Holmes v. United States et al

Filing 23

ORDER granting 17 Motion to Dismiss Signed by District Judge Keith Starrett on 10/1/2019 (lm)

IN THE UNITED STATES DISTRICT
COURT FOR SOUTHERN DISTRICT OF
MISSISSIPPI EASTERN DIVISION
LINDA JEFFERSON HOLMES,
INDIVIDUALLY AND ON BEHALF OF
KENTRON S. HOLMES,
A VA RATED, 100% TOTALLY AND PERMANENTLY
SERVICE-CONNECTED, DISABLED AMERICAN VETERAN
V.

PLAINTIFFS

CIVIL ACTION NO.: 2:18-cv-179-KS-MTP

THE UNITED STATES, ITS U.S. SECRETARY
OF VETERANS AFFAIRS, HON. ROBERT WILKE,
DULY APPOINT HEAD OF THE DEPT. OF
VETERANS AFFAIRS, ITS G.V. “SONNY”
MONTGOMERY V.A.
MEDICAL CENTER, ITS CAREGIVER SUPPORT PROGRAM,
AND ITS LOUISVILLE FIDUCIARY HUB

DEFENDANTS

MEMORANDUM OPINION AND ORDER
This cause came before the Court on Defendants’ Motion to Dismiss [17]. Plaintiffs have
responded [21], and Defendants filed a reply [22]. The Defendants move to dismiss the action
pursuant to Federal Rule of Civil Procedure 12(b)(1), arguing that the Court lacks subject matter
jurisdiction. The Court acknowledges from the outset that complaints filed by pro se plaintiffs
are held to a less stringent standard than complaints filed by lawyers, and documents filed by pro
se litigants are “to be liberally construed . . . .” Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per
curiam). This Court has given Plaintiffs’ Complaint and response to the instant motion a
thoughtful reading, but finds, nevertheless, in light of the relevant legal authority, Plaintiffs are
unable to support federal jurisdiction. Consequently, for the reasons that follow, the Court grants
Defendant's Motion to Dismiss.

1

I. BACKGROUND 1
Plaintiff Linda Holmes (“Ms. Holmes”) brings this suit on her own behalf and on behalf
of her son, Kentron Holmes (“Veteran Holmes”) (collectively, “Plaintiffs”), a disabled veteran
for whom she is the full-time caregiver and for whom she has a power of attorney. See [2] at I.
A 2; [8-12].3 Defendants are the United States (“DVA”); the U.S. Secretary of Veterans Affairs,
Robert Wilkie; the VA Medical Center located in Jackson, Mississippi (“VAMC”); the Caregiver
Support Program (“CSP”), and the Louisville Fiduciary Hub (“LFH”). [2] at I. B, C.
In 2002 Veterans Holmes was diagnosed with a service-connected brain disease that
presented as paranoid schizophrenia. [2] at III A. In 2003, Veteran Holmes first attempted
suicide while suffering from hallucinations. Id. In 2006, he made his second attempt by cutting
his own throat. Id. To prevent her son from successfully committing suicide, Ms. Holmes
resigned from her job to provide full-time, in-home care for Veteran Holmes in September 2006.
Id. By 2011 regardless of the medications prescribed, Veteran Holmes had suffered for over a
decade from auditory and visual hallucinations, as well as other mental and social disabilities,
including chronic paranoia. Id.
After five years of caring for Veteran Holmes without steady or substantial income, Ms.
Holmes was accepted into the Caregivers Support Program in May 2011 4 and awarded Tier-3
monthly stipend compensation through the VA Medical Center in Jackson for acting as Veteran
1

