King v. United States Department of Veterans Affairs et al
MEMORANDUM OPINION AND ORDER granting 17 Motion to Dismiss for Lack of Jurisdiction. Signed by Chief District Judge Louis Guirola, Jr. on 9/28/12 (RLW)
IN THE UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF MISSISSIPPI
PHILIP M. KING
CAUSE NO. 1:11CV224-LG-RHW
UNITED STATES OF AMERICA,
UNITED STATES DEPARTMENT
OF VETERANS AFFAIRS, ERIC K.
SHINSEKI in his official capacity as
the Secretary of the United States
Department of Veterans Affairs,
UNITED STATES DEPARTMENT OF
LABOR, HILDA L. SOLIS in her official
capacity as Secretary of the United
States Department of Labor, and JOHN
MEMORANDUM OPINION AND ORDER
GRANTING DEFENDANTS’ MOTION TO DISMISS
BEFORE THE COURT is the Motion to Dismiss  filed by Defendants
United States of America, United States Department of Veterans Affairs, Eric K.
Shinseki in his official capacity as Secretary of the United States Department of
Veterans Affairs, United States Department of Labor, and Hilda L. Solis in her
official capacity as Secretary of the United States Department of Labor.
Defendants move to dismiss this action for lack of subject matter jurisdiction
pursuant to Federal Rule of Civil Procedure 12(b)(1). Plaintiff Philip M. King has
filed a response  in opposition to the motion, and Defendants have filed a reply
. The Court has reviewed the parties’ briefs and the relevant law. For the
reasons discussed below, the motion is granted.
King was injured in Baghdad, Iraq, while serving the United States. He was
diagnosed with ruptured discs in his neck and back, radiculopathy, and nerve
entrapment in his arms and legs. As a result, the Department of Veterans Affairs
(hereinafter “the VA”) awarded King a combined disability rating of eighty percent
(80%). King sought to have his disability rating increased to one hundred percent
(100%), and in the course of doing so, submitted information to the VA about his
status as a recipient of social security disability and workers’ compensation
benefits. Instead of increasing King’s disability rating, the VA terminated his
benefits “based on an apparent misunderstanding . . . regarding the ability to
simultaneously receive VA benefits and workman’s compensation benefits.”
(Compl. 4 (¶ 13), ECF No. 1). Then, the VA Collection Department attempted to
collect benefits from King that had already been paid to him. His Combat disability
payments were also discontinued and terminated.
King sought to have his benefits reinstated by the VA. He provided letters in
his support from the Department of Labor and his private insurer. He made
multiple phone calls and sent correspondence to both agencies, but was denied any
help. King submitted a Freedom of Information Act (FOIA) request relating to his
benefits, and he claims that “individuals within the agencies removed certain key
documents from his FOIA packet.” (Compl. 5 (¶ 21), ECF No. 1).1 According to the
complaint, eventually King spoke directly with “Counsel for the VA,” and explained
what had happened, and then the VA overturned its decision. (Compl. 5 (¶ 23),
ECF No. 1). King received the benefits to which he was entitled in full, including
back pay and interest. (Pl.’s Mem. 3, ECF No. 21).
King’s complaint alleges claims pursuant to the Federal Tort Claims Act
(FTCA), 28 U.S.C. § 2671 et seq., and 28 U.S.C. § 1346(b)(1), seeking damages for
property and personal injuries he alleges were caused by the Defendants. He
claims that as a result of the denial of his benefits, and the collection actions taken
by Defendants, he suffered financial difficulties as well as personal and marital
problems. King alleges that the VA’s conduct constitutes abuse of process and
interference with contractual rights under Mississippi law, and that under 28
U.S.C. § 2680(h), the United States is liable for damages. He further alleges claims
of “common law malice and actual malice,” “negligence and/or gross negligence,”
and the common law tort of outrage. (Compl. 5-9 (¶¶ 24-57), ECF No. 1). King
seeks compensatory and punitive damages and attorney’s fees. (Id. at 10.)
