United States District Court, D. South Carolina, Columbia Division
Eric A. Dawson, Plaintiff,
Robert Wilkie, Donald L. Omura, Defendants.
REPORT AND RECOMMENDATION OF THE MAGISTRATE
Jacquelyn D. Austin United States Magistrate Judge.
brought this action, alleging that Defendants denied him
eligibility and access to veterans' benefits, namely
medical care for his knees, and asking for equitable and
injunctive relief. [Doc. 1.] Pursuant to the provisions of 28
U.S.C. § 636(b) and Local Civil Rule 73.02(B)(2)(e),
D.S.C., this magistrate judge is authorized to review all
pre-trial matters in cases involving litigation by
individuals proceeding pro se and to submit findings and
recommendations to the District Court.
filed this action on November 26, 2018 [Doc. 1], and
supplemented his Complaint on December 6, 2018, and January
2, 2019 [Docs. 9; 13]. On January 28, 2019, Plaintiff moved
for summary judgment. [Doc. 15.] Defendants responded to
Plaintiff's motion for summary judgment on March 18,
2019. [Doc. 23.] On March 13, 2019, Defendants filed a motion
to dismiss on the basis that the Veterans' Judicial
Review Act (“VJRA”) deprives this Court of
subject matter jurisdiction. [Doc. 20.] By Order of this
Court on March 15, 2019, pursuant to Roseboro v.
Garrison, 528 F.2d 309 (4th Cir. 1975), Plaintiff was
advised of the summary judgment/dismissal procedure and the
possible consequences if he failed to respond adequately.
[Doc. 21.] Plaintiff filed his response on May 16, 2019.
[Doc. 28.] The motions are now ripe for review.
Construction of Pro Se Complaint
brought this action pro se, which requires the Court to
liberally construe his pleadings. Estelle v. Gamble,
429 U.S. 97, 106 (1976); Haines v. Kerner, 404 U.S.
519, 520 (1972); Loe v. Armistead, 582 F.2d 1291,
1295 (4th Cir. 1978); Gordon v. Leeke, 574 F.2d
1147, 1151 (4th Cir. 1978). Pro se pleadings are held to a
less stringent standard than those drafted by attorneys.
Haines, 404 U.S. at 520. Even under this less
stringent standard, however, a pro se complaint is still
subject to summary dismissal. Id. at 520-21. The
mandated liberal construction means that only if the court
can reasonably read the pleadings to state a valid claim on
which the complainant could prevail, it should do so.
Barnett v. Hargett, 174 F.3d 1128, 1133 (10th Cir.
1999). A court may not construct the complainant's legal
arguments for him. Small v. Endicott, 998 F.2d 411,
417-18 (7th Cir. 1993). Nor should a court “conjure up
questions never squarely presented.” Beaudett v.
City of Hampton, 775 F.2d 1274, 1278 (4th Cir. 1985).
12(b)(1) Dismissal Standard
motion to dismiss under Rule 12(b)(1) of the Federal Rules of
Civil Procedure examines whether the complaint fails to state
facts upon which jurisdiction can be founded. Fed.R.Civ.P.
12(b)(1). Typically, it is the plaintiff's burden to
prove jurisdiction. Richmond, Fredericksburg &
Potomac R.R. Co. v. United States, 945 F.2d 765, 768
(4th Cir. 1991). The court may dismiss a case for lack of
subject matter jurisdiction on any of the following 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.'”
Johnson v. United States, 534 F.3d 958, 962 (8th
Cir. 2008) (quoting Williamson v. Tucker, 645 F.2d
404, 413 (5th Cir. 1981)).
contend that its motion to dismiss should be granted because
the VJRA deprives this Court of subject matter jurisdiction
over this case. The undersigned agrees.
Department of Veterans Affairs (the “VA ”)
“administer[s] the laws providing benefits and other
services to veterans and the dependents and the beneficiaries
of veterans.” 38 U.S.C. § 301(b). A veteran
dissatisfied with the VA's initial resolution of a claim
for benefits or services may appeal the decision to the Board
of Veterans' Appeals, which is an administrative board
with authority and responsibility over appeals related to
claims for veterans' benefits. 38 U.S.C. §§
7101(a), 7104(a). The Board's decisions, in turn, may be
reviewed by the United States Court of Appeals for Veterans
Claims (“Veterans Court”), which is an
independent Article I judicial body authorized to review all
relevant legal and factual issues, including constitutional
claims. 38 U.S.C. §§ 7252(a), 7261(a). And
decisions of the Veterans Court are reviewed exclusively by
the Court of Appeals for the Federal Circuit, which Congress
has vested, in such appeals, to “decide all relevant
questions of law, including interpreting constitutional and
statutory provisions.” 38 U.S.C. §§ 7252(c),
7292(a), (c), (d)(1); see generally Szemraj v.
Principi, 357 F.3d 1370, 1375 (Fed. Cir. 2004).
“The exclusive jurisdiction of the [Veterans Court]
extends not only to claims for denial of VA benefits, but
constitutional issues such as retaliation for exercise of
first amendment rights.” Kreuger v. United
States, No. 17-cv-10574, 2017 WL 5467743, at *4 (E.D.
Mich. Nov. 14, 2017) (citing Hicks v. Veterans
Admin., 961 F.2d 1367 (8th Cir. 1992)).
decisions under laws affecting benefits are, therefore, only
subject to appeal within the VJRA
scheme.” Crosby v. United States, No.
2:13-CV-96-RMG, 2014 WL 101625, at *4 (D.S.C. Jan. 8, 2014).
“Title 38, United States Code, Section 511(a) expressly
precludes review of any VA decision under a law that affects
the provision of benefits by VA, except as provided by
sections 502 and 7252, or with respect to certain insurance
and housing loan matters.” Id. (citing 38
U.S.C. § 511). Accordingly, “[w]hen a
veteran's ‘underlying . . . claim is an allegation
that the VA unjustifiably denied him a veterans'
benefit,' ‘[t]he district court lack[s]
jurisdiction.'” Id. at *1 (alterations in
original) (quoting Price v. United States, 228 F.3d
420, 421 (D.C. Cir. 2000)).
Plaintiff alleges that, in retaliation for negative remarks
he has made about the VA, the VA has refused to provide him
with viscosupplementation shots for his knees.[Doc. 1
¶¶ 31-35.] Because the VJRA provides the exclusive
means for review of claims regarding Plaintiff's
entitlement to such a benefit, this Court lacks subject
matter jurisdiction over this case. See Crosby, 2014
WL 101625, at *2. The undersigned therefore recommends that
Defendants' motion to dismiss be granted.