Before setting forth the facts of this case, the Court wishes to commend Ms. Holmes for her tireless dedication to
her son and the sedulous efforts she has given to get him the care that he, as well as many of our nation’s veterans, so
desperately need and deserve.
2
Plaintiff’s Complaint contains sections bearing Roman numerals and with lettered subsections. As such, any
citation to the Complaint will be to the particular section/subsection and not to a page number.
3
[8-12] comes from a set of exhibits at Doc. No. [8] filed separately and subsequent to the Complaint, but because
they are specifically referenced in the Complaint as exhibits to the Complaint, they will be considered part of the
Complaint. See Fed. R. Civ. P. 10(c) (“A copy of any written instrument which is an exhibit to a pleading is a part
thereof for all purposes.”).
4
This program was a new caregiver benefits program provided by VA, arising under title I of the Caregivers and
Veterans Omnibus Health Services Act of 2010, which was signed into law on May 5, 2010, of which the “purpose
is to provide certain medical, travel, training, and financial benefits to caregivers of certain veterans and
servicemembers who were seriously injured in the line of duty on or after September 11, 2001.”
https://www.federalregister.gov/documents/2011/05/05/2011-10962/caregivers-program#h-10.

2

Holmes’ full-time caregiver. [2] at IV. A; [8-2] 5. Along with her initial acceptance letter, Ms.
Holmes received a document titled, “YOUR RIGHTS TO APPEAL THE TIER LEVEL
(CLINICAL) DECISION,” which states, in part, as follows:
You may appeal to the VA Medical Center (VAMC) where the Veteran is
receiving care by explaining why you disagree with the decision. If you are not
satisfied with the VAMC Director’s decision you may request to have your
decision reviewed by the Veterans Integrated Service Network (VISN) Director
or his/her designee.
***
A clinical appeal is your formal request to have the VAMC Director or designee
reviews [sic] your dispute.
***
If you are not satisfied with the local VA facility’s decision you can elect to
appeal your decision to the VISN Director.
***
CAN I GET A HEARING WITH THE BOARD OF VETERANS APPEAL?
No. The clinical appeals process does not allow for you or your representative to
appeal a clinical decision to the Board of Veterans Appeal. You should follow
the clinical appeals process as outlined in this letter. The clinical decision is final
and cannot be appealed to a higher authority.
[8-2] (hereinafter referred to as “Notice of Rights”).
Plaintiffs claim that although Veteran Holmes still required the same level of in-home
caregiving services, by 2015, the culture at the VAMC in Jackson had changed and the
coordinators in the program began to make petty verbal assessments regarding Veteran Holmes’
need for care. [2] at IV.B. Plaintiffs also claim that over the course of a year leading up to
October 2015, Jackson CSP coordinators and the clinical review team intentionally concocted
information, plotted against Plaintiffs, and falsified Veteran Holmes’ medical records so as to
“intentionally and maliciously” misattribute his mental illness and incompetency, which then led
to a deliberate under-assessment Veteran Holmes’ physical condition. [2] at IV.B. As a
consequence of these deliberate acts, on October 16, 2015, Veteran Holmes’ level of in-home

5
[8-2] is an acceptance letter is dated August 24, 2011, but any discrepancy in the date of acceptance into the
Program is irrelevant for purposes of determining Defendants’ motion.