Defendants have filed a Motion to Dismiss pursuant to Federal Rule of Civil
Procedure 12(b)(1). Defendants’ motion makes two arguments: (1) under the
Veterans Judicial Review Act, this Court does not have jurisdiction to review King’s
It does not appear that King alleges a FOIA claim in any count in his
complaint. He does not address any such claim in his brief in opposition to the
Motion to Dismiss. To the extent any FOIA claim was ever alleged, the Court
considers it abandoned.
clams, which challenge the VA’s decisions affecting King’s veterans benefits, and (2)
King’s state law tort claims are barred by the doctrine of sovereign immunity under
28 U.S.C. § 2680(h).
King responds that he is not seeking review of his benefits, and therefore he
lacks standing to appeal to the Court of Veterans Appeals. (Pl.’s Mem. 9, ECF No.
21). King claims he “is seeking compensation for damages he sustained as a result
of individual torts . . . in addition to the benefit award already received.” (Id. at 3.)
King further submits that he alleges state law claims that are properly before this
Court, and that “policy espoused by Congress” in the Administrative Procedure Act
and the FTCA “clearly require judicial review” when veterans “will be assisted by
resolution of the issue.” (Id.)
Standard of Review
In ruling on a motion to dismiss pursuant to Federal Rule of Civil Procedure
12(b)(1), “the district court has the power to dismiss for lack of subject matter
jurisdiction on any one of three separate bases: (1) the complaint alone; (2) the
complaint supplemented by undisputed facts evidenced in the record; or (3) the
complaint supplemented by undisputed facts plus the court's resolution of disputed
facts.” Williamson v. Tucker, 645 F.2d 404, 413 (5th Cir. 1981). The plaintiff, as
the party asserting jurisdiction, bears the burden of proof that jurisdiction exists.
Ramming v. United States, 281 F.3d 158, 161 (5th Cir. 2001); see also Lowe v.
Ingalls Shipbuilding, 723 F.3d 1173, 1177 (5th Cir. 1984). “[A] motion to dismiss
for lack of subject matter jurisdiction 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.” Ramming, 281 F.3d at 161 (citing Home Builders Ass'n of
Miss., Inc. v. City of Madison, 143 F.3d 1006, 1010 (5th Cir. 1998)). The Court
liberally construes King’s complaint in reviewing the Motion to Dismiss.
Subject Matter Jurisdiction and the Veterans Judicial Review Act
The Veterans Judicial Review Act (VJRA) provides “a specific appellate
review mechanism” for claims related to veterans’ benefits. Hicks v. Veterans
Admin., 961 F.2d 1367, 1369 (8th Cir. 1992). Enacted in 1988, the VJRA “provided
veterans with their day in court.” Bates v. Nicholson, 398 F.3d 1355, 1363 (2005)
(citing Forshey v. Principi, 284 F.3d 1335, 1344-45 (Fed. Cir. 2002) (en banc)
(additional citation omitted)). While the VJRA “continued to broadly bar judicial
review of benefits decisions” under § 511(a),2 it made changes to the existing
structure for the administrative review of such decisions, and created a new Article
The predecessor to § 511(a) was § 211(a), which provided:
[T]he decisions of the Administrator on any question of
law or fact under any law administered by the Veterans'
Administration providing benefits for veterans or their
survivors shall be final and conclusive and no other
official or any court of the United States shall have power
or jurisdiction to review any such decision by any action
in the nature of mandamus or otherwise.
38 U.S.C. § 211(a) (quoted in Johnson v. Robison, 415 U.S. 361, 365 n.5 (1974)).
I Court, the Court of Veterans Appeals. The Court of Veterans Appeals provided for
“independent judicial review of the Board’s final decision” regarding benefits claims.
Id. at 1364. The effect of the VJRA “was to generally place judicial review of
Secretarial decisions ‘under a law that affects the provision of benefits’ within the
specialized review process.” Id. As a matter of policy, “Congress plainly preferred
this approach” because it placed the review of veterans’ claims in an independent
court, rather than district courts that “lacked the necessary expertise.” Id.
