Waksmundski v. Williams et al

Filing 27

ORDER GRANTING DEFENDANTS' MOTION TO DISMISS (Doc. 24 ). Signed by Judge Timothy S. Black on 2/27/2017. (mr)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION
JOHN WAKSMUNDSKI,
Plaintiff,
vs.
CRYSTAL L. WILLIAMS, et al.,
Defendants.

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Case No. 1:16-cv-413
Judge Timothy S. Black

ORDER GRANTING DEFENDANTS’ MOTION TO DISMISS (Doc. 24)
This civil action is before the Court on Defendants’ motion to dismiss (Doc. 24) 1
and the parties’ responsive memoranda (Docs. 25, 26).
I.

FACTS AS ALLEGED BY THE PLAINTIFF

For purposes of this motion to dismiss, the Court must: (1) view the complaint in
the light most favorable to Plaintiff; and (2) take all well-pleaded factual allegations as
true. Tackett v. M&G Polymers, 561 F.3d 478, 488 (6th Cir. 2009).
In 1986, Plaintiff began attending Xavier University (“XU”), but in 1987, he
enlisted in the United States Marine Corp Reserves, attending boot camp from October –
December 1987. (Doc. 3 at ¶ 4.3).
In 1988, Plaintiff resumed his education at XU and graduated in December 1990.
(Doc. 3 at ¶ 4.4). One day after he graduated, Plaintiff was activated for Desert Shield-

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This civil action was originally filed in the Middle District of Tennessee and the motion was
initially filed as a motion to dismiss or stay or alternatively to transfer venue. Judge Nixon in the
Middle District of Tennessee enforced the Forum Selection Clause and transferred the case to
this Court, but did not address the motion to dismiss or stay. (See Doc. 36).