3

health care was lowered from a Tier-3 to a Tier-1 level of care, 6 which Plaintiffs claim was an
intentional “effort [by the VA] to deliberately place Veteran Holmes in danger of mental
destabilization in an effort to induce endangerment to him and society at large.” [2] at IV.B; [84]. Ms. Holmes claims she was strategically targeted to be eliminated as her son’s full-time inhome caregiver. Id.
In the October 16, 2015 letter notifying Plaintiffs’ of the reduction in benefits, the process
for appealing stated: “You may appeal this decision in writing to the G.V. (Sonny) Montgomery
VA Director or his/her designee, within 90 days of the date of this notice. A clinical appeal is
your formal written request with substantiating documentation to support your dispute.” [8-4] at
p. 1. Ms. Holmes had asked for an updated Notice of Rights letter, but the follow up from the
VMAC indicated that information regarding her right to appeal had been noted in the October 16,
2016 letter. [8-4] at p. 11. Plaintiffs also received a notice from the VA Caregiver Support
Program office in Denver, Colorado, which included a Notice of Rights that was identical to the
one Plaintiffs received in 2011, giving her 180 days to submit a disagreement. [8-4] at pp. 14-15.
In November 2015, Ms. Holmes filed an appeal of the VA’s decision to lower the Tier
level, which appeal was denied on December 15, 2015. [2] at IV. C.; [8-3] at pp. 11-26; [8-4] at
p. 17. In the December 2015 notification letter, Ms. Holmes was advised:
You may elect to have this appeal sent to the Veterans’ Integrated Service
Network (VISN) 16 Director. A clinical appeal is your formal request to have
the VISN Director or designee review your dispute. Your disagreement
regarding your clinical eligibility denial must be submitted in writing within 10
days of the receipt of this notice.
[8-4] at p. 17. Plaintiffs claim that the decisionmakers implemented their own flawed appeal
criteria, manipulating, modifying, and implementing it as they went along. [2] at IV.C. Plaintiffs
6

Plaintiffs allege that the decision was made on October 15, 2016, but the documents attached to the Complaint
appear to establish that October 16, 2016 was the date the decision was made. It is the date on the Notice letter [8-4]
at p. 1. Also, in her email to Ms. Husain at the VA, Ms. Holmes indicates that she was notified verbally on October
16, 2016 that the tier level had been lowered. [8-4] at p. 4.

4

allege the modified appellate criteria was strategically designed by the CSP coordinators to be
disadvantageous for Plaintiffs, and that in an effort to humiliate Ms. Holmes, the December
denial was mailed so that Ms. Holmes would receive the denial on Christmas Eve. Id.
Ms. Holmes then appealed the denial of her first appeal, as directed, to the VISN Director
on December 30, 2015. [2] at IV. D; [8-3] at pp. 1-7. On January 28, 2016, Ms. Holmes was
notified that there needed to be further medical evaluation to determine the proper tier but for the
meantime she was reinstated back into the CSP at Tier Level 3 and the corresponding monthly
stipend for Tier Level 3 would resume. [8-5] at p. 1. She was also provided back-payment to
October 16, 2015. Id. 7 Following the reinstatement, the administrative appeal process was
officially closed in May 2016. [2] at IV. D.
“Because of continued intent to commit actionable harm through and including 08 March
2018,” Ms. Holmes filed a “Claim for Damage, Injury, or Death” with the VAMC on April 6,
2018. [2] at IV. E; [8-14]. On May 3, 2018, the Office of General Counsel for the Department of
Veterans Affairs notified Ms. Holmes that her claim was denied. [20-1].
Plaintiffs claim that even though they suffered actionable harm, which was the reduction
in the tier level in October 2015, the Defendants’ CSP coordinators at the VAMC had enacted a
conspiracy to limit/eliminate Veteran Holmes’ in-home care by “manipulating and falsifying his

7

The January 28, 2016 notification came from the Department of Veterans Affairs office in Ridgeland, MS.
However, Ms. Holmes also received a notice from the VA Caregivers Support Program office in Denver, CO dated
February 19, 2016, which notice contained another Notice of Rights. [8-5] at p. 4. This document is almost identical
to the one she received in her initial acceptance letter dated August 24, 2011. See [8-2]. Ms. Holmes complains that
the Notice of Rights “had been changed again to reflect the continued illegal appellate actions of the Defendants’
local VAMC Jackson CSP-Coordinators.” [2] at IV. D. The first Notice of Rights noted, “Your disagreement with
the tier level must be submitted to the VAMC within 180 days of the notice,” but the second stated, “Please contact
your Caregiver Support Coordinator or Patient Advocate for local VA Medical Center policy, procedures and
timelines for appeals.” This change is irrelevant both because Ms. Holmes never filed another appeal and because it
does not affect resolution of the motion.

