Rodgers v. United States Government et al
Filing
22
ORDER granting 7 Motion to Dismiss; IT IS FURTHER ORDERED that all other pending motions [# 9 , # 13 , # 16 ] are DENIED as moot, by Magistrate Judge Kristen L. Mix on 12/31/2018. (jgonz, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 17-cv-02954-KLM
TIMOTHY PHILIP RODGERS, on behalf of himself and all military veterans with historical
and open claims older than 365 days at the VA,
Plaintiff,
v.
UNITED STATES GOVERNMENT,
JEFF SESSIONS, U.S. Attorney General, and
BOB TROYER, U.S. Attorney, District of Colorado,
Defendants.
_____________________________________________________________________
ORDER
_____________________________________________________________________
ENTERED BY MAGISTRATE JUDGE KRISTEN L. MIX
This matter is before the Court on Defendants’ Motion to Dismiss [#7]1 (the
“Motion”).2 Plaintiff, who proceeds as a pro se litigant,3 filed a Response [#9] in opposition
1
“[#7]” is an example of the convention the Court uses to identify the docket number
assigned to a specific paper by the Court’s case management and electronic case filing system
(CM/ECF). This convention is used throughout this Order.
2
This case has been referred to the undersigned for all purposes pursuant to
D.C.COLO.LCivR 40.1(c) and 28 U.S.C. § 636(c), on consent of the parties. See [#10, #11].
3
The Court must construe liberally the filings of pro se litigants. See Haines v. Kerner,
404 U.S. 519, 520-21 (1972); Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). However, the
Court should not be the pro se litigant’s advocate, nor should the Court “supply additional factual
allegations to round out [the pro se litigant’s] complaint or construct a legal theory on [his] behalf.”
Whitney v. New Mexico, 113 F.3d 1170, 1173-74 (10th Cir. 1997) (citing Hall, 935 F.2d at 1110).
In addition, pro se litigants must follow the same procedural rules that govern other litigants.
Nielsen v. Price, 17 F.3d 1276, 1277 (10th Cir. 1994).
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to the Motion,4 and Defendants filed a Reply [#12]. The Court has reviewed the Motion, the
Response, the Reply, the entire case file, and the applicable law, and is sufficiently advised
in the premises. Based on the following, the Motion [#7] is GRANTED.
I. Background
Plaintiff alleges the following facts as the basis for his claims.5 He is a veteran of the
United States Army, having served from June 30, 2004, until his honorable discharge on
September 17, 2004, for failure to meet medical fitness requirements. Ex. B to Compl. [#12] at 2; Ex. C to Compl. [#1-3] at 5. After his discharge, the Department of Veterans Affairs
(the “VA”) granted Plaintiff partial benefits in 2005 for “severe pes planus,” commonly
known as flat feet, which the VA determined had at least a partial connection to his time in
service. Ex. B to Compl. [#1-2] at 2. Throughout the following years, Plaintiff filed
additional claims with the VA to obtain benefits for various psychiatric conditions, which
mostly have been denied. See generally Ex. B to Compl. [#1-2]; Ex. C to Compl. [#1-3].
Plaintiff concedes in the Complaint that he “suffer[s] from a severe mental health
condition and struggle[s] to properly communicate sometimes.” Compl. [#1] at 3. As of the
time of the filing of the Complaint [#1], Plaintiff continues to pursue his administrative
remedies in connection with his attempt to obtain a monthly benefit for schizophrenia, that
was allegedly either caused or aggravated by his time in the United States Army. See Ex.
C to Compl. [#1-3] at 7-16. In September 2012, the VA Regional Office first denied this
4
The Court has also considered Plaintiff’s other filings in connection with its adjudication
of the present Motion [#7]. See [#13, #16, #19, #20-1, #21].
5
All well-pled facts from the complaint are accepted as true and viewed in the light most
favorable to Plaintiffs. See Barnes v. Harris, 783 F.3d 1185, 1191-92 (10th Cir. 2015).
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claim. See id. at 8. Plaintiff appealed the denial to the Board of Veterans’ Appeals (“BVA”),
which over the years has remanded the claim back to the VA Regional Office three
separate times, once in June 2015, once in July 2016, and once in October 2017. Id. at
7, 8, 16. In the most recent remand order, the BVA decided that additional factual
development was required and remanded the claim with orders to the VA Regional Office
regarding how it should proceed and what evidence, specifically, it should consider in
evaluating Plaintiff’s contentions. Id. at 8-15. The BVA noted that “[t]his remand is in the
nature of a preliminary order and does not constitute a decision of the Board on the merits
of your appeal.” Id. at 16. To the best of the Court’s knowledge, Plaintiff’s administrative
requests for that benefit are still pending.