Desert Storm. (Id.) Plaintiff served in the United States Marine Corp Reserves for six
years (1987–93) and received an Honorable Discharge in August of 1995. (Id. at ¶ 4.5).
In or about January 2003, Plaintiff began receiving medical care, which included
psychological counseling, at the Cincinnati VA Hospital. (Doc. 3 at ¶ 4.6).
In late summer or early fall 2007, Plaintiff was contacted by the VA Hospital
suggesting that he should come in for treatment. (Doc. 3 at ¶ 4.7). Plaintiff responded
and began receiving all of his health care at the Cincinnati VA. He started receiving
counseling from a social worker for approximately six months, but was then transferred
to the care of Defendant Crystal L. Williams (“Dr. Williams”). (Id.)
Plaintiff counseled with Dr. Williams once a week for a number of years and
benefited from those sessions. (Doc. 3 at ¶ 4.8). In spite of his military service and
education, Plaintiff’s family history and other life experiences burdened him with
depression and anxiety. (Id.) Plaintiff also had significant issues in trusting other people.
(Id.) Dr. Williams once told Plaintiff that he was one of the most severe cases she had
ever encountered with respect to anxiety and mistrust. (Id.) The counseling with Dr.
Williams went on for several years before Plaintiff fully “opened up.” (Id.)
During a group therapy session with other male veterans in late 2013 or early
2014, the topics of homosexuality, gays in the military, and gay marriage were discussed.
(Doc. 3 at ¶¶ 4.11, 4.12). Plaintiff expressed his opposition to gays in the military and
gay marriage, statements firmly grounded in his beliefs as a Roman Catholic. (Id., at
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4.12) Plaintiff later discovered that he was falsely accused by Defendants and/or others
at the VA hospital of distributing “anti-gay” literature. (Id.)
In the weeks and months that followed, Dr. Williams—whom Plaintiff alleges
“favors Homosexual rights and has pro-gay symbols posted in her office”—expressed
her disapproval of Plaintiff’s views as he stated them during the group meetings and
treated him with an increased hostility. (Doc. 3 at ¶ 4.12). Dr. Williams denied Plaintiff
participation in a new therapy group that she intended to form in February 2014, a
decision that was contrary to her previous promises that Plaintiff would be a welcome
participant in the new group. (Id.)
On March 25, 2014, Dr. Williams informed Plaintiff that she would no longer
serve as his counselor and would not refer him for treatment by any of her colleagues at
the VA Hospital. (Doc. 3 at ¶ 4.13). Plaintiff reacted to this news by entering into what
appeared to be a catatonic state, refusing to talk or answer questions for a prolonged
period of time. (Id.) Plaintiff was transported to the VA Hospital Emergency room but
eventually returned to normal and responsive behavior and elected to go home. (Id.)
As a direct and proximate result of the actual and perceived denial of care by the
Defendants, Plaintiff fell into a deep isolation and depression with a level of anxiety that
left him essentially non-functional. (Doc. 3 at ¶ 4.14). He essentially ignored subsequent
contacts from the Defendants and others at the VA Hospital, unable to trust their motives
and plans for him. (Id.)
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Defendants Sloan and Barrett were directly involved with Defendant Williams in
Plaintiff’s care and in the denial of care, having been advised of the decisions and
provided with the related medical records. (Doc. 3 at ¶ 4.15). Plaintiff was participating
in another weekly group meeting under Defendant Sloan’s supervision during that same
period, and Defendants Sloan and Williams were actively collaborating in decisions
about Plaintiff’s care. (Id.) Plaintiff believes that Defendant Williams could not have
terminated his care without the approval of Defendant Barrett. (Id.)
As a direct and proximate result of the acts and omissions of the Defendants,
Plaintiff lived for two years without needed psychological treatment, group counseling,
and medications that were beneficial and necessary for his proper functioning. (Doc. 3 at
¶ 4.17). Plaintiff claims that he was humiliated, became isolated, lost hope, and
otherwise suffered extreme emotional distress that affects him up to the present time and
will likely continue into the foreseeable future. (Id. at ¶ 4.18).
Plaintiff filed this lawsuit alleging that Defendants failed to provide psychological
care and counseling to which Plaintiff was entitled in violation of the First Amendment
(speech and religion) and the Fourteenth Amendment (equal protection) of the United
States Constitution. 2 Plaintiff seeks damages for these alleged constitutional violations
from Defendants—individuals employed by the VA—in their individual capacity. (Id. at
9).
2

Plaintiff has stipulated to a dismissal of his fourth claim for intentional infliction of emotional
distress. (Doc. 25 at 5).
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Defendants maintain that the Complaint should be dismissed for failure to state a
claim because Plaintiff does not have a remedy for damages against individual employees
of the VA. (Doc. 24 at 12-16). Defendants also argue the Complaint should be
dismissed for lack of subject matter jurisdiction because (1) Plaintiff’s claims are
preempted by the Veterans’ Judicial Review Act (“VJRA”); and (2) Plaintiff failed to
exhaust his administrative remedies. (Id. at 8-12).
II.

