Dawson v. Wilkie

          REPORT AND RECOMMENDATION OF THE MAGISTRATE JUDGE

          Jacquelyn D. Austin United States Magistrate Judge.

         Plaintiff 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.

         Plaintiff 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.

         APPLICABLE LAW

         Liberal Construction of Pro Se Complaint

         Plaintiff 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).

         Rule 12(b)(1) Dismissal Standard

         A 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)).

         DISCUSSION

         Defendants 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.^[1]

         The 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)).

         “VA decisions under laws affecting benefits are, therefore, only subject to appeal within the VJRA scheme.”^[2] 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)).

         Here, 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.^[3][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.

         CONCLUSION ...