5

healthcare records as far back as March 27, 2015.” [2] at V.A. 8 Thus, Plaintiffs contend that the
decision to lower the benefits in October 2015 was based on fraudulent medical data, which
included, but was not limited to, the deliberate misrepresentation of the health of Veteran
Holmes and the minimizing the full-time daily living needs that Ms. Holmes provided to her son
from 2006-2015. [2] at V.A. [8-6; 8-7; 8-8]. Plaintiffs claim that the “lowering of Veteran
Holmes’ caregiver tier from a Tier [3] to a Tier [1] exposed Veteran Holmes to debilitation,
destabilization, becoming a danger to himself and others in society.” [2] at V.A. Plaintiffs allege
that the VAMC’s CSP coordinators “went to great lengths to defraud Veteran Holmes out of his
in-home caregiver services,” claiming that the appellate process was “riddled with flaws and
penetrated with illegal actions of misrepresentations.” [2] at V.B. Finally, Plaintiffs go on to
claim that, despite the appeals process being finalized in May 2016, the falsification of medical
records has continued. [2] at V.D. 9 Plaintiffs claim that not only has this falsification of records
continued, but also “a strategic corrupt pattern of conduct including, but not limited to:
corruption in the medical decision-making aimed at defrauding Veteran Holmes out of his fulltime in-home caregiver services.” [2] at V.E.
Plaintiffs brings this suit under the Federal Tort Claims Act. (“FTCA”). [2] at II.A. They
assert a variety of claims and damages, which can be summarized as follows: That the VAMC
coordinators, clinical review and medical providers and therapists conspired to fraudulently
remove Plaintiffs’ caregiver benefits via the fabrication of medical records both before and after
the Tier level was lowered. [2] at V. A, B; VI. A. Second, that the Defendants’ actions and

8

Section V of the Complaint appears to allege various facts so as to support a defense of “equitable tolling,”
presumably because Ms. Holmes was told in the letter denying her claim to the VA that her tort claims were barred
for not having been presented within two years after the claim accrued. [20-1]. Defendants have not raised a statute
of limitations defense to dismiss the Complaint; therefore, the counter-defense of equitable tolling is not at issue
here.
9
Plaintiffs refer to composite Exhibit [8-7], which contains Ms. Holmes’ numbered statements, refuting each
attached medical assessment of Veteran Holmes by various neuropsychologists and therapists.

6

indifference intentionally and negligently inflicted emotional distress on Plaintiffs. [2] VI. B.
Third, Plaintiffs seek an “Order of Enforcement” compelling the Defendants to cease and desist
their “retaliation, resentment, issuance of threats, defamation of Caregiver Holmes’ character,
refusal to accept transparency by Caregiver Holmes on behalf of Veteran Holmes, and the
adversarial indifference to the transportation safety standards that are adhered to by Caregiver
Holmes for the support and safety of Veteran Holmes.” [2] at p. 28. 10
II. DISCUSSION
Plaintiffs Linda Holmes and Kentron Holmes have filed this action under the Federal
Tort Claims Act (“FTCA”) complaining about various intentional and malicious acts and
behaviors of those administering the CSP at the VAMC surrounding the temporary reduction in
their caregiver benefits. The Defendants filed a motion to dismiss, alleging that this Court does
not have subject matter jurisdiction to hear claims, and that even if jurisdiction existed, the
Defendants have not waived sovereign immunity. [18] at pp. 2-3. Defendants claim that while
Plaintiffs clothe the Complaint in tort, Plaintiffs’ issue is really a denial of benefits, a decision
over which this Court does not have jurisdiction due to the exclusive jurisdiction of the Veterans
Judicial Review Act (“VJRA”). Defendants also argue that even if there was a possibility of this
Court’s having jurisdiction, the Defendants are not subject thereto because the United States has
not waived sovereign immunity for any actions in Plaintiffs’ Complaint that sound in tort. The
Court will address each argument below.
A. Legal Standard
Federal Rule of Civil Procedure 12(b)(1) requires dismissal for lack of subject matter
jurisdiction if the court lacks statutory or constitutional power to adjudicate the case. See Home

10
Plaintiffs initially included in their Complaint a fiduciary claim against the Defendants’ Louisville Fiduciary Hub,
but now concede that the claim should be filed separately from this tort claim. [20] at p. 15.

