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Jackson v. Varono

United States District Court, W.D. Louisiana, Lake Charles Division

October 17, 2018

GEORGE JACKSON
v.
DIRECTOR MARK BOLOGNA VARONO

          MAGISTRATE JUDGE KAY

          MEMORANDUM RULING

          ELIZABETH ERNY FOOTE UNITED STATES DISTRICT JUDGE

         Before the Court is a motion to dismiss filed by Defendant Mark Bologna (“Bologna”), the director of New Orleans Regional Office of the United States Department of Veterans Affairs (the “VA”). [Record Document 4]. Plaintiff George Jackson (“Jackson”) seeks monetary damages as a result of Bologna's allegedly erroneous denial of Jackson's request for veterans' disability benefits. [Record Document 1 at 15].

         Jackson alleges that he has several serious medical conditions; he may well be entitled to benefits. He may have a due process right to correct evaluation of his application for benefits. But this Court cannot decide these questions. Federal courts are courts of limited jurisdiction; they are empowered to hear certain claims only. Congress has granted other tribunals the jurisdiction to hear claims related to veterans' benefits. Additionally, neither Congress nor the Supreme Court have chosen to create a right of action against individual government employees, such as Bologna, to recover damages for due process violations in this context. Because this Court lacks the authority to grant Jackson the relief that he seeks, Bologna's motion [Record Document 4] is GRANTED as to all of Jackson's claims except his claim under the Freedom of Information Act (“FOIA”). Because Jackson's FOIA claim is currently insufficiently pleaded, he is granted until November 14, 2018 to amend his complaint to state a cause of action under FOIA.

         I. Background

         Jackson is a Navy combat veteran who is now tetraplegic and wheelchair-bound. [Record Document 1 at 4-6]. He submitted a claim for veterans' disability benefits, which Bologna denied in its entirety. [Record Documents 1 at 1-2, 7 and 1-1 at 25]. Although Jackson sought reconsideration of this denial, he apparently submitted his request on an incorrect form. [Record Document 1-1 at 26-28]. Following a letter from a veterans' advocate to Bologna, [id. at 29-34], a reconsideration was issued, determining that Jackson's back injuries were 10% disabling, [id. at 39-40]. The reconsideration also stated that the VA still could not determine whether Jackson was unemployable and so entitled to a greater pension because he had not made a formal application on the correct form. [Id.]. The parties have filed an opposition and a reply, rendering this matter ripe for adjudication. [Record Documents 6 and 7].

         II. Official Capacity Claims[1]

         Bologna argues that the Court lacks subject matter jurisdiction over claims against him in his official capacity because federal law precludes district court review of veterans' benefits decisions. [Record Document 4-1 at 5-7]. Plaintiff has responded that jurisdiction exists under Rule 11(b)(2) of the Federal Rules of Civil Procedure and the Federal Circuit's decision in Cushman v. Shinseki, 576 F.3d 1290 (2009). [Record Document 6 at 2-3].

         A. 12(b)(1) Standard

         Motions filed pursuant to Federal Rule of Civil Procedure 12(b)(1) allow a party to challenge the subject matter jurisdiction of the district court to hear a case. “Lack of subject matter jurisdiction may be found in any one of three instances: (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.” Ramming v. United States, 281 F.3d 158, 161 (5th Cir. 2001). The burden of proof for a Rule 12(b)(1) motion to dismiss is on the party asserting jurisdiction. See Id. In reviewing a Rule 12(b)(1) motion to dismiss, “the district court is empowered to consider matters of fact which may be in dispute.” Id. “Ultimately, a motion to dismiss for lack of subject matter jurisdiction should be granted only if it appears certain that the plaintiff cannot prove any set of facts in support of his claim that would entitle plaintiff to relief.” Id.

         B. Analysis

         “A case is properly dismissed for lack of subject matter jurisdiction when the court lacks the statutory or constitutional power to adjudicate the case.” Home Builders Ass'n, Inc. v. City of Madison, 143 F.3d 1006, 1010 (5th Cir. 1998) (quoting Nowak v. Ironworkers Local 6 Pension Fund, 81 F.3d 1182, 1187 (2d Cir. 1996)). Veterans' benefits are determined by the VA Secretary. 38 U.S.C. § 511(a) (2012). Subject to a handful of exceptions, a “decision of the Secretary as to any . . . question [of law or fact] 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.” Id. This is true even if the VA has misapplied statutes or regulations and even if this misapplication violated a veteran's due process rights. See Zuspann v. Brown, 60 F.3d 1156, 1158-60 (5th Cir. 1995). Thus, Article III district courts lack the authority to review veterans' benefits determinations. Id. at 1160. Congress has instead directed that appeals of benefits decisions be brought to the Board of Veterans' Appeals. Id. at 1158 (citing 38 U.S.C. § 7104(a) (2012)). If the board denies a claim, the veteran may appeal to the Court of Appeals for Veterans Claims whose decisions may be reviewed in turn by the Court of Appeals for the Federal Circuit. Id. (citing 38 U.S.C. §§ 7252(a), 7266(a), 7292(a) (2012)).

         Jackson alleges that federal-question jurisdiction exists because his case arises under the Due Process Clause and various federal statutes related to veterans' benefits. [Record Document 1 at 2]. However, the generic federal-question jurisdiction statute, 28 U.S.C. § 1331 (2012), does not confer jurisdiction on district courts when a more specialized statute, such as § 511(a), has stripped them of jurisdiction, see Veterans for Common Sense v. Shinseki, 678 F.3d 1013, 1023 (9th Cir. 2012); Zuspann v. Brown, 864 F.Supp. 17, 20 (W.D. Tex. 1994), aff'd, 60 F.3d 1156 (5th Cir. 1995). And so, under Fifth Circuit precedent, this Court must evaluate whether to dismiss Jackson's claim for a lack of subject matter jurisdiction by asking “whether [he] is alleging a facial attack on the constitutionality of an act of Congress, or whether [he] is challenging the VA's decision to deny him benefits.” Zuspann, 60 F.3d at 1158. The Court has jurisdiction under § 1331 over the former type of claim only. Id.

         Here, Jackson does not attack the constitutionality of any statute. Rather, he alleges that Bologna denied him rights to which he was entitled under statutes whose facial validity he accepts. [Record Document 1 at 3-6]. In his opposition, Jackson clearly articulates this point: “Director Bologna also violated my rights under all of the laws enacted to protect me and any other veteran's [c]onstitutional right to due process by not applying these laws and evidence appropriately.” [Record Document 6 at 5 (emphasis added)]. Although his complaint seeks damages rather than benefits as such, this Court can only award damages if it determines that Jackson was, in fact, entitled to benefits. See Zuspann, 60 F.3d at 1159. In consequence, to the extent that Jackson ...


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