United States District Court, W.D. Louisiana, Lake Charles Division
MAGISTRATE JUDGE KAY
ELIZABETH ERNY FOOTE UNITED STATES DISTRICT JUDGE
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].
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.
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].
Official Capacity Claims
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].
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.”
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)).
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.
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 ...