STANDARD OF REVIEW

A. Rule 12(b)(6).
A motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(6) operates to test the
sufficiency of the complaint and permits dismissal of a complaint for “failure to state a
claim upon which relief can be granted.” To show grounds for relief, Fed. R. Civ. P. 8(a)
requires that the complaint contain a “short and plain statement of the claim showing that
the pleader is entitled to relief.”
While Fed. R. Civ. P. 8 “does not require ‘detailed factual allegations,’ . . . it
demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation.”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S.
544 (2007)). Pleadings offering mere “‘labels and conclusions’ or ‘a formulaic recitation
of the elements of a cause of action will not do.’” Id. (citing Twombly, 550 U.S. at 555).
In fact, in determining a motion to dismiss, “courts ‘are not bound to accept as true a
legal conclusion couched as a factual allegation[.]’” Twombly, 550 U.S. at 555 (citing
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Papasan v. Allain, 478 U.S. 265 (1986)). Further, “[f]actual allegations must be enough
to raise a right to relief above the speculative level[.]” Id.
Accordingly, “[t]o survive a motion to dismiss, a complaint must contain
sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its
face.’” Iqbal, 556 U.S. at 678. A claim is plausible where “plaintiff pleads factual
content that allows the court to draw the reasonable inference that the defendant is liable
for the misconduct alleged.” Id. Plausibility “is not akin to a ‘probability requirement,’
but it asks for more than a sheer possibility that a defendant has acted unlawfully.” Id.
“[W]here the well-pleaded facts do not permit the court to infer more than the mere
possibility of misconduct, the complaint has alleged—but it has not ‘show[n]’—‘that the
pleader is entitled to relief,’” and the case shall be dismissed. Id. (citing Fed. Rule Civ.
P. 8(a)(2)).
B. Rule 12(b)(1).
There are generally two types of motions challenging subject matter jurisdiction
under Rule 12(b)(1). DLX, INc. v. Kentucky, 381 F.3d 511, 516 (6th Cir. 2004). A Rule
12(b)(1) motion can attack a party’s claim of jurisdiction on its face or the motion can
attack the factual basis for a claim of jurisdiction. Id. A facial attack questions the
sufficiency of the pleading. Campbell v. Miller, 835 F. Supp.2d 458, 463 (S.D. Ohio
2011). When reviewing this type of challenge to the court’s jurisdiction, the court must

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take the allegations in the complaint as true and construe the complaint in a light most
favorable to the non-moving party. Id.
When a factual challenge is made under Rule 12(b)(1), the court considers
evidence to determine if jurisdiction exists. Campbell, 835 F.Supp.2d at 463-64. The
trial court must weigh the conflicting evidence to make this determination. Id. When a
factual attack is made, the non-moving party bears the burden of proving that jurisdiction
exists. Id. In such a case, there is no presumption of truthfulness on behalf of the nonmoving party. Id.
III.

ANALYSIS

A. The Complaint fails to state a claim upon which relief can be granted.
Plaintiff claims the Defendants denied him psychological care and counseling to
which he was entitled because of his political and religious views on gay marriage and
gays in the military. Plaintiff asserts three causes of action premised on this conduct:
retaliation in violation of the First and Fourteenth Amendments, violation of the First
Amendment’s “free exercise” clause, and violation of the Fourteenth Amendment’s
“equal protection” clause.
Defendants claim that Plaintiff does not have a right of action against individual
employees of the VA for damages. (Doc. 24 at 12-16). For the reasons that follow, this
Court agrees.

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1. Bivens and its progeny.
There is no statutory right of action (or remedy for damages) available against
federal employees for violating a party’s First and/or Fourteenth Amendment rights.
However, a federal court’s authority to imply constitutional torts not expressly authorized
by statute is anchored in its general jurisdiction to decide all cases “arising under the
Constitution, laws, or treatises of the United States.” See Corr. Servs. Corp. v. Malesko,
534 U.S. 61, 66 (2001) (quoting 28 U.S.C. § 1331).
The Supreme Court of the United States first exercised this authority in Bivens v.
Six Unknown Federal Narcotic Agents, 403 U.S. 388 (1971). In Bivens, the Supreme
Court recognized a limited, implied cause of action against federal employees for
particularly egregious violations of the Fourth Amendment in an unlawful search and
seizure case brought by a private citizen. 403 U.S. at 390. Though no federal statute
authorized such a cause of action, the Supreme Court awarded a judicially-created
damages remedy on the grounds that the plaintiff would otherwise be without any remedy
for the unconstitutional invasion of his rights. Id.
Two factors were important in the Supreme Court’s analysis. First, there were “no
special factors counseling hesitation in the absence of affirmative action by Congress.”
Id., at 396. Second, there was “no explicit congressional declaration that persons injured
by a federal officer’s violation of the Fourth Amendment may not recover money