Under the statutory scheme of the VJRA, a veteran may appeal the
Secretary’s initial decision to the Board of Veterans’ Appeals, and from there to the
United States Court of Appeals for Veterans Claims (“CVA”), and then to the
United States Court of Appeals for the Federal Circuit. Hicks, 961 F.2d at 1369. See
also Larrabee by Jones v. Derwinski, 968 F.2d 1497 (2nd Cir. 1992) (discussing
legislative history of the VJRA).
In their Motion to Dismiss, Defendants assert that while King couches his
complaint in terms of tort violations, he essentially seeks review of the agency’s
decisions regarding his benefits, and therefore his claims are not properly in this
Court. They argue that “the gravamen of [King’s] Complaint is that he was
wrongfully denied veterans’ benefits for a period of time,” and this Court is
precluded from reviewing the VA’s determinations under 38 U.S.C. § 511(a). (Defs.’
Mem. 9, ECF No. 18).
The crux of King’s complaint is that he was injured, financially and
otherwise, when his benefits were terminated, and that he continued to be injured
by the VA’s subsequent refusal to reinstate those benefits, and again when the VA
Collection Department sought to recover benefits already paid to him. He alleges
that these actions were a result of either the negligence – or worse, malice – of the
federal employees who were reviewing his claim or otherwise making decisions
regarding his benefits. Taking the allegations in King’s complaint as true, the
Plaintiff vividly describes a frustrating, and at times, torturous administrative
ordeal. However, based on the language of 38 U.S.C. § 511(a), the authorities cited
in the parties’ briefs, and additional case law reviewed by the Court, the Court finds
that it lacks subject matter jurisdiction..
Judicial review of the VA’s determinations with respect to veterans’ benefits
is limited by 38 U.S.C. § 511(a). That statute 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.
Subject to subsection (b), the 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
38 U.S.C. § 511(a) (emphasis added).3
The Court finds that § 511(a) forecloses it from exercising jurisdiction over
King’s claims in this action “because underlying [King’s] claim[s] is an allegation
that the VA unjustifiably denied him a veterans’ benefit.” See Price v. United
The statute lists several exceptions to this provision, see 38 U.S.C. 511(b),
but King does not allege his claims fall within any of them.
States, 228 F.3d 420, 421 (D.C. Cir. 2000). See also Veterans for Common Sense, v.
Shinseki, et al., –F.3d–, 2012 WL 1574288 at *4-10 (discussing Article III and the
jurisdiction of the district courts with respect to veterans’ claims, and concluding
that “§ 511 precludes jurisdiction over a claim if it requires the district court to
review ‘VA decisions that relate to benefits decisions’”) (quoting Beamon v. Brown,
125 F.3d 965, 971 (6th Cir. 1997)). In order to determine whether the federal
defendants acted with negligence or malice with respect to King, this Court would
necessarily have to make some determination with regard to whether the VA was
justified in initially terminating King’s benefits. That decision, and the subsequent
decision(s) not to reinstate those benefits, are not reviewable by this Court under
the limitations set forth by § 511(a). See Price, 228 F.3d at 422 (affirming district
court’s dismissal of what it construed as a tort claim “[b]ecause 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,” and noting that “courts have consistently held that a federal
district court may not entertain claims whose resolution would require the court to
intrude upon the VA’s exclusive jurisdiction.”) (citations omitted).
King maintains that § 511(a) is not a bar to his claims, and that his claims
are properly outside the VJRA process. He argues that he “cannot appeal his
benefits decision because the VA has already awarded him full benefits of 100%,
back pay and interest.” (Pl’s. Mem. 3, ECF No. 21). The VA’s reinstatement of
King’s benefits with back pay and interest indicates that the agency determined,
presumably, that King had been entitled to benefits all along. As King admits, he
has been “made whole” with respect to his veterans’ benefits. (Pl.’s Mem. 9 n.14,
ECF No. 21). But the damages King seeks to collect in this action are nevertheless
based on hardships he suffered as a result of the agency’s decision to terminate his
benefits, and its refusal to reinstate the same. Based on the facts alleged, the Court
could not find that the Defendants’ conduct constitutes a tort, and issue a judgment
awarding damages to King, without being required to engage in some review of the
judiciousness of the VA’s determination to terminate his benefits in the first place.
