred by 38 U.S.C. § 511, which prohibits district courts from reviewing "all questions of law and fact necessary to a decision by the Secretary [for Veterans Affairs] under a law that affects the provision of benefits by the Secretary to veterans."

The district court agreed with the VA, granting its motion to dismiss the FTCA claims for lack of subject matter jurisdiction. 265 F.Supp.2d at 41. Reasoning that "the gravamen of plaintiff's claim is that [the VA] ... failed to treat [him] ... for schizophrenia ... and other medical conditions," the district court found that judicial review "would require the Court to second-guess medical judgments made by DVA." Id. at 39. Thus, "[a] favorable decision as to plaintiff's claims would entail a finding that defendants should have provided a particular quantum of medical treatment to plaintiff that they did not in fact provide.... [S]uch a finding is flatly forbidden by § 511." Id. at 39.

Via the same analysis, the district court dismissed Thomas's Privacy Act and constitutional claims for lack of subject matter jurisdiction. Id. at 39-40. Finding that Thomas's defamation and fraud claims, though perhaps permissible under section 511, were excluded from the FTCA's sovereign immunity waiver, the district court dismissed these claims as well. Id. at 40. Finally, the court denied Thomas's request for leave to amend his complaint to add (1) a Privacy Act claim against the Assistant United States Attorney for discussing Thomas's medical records in the VA's motion to dismiss, (2) another tort claim against the VA for failure to "diagnose, inform, warn, or treat," and (3) a legal malpractice claim against Thomas's former legal representatives for failing to give him documents sent to them by the VA. Id. at 40 n. 5.

Following Thomas's timely appeal, we appointed amicus curiae, who has ably briefed and argued Thomas's FTCA claims. We consider those claims in Part II and Thomas's other claims in Part III.

II.

The VA argues that the "District court properly granted summary judgment in favor of the government [because] Thomas did not provide any evidence that the VA's action were [sic] wrongful." Appellee's Br. at 9. This argument suffers from two defects. First, it rests on an incorrect premise. The district court did not grant summary judgment for the government. Instead, it dismissed Thomas's complaint pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). The government did file a motion for summary judgment as an alternative to its motion to dismiss, but the district court granted only the latter. Second, Thomas's failure to "provide any evidence" is hardly surprising given that the district court's ruling preceded discovery, mooting Thomas's motion to commence discovery.

Both in its brief and at oral argument, the VA also suggested that Thomas may not in fact suffer from schizophrenia. The VA, however, does not deny that for eight years it failed to advise Thomas of the working diagnosis of schizophrenia, and whether or not Thomas actually suffers from schizophrenia is a question the district court will have to resolve if it has jurisdiction over Thomas's FTCA claim. We now turn to that jurisdictional issue.

Section 511 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.... [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, whether by an action in the nature of mandamus or otherwise.

38 U.S.C. § 511. Other provisions of the Act demarcate the path to appellate review of secretarial benefits decisions: claimants may first appeal to the Board of Veterans' Appeals, id. § 7104(a), then to the Court of Appeals for Veterans' Claims, id. § 7252(a), to the Federal Circuit, id. § 7292(c), and ultimately to the Supreme Court, id.

According to the VA, "[f]ederal courts construing the predecessors to section 511 have consistently recognized that the statute barred district court consideration of individual claims for veterans' benefits." Appellee's Br. at 11. True enough, but our task here is to determine whether Thomas has presented any such claims.

We have addressed section 511's scope only once. In Price v. United States, we held that "the district court lacked jurisdiction to consider [appellant's] federal claim because underlying the claim is an allegation that the VA unjustifiably denied him a veterans' benefit." 228 F.3d 420, 421 (D.C.Cir.2000) (per curiam). Assuming appellant's damages claim was cognizable under a Florida tort statute, we found that the Florida cause of action depended on whether the insurer — in that case the VA — had acted in bad faith. Id. at 422. Reasoning that a "determination whether the VA acted in bad faith or with negligence would require the district court to determine first whether the VA acted properly in handling Price's request for reimbursement," we concluded that section 511...