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damages, but must instead by remitted to another remedy, equally effective in the views
of Congress.” Id., at 397.
Since Bivens, the Supreme Court has recognized implied remedies for damages
against individual federal employees who abuse their constitutional authority in two
situations. In Davis v. Passman, 442 U.S. 228 (1979), the Supreme Court held that a
female secretary who had been discharged from her employment by a United States
Congressman could bring an action for damages under the Fifth Amendment for sexual
discrimination. See Thomas v. Shipka, 818 F.2d 496, 500 (6th Cir. 1987). In Carlson v.
Green, 446 U.S. 14 (1980), the Supreme Court held that federal prison officials could be
liable for damages in an action brought directly under the Eighth Amendment for failure
to provide proper medical attention to a prisoner. Id.
Since Green, the Supreme Court has “consistently refused to extend Bivens
liability to any new context or new category of defendants.” Malesko, 534 U.S. at 68.
2. Statutory remedial schemes are a “special factor” counseling
hesitation.
The Supreme Court’s reference in Bivens to “special factors counselling hesitation
in the absence of affirmative action by Congress” has proved to include judicial
deference to indications that congressional inaction has not been inadvertent. Schweiker
v. Chilicky, 487 U.S. 412, 423 (1988). Accordingly, when the design of a government
program suggests that Congress believes that it has provided adequate remedial

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mechanisms for constitutional violations that may occur over the course of its
administration, the Supreme Court has not created additional Bivens remedies. Id.
For example, the Supreme Court declined to create a Bivens remedy for a First
Amendment violation arising out of an employment relationship governed by the Civil
Service Commission regulations. Bush v. Lucas, 462 U.S. 367, 368 (1983). In Bush, a
NASA employee claimed he was demoted for publicly criticizing the agency. He was
reinstated through the administrative process but was not permitted to recover damages
against an individual director for emotional distress, mental anguish or attorney’s fees.
Id., at 371,372, and nn. 8-9. The Supreme Court refused to create a Bivens remedy even
though it assumed a First Amendment violation and acknowledged the existing remedies
did not provide “complete relief” to the plaintiff. Id., at 388. The Supreme Court
reasoned that the relationship between employer and employee was already covered by
the Civil Service Commission regulations, an “elaborate remedial system that has been
constructed, step by step, with careful attention to conflicting policy considerations,” and
those regulations should not be augmented by a judicially-created remedy for damages.
Id.
Similarly, in Chilicky, the Supreme Court declined to allow a Bivens claim for
damages against individual government employees alleged to have violated due process
in their handling of Social Security applications. The Supreme Court explained that
Congress had already created “elaborate administrative remedies” available to claimants
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like the plaintiff. Chilicky, 487 U.S. 412, 426. While those remedies did not include a
claim for damages against individual federal employees, the Supreme Court refused to
create one when Congress—which was better situated to decide whether such a remedy
would serve the public interest—did not. Id., at 425.
Courts have concluded that the clear purpose of Chilicky and related cases is to
virtually prohibit intrusion by the courts into the statutory schemes established by
Congress. See Hicks v. Brown, 929 F. Supp. 1184, 1187 (E.D. Ark. 1996).
3. The VJRA is a remedial statutory scheme that precludes a Bivens
claim.
Relevant to this matter, in 1988 Congress created the VJRA, which provides
several layers of administrative review for the adjudication of veterans’ benefits claims:
38 USC § 511 states that the “Secretary [of the VA] shall decide all
questions of law and fact” concerning the provision of veterans benefits.
Appeals from such decisions can be taken to the Court of Veterans Appeals
(“CVA”). 38 U.S.C. § 511(b)(4); id. § 7252(a). In turn, appeals from the
CVA can be taken to the Federal Circuit Court of Appeals. Id. § 7252(c);
id. § 7292. From there, the claim may be appealed to the Supreme Court.
Id. § 7292(c).
Wojton v. United States, 199 F. Supp. 2d 722, 730 (S.D. Ohio 2002) (Rice, J).
Federal courts which have considered the issue have repeatedly held the VJRA is a
comprehensive remedial scheme that precludes Bivens claims for damages against VA
employees premised on the assertion that the employees denied, or interfered, with a
party’s benefits. See Zuspann v. Brown, 60 F. 3d 1156 (5th Cir. 1995) (holding “no
Bivens remedy exists against VA employees”) (citing Sugure v. Derwinski, 26 F.3d 8, 1211

