Carpenter v. Department of Veterans Affairs Benifits, General Counsel

Filing 6

MEMORANDUM AND ORDER - that this action is dismissed without prejudice of lack of subject-matter jurisdiction. Judgment shall be entered by separate document. Ordered by Senior Judge Richard G. Kopf. (Copy mailed to pro se party) (LKO)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
DONNA N. CARPENTER,

4:21CV3310

Plaintiff,
MEMORANDUM
AND ORDER

vs.
DEPARTMENT OF VETERANS
AFFAIRS BENIFITS, GENERAL
COUNSEL,
Defendant.

Plaintiff, a non-prisoner, has been given leave to proceed in forma pauperis.
The court now conducts an initial review of Plaintiff’s Complaint (Filing1) to
determine whether summary dismissal is appropriate under 28 U.S.C. § 1915(e)(2).
I. APPLICABLE STANDARDS ON INITIAL REVIEW
The court is required to review in forma pauperis complaints to determine
whether summary dismissal is appropriate. The court must dismiss a complaint or
any portion of it that states a frivolous or malicious claim, that fails to state a claim
upon which relief may be granted, or that seeks monetary relief from a defendant
who is immune from such relief. 28 U.S.C. ' 1915(e)(2)(B).
Pro se plaintiffs must set forth enough factual allegations to “nudge[ ] their
claims across the line from conceivable to plausible,” or “their complaint must be
dismissed.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 569-70 (2007); see also
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (“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.”).
“The essential function of a complaint under the Federal Rules of Civil
Procedure is to give the opposing party ‘fair notice of the nature and basis or grounds
for a claim, and a general indication of the type of litigation involved.’” Topchian v.

JPMorgan Chase Bank, N.A., 760 F.3d 843, 848 (8th Cir. 2014) (quoting Hopkins
v. Saunders, 199 F.3d 968, 973 (8th Cir. 1999)). However, “[a] pro se complaint
must be liberally construed, and pro se litigants are held to a lesser pleading standard
than other parties.” Id., at 849 (internal quotation marks and citations omitted).
II. DISCUSSION
Plaintiff complains she has been denied disability and other benefits by the
Department of Veterans Affairs since 1990.
The Veterans’ Judicial Review Act of 1988 (“VJRA”) provides the exclusive
process by which veterans may adjudicate claims relating to veterans’ benefits. As
explained by the United States Court of Appeals for the Eighth Circuit in Mehrkens
v. Blank, 556 F.3d 865 (8th Cir. 2009):
In 1988, Congress enacted the VJRA [Veterans’ Judicial Review Act]
to establish a framework for the adjudication of veterans’ benefits
claims. The process begins with the veteran filing a claim for benefits
with a regional office of the Department of Veterans Affairs and
includes several levels of appeal. The regional office decides all
questions of law and fact as they relate to the claim. 38 U.S.C. § 511(a).1
If aggrieved, the claimant may then appeal to the Board of Veterans’
Appeals (BVA). 38 U.S.C. § 7104. BVA decisions may be appealed to
the Court of Appeals for Veterans Claims, to which Congress vested
exclusive jurisdiction to review BVA decisions. 38 U.S.C. § 7252(a).
Claimants may appeal unsatisfactory decisions of the Court of Appeals
for Veterans Claims to the Federal Circuit, which has exclusive
appellate jurisdiction over such matters. 38 U.S.C. § 7292. Finally, a
claimant may appeal to the Supreme Court. 38 U.S.C. § 7291.
Id., at 869.

“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.
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 otherwise.” 38 U.S.C.A. §
511(a) (Westlaw 2021).
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2

8 U.S.C. § 511(a) “was designed to prevent judicial review of decisions on
individual claims made by the VA.” Merged Area X (Ed.) in Ctys. of Benton, Cedar,
Iowa, Johnson, Jones, Linn & Washington, Iowa v. Cleland, 604 F.2d 1075, 1078
(8th Cir. 1979). “Thus, the district court does not have jurisdiction over a benefits
claim once the Secretary decides under a law affecting benefits.” Jones v. United
States, 727 F.3d 844, 847 (8th Cir. 2013). See also Johnson v. United States, 640 F.
Appx 601-02 (8th Cir. 2016) (affirming dismissal, for lack of subject-matter
jurisdiction, of claims regarding reduction of veteran’s disability benefits and
alleged mishandling of payments brought under the Federal Tort Claims Act (FTCA)
and Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S.
388 (1971)); Mehrkens, 556 F.3d at 868-70 (8th Cir. 2009) (no Bivens remedy for
alleged constitutional violations stemming from delayed payment of veteran’s
benefits); Whiteside v. Dep’t of Veterans Affs., No. 4:14CV3050, 2014 WL 2860991,
at *3 (D. Neb. June 24, 2014) (dismissing benefits claims on initial review).
III. CONCLUSION
The court has an independent obligation to determine whether subject matter
jurisdiction exists. See Sac & Fox Tribe of the Mississippi in Iowa, Election Bd. v.
Bureau of Indian Affairs, 439 F.3d 832, 836 (8th Cir. 2006); Fed. R. Civ. P. 12(h)(3)
(“If the court determines at any time that it lacks subject matter jurisdiction, the court
must dismiss the action.”). Because it is apparent this court lacks subject-matter
jurisdiction over Plaintiff’s claims—no matter how they might be framed—
preservice dismissal is appropriate under 28 U.S.C. § 1915(e)(2). Plaintiff will not
be given leave to amend because any amendment would be futile.
Accordingly,
IT IS ORDERED that this action is dismissed without prejudice of lack of
subject-matter jurisdiction. Judgment shall be entered by separate document.
Dated this 17th day of November 2021.
BY THE COURT:

Richard G. Kopf
Senior United States District Judge
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