The latest remand from BVA to the VA Regional Office occurred on October 27,
2017. Id. at 7. Disgusted by the passage of more than four years while his claim has
bounced back and forth between the BVA and the VA Regional Office, with no end in sight,
Plaintiff filed the present lawsuit on December 8, 2017. See Compl. [#1] at 3-4. Although
the precise legal basis for each claim is unclear, Plaintiff cites the Federal Tort Claims Act
(“FTCA”), the Fifth, Sixth, Seventh, Eighth, and Tenth Amendments to the United States
Constitution, the Americans with Disabilities Act (“ADA”), and a criminal statute, i.e., 18
U.S.C. § 242. See id. at 2-4, 8.
Plaintiff asserts that he filed this lawsuit on behalf of himself and all veterans with
open claims older than one year. Id. at 1. Plaintiff seeks the following relief: (1) an order
requiring the VA to amend its review process so that it must disprove a veteran’s claim for
benefits (rather than the burden being on the veteran to prove his claim) within one year
of the claim being filed; (2) $15 million in damages; and (3) an order requiring the
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Department of Justice to investigate an individual named Jose Cardenas (“Cardenas”) for
“abuses of the color of law,” although it is unclear precisely who Mr. Cardenas is and how
he is related to the other claims in this litigation, if at all. Id. at 7-10.
II. Standards
A.
Federal Rule fo Civil Procedure 12(b)(1)
The purpose of a motion to dismiss pursuant to Rule 12(b)(1) is to test whether the
Court has jurisdiction to properly hear the case before it. Because “federal courts are
courts of limited jurisdiction,” the Court must have a statutory basis to exercise its
jurisdiction. Montoya v. Chao, 296 F.3d 952, 955 (10th Cir. 2002); Fed. R. Civ. P. 12(b)(1).
Statutes conferring subject-matter jurisdiction on federal courts are to be strictly construed.
F & S Const. Co. v. Jensen, 337 F.2d 160, 161 (10th Cir. 1964). “The burden of
establishing subject-matter jurisdiction is on the party asserting jurisdiction.” Id. (citing
Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994)).
A motion to dismiss pursuant to Rule 12(b)(1) may take two forms: facial attack or
factual attack. Holt v. United States, 46 F.3d 1000, 1002 (10th Cir. 1995). When reviewing
a facial attack on a complaint, the Court accepts the allegations of the complaint as true.
Id. By contrast, when reviewing a factual attack on a complaint, the Court “may not
presume the truthfulness of the complaint’s factual allegations.” Id. at 1003. With a factual
attack, the moving party challenges the facts upon which subject-matter jurisdiction
depends. Id. The Court therefore must make its own findings of fact. Id. In order to make
its findings regarding disputed jurisdictional facts, the Court “has wide ranging discretion
to allow affidavits, other documents, and a limited evidentiary hearing.” Id. (citing Ohio Nat’l
Life Ins. Co. v. United States, 922 F.2d 320, 325 (6th Cir. 1990); Wheeler v. Hurdman, 825
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F.2d 257, 259 n.5 (10th Cir. 1987)). The Court’s reliance on “evidence outside the
pleadings” to make findings concerning purely jurisdictional facts does not convert a motion
to dismiss pursuant to Rule 12(b)(1) into a motion for summary judgment pursuant to Rule
56. Id.
B.
Federal Rule of Civil Procedure 12(b)(6)
The purpose of a motion to dismiss pursuant to Rule 12(b)(6) is to test “the
sufficiency of the allegations within the four corners of the complaint after taking those
allegations as true.” Mobley v. McCormick, 40 F.3d 337, 340 (10th Cir. 1994); Fed. R. Civ.
P. 12(b)(6) (stating that a complaint may be dismissed for “failure to state a claim upon
which relief can be granted”). “The court’s function on a Rule 12(b)(6) motion is not to
weigh potential evidence that the parties might present at trial, but to assess whether the
plaintiff’s complaint alone is legally sufficient to state a claim for which relief may be
granted.” Sutton v. Utah State Sch. for the Deaf & Blind, 173 F.3d 1226, 1236 (10th Cir.