7

Builders Ass’n of Miss., Inc. v. City of Madison, 143 F.3d 1006, 1010 (5th Cir. 1998). Federal
courts are courts of limited jurisdiction; without jurisdiction conferred by statute, they lack the
power to adjudicate claims. See Stockman v. Fed. Election Comm'n, 138 F.3d 144, 151 (5th Cir.
1998). The Fifth Circuit recognizes a distinction between a “facial attack” and a “factual attack”
upon a complaint’s subject matter jurisdiction. Rodriguez v. Tex. Comm'n on the Arts, 992 F.
Supp. 876, 878 (N.D. Tex. 1998). “A facial attack requires the court merely to decide if the
plaintiff has correctly alleged a basis for subject matter jurisdiction” by examining the
allegations in the complaint, which are presumed to be true. Id. (citation omitted). Regardless of
the attack, the burden of proof is on the party asserting jurisdiction. Ramming v. United States,
281 F.3d 158, 161 (5th Cir. 2001).
Here, Defendants’ Motion makes a facial attack on the Court’s subject matter
jurisdiction. Defendant did not submit evidence in support of its assertion that the Court lacks
subject matter jurisdiction over Plaintiffs’ claims, and Defendants argue that Plaintiffs’
jurisdictional claim fails on legal, not factual, grounds. Thus, all of Plaintiffs’ factual allegations
will be accepted as true for the purpose of determining whether the Court has jurisdiction over
their claims.
B. Analysis
1. It is uncertain whether the VJRA bars jurisdiction over Plaintiffs’ claims.
Defendants contend there is no jurisdiction in this Court because Plaintiffs’ claims relate
to a determination of benefits and the Veterans Judicial Review Act (“VJRA”) gives the Court of
Veteran Appeals exclusive jurisdiction. In response, Plaintiffs argue that throughout their
Complaint it is evident that Plaintiff is not appealing any benefits decision, as those appeals are
complete. Rather, they are seeking damages for injuries inflicted by the alleged tortious acts of

8

the Defendants’ employees during the scope of their employment and that the claim has nothing
to with a determination of benefits. [20] at p. 2.
Defendants rely exclusively on the case of King v. United States, 901 F. Supp. 2d 781
(S.D. Miss. 2012) as authority for the dismissal in this case. However, as the Plaintiffs point out,
the King case involved different facts, and most importantly, involved the denial of different
benefits. The benefits at issue here were not veteran’s disability benefits, as in King, but rather
caregiver benefits under Title 1 of the Caregivers and Veterans Omnibus Health Services Act of
2010, which was only signed into law in May 2010. See Fed. Reg. Vol. 76, No. 87 at 26148.
Defendants claim Plaintiffs’ only avenue is the Court of Veteran Appeals. [18] at p. 4. However,
Defendants have cited no authority, other than King, which the Court finds inapplicable, to
establish that the resolution of benefits decisions under the Caregivers and Veterans Omnibus
Health Services Act of 2010 fall within the exclusive jurisdiction of the VJRA. Without
additional authority, and based on its own research and the facts of this case, the Court is not
certain that the VJRA applies here, even if the Plaintiffs were complaining only about a denial of
benefits.
The Veteran’s Judicial Review Act was enacted in 1988 to create an opportunity for
veterans to challenge VA benefits decision, but also to assign exclusive jurisdiction over their
claims to a centralized system comprised of the Board of Veteran’s Appeals, a newly established
Court of Veterans Appeals (now named the Court of Appeals for Veterans Claims, and the
Federal Circuit), and the Federal Circuit. Walton v. Sec’y Veterans Admin., 187 F. Supp. 3d
1317, 1325-26 (N.D. Ala. 2016) (quoting Beamon v. Brown, 125 F.3d 965, 972 (6th Cir. 1997).
Section 511 of Title 38 provides that 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 or the dependents or survivors of veterans.” Id. at 1326
9

(quoting 38 U.S.C. § 511(a)).

