Walton v. Sec'y Veterans Admin.

• Decision Date: 11 May 2016
• Docket Number: Case No.: 2:15-cv-01291-RDP
• Citation: 187 F.Supp.3d 1317
• Parties: Michael D. Walton, Plaintiff, v. Secretary Veterans Administration, et al., Defendants.
• Court: U.S. District Court — Northern District of Alabama

187 F.Supp.3d 1317

Michael D. Walton, Plaintiff,

v.Secretary Veterans Administration, et al., Defendants.

Case No.: 2:15-cv-01291-RDP

United States District Court, N.D. Alabama, Southern Division.

Signed May 11, 2016

Michael D. Walton, Birmingham, AL, pro se.

Jack B. Hood, U.S. Attorney's Office, Birmingham, AL, for Defendants.

MEMORANDUM OPINION

R. DAVID PROCTOR, UNITED STATES DISTRICT JUDGE

I. Introduction

This case is before the court on Defendants' Motion and Brief to Dismiss, or in the Alternative, Motion and Brief for Summary Judgment (Doc. # 12), filed November 6, 2015. The Motion is fully briefed. (Docs. # 12, 16, 15). The court ordered Plaintiff to show cause why this case should not be dismissed, and Plaintiff filed a timely response. (Docs. # 23, 24). For the reasons that follow, the court concludes Defendants' motion is due to be granted and this case is due to be dismissed.

II. Procedural and Background Facts

Plaintiff is pro se . His Complaint and Amended Complaint¹ are difficult to follow. At best, he alleges causes of action for service-connected Veteran's benefits, medical negligence, employment discrimination, and violation of his civil and federal constitutional rights, in addition to a claim under Title VI of the Civil Rights Act of 1964. (Docs. # 1, 6; see also Doc. # 12). He seeks redress pursuant to "U.S. Laws, U.S. Civil Rights, and The Constitution Of The United States. 42 U.S.C. 1983 and U.S.C. 1343; Title VI Civil Rights Act 1964." (Doc. # 6).

The scant facts in his Amended Complaint state that Plaintiff enlisted in the United States Air Force in 1972, and was discharged in 1974 for medical reasons. (Doc. # 6). He then made claims for Veteran's benefits with the United States Department of Veterans Affairs ("VA"). (Id. ). Plaintiff alleges that his military records show the onset of his disabilities, and that he raised the existence of racial disparity in educational and training opportunities, and in promotions. (Id. ). He is an Alabama resident and avers that the Alabama Department of Veterans Affairs ("ADVA") in Montgomery, Alabama, delayed and denied his benefits, denied him proper medical treatment, and violated his civil rights. (Id. ). Plaintiff relocated to Georgia. (Id. ). There, the VA in Atlanta helped him obtain his military and medical records. (Id. ). Although he does not state when he left Georgia, Plaintiff signs his court filings with an address in Birmingham, Alabama, which is his address of record. (E.g. , Id. ). Plaintiff's primary claims appear to be for Veteran's benefits, medical negligence, and deprivation of civil rights.

In their Motion, Defendants argue that pursuant to Federal Rules of Civil Procedure 12(b)(1), 12(b)(3), and 12(b)(5), this court lacks jurisdiction over this case, and Plaintiff has failed to comply with (or plead that he complied with) requisite conditions precedent and exhaust his administrative remedies. (Docs. # 12, 15). Specifically, Defendants contend that sovereign immunity and the Veterans' Judicial Review Act ("VJRA"), 38 U.S.C. § 511, preclude judicial review of the Veteran's benefits claim by this court. (Doc. # 12). Further, Defendants assert that Plaintiff failed to file an administrative claim pursuant to the Federal Tort Claims Act ("FTCA"), 28 U.S.C. § 2675, for his medical negligence claim. (Id. ). Defendants also claim that 42 U.S.C. § 1983 only applies to the States, the Supreme Court has refused to extend Section 1983 claims based upon the federal Constitution against the United States or its federal agencies. (Id. ). And, Defendants argue Title VII and the Civil Service Reform Act provide the exclusive judicial remedy for discrimination in federal employment, but Plaintiff did not comply with those laws' administrative prerequisites. (Id. ). Therefore, Defendants contend that this court lacks subject-matter jurisdiction over Plaintiff's claims and/or Plaintiff cannot pursue his claims given their administrative and procedural posture. (Id. ). Defendants also object to venue and failure to personally perfect service on any individual defendants. (Id. ).

Defendants also claim that there are no genuine issues of material fact in dispute. See Federal Rule of Civil Procedure 56. Defendants have attached as exhibits to their Motion the following documents: Plaintiff's Complaint (Doc. # 1); Plaintiff's Amended Complaint (Doc. # 6); and a declaration by William Robert Boulware, an attorney with the VA Office of District Counsel in Montgomery, Alabama. (Doc. # 12). In his declaration, Mr. Boulware states that, as the primary handler for claims filed in Alabama under the FTCA for the past three years, he has not received a tort claim filed by or on behalf of Plaintiff. (Id. at DEX-3). Further, Mr. Boulware states that he reviewed Defendants' electronic tracking system and found no record of a tort claim by Plaintiff. (Id. ).

