Opinion
Civil Action No. 02-2043-KHV
September 17, 2002
MEMORANDUM AND ORDER
Thomas E. Scherer brings suit against Kent Hill, William Emmot and Wayne Hill, employees of the Department of Veteran Affairs. This matter comes before the Court on Defendants' Motion To Dismiss (Doc. #24) filed June 7, 2002 and plaintiff's Notice Of Appeal Of A Magistrate Order Or Alternatively A Motion To Reconsider the Order Dated July 26th 2002 Privacy And FOIA Violation (Doc. #36) filed August 1, 2002. For reasons stated below, defendant's motion is sustained and plaintiff's notice of appeal is overruled.
Factual Background
Plaintiff is an honorably discharged veteran who served in the United States Navy from 1972 through 1975. Plaintiff states that during his service, he contracted a chronic skin condition. Plaintiff applied for disability benefits with the Veterans Administration ("VA"). On January 3, 2001, the VA approved plaintiff's claim for disability benefits, gave him a 10 per cent disability rating, and awarded him benefits retroactive from 1995 with a future monthly benefit of $101. Plaintiff asserts that the VA should award him benefits retroactive from 1976 and that his disability rating should be 30 per cent. Plaintiff filed his claim in federal court because "the Veterans Administration provides no opportunity for a claim to be decided by a jury trial and that failure is in violation of the United States Constitution right to a jury trial for claims of equity." Complaint (Doc. #1) filed January 30, 2002 ¶ 12. Plaintiff seeks compensatory and punitive damages, as well as injunctive relief.
Plaintiff has unsuccessfully tried to obtain relief from the VA benefits decision through other judicial channels. See In re Thomas E. Scherer, 122 S.Ct. 1198 (Feb. 25, 2002) (denying petition for writ of mandamus); Scherer v. Principi, 2001 WL 243838 (Vet.App. Feb. 15, 2001), aff'd, 19 Fed. Appx. 860, 2001 WL 1105815 (Fed. Cir. Aug. 30, 2001); Scherer v. United States, No. 01-2428-JWL, 2002 WL 299315 (D.Kan. Feb. 15, 2002) (action dismissed for lack of subject matter jurisdiction).
Analysis I. Defendants' Motion To Dismiss
Under D. Kan. Rule 6.1(e)(2) and Fed.R.Civ.P. 6(e), plaintiff's response to defendant's motion to dismiss was due on or before July 1, 2002. Plaintiff did not file a timely response to defendants' motion, but he did seek a preliminary hearing on the motion and a more definite statement. See Motion For A Preliminary Hearing Per Rule 12(d) And Request For A More Definite Statement In The Motion To Dismiss (Doc. #27) filed June 11, 2002. On August 2, 2002, the Court overruled plaintiff's request for a more definite statement and ordered plaintiff to show cause in writing on or before August 12, 2002 why defendants' motion to dismiss should not be sustained as unopposed and on the merits. See Order And Order To Show Cause (Doc. #35).In his response, plaintiff has not addressed why defendants' motion should not be sustained as unopposed for failure to timely file an opposition brief. Pursuant to D. Kan. Rule 7.4, the Court sustains defendants' motion to dismiss on this ground.
On the merits, the Court would reach the same result. Plaintiff has not specifically addressed the jurisdictional arguments presented in defendant's motion to dismiss. In particular, plaintiff has not shown that he can sue federal employees for actions taken in their official capacities, or that he can seek review of VA disability decisions in federal district court. Plaintiff's action against VA employees for actions as agents of the United States is in fact an action against the United States. See Weaver v. United States, 98 F.3d 518, 520 (10th Cir. 1996). For the reasons outlined in Defendant's Memorandum In Support Of Motion To Dismiss (Doc. #25) filed June 7, 2002, the Court lacks subject matter jurisdiction to hear plaintiff's claims. As the Honorable John W. Lungstrum explained in a virtually identical case which plaintiff brought earlier this year, "federal law regarding veterans' benefits provides that decisions regarding veterans' benefits are unreviewable in the federal district courts. . . ." Scherer v. United States, No. 01-2428-JWL, 2002 WL 299315, at *1 (D.Kan. Feb. 15, 2002); see 38 U.S.C. § 511(a) (as to law and facts necessary to decision that affects provision of veteran benefits, VA Secretary's determination "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").