1999) (citation omitted). To withstand a motion to dismiss pursuant to Rule 12(b)(6), “a
complaint must contain enough allegations of fact to state a claim for relief that is plausible
on its face.” Robbins v. Oklahoma, 519 F.3d 1242, 1247 (10th Cir. 2008) (quoting Bell
Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)); see also Shero v. City of Grove,
Okla., 510 F.3d 1196, 1200 (10th Cir. 2007) (“The complaint must plead sufficient facts,
taken as true, to provide ‘plausible grounds’ that discovery will reveal evidence to support
the plaintiff’s allegations.” (quoting Twombly, 550 U.S. at 570)).
“A claim has facial plausibility when the plaintiff pleads factual content that allows
the court to draw the reasonable inference that the defendant is liable for the misconduct
alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). “A pleading that offers labels and
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conclusions or a formulaic recitation of the elements of a cause of action will not do. Nor
does a complaint suffice if it tenders naked assertion[s] devoid of further factual
enhancement.” Id. (brackets in original; internal quotation marks omitted).
To survive a motion to dismiss pursuant to Rule 12(b)(6), the factual allegations in
the complaint “must be enough to raise a right to relief above the speculative level.” Christy
Sports, LLC v. Deer Valley Resort Co., 555 F.3d 1188, 1191 (10th Cir. 2009). “[W]here the
well-pleaded facts do not permit the court to infer more than the mere possibility of
misconduct,” a factual allegation has been stated, “but it has not show[n] [ ] that the pleader
is entitled to relief,” as required by Fed. R. Civ. P. 8(a). Iqbal, 556 U.S. at 679 (second
brackets added; citation and internal quotation marks omitted).
III. Analysis
A.
Claims Regarding Purported Class Action
The Court first addresses Plaintiff’s assertion that he brings this lawsuit not only on
his own behalf, but also on behalf of all military veterans with VA claims that have been
open for longer than one year. See Compl. [#1] at 1.
“Generally, a non-lawyer does not possess sufficient legal training or skills to
represent others in class litigation.” Ransom v. U.S. Postal Service, 170 F. App’x 525, 528
(10th Cir. 2006). “A litigant may bring his own claims to federal court without counsel, but
not the claims of others.” Fymbo v. State Farm Fire & Cas. Co., 213 F.3d 1320, 1321 (10th
Cir. 2000). “The rule against pro se representation of others is particularly important in
class actions because class litigation must comply with the complex and demanding
requirements of Rule 23 of the Federal Rules of Civil Procedure.” Ransom, 170 F. App’x
at 529. “Indeed, Rule 23(g) requires appointment of class counsel, unless otherwise
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provided by statute.” Id. “Furthermore, a judgment in a class action may foreclose other
class members from later bringing the same claims.” Id. The Tenth Circuit Court of
Appeals has stated that, in the absence of any statute providing otherwise, it “will not
entrust those claims to a non-lawyer.” Id. In short, “a pro se cannot litigate on behalf of a
class.” Id. at 528.
Accordingly, to the extent Plaintiff is asserting class claims in this action, the Motion
[#7] is granted, and those claims are dismissed without prejudice. Reynoldson v.
Shillinger, 907 F.2d 124, 127 (10th Cir.1990) (stating that prejudice not should attach to a
dismissal when the plaintiff has made allegations “which, upon further investigation and
development, could raise substantial issues”).
B.
Claim Regarding 18 U.S.C. § 242
Plaintiff states that “[t]echnically speaking, the VA (Federal Agency) violates TITLE
18, U.S.C., SECTION 242 treating me and everyone else as fraud’s [sic] under the law and
using tactics to force people away from the help they need.” Compl. [#1] at 4 (internal
emphasis removed). It is unclear whether Plaintiff is attempting to assert a claim under this
statute, but to the extent that he is, 18 U.S.C. § 242 is a criminal statute which cannot form
a basis of a claim in a civil lawsuit. See, e.g., Jones v. Jones, 741 F. App’x 604, 605 (10th
Cir. 2018) (“Section 242 is a criminal statute, however, and as such it does not create a
private civil cause of action.”). “Only the United States as prosecutor can bring a complaint
under 18 U.S.C. §§ 241-242 . . . .” Cok v. Consentino, 876 F.2d 1, 2 (1989).