According to his complaint, it was that determination that triggered the subsequent
chain of events that King alleges caused his damages.4
The Court finds that King’s case is analogous to Dambach v. United States,
211 F. App’x. 105 (3rd Cir. Oct. 27, 2006) (per curiam), in which the United States
Court of Appeals for the Third Circuit affirmed the district court’s dismissal of the
plaintiffs’ claims for lack of subject matter jurisdiction. Dambach had undergone a
“nine-year odyssey” in an effort to receive disability benefits from the VA, during
which he was denied repeatedly (over thirteen times, in total). Id. at 106. The VA
ultimately awarded him full disability benefits. Dambach and his family filed a
complaint alleging claims under the FTCA on the basis that Dambach was denied
In the Court’s view, the VA’s actions in attempting to collect benefits
already paid to King presents a closer jurisdictional question. However, the referral
to the collection department still relates to the provision of benefits, and the VA’s
determination at that time that King was not entitled to them. Under the factual
circumstances of this case, the complaint as a whole relates to the VA’s payment
and provision of benefits. The Court, therefore, finds King’s case distinguishable
from cases in which plaintiffs have been permitted to proceed in tort and avoid the
bar of 38 U.S.C. § 511(a). See, e.g., Thomas v. Principi, 394 F.3d 970, 974-75 (D.C.
Cir. 2005) (holding that pro se plaintiff’s medical malpractice claims, arising out of
the VA’s failure to inform the plaintiff that a VA doctor had diagnosed him with
schizophrenia, were not barred by § 511(a) because they did not allege that the VA
failed to pay for treatment and did not require a review of an actual decision by the
Secretary; the alleged tort of withholding information was separate from a denial of
benefits). See also Broudy v. Mather, 460 F.3d 106, 114 (D.C. Cir. 2006) (where
plaintiffs alleged constitutional violation, the D.C. Circuit explained that its “cases
make clear that, while the Secretary is the sole arbiter of benefits claims and issues
of law and fact that arise during his disposition of those claims, district courts have
jurisdiction to consider questions arising under laws that affect the provision of
benefits as long as the Secretary has not actually decided them in the course of a
benefits proceeding,” and allowed the claims to go forward because they did not
require the district court to revisit any decision made by the Secretary in the course
of making benefits determinations.) Here, if the court were to adjudicate King’s tort
claims, it would essentially be reviewing a decision previously made by the
Secretary in the course of a benefits proceeding.
benefits because of the VA employees’ “gross negligence, wrongful acts, omissions,
and frivolous conduct,” among other things. Id. They claimed that the § 511(a)
jurisdictional bar did not apply because they did not challenge the VA’s ultimate
decision. The Third Circuit disagreed, noting that the “Dambachs challenge earlier
denials of a claim for benefits as well as related decisions on questions of fact and
law. Such challenges are not within the purview of judicial review in the District
Court.” Id. at 108. Here, King is also essentially challenging an “earlier denial” of
a claim, but not the ultimate outcome of that claim, and other “related decisions.”
Like the court in Dambach, this Court is precluded from adjudicating such
The Court is also persuaded by Hicks v. Small, 842 F.Supp. 407 (D. Nev.