Plaintiff has filed an opposition brief. Therein, he asserts that the United States Court of Appeals for Veterans' Claims in Washington, D.C. has established that it is not a court of equity, and informed Plaintiff of the district courts' original jurisdiction pursuant to 28 U.S.C. § 1331 ("The District Courts shall have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States."). (Doc. # 16).² Also, Plaintiff attached an October 7, 2015 Mandate issued by the United States Court of Appeals for Veterans Claims ("Veteran's Appeals Court") in Michael D. Walton v. Robert A. McDonald , case no. 14-2664, which stated: "The time for reconsideration, review, or appeal of the Court's decision has expired. That decision is final and not subject to further review." (Id. ).

Certain of Plaintiff's claims do require the exhaustion of administrative remedies before they may be filed in this court. (See Docs. # 6, 12, 16). Thus, this court ordered Plaintiff to show good cause in writing on or before December 30, 2015, that he has satisfied the administrative prerequisites for his medical negligence and statutory employment discrimination claims. (Doc. # 23). The court also ordered Plaintiff to set forth the time at which his claims arose, the timing of his administrative exhaustion, and to explain why the court should not dismiss his claims for Veteran's benefits and violations of civil and federal constitutional rights. (Id. ).

On December 28, 2015, Plaintiff filed a response to that Order. (Doc. # 24). In that response, he asserts that his claims commenced in 1974, and he appealed them to Veteran's Appeals Court on July 25, 2014. (Id. ). Additionally, Plaintiff stated that the Veteran's Appeals Court "concluded that there were issues of the Law cited by the Plaintiff of U.S. Constitutional significance and pertinent in the just enforcement under U.S. Laws, and The Constitution Of The United States. [That] court further revealed that it was not a Court of relief in equity and without Jurisdiction," and reminded Plaintiff of the original jurisdiction of district courts to hear such claims.³ (Id. ). Finally, Plaintiff contends that when the Veteran's Appeals Court case was closed on October 7, 2015, he exhausted his administrative remedies. (Id. ).

III. Legal Standards

When "a Rule 12(b)(1) motion is filed in conjunction with other Rule 12 motions, the court should consider the Rule 12(b)(1) jurisdictional attack before addressing any attack on the merits." Ramming v. United States , 281 F.3d 158, 161 (5th Cir.2001) (citing Hitt v. City of Pasadena , 561 F.2d 606, 608 (5th Cir.1977) );⁴ Harris v. Bd. of Trustees Univ. of Ala. , 846 F.Supp.2d 1223, 1230 (N.D.Ala.2012). A motion under Federal Rule of Civil Procedure 12(b)(1) allows a party to assert a defense of lack of subject-matter jurisdiction. A Rule 12(b)(1) motion to dismiss 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." Harris , 846 F.Supp.2d at 1232 (quoting Ramming , 281 F.3d at 161 ). The burden of proof on a motion to dismiss for lack of subject-matter jurisdiction is on the party asserting jurisdiction (i.e. , Plaintiff). Id. "A federal district court is under a mandatory duty to dismiss a suit over which it has no jurisdiction." Southeast Bank, N.A. v. Gold Coast Graphics Grp. Partners , 149 F.R.D. 681, 683 (S.D.Fla.1993) (citing Stanley v. Central Intelligence Agency , 639 F.2d 1146, 1157 (5th Cir.1991) ; Marshall v. Gibson's Prods., Inc. of Plano , 584 F.2d 668, 671–72 (5th Cir.1978) ).

A Rule 12(b)(1) motion permits a facial or factual attack. Willett v. United States , 24 F.Supp.3d 1167, 1173 (M.D.Ala.2014) (citing McElmurray v. Consol. Govt. of Augusta – Richmond Cty. , 501 F.3d 1244, 1251 (11th Cir.2007) ). "Facial attacks on the complaint ‘require [ ] the court merely to look and see if [the] plaintiff has sufficiently alleged a basis of subject matter jurisdiction, and the allegations in his complaint are taken as true for the purposes of the motion." Garcia v. Copenhaver, Bell & Assocs., M.D.'s, P.A. , 104 F.3d 1256, 1261 (11th Cir.1997) (quoting Lawrence v. Dunbar , 919 F.2d 1525, 1528–29 (11th Cir.1990) ) (other citations omitted). On the other hand, "factual attacks" challenge "the existence of subject matter jurisdiction in fact, irrespective of the pleading, and matters outside the pleadings, such as testimony and affidavits, are considered." Id. In other words, when a party raises a factual attack to subject-matter jurisdiction, the court is not obligated to take the allegations in the complaint as true, but may consider extrinsic evidence such as affidavits. Odyssey Marine Exploration, Inc. v. Unidentified Shipwrecked Vessel , 657 F.3d 1159, 1169 (11th Cir.2011) (citations omitted).

Of course, the analysis of a factual attack does not simply end with a consideration of extrinsic evidence when a factual attack on subject matter jurisdiction also implicates an element of the cause of action. Se...