In the VJRA, “Congress conferred on the Veterans Court

‘exclusive jurisdiction’ to review decisions of the Board of Veterans Appeals, 38 U.S.C. §
7252(a), and its powers include the authority to decide any question of law relating to benefits
proceedings . . . .” Veterans for Common Sense v. Shinseki, 678 F.3d 1013, 1021-22 (9th Cir.
2012).
The documentation that the VA sent to Plaintiffs refers to the process of assessing
caregiver benefits as a “clinical decision,” and based on the statements in the Notices of Rights
provided to Plaintiffs, it appears that jurisdiction may not fall under the VJRA. Each of the
Notice of Rights specifically stated, “The clinical appeals process does not allow for you or your
representative to appeal a clinical decision to the Board of Veterans Appeal. You should follow
the clinical appeals process as outlined in this letter. The clinical decision is final and cannot be
appealed to a higher authority.” If these types of benefit decisions are not reviewable by the
Board of Veterans Appeals, then Plaintiffs would not become a part of that centralized system
for challenging benefits decisions for which the VJRA was set up. Thus, it would appear that
these particular caregiver benefit determinations may indeed fall outside the scope of the VJRA.
Be that as it may, the Court need not reach a definitive resolution of the issue in this case
because the Court finds, even if the VJRA does not have exclusive jurisdiction over Plaintiffs’
claims, the claims are barred by sovereign immunity.
2. Sovereign immunity bars Plaintiffs’ claims.
The Defendants also contend that the Court lacks subject matter jurisdiction because they
have sovereign immunity from the claims in this case. Plaintiffs contend that their claims under
the FTCA are proper because they are seeking damages caused by the negligent acts of federal
government employees acting within the scope of their federal employment as authorized by the

10

FTCA and that the May 3, 2018 letter denying their tort claims provided them authorization to
sue. [21] at p. 2; [20] at pp. 7-8
The United States and its agencies have sovereign immunity from suit unless Congress
has specifically consented. Block v. North Dakota ex rel. Bd. of Univ. & Sch. Lands, 461 U.S.
273, 287 (1983); United States. v. Mitchell, 463 U.S. 206, 212 (1983) (“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.”). The plaintiff bears the burden of showing that Congress waived
sovereign immunity. Freeman v. United States, 556 F.3d 326, 334 (5th Cir. 2009). Congress’s
waiver must be “unequivocally expressed in statutory text . . . and will not be implied.” Lane v.
Pena, 518 U.S. 187, 192 (1996) (internal citations omitted).
Based on this general law, to the extent Plaintiff argues that the May 3, 2018 letter from
the Office of General Counsel for the Department of Veterans Affairs, notifying Ms. Holmes that
her claim was denied [20-1], is an implied waiver, such argument is not tenable. Again, there
must be an explicit statutory waiver. Thus, whatever may be implied from the letter, even if it
were an “authorization by Defendants to file suit against Defendants” or a “consent to suit” as
Plaintiffs claim, 11 it was clearly not an explicit statutory waiver of any sovereign immunity
defense the United States may have.
Defendants correctly state that under certain listed exceptions in the FTCA, the United
States 12 has not waived sovereign immunity for tort claims related to abuse of process,
misrepresentation, liable, deceit or slander. See 28 U.S.C. § 2680(h). Defendants go on to argue

11

See [20] at p. 7.
Defendants are correct that under the FTCA, the only proper party is the United States. Walters v. Smith, 409 Fed.
App'x 782, 783–84 (5th Cir. 2011) (citing Smith v. United States, 561 F.3d 1090, 1099 (10th Cir.2009) and quoting
“The United States is the only proper defendant in an FTCA action.”). Plaintiff appears to acknowledge such when
describing why other Defendants were named. [20] at p. 7.
12

