Olson v. Department of Veteran Affairs et al

Filing 15

ORDER granting 11 defendants' Motion to Dismiss for Lack of Jurisdiction; denying 13 defendants' Motion to Stay Discovery; and denying 14 Olson's Motion to Appoint Counsel. Signed by Chief Judge J. Thomas Marten on 6/3/14. Mailed to pro se party C. Richard Olson by regular mail. (mss)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
C. RICHARD OLSON,
Plaintiff,
v.

Case No. 14-2011-JTM

ERIC SHINSEKI,
UNITED STATES SECRETARY
OF VETERANS AFFAIRS, et al.
Defendants.
ORDER
Plaintiff C. Richard Olson, acting pro se, filed his complaint on January 15, 2014,
seeking “service connected disability of 60% or more and raised to 100%” because he
alleges is unemployable due to service-related injuries, as well as $600,000 in actual
damages and $5 million in punitive damages. Olson alleges that he was burned by
radiation from the Hanford nuclear production site in the state of Washington and that
those burns gave him cancer. He also alleges that he has post-traumatic stress disorder.
Olson’s complaint names as defendants Eric Shinseki in his capacity as the Secretary of
Veterans Affairs and the Wichita Regional Office of the Department of Veterans Affairs,
claiming they are responsible for denying him treatment and payment.
The court now has before it the defendants’ Motion to Dismiss (Dkt. 11). The
motion was filed on April 17, 2014, and Olson did not file a response. The defendants
argue that the complaint should be dismissed for lack of subject matter jurisdiction
under Federal Rule of Civil Procedure 12(b)(1).

I. Legal Standard - Motion to Dismiss for Lack of Subject Matter Jurisdiction
Federal courts have limited jurisdiction and may exercise their power only when
specifically authorized to do so. Castanedo v. Immigration Naturalization Serv., 23 F.3d
1576, 1580 (10th Cir. 1994). Federal district courts have original jurisdiction of all civil
actions arising under the constitution, laws, or treaties of the United States. 28
U.S.C. § 1331. Under Federal Rule of Civil Procedure 12(b)(1), a party may move for
dismissal based upon a court’s lack of subject matter jurisdiction. When analyzing a
Rule 12(b)(1) motion to dismiss, the court presumes it lacks subject matter jurisdiction
until the plaintiff can prove otherwise. See Kokkonen v. Guardian Life Ins. Co. of Am., 511
U.S. 375, 377 (1994) (“It is to be presumed that a cause lies outside [the court’s] limited
jurisdiction, [ ] and the burden of establishing the contrary rests upon the party
asserting jurisdiction.”).
II. Analysis
The defendants argue that the court has no jurisdiction in this case. Specifically,
they argue that the U.S. District Court for the District of Kansas is not one of the limited
courts with jurisdiction to review the VA’s benefits decisions. The court agrees, and
dismisses the complaint for lack of subject matter jurisdiction.
“Title 38 U.S.C. § 511(a) vests exclusive jurisdiction with the Secretary of
Veterans Affairs to ‘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.’ “ Turner v. United States, 501 Fed. App’x 840, 843 (10th Cir. 2012) (quoting 38
U.S.C. § 511(a)). Olson’s complaint lists the Fourteenth Amendment, 28 U.S.C. § 1343
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and “other grounds” as the bases for his suit. However, the statement of his claim is
unrelated to these bases. Even reading Olson’s complaint liberally because he is a pro se
plaintiff, the court finds his claims are challenges to VA benefit determinations. As a
result, this court has no subject matter jurisdiction to hear Olson’s claims. See Weaver v.
United States, 98 F.3d 518, 519–20 (10th Cir. 1996).
Olson’s complaint also seeks monetary damages in excess of the benefits sought
and denied. Assuming that his allegations against the individual VA employees are
separate claims not precluded from judicial review by 35 U.S.C. § 511(a), they are still
barred by the sovereign immunity enjoyed by the United States. See Weaver, 98 F.3d at
520.
“Sovereign immunity is jurisdictional in nature.” FDIC v. Meyer, 510 U.S. 471, 476
(1994). “Absent a waiver, sovereign immunity shields the Federal Government and its
agencies from suit.” Id. “It is axiomatic that the United States may not be sued without
its consent and that the existence of consent is a prerequisite for jurisdiction.” United
States v. Mitchell, 463 U.S. 206, 212 (1983). Indeed, the “terms of [the United States’]
consent to be sued in any court define that court’s jurisdiction to entertain the suit.”
Meyer, 510 U.S. at 476 (quoting United States v. Sherwood, 312 U.S. 584, 586 (1941)).
Olson’s pleadings offer no grounds for finding an express waiver of immunity over any
of the claims in question and, therefore, no proper grounds for jurisdiction in federal
court. See Weaver, 98 F.3d at 520. Accordingly, the court dismisses the complaint. The
court also denies the defendants’ Motion to Stay Discovery (Dkt. 13), which sought a

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stay in discovery until the court ruled on the motion to dismiss. This motion is moot as
a result of this order.
Rather than responding to the defendants’ Motion to Dismiss, Olson filed his
own motion (Dkt. 14), seeking a court-appointed attorney, or, in the alternative,
dismissal of the claim with the right to refile in one year. The court denies the motion as
moot, as neither of these options sought by Olson would cure the defects in his claims
identified above.
IT IS THEREFORE ORDERED this 3rd day of June, 2014, that the defendants’
Motion to Dismiss (Dkt. 11) is granted.
IT IS ALSO ORDERED that the defendants’ Motion to Stay Discovery (Dkt. 13) is
denied.
IT IS ALSO ORDERED that Olson’s Motion to Appoint Counsel (Dkt. 14) is
denied.

s/ J. Thomas Marten
J. THOMAS MARTEN, CHIEF JUDGE

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