In response to the Court's order to show cause, plaintiff cites the Freedom of Information Act ("FOIA"), the Privacy Act and the Americans with Disabilities Act ("ADA"). See Reply To A Show Cause Order And The US Attorney Motion To Dismiss (Doc. #39) filed August 12, 2002 at 2-4. Plaintiff, however, has not sought leave to file an amended complaint to assert claims under these statutes. Accordingly, the Court need not consider them. Even if plaintiff had properly asserted such claims, the Court would dismiss them for substantially the reasons stated in the Reply Brief Of Defendants Hill, Emmot and Hill In Further Support Of Their Motion To Dismiss (Doc. #43) filed August 16, 2002. In addition, plaintiff's theories of recovery under these statutes are so vague that allowing him to amend to assert such claims would be futile. Finally, plaintiff concedes that the alleged FOIA violation (which relates to forms used in his compensation and benefit examination) is the subject of a separate suit. See Civil Complaint (Doc. #1) filed January 31, 2002 ¶ 6 (citing Scherer v. United States, No. 01-2428-JWL (D.Kan.)).
II. Plaintiff's Notice Of Appeal Of Magistrate Judge's Order Of July 26, 2002
On June 5, 2002, plaintiff filed a motion to compel photographs of his skin condition. See Motion To Compel Photo Production And Second Violation Of The Freedom Of Information Act (Doc. #23) ("Motion To Compel"). In that motion, plaintiff asked the "US Attorney and the Veterans Administration" to produce the photographs. Id. at 4. In response, the VA sent the pictures to the United States Attorney, who forwarded them to plaintiff on June 12, 2002. See Letter Dated June 12, 2002 from Assistant United States Attorney to plaintiff, attached to Privacy Violation And Exhibit In Support (Doc. #30) filed June 18, 2002. On July 26, 2002, because the pictures had been produced, Magistrate Judge David J. Waxse overruled plaintiff's motion to compel as moot. See Order (Doc. #34).In his notice of appeal of the magistrate judge's order, plaintiff argues that (1) defendants violated his privacy by sending the pictures to a third party (the United States Attorney) instead of sending them directly to him and (2) defendants still have not sent him lab results under the FOIA. Plaintiff's first argument is frivolous. He specifically asked the "US Attorney and the Veterans Administration" to produce the photographs. Motion To Compel at 4. Plaintiff will not be heard to argue that the precise action he requested is a violation of his privacy rights. The Privacy Act does not prohibit the consensual disclosure of photographs or documents by an agency. See Thomas v. United States Dep't of Energy, 719 F.2d 342, 345 (10th Cir. 1983) (purpose of Privacy Act is to preclude system of records from serving as source of personal information about a person that is then disclosed without the person's consent). Plaintiff has not shown any "misuse" of his personal information which would entitle him to relief under the Privacy Act. Id. at 345-46 (Congress passed Privacy Act to protect privacy of individuals identified in information systems maintained by Federal agencies by preventing misuse of that information). Finally, plaintiff cannot assert a Privacy Act violation against individuals, he must assert such claims against an agency. See 5 U.S.C. § 552a(a)(1), (g)(1); Parks v. IRS, 618 F.2d 677, 684 (10th Cir. 1980). As to plaintiff's second argument, his motion to compel did not mention "lab results." Although one of the exhibits to plaintiff's motion to compel referenced "reports, lab tests and any other documents," Exhibit 1 to plaintiff's Motion To Compel, plaintiff did not inform Judge Waxse that defendants had not complied with this portion of the request. For these reasons, Judge Waxse's ruling that plaintiff's motion to compel was moot is not "clearly erroneous or contrary to law." Rule 72(a), Fed.R.Civ.P.; 28 U.S.C. § 636(b)(1)(A); see Ocelot Oil Corp. v. Sparrow Indus., 847 F.2d 1458, 1464 (10th Cir. 1988) (district court is required to affirm magistrate order unless entire evidence leaves it with definite and firm conviction that mistake has been committed) (citation omitted).
IT IS THEREFORE ORDERED that Defendants' Motion To Dismiss (Doc. #24) filed June 7, 2002 be and hereby is SUSTAINED. The case is dismissed for lack of subject matter jurisdiction.
IT IS FURTHER ORDERED that plaintiff's Notice Of Appeal Of A Magistrate Order Or Alternatively A Motion To Reconsider the Order Dated July 26th 2002 Privacy And FOIA Violation (Doc. #36) filed August 1, 2002 be and hereby is OVERRULED. Magistrate Judge David J. Waxse's Order (Doc. #34) filed July 26, 2002 is AFFIRMED.