13 (2d Cir. 1994)); Thomas v. Principi, 394 F.3d 970, 975-76 (D. D.C. 2005) (holding a
Bivens action is not available “against VA employees for constitutional torts in the
context of a dispute over veterans’ benefits”); Delaforieititi v. Goff, No. C 98-1329 FMS,
1998 U.S. Dist. LEXIS 14999 **6-8 (N.D. Cal. Sept. 23, 1998) (holding an African
American plaintiff who alleged a VA doctor refused to perform a bone graft operation
because of her race did not have a Bivens claim against that doctor for damages “in light
of plaintiff’s ability to pursue her claims through the VJRA’s remedial structure”); Hicks
v. Small, 842 F. Supp. 407, 411 (D. Nev. 1993), aff’d, 69 F. 3d 967 (9th Cir. 1995) (a
plaintiff may not state a Bivens claim against members of the VA because Congress
“created a comprehensive remedial structure for correcting and vindicating wrongful
actions of the Veterans Administration” and “[w]e cannot say that any failure to provide
for the relief sought by Plaintiff was inadvertent”).
Here, Plaintiff seeks damages against individual VA employees for allegedly
denying him benefits in violation of his constitutional rights. The Supreme Court has not
recognized such a cause of action. Given the Supreme Court’s direction that the judiciary
should not augment Congress’s established remedial schemes, and the fact that federal
courts have consistently applied this reasoning in refusing to augment the VJRA with a
Bivens claim against individual VA employees, this Court agrees that the Plaintiff does
not have a claim against the Defendants for the relief sought.

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B. This Court lacks subject matter jurisdiction.
Defendants argue that this Court is without subject matter jurisdiction because the
VJRA preempts Plaintiff’s claims. (Doc. 24 at 9-12). Again, this Court agrees.
The VJRA 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 . . .
[T]he 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. § 511(a).
Courts have repeatedly held that Section 511(a) precludes federal district court
jurisdiction over claims by veterans regarding deprivation of benefits, including claims
for constitutional violations. See Bush v. United States, No. 1:13-cv-587, 2013 U.S. Dist.
LEXIS 151055 **13-15 (Sept. 17, 2013) (Bowman, M.J.) (the VJRA precludes district
courts from adjudicating claims which require the court to determine whether the VA
acted properly in the provision of benefits), adopted, 2013 U.S. Dist. LEXIS 150917
(S.D. Ohio, Oct. 21, 2013); Beamon v Brown, 125 F.3d 965, 970-73 (6th Cir. 1997)
(district court properly dismissed veterans’ constitutional challenges to VA’s procedures
for processing claims because “Congress intended to preclude district court jurisdiction
over VA decisions relating to benefits claims, including decisions of constitutional
issues”); Thompson v. Veterans Admin, 20 Fed. App’x. 367, 368-69 (6th Cir. 2001)
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(district court properly held it lacked subject matter jurisdiction over plaintiff veteran’s
claim that VA filed false and fraudulent medical records in the plaintiff’s administrative
appeal because “511(a) precludes district courts from reviewing decisions on veterans’
benefits, including constitutional challenges to the department’s procedures; such
challenges must be filed in the Court of Veterans Appeals and from there are reviewable
by the Federal Circuit Court”); Zuspan v. Brown, 60 F.3d 1156, 1158-60 (5th Cir. 1995)
(affirming district court’s dismissal of veteran’s claim that VA denied him medical
treatment in violation of the Fifth Amendment’s due process clause because “Congress
has set up an exclusive review procedure for decisions involving veterans benefits
determinations”); Hicks v. Veterans Admin, 961 F.2d 1367, 1369-70 (8th Cir. 1992)
(holding plaintiff’s constitutional challenge to a reduction of his benefits is “encompassed
by 38 U.S.C. § 511 and is not reviewable in any manner other than by the review
mechanism set forth in Chapter 72 of Title 38”).
Here, the relevant question is whether adjudication of the claims would require the
district court to determine whether the VA acted properly in denying the plaintiff a
veterans’ benefit; if so, the claim is precluded by § 511(a). See Price v. United States, 228
F.3d 240, 421 (D.C. Cir. 2001) (holding §511(a) deprived a district court of jurisdiction
over plaintiff’s claim “that the VA unjustifiably denied him a veteran’s benefit”); Hicks v.
Small, 842 F. Supp. 407, 413 (D. Nev. 1993).