1993), aff’d 69 F.3d 967 (9th Cir. 1995), in which the district court concluded that
plaintiff’s claim of outrage, or intentional infliction of emotional distress, under
state law “essentially challenge[d] a reduction of Plaintiff’s benefits.” 842 F.Supp.
at 413. The plaintiff filed a complaint against the VA alleging that his VA doctor
reduced his benefits in retaliation for the plaintiff’s complaints about the doctor and
the VA medical center. The court found that if the plaintiff were to proceed with his
tort claim, “it would be necessary to consider issues of law and fact involving the
decision to reduce Plaintiff’s benefits.” Id. To do so “would involve judicial review
of a decision of the Secretary of the Department of Veterans Affairs regarding
Plaintiff’s benefits as a veteran.” Id. at 414. The court therefore dismissed the
plaintiff’s state law tort claims on the grounds that § 511(a) barred jurisdiction.
The United States Court of Appeals for the Ninth Circuit affirmed. See Hicks v.
Small, 69 F.3d 967, 970 (9th Cir. 1995) (“We also agree with the district court that
determination of Hicks’ tort claims would necessitate a ‘consider[ation of] issues of
law and fact in involving the decision to reduce [Hicks’] benefits,’ a review
specifically precluded by 38 U.S.C. § 511.”). Likewise, a determination of King’s
tort claims would require this Court to consider issues of law and fact involved in
the VA’s decision to terminate King’s benefits. This would be improper under the
language of § 511(a). See Weaver v. United States, 98 F.3d 518, 520 (10th Cir. 1996)
(where plaintiff challenged denial of benefits and alleged various torts, including
conspiracy to lose his records and fraud and misrepresentation, plaintiff’s claims
were barred under 38 U.S.C. § 511(a) because “without exception, they [sought]
review of actions taken in connection with the denial of [plaintiff’s] administrative
claim for benefits”), See also Zuspann v. Brown, 60 F.3d 1156, 1159 (5th Cir. 1995)
(affirming dismissal of constitutional claim where his complaint was, despite being
pled in terms of a constitutional challenge, actually a challenge to the VA’s decision
to deny him benefits).
Finally, King’s brief in opposition to the Motion to Dismiss maintains that he
has exhausted his administrative remedies, and he lacks standing to appeal
through the procedure set forth in the VJRA. But whether King could successfully
appeal through the administrative process is not the issue before this Court. The
only question presented to this Court is whether this the District Court can exercise
jurisdiction over King’s claims. The Court finds that under the language of §
511(a), it may not. The provisions of the VJRA preclude this Court from hearing
King’s claims in this action. Accordingly, Defendants’ motion to dismiss will be
granted on this basis.
Federal Tort Claims Act
Defendants also argue that King’s tort claims against the United States are
barred by the doctrine of sovereign immunity. The Court will briefly address this
The FTCA provides that a suit against the United States shall be the
exclusive remedy for persons with claims for damages resulting from the negligent
or wrongful acts or omissions of federal employees while acting within the scope of
their office or employment. 28 U.S.C. § 2679(b)(1). State law is “the source of
substantive liability under the FTCA.” FDIC v. Meyer, 510 U.S. 471, 478 (1994).
However, “the United States is immune from suit unless it has waived its immunity
and consented to suit.” Price v. United States, 69 F.3d 46, 49 (5th Cir. 1995).
Federal courts are without subject matter jurisdiction to hear suits against the
United States unless there has been a waiver of sovereign immunity. United States
v. Sherwood, 312 U.S. 584, 591 (1941). Waivers of sovereign immunity are
construed strictly in favor of the sovereign. Life Partners Inc. v. United States, 650
F.3d 1026, 1032 (5th Cir. 2011). “Sovereign immunity cannot be avoided by suing
individual Federal departments, such as the VA.” Helfgott v. United States, 891
F.Supp. 327, 329 (S.D. Miss. 1994).
Because this is an action under the FTCA in which King complains of actions
taken by the Defendants in their official capacities, the United States is the proper
defendant, not the agencies or individual persons.5 With respect to the FTCA
claims against the United States, Defendants assert that King’s tort claims of abuse
of process and interference with contractual rights are barred because the United
States has not waived its sovereign immunity with respect to these claims. The
King’s complaint asserts that “Defendants’ malicious interference and/or
gross negligence with [his] contractual right to . . . [b]enefits amounts to an abuse of
process as contemplated within 28 U.S.C. [§] 2680(h).” (Compl. 4 (¶19), ECF No. 1).