11

briefly that because Plaintiffs allege claims based on allegations of misrepresentation, libel,
abuse of process, and deceit, they do not fall within the waiver and are thus barred. [18] at p. 4.
The Defendants provide no analysis of the allegations of the claims, but upon close review, the
Court does not find that any claims arise from libel or abuse of process. However, a close look at
whether the claims arise from deceit and/or misrepresentation is warranted. If they do, then
sovereign immunity has not been waived, and this Court has no jurisdiction. In order to analyze
and resolve the issue, we look solely to the claims as presented in the Complaint.
The Court first notes that are instances in both the Complaint, as well as in their response
and memorandum in opposition to the Motion to Dismiss, where Plaintiffs describe the
Defendants’ actions as “negligence” or “negligent,”

such as using the words “negligent

infliction of emotional distress” in the Complaint. [2] at VI.B. However, Plaintiffs cannot evade
the jurisdictional limitations of Section 2680(h) by artful pleading that attempts to assign another
label to what are actually claims arising from an exception to the waiver. See, e.g., Garcia v.
United States, 776 F.2d 116, 118 (5th Cir. 1985) (explaining assault and battery exception cannot
be circumvented by labeling his claim as one for “negligence”).
The reason the Court finds that claims are not founded in negligence is because the
Complaint is replete with references to intentional fraudulent conduct by the CSP coordinators
and the clinical review team. For example, in the Complaint the Plaintiff allege: “after almost a
year of intentionally concocting, plotting, and falsifying Veteran Holmes’ medical records, on
October 15, 2015, Defendants VAMC Jackson’s CSP-Coordinators and Clinical Review Team
intentionally and maliciously implemented the misattribution . . . leading to a deliberate underassessment of Veteran Holmes’ physical condition.” [2] at III.B. These actions resulted in the
lowering of the tier level, which was an “intentional effort to deliberately place Veteran Holmes
in danger . . . .” [2] at VI.B. “Defendants went to great lengths to defraud Veteran Holmes out of
12

his in-home caregiver services.” [2] at IV. B. “Subsequent to the appeal process . . . the
falsification of medical records by the CSP-Coordinators and their clinical therapists continued .
. . .” [2] at V.D. Based on these and other allegations in the Complaint, the Court finds they do
not arise from simple negligence, but even if the acts were intentional, the question is do they
arise from either deceit or misrepresentation.
Deceit is defined as “the act of intentionally giving a false impression.” BLACK’S LAW
DICTIONARY 413, 670 (7th ed. 1999). “Black's Law Dictionary defines ‘misrepresentation’ as
‘[t]he act of making a false or misleading assertion about something, usu[ally] with the intent to
deceive.’” NPR Investments, L.L.C. ex rel. Roach v. United States, 740 F.3d 998, 1007 (5th Cir.
2014) (citing BLACK'S LAW DICTIONARY 1091 (9th ed. 2009)). The Supreme Court has
held that the “misrepresentation” exception to the waiver of sovereign immunity applies to both
willful and negligent misrepresentations. United States v. Neustadt, 366 U.S. 696, 698 (1961).
After a number of full reviews of the Complaint, the Court finds that the gravamen of
Plaintiffs’ Complaint is that the temporary reduction in benefits exposed Plaintiffs to danger and
that the reduction in benefits was the result of a conspiracy to harm the Plaintiffs by the
intentional and malicious falsifying of medical records and mischaracterizing Veteran Holmes’
disability so as to under-assess his condition. [2] at V.A. [8-6; 8-7; 8-8]. This conclusion is also
supported by the following allegations:
On September 24, 2015, a month before the wrongful act, the falsification of
medical records by the CSP neuropsychologist performing the quarterly
visit/assessment with Caregiver Holmes and Veteran Holmes continued
falsification of medical records at the request of the Defendants’ CSPCoordinators. Thus, on October15, 2015, the secretive and unnamed CSP Clinical
Review Team made a corrupted clinical decision based upon fraudulent medical
data . . . .
[2] at V.A. The essential acts giving rise to all of Plaintiffs’ claims are the falsifying of the
medical records. Thus, the claims based on such conduct clearly arise from deceit and
13

