Norton v. Department of Veterans Affairs

Filing 10

ORDER AND REASONS granting 9 Motion to Dismiss for Lack of Jurisdiction. The plaintiff's claims are hereby dismissed. Signed by Judge Martin L.C. Feldman on 1/8/2018. (clc)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA

ROGERS J. NORTON, SR.

CIVIL ACTION

v.

NO. 17-8877

U.S. DEPARTMENT OF
VETERAN AFFAIRS

SECTION "F"

ORDER AND REASONS
Local Rule 7.5 of the Eastern District of Louisiana requires
that memoranda in opposition to a motion be filed eight days prior
to the noticed submission date.

The plaintiff has not submitted

a memoranda in opposition to the U.S. Department of Veterans
Affairs’ motion to dismiss for lack of subject matter jurisdiction,
noticed for submission on January 10, 2018.
Accordingly, because the motion is unopposed, and further, it
appears to the Court that the motion has merit, 1 IT IS ORDERED:

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Rogers Norton initially filed a claim with Veteran Affairs for
benefits in July 1978. The claim was denied in October 1978. The
claim was subsequently reopened, denied, appealed, and remanded
several times between 1993 and 2017. Norton’s benefit claim was
granted in part in 1998 and increased in 2013. On September 11,
2017, he sued the United Stated Department of Veterans Affairs pro
se, and filed an amended complaint on October 24, 2017. Although
the Court strains to ascertain Norton’s specific claims, it is
clear that Norton is seeking review of his VA decision.
Specifically, he questions the accuracy of the medical opinions
offered sometime during his appeal process. He also attaches
reports that reference the seriousness of his condition,
suggesting that he disagrees with the outcome of his appeals.
Norton makes references to unfair labor practices, the Fourteenth
Amendment, and in his exhibits, to the Federal Tort Claims Act. In
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that the defendant’s motion to dismiss is hereby GRANTED as
unopposed. The plaintiff’s claims are hereby dismissed.

the Civil Cover Sheet attached to his initial complaint, he
categorized the nature of his suit as a “review or appeal of [an]
agency decision,” a personal injury claim, and a civil rights claim
involving the American Disabilities Act. However, he does not
articulate a claim based on these laws in his complaint.
Accordingly, his sole claim is a vague appeal to the VA’s decision
to partly deny him benefits.
The Federal Rule of Civil Procedure 12(b)(1) allows a party
to challenge the Court’s subject matter jurisdiction. The party
asserting jurisdiction has the burden of proof to establish subject
matter jurisdiction. Ramming v. United States, 281 F.3d 158, 161
(5th Cir. 2001). The Court may consider: “(1) the complaint alone;
(2) the complaint supplemented by undisputed facts evidence in the
record; or (3) the complaint supplemented by undisputed facts plus
the court’s resolution of disputed facts.” Barrera-Montenegro v.
United States, 74 F.3d 657, 659 (5th Cir. 1996).
The Court does not have subject matter jurisdiction to reverse
administrative decisions by the VA. 38 U.S.C. § 7292. After a
claimant receives the VA’s decision on his claim, he can appeal to
the Board of Veterans’ Appeals, and from there to the Court of
Appeals for Veterans Claims. 38 U.S.C. §§ 7104, 7252. The United
States Court of Appeals for the Federal Circuit has exclusive
jurisdiction to review appeals from the Court of Appeals for
Veterans Claims. 38 U.S.C. 7292; see Toole v. Obama, 609 Fed. Appx.
245, 246 (5th Cir. 2015) (“[T]his Court of Appeals lacks
jurisdiction to review the decisions of the Board of Veterans
Appeals.”); Zuspann v. Brown, 60 F.3d 1156, 1159 (5th Cir. 1995)
(“Congress has set up an exclusive review procedure for decisions
involving veterans’ benefits determinations, and the district
court in this case correctly concluded that it lacked subject
matter jurisdiction to hear [the plaintiff’s] challenges to the
VA’s decision to deny him benefits.”). Any subsequent appeals are
heard by the United States Supreme Court. Id. Accordingly, this
Court does not have subject matter jurisdiction to Norton’s
challenge of the VA’s decision.

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New Orleans, Louisiana, January 8, 2018

_____________________________
MARTIN L. C. FELDMAN
UNITED STATES DISTRICT JUDGE

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