Anthon v. Shinseki et al

Filing 4

ORDER signed by Judge J P Stadtmueller on 11/4/09 denying 2 plaintiff's Motion for Leave to Proceed in forma pauperis and DISMISSING this action for lack of subject matter jurisdiction. See Order. (cc: plaintiff, all counsel) (nm)

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WISCONSIN
____________________________________________ R O B E R T ERIC ANTHON, P l a i n t if f , v. E R IC K. SHINSEKI, Secretary of Veterans Affairs, M IC H A E L OLSON, and CHRIS NORTON D e fe n d a n ts . ____________________________________________ Case No. 09-CV-974

ORDER
O n October 13, 2009, plaintiff Robert Eric Anthon ("Anthon") filed a pro se C o m p la in t against defendants. (Docket #1). Plaintiff then filed a Motion for Leave to Proceed in forma pauperis. (Docket #2). The federal in forma pauperis statute, 28 U.S.C. § 1915, is designed to ensure in d ig e n t litigants meaningful access to the federal courts. Neitzke v. Williams, 490 U .S . 319, 327 (1989). To authorize a litigant to proceed in forma pauperis ("IFP"), th e court must first determine that the litigant is unable to pay the costs of c o m m e n c in g the action. 28 U.S.C. § 1915(a). Second, the court must determine th a t the action is neither frivolous nor malicious, does not fail to state a claim, and d o e s not seek money damages against a defendant immune from such relief. 28 U .S .C . § 1915(e)(2). B a s e d upon plaintiff's IFP form ­ an affidavit in which he declares his assets a n d income under penalty of perjury ­ the court determines the plaintiff is unable to p a y the costs of commencing this action. In plaintiff's IFP form, he states that he has

n o t been employed since January of 2002, he has very little savings, and his e xp e n s e s outstrip his sole source of monthly income (disability benefits, which it w o u ld seem have recently been discontinued). Accordingly, it appears that Anthon is unable to pay the costs of commencing this action. However, the court finds that th e action fails to state a claim. A ntho n names three defendants: Eric Shinseki (Secretary of Veterans Affairs), C h ris Norton, and Michael Olson. The court notes that Secretary Shinseki is being s u e d in his official capacity. See Atkinson v. O'Neil, 867 F .2d 589, 590 (10th C ir.1 9 8 9 ) ("W h e n an action is one against named individual defendants, but the acts c o m p la in e d of consist of actions taken by defendants in their official capacity as a g e n ts of the United States, the action is in fact one against the United States."). No m e n tio n is made in Anthon's complaint of either Chris Norton or Michael Olson. A s e a rc h of the internet reveals that Michael Olson was the Veterans Affairs Regional O ffic e Director in Chicago; however, the court has no information as to whether he c u rre n tly holds that position. Likewise, the only information the court could unearth a b o u t Chris Norton is that he was, and perhaps still is, a Veterans Service Center M a n a g e r. Given the lack of reference to either Mr. Olson or Mr. Norton in the c o m p la in t, as well as the fact that the Department of Veterans Affairs ("VA") e m p lo ye e s may not be sued in their individual capacity, Thomas v. Principi, 394 F.3d 9 7 0 , 975-76 (D.C. Cir. 2005), the court finds that Anthon has failed to state a claim a g a in s t either Mr. Norton or Mr. Olson.

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A n th o n 's complaint fails to state a claim against Mr. Shinseki in his official c a p a c ity as the Secretary of Veterans Affairs because this court does not have s u b je c t matter jurisdiction over Anthon's claims. The factual basis for Anthon's c o m p la in t is murky at best, but what is clear is that Anthon is dissatisfied with the m a n n e r in which the VA has handled his disability claims. His complaint alleges that th e manner in which the VA has implemented its rules and regulations has violated h is right to due process. Unfortunately for Anthon, this is not a claim that can be h e a rd in a district court. T h e re are three types of claims against the VA that typically implicate q u e s tio n s of subject matter jurisdiction: 1) facial constitutional challenges to the s ta tu te itself; 2) benefits claims; and 3) constitutional challenges to the VA's p ro c e d u re s or regulations. Murrhee v. Principi, 364 F. Supp. 2d 782, 787 (C.D. Ill. 2 0 0 5 ). With the passage of the Veterans' Judicial Review Act ("VJRA") in 1988, C o n g re s s enacted 38 U.S.C. § 511(a),1 which precludes district courts from hearing c la im s of the latter two variants. Id. at 787-89 (providing a detailed description and a n a lys is of § 511(a), and its precursor, § 211(a), as well as of applicable Supreme C o u rt and Seventh Circuit case law). This is not to say that a plaintiff seeking review o f a VA benefits decision, or seeking to challenge the constitutionality of the VA's
1

38 U.S.C. 501(a) states: T h e Secretary shall decide all questions of law and fact necessary to a d e c is io n by the Secretary under a law that affects the provision of benefits b y the Secretary to veterans or the dependents or survivors of veterans. S u b j e c t to subsection (b), the decision of the Secretary as to any such q u e s tio n shall be final and conclusive and m a y not be reviewed by any other o f f ic ia l or by any court, whether by an action in the nature of m a n d a m u s or o th e r w is e .

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p ro c e d u re s , has no recourse; it is simply to say that such recourse is not available in a district court. Rather, "[c]laimants may first appeal to the Board of Veterans' A p p e a ls (38 U.S.C. § 7104(a)), then to the Court of Appeals for Veterans' Claims (38 U .S .C . § 7252(a)), to the Federal Circuit (38 U.S.C. § 7292(c)), and ultimately to the S u p re m e Court ([38 U.S.C. § 7292(c)])." Murrhee, 364 F. Supp. 2d at 788. B e c a u s e Anthon's complaint challenges the VA's conduct, and because the c o u rt does not have subject matter jurisdiction over such a claim, the court is obliged to find that plaintiff has not stated a claim for which relief may be granted. The court m u s t, therefore, deny plaintiff's request to proceed in forma pauperis, and the court m u s t dismiss this action pursuant to 28 U.S.C. 1915(e)(2). A c c o r d in g ly , IT IS ORDERED that plaintiff's Motion for Leave to Proceed in forma pauperis (D o c k e t #2) be and the same is hereby DENIED; and I T IS FURTHER ORDERED that this action be and the same is hereby D IS M IS S E D for lack of subject matter jurisdiction. T h e clerk of the court is directed to enter judgment accordingly. D a te d at Milwaukee, W is c o n s in , this 4th day of November, 2009. BY THE COURT:

J .P . Stadtmueller U .S . District Judge

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