Five of the eight counts in his complaint consist of allegations of violations of 28
U.S.C. § 2680, abuse of process, and interference with contractual rights. (Compl.
5-9 (¶¶ 24-34, ¶¶ 43-50), ECF No. 1). In his response to the Motion to Dismiss,
King asserts that his complaint alleges “Abuse of Process, Libel, Misrepresentation,
Deceit, Interference with Contractual Rights, Intentional Infliction of Emotional
King’s FTCA claims against all Defendants except the United States should
be dismissed for lack of subject matter jurisdiction. Atorie Air, Inc. v. FAA of the
U.S. Dept. of Transp., 942 F.2d 954, 957 (5th Cir. 1991).
Distress, etc.”6 (Pl.’s Mem. 6 n.12, ECF No. 21). However, under the language of the
FTCA, the United States has not waived its sovereign immunity with respect to any
of these claims. 28 U.S.C. § 2680 governs exceptions to the United States’ waiver of
immunity under the FTCA. It provides in pertinent part:
The provisions of this chapter and section 1346(b) of this
title shall not apply to-...
(h) Any claim arising out of . . . abuse of process, libel, . . .
misrepresentation, deceit, or interference with contract
28 U.S.C. § 2680 (emphasis added).7 Therefore, the United States has not waived
its immunity with respect to the above-listed claims, and the Court therefore lacks
The complaint does not contain references to libel, misrepresentation, or
deceit. Additionally, King’s response to the Motion to Dismiss argues that he
alleges separate state law claims against Defendants Borden and White personally,
but the United States has been substituted as a party in place of those defendants.
Borden and White have been terminated. See Text Only Order, Aug. 4, 2011,
granting  Motion to Substitute Party.
Section 1346(b) provides:
[T]he district courts . . . shall have exclusive jurisdiction of civil actions
on claims against the United States, for money damages . . . for injury
or loss of property, or personal injury . . . caused by the negligent or
wrongful act or omission of any employee of the Government while
acting within the scope of his office or employment, under
circumstances where the United States, if a private person, would be
liable to the claimant in accordance with the law of the place where the
act or omission occurred.
28 U.S.C. § 1346(b).
subject matter jurisdiction over them.8 To the extent King brings claims not listed
in the specific exceptions under 28 U.S.C. § 2680(h), those claims are also barred by
the doctrine of sovereign immunity because the conduct King complains of, and
alleges caused his damages, arises out of these excepted causes of action. See Metro.
Life Ins. Co. v. Atkins, 225 F.3d 510, 512 (5th Cir. 2000) (“Causes of action distinct
from those excepted under § 2680(h) are nevertheless barred when the underlying
governmental conduct ‘essential’ to the plaintiff's claim can be fairly read to ‘arise
out of’ conduct that would establish an excepted cause of action.”) (quoting McNeily
v. United States, 6 F.3d 343, 347 (5th Cir. 1993)).
This Court lacks subject matter jurisdiction over the claims alleged in King’s
complaint. Accordingly, Defendants’ Motion to Dismiss is granted.
IT IS THEREFORE ORDERED AND ADJUDGED that Defendants’
Motion to Dismiss  is GRANTED.
SO ORDERED AND ADJUDGED this the 28th day of September, 2012.
Louis Guirola, Jr.
LOUIS GUIROLA, JR.
CHIEF U.S. DISTRICT JUDGE
In his response to the Motion to Dismiss, King makes the argument that
judicial review is appropriate in this case under the Administrative Procedure Act.
However, as Defendants note, King’s complaint makes no reference to jurisdiction
under the APA. Moreover, the APA does not waive sovereign immunity from
monetary damage awards. See 5 U.S.C. § 702; Lane v. Pena, 518 U.S. 187, 196
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