Accordingly, to the extent Plaintiff is asserting a claim in this action under 18 U.S.C.
§ 242, the Motion [#7] is granted, and that claim is dismissed with prejudice.
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Reynoldson, 907 F.2d at 127.
C.
Claim Regarding Investigation of Mr. Cardenas
As part of his relief, Plaintiff asks the Court to “[o]rder the Department of Justice to
investigate Jose Cardenas’s abuses of the color of law.” Compl. [#1] at 9. It is unclear
from the Complaint, and from Plaintiff’s other filings, who exactly Mr. Cardenas is or what
he allegedly did to Plaintiff, although, as best as can be gleaned from the docket, he has
some unspecified connection to law enforcement. See id.
Regardless of the identity of Mr. Cardenas, the Court does not have the discretion
to direct the Department of Justice to investigate anyone. This power lies solely within the
executive branch, whose “broad discretion rests largely on the recognition that the decision
to prosecute is particularly ill-suited to judicial review.” Wayte v. United States, 470 U.S.
598, 607 (1985). “Such factors as the strength of the case, the prosecution’s general
deterrence value, the Government’s enforcement priorities, and the case’s relationship to
the Government’s overall enforcement plan are not readily susceptible to the kind of
analysis the courts are competent to undertake.” Id. Of course, to the extent that Plaintiff
believes his civil rights have been violated, he may bring a civil lawsuit against Mr.
Cardenas directly. However, to the extent that Plaintiff asks the Court to direct the
Department of Justice to investigate Mr. Cardenas for possible criminal violations, the Court
does not have the power to do so.
Accordingly, the Motion [#7] granted to the extent Plaintiff asks the Court for an
order requiring the Department of Justice to investigate Mr. Cardenas, and this claim is
dismissed with prejudice. Reynoldson, 907 F.2d at 127.
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D.
Claim Regarding the ADA
Plaintiff is also asserting a claim under the ADA. Compl. [#1] at 2. He notes briefly
that the VA “is discriminating [against him] because of [his] mental health condition of
Paranoid Schizophrenia.” Ex. E to Compl. [#1-5] at 7. He also marks a box on the
complaint form for retaliation but provides no detail about that claim. Compl. [#1] at 3.
Regardless, the United States government is not subject to the provisions of the ADA,
either as an “employer” for purposes of Title I, see 42 U.S.C. § 12111(5)(B)(i), or as a
“public entity” for purposes of Title II, see 42 U.S.C. § 12131(1). See Phillips v. Tiona, 508
F. App’x 737, 752 (10th Cir. 2013) (stating that “Title II covers only states and defined
appendages thereof”). Thus, any claim against the United States under these provisions
of the ADA fails. See Brown v. Cantrell, No. 11-cv-00200-PAB-MEH, 2012 WL 4050300,
at *1 (D. Colo. Sept. 14, 2012).
Accordingly, the Motion [#7] is granted with respect to Plaintiff’s ADA claim, and this
claim is dismissed with prejudice. Reynoldson, 907 F.2d at 127.
E.
Claim Regarding the Seventh Amendment
Plaintiff briefly argues that “[t]he FTCA technically violates the 7th amendment
against veterans because winning the lawsuit would literally not yield anything, let alone
more than $20 even though the damages are worth so much more.” Compl. [#1] at 8.
Thus, Plaintiff states that he is “recommending review of the current legal functionality of
the FTCA legislation.” Id.
The Seventh Amendment states: “In Suits at common law, where the value in
controversy shall exceed twenty dollars, the right of trial by jury shall be preserved.” The
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precise basis of Plaintiff’s Seventh Amendment argument is unclear. However, the Court
notes that “FTCA claims may not be tried to a jury.” Engle v. Mecke, 24 F.3d 133, 135
(10th Cir. 1994) (citing 28 U.S.C. § 2402). “The United States, as sovereign, is completely
immune from suit unless it consents to be sued.” Engle, 24 F.3d at 135 (citing United
States v. Sherwood, 312 U.S. 584, 586 (1941)). “It may, therefore, condition its consent
on dispensation of a jury trial without offending the Seventh Amendment.” Engle, 24 F.3d
at 135 (citing Sherwood, 312 U.S. at 587). In the absence of a clearer legal foundation for
this claim, the claim must be dismissed.
Accordingly, the Motion [#7] is granted, and Plaintiff’s claim under the Seventh
Amendment is dismissed without prejudice. Reynoldson, 907 F.2d at 127.