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In Hicks, for example, the plaintiff, a veteran, alleged that Small, a doctor at the
Reno, Nevada, VA Medical Center, reduced his benefits in retaliation for his complaints
about treatment in violation of his First Amendment rights. 842 F. Supp. 407 at 408.
Just like the Plaintiff in this action, Hicks asserted that Small’s “retaliatory actions
deprived [Hicks] of benefits to which he was entitled.” Id., at 413. The District of
Nevada held Hicks’ claims were preempted by § 511(a) because “[i]n order for this court
to proceed with this action it would be necessary to consider issues of law and fact
involving the decision to reduce Plaintiff’s benefits.” Id.
Plaintiff cites Anestis v. United States, 749 F.3d 520 (6th Cir. 2014) for the
proposition that § 511(a) does not apply to the claims in this case because Plaintiff is not
challenging a benefits determination. (Doc. 25, at 7-8). This Court does not agree.
In Anestis, the widow of former marine Cameron Anestis sued the VA in the
Eastern District of Kentucky alleging that the VA committed medical malpractice in
turning Cameron away from VA clinics shortly before he committed suicide. 749 F.3d at
522. Mrs. Anestis did not argue that Cameron was eligible for VA benefits, she argued
that the VA violated standards of medical care and its own policies by refusing treatment
when Cameron presented himself at VA facilities in a state of emergency. Id., at 527.
The district court granted the VA’s motion to dismiss for lack of subject matter
jurisdiction. On appeal, the Sixth Circuit held Mrs. Anestis’ claim was not precluded by
§511(a) because it was premised on the VA’s duty to provide emergency care regardless
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of Cameron’s status as a veteran, and accordingly was “wholly unrelated to any benefits
determination.” Id., at 527.
Significantly, the Sixth Circuit relied on the fact that Mrs. Anestis did not allege
“that the VA denied [Cameron] benefits to which he would have been entitled[.]” Id.
However, that is precisely what the Plaintiff asserts in this action.
Here, each of Plaintiff’s claims assert that Defendants denied him “care and
counseling to which he was entitled.” Doc. 3, ¶¶ 5.2, 6.2, 7.2. Adjudication of these
claims necessarily requires a determination of what benefits Plaintiff was entitled to
receive. See Hicks, 842 F. Supp. 407 at 413. This Court is precluded from answering
that question. 38 U.S.C. § 511(a); Price, 228 F.3d at 421. Accordingly, this Court lacks
subject matter jurisdiction over this action. 3
IV.

CONCLUSION

For these reasons, Defendants’ motion to dismiss (Doc. 24) is GRANTED.
IT IS SO ORDERED.
2/27/17
Date: _______________

_______________________
Timothy S. Black
United States District Judge

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As this Court holds that it lacks subject matter jurisdiction due to the VJRA’s broad preclusion
of judicial review, this Court need not reach the merits of Plaintiff’s alternative argument that
the Court lacks subject matter jurisdiction due to the Plaintiff’s failure to exhaust administrative
remedies under the Federal Tort Claims Act. (Doc. 24, 7-9).
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