misrepresentation. 13 Lest there be any question, the Court’s finding is even further supported by
a later allegation in the Complaint, which states:
The Clinical Review Team’s actions of lowering/eliminating the caregiver
services was based upon medical record falsehoods, manipulation of medical
record data, fabrications, and terminological inexactitudes resulting in the
concealment of the truth regarding Veteran Holmes’ actual health level/condition.
Said medical record lies, falsehoods, fabrications and inexactitudes caused
Veteran Holmes to become ineligible for the higher tier level of full-time in-home
services in the program.
[2] at V.B. Clearly, these claims arise from deceit and misrepresentation.
In addition, there are other secondary complaints, namely that the Defendants
manipulated and modified the appellate process, which was modifications were designed to be
disadvantageous to Plaintiffs. [2] at IV.C. In this claim, the Plaintiffs appear to take issue with
the appellate process being represented a different way each time she was notified. In August
2011, the Notice of Rights stated that Plaintiffs had 180 days to appeal. In the October 2015
letter, Plaintiffs were given 90 days to appeal, when the CSP letter from Denver, which was sent
a few days later, indicated 180 days. In the December 2015 letter, denying Plaintiffs’ first
appeal, she was told she had 10 days to submit any disagreement with the findings. Plaintiffs
themselves allege the appeals process was “riddled with flaws and penetrated with illegal
actions of misrepresentations . . .” [2] at V.B. This claim, too, arises from misrepresentation.
Finally, Plaintiffs complain about the members of the CSP Clinical Review Team being
kept a secret. [2] at V.A, B. This conduct, too, is indicative of deceit on the part of the
Defendants.

13

Plaintiffs argue in their response that the conduct amounts to criminal action. [20] at p. 14. While the Court
empathizes with Plaintiffs’ feelings about the egregious nature of the alleged conduct, categorizing the acts as
criminal does not assist in the Court’s analysis. “[F]ederal courts have repeatedly held that violations of criminal
statutes do not give rise to a private right of action.” Williams v. Cintas Corp., No. 3–07–CV–0561–M, 2007 WL
1295802 at *2 (N.D.Tex. Apr.10, 2007), and the nature of “crimes” cited by Plaintiffs only further confirms the
deceitful nature of the conduct.

14

III. CONCLUSION
The Fifth Circuit has held explicitly that “causes of action distinct from those excepted
under § 2680(h) are nevertheless deemed to be barred when the underlying governmental
conduct ‘essential’ to the plaintiff's claim can fairly be read to ‘arise out of’ conduct that would
establish an excepted cause of action.” Atorie Air, Inc. v. FAA, 942 F.2d 954, 958 (5th Cir.1991).
Based on the foregoing analysis, the Court finds that all of the alleged conduct of the
Defendants’ employees that underlie and are essential to the Plaintiffs’ claims arises out of
conduct that constitutes deceit or misrepresentation, which is conduct specifically enumerated in
Section 2680(h). Therefore, there has been no waiver of sovereign immunity, and the Plaintiffs’
claims must be dismissed.
THEREFORE, it is hereby ORDERED that the Defendants’ Motion to Dismiss is
GRANTED. Plaintiffs’ claims are hereby dismissed with prejudice. Pursuant to Federal Rule of
Civil Procedure 58, a separate judgment will be entered.
SO ORDERED AND ADJUDGED this 1st day of October 2019.

/s/ Keith Starrett _________________
KEITH STARRETT
UNITED STATES DISTRICT JUDGE

Copy to: Linda Jefferson Holmes, pro se
45 Robey Jefferson Road
Jayess, Mississippi 39641

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