F.
Claims Regarding Provision of Benefits from the VA
The Court construes Plaintiff’s remaining causes of action as directly relating to the
provision of benefits from the VA. These causes of action consist of an FTCA claim used
to assert four constitutional claims under the Fifth, Sixth, Eighth, and Tenth Amendments.
The Fifth Amendment claim appears to be premised on allegations that the length of the
process to obtain benefits deprives veterans of their property by wrongfully assuming that
all veteran applicants are “frauds.” Ex. A to Compl. [#1-1] at 16; Ex. E to Compl. [#1-5] at
8-9. The Sixth Amendment claim appears to be premised on allegations that veterans
seeking benefits from the VA need legal representation because the claims process takes
such a long time to be completed. Ex. A to Compl. [#1-1] at 16; Ex. E to Compl. [#1-5] at
9, 12. The Eighth Amendment claim appears to be premised on allegations that the
process to obtain benefits constitutes cruel and unusual punishment because of the
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hardships that veterans experience while their claims are pending. Ex. A to Compl. [#1-1]
at 17; Ex. E to Compl. [#1-5] at 9, 12. The Tenth Amendment claim appears to be
premised on allegations that the United States has decided to take care of military veterans
but that the VA does not sufficiently do so during the claims process. Ex. A to Compl. [#11] at 17-18.
In short, through these causes of action, Plaintiff asserts that the VA’s internal
procedures unfairly deny military veterans benefits by requiring them to establish they are
entitled to benefits rather than by presuming that the veterans are entitled to benefits. See
Compl. [#1] at 5 (“The process is systematically flawed treating everyone as if they are
potential frauds . . . .”). More specifically, Plaintiff states that he is “an honest individual,
deserving of what [he] is asking for.” Id. at 4. He says that the VA has “tried to intimidate
[him] off [his] service-connection claims with attempts to strip [his] pension.” Id. He further
says that VA personnel “deliberately refuse to see what qualifies [him] and insist [he is]
undeserving . . . .” Id. Plaintiff also states that “[t]he submission of this Tort Claim stems
from a needless on-going struggle with the Department of Veteran’s Affairs. I should have
been given my 100% service-connection or dual-diagnosis years ago and now I am at highrisk from being homeless with little money.” Ex. E to Compl. [#1-5] at 7.
The Court lacks jurisdiction to address any of these claims, however. The Veterans’
Judicial Review Act (“VJRA”) channels all claims affecting veterans’ benefits into a
specialized adjudicatory framework, and, with few inapplicable exceptions, precludes courts
outside that framework from reviewing these claims:
The Secretary [of Veterans Affairs] 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. . . . [T]he decision of the
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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(a).
As Plaintiff appropriately initially did, veterans seeking a benefits determination must
first apply to the appropriate VA Regional Office for a decision. If the veteran is unhappy
with the outcome, he may appeal that decision to the BVA, as Plaintiff also did. See 38
U.S.C. § 7104(a). If unsuccessful there, the veteran may appeal to the United States Court
of Appeals for Veterans Claims (“CAVC”). See 38 U.S.C. § 7252(a). Decisions of the
CAVC are appealable only to the United States Court of Appeals for the Federal Circuit.
See 38 U.S.C. § 7252(c). The Federal Circuit exercises “exclusive jurisdiction to review
and decide any challenge to the validity of any statute or regulation” relating to the provision
of veterans’ benefits, or to “interpret constitutional and statutory provisions[] to the extent
presented and necessary to a decision.” See 38 U.S.C. § 7292(c). If a veteran’s appeal
to the Federal Circuit is unsuccessful, he may then appeal to the United States Supreme
Court by filing a petition for a writ of certiorari. See 38 U.S.C. § 7292(c). This jurisdictional
pathway for veterans challenging benefits determinations by the VA is exclusive. Johnson
v. Dep’t of Veterans Affairs, 351 F. App’x 288, 289 (10th Cir. 2009); see also Hicks v.
Veterans Admin., 961 F.2d 1367, 1370 (8th Cir. 1992) (stating that the VJRA “amply
evince[s] Congress’s intent to include all issues, even constitutional ones, necessary to a
decision which affects benefits in this exclusive appellate review scheme”).
To determine whether a claim “affects” the provision of veterans’ benefits pursuant
to the VJRA, courts must look to the substance of the plaintiff’s allegations rather than the
label used by the plaintiff. Weaver v. United States, 98 F.3d 518, 520 (10th Cir. 1996).
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The VJRA’s jurisdictional bar cannot be evaded by framing claims as constitutional
challenges. See, e.g., Johnson, 351 F. App’x at 288-89 (holding that because the plaintiff’s
claims were, in essence, “an attack on a benefits decision cloaked in constitutional terms,”
there was no subject matter jurisdiction over the action). Here, as in Johnson, “despite
being couched as constitutional challenges to statutes and a regulation, the claims function
only as a means to contest the adverse benefits decision.” See id. at 290. The only
difference here is that Plaintiff has not received a final adverse benefits decision, because
his claim is still undergoing review under the VJRA. The Court is aware of no legal
authority making this a material difference to the Court’s jurisdictional analysis.
The same outcome pertains to cases where a plaintiff has attempted to frame his
claims in tort under the FTCA. In Turner v. United States, 501 F. App’x 840, 842-43 (10th
Cir. 2012), the Tenth Circuit found that, despite being captioned as a negligence action
under the FTCA, the veteran’s claims ultimately “sound[ed] in denial of underlying benefits
decisions.” In other words, because the core of the plaintiff’s claims challenged the VA’s
“action or inaction with respect to his benefits,” the Court lacked subject matter jurisdiction
over them. Turner, 501 F. App’x at 843. Similarly, in Weaver v. United States, 98 F.3d at
520, the Tenth Circuit held that the plaintiff’s allegations concerning “conspiracy,” “fraud,”
and “misrepresentation” by VA officials were “nothing more than a challenge to the
underlying benefits decision,” and that therefore the court lacked subject matter jurisdiction.
Here, no matter how they are framed by Plaintiff, the allegations in the Complaint clearly
are based on the VA’s alleged failure to timely process and award Plaintiff benefits on his
own claim. In other words, because Plaintiff’s claims are a challenge to the VA’s alleged
failure to timely process and award his benefits, they are jurisdictionally barred under the
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VJRA. See 38 U.S.C. § 511.
Plaintiff is also asking for system-wide changes in the benefits administration
process, rather than simply an award of individual benefits to himself, but his claims are still
precluded by 38 U.S.C. § 511. The VJRA divests district courts of jurisdiction over claims
related to benefits “even where those claims concern agency procedures and do not
challenge specific VA benefits determinations.” Veterans for Common Sense v. Shinseki,
678 F.3d 1013, 1031 (9th Cir. 2012) (collecting cases). Again, the Court must ask whether
adjudicating the claim would require the district court to “review VA decisions relating to
benefits decisions, including any decision made by the Secretary in the course of making
benefits determinations.” Id. at 1025 (internal citations omitted). In Broudy v. Mather, 460
F.3d 106, 115 (D.C. Cir. 2006), for example, the D.C. Circuit Court of Appeals held that
district courts cannot review claims which would require a determination whether the VA
was acting properly in the handling of benefits claims. Here, Plaintiff’s claims would require
the Court to review the VA’s action with regard to claims for benefits, including the
timeliness of the VA’s benefits determinations. Such examination of VA processes is
governed by the VJRA and its exclusive jurisdictional system, and therefore the Court here
lacks subject matter jurisdiction to make any determination on Plaintiff’s claims.
Accordingly, the Motion [#7] is granted with respect Plaintiff’s claims under the
FTCA and Fifth, Sixth, Eighth, and Tenth Amendments for lack of subject matter
jurisdiction, and these claims are dismissed without prejudice.6 Brereton v. Bountiful City
6
To be clear, the Court makes no comment regarding the potential merit of any of Plaintiff’s
underlying requests for benefits or regarding the efficiency of the VA with respect to its claim
processing system. The Court only holds that it does not have the power to adjudicate the merits
of the issues raised by Plaintiff.
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Corp., 434 F.3d 1213, 1216 (10th Cir. 2006) (“[W]here the district court dismisses an action
for lack of jurisdiction, . . . the dismissal must be without prejudice.”).
IV. Conclusion
IT IS HEREBY ORDERED that the Motion [#7] is GRANTED.
IT IS FURTHER ORDERED that all other pending motions [#9, #13, #16] are
DENIED as moot.
IT IS FURTHER ORDERED that the Clerk of Court shall close this case.
Dated: December 31, 2018
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