Opinion
Civil No. 02-4136 (ADM/JSM).
July 15, 2003.
Billy F. Stephens, pro se.
Patricia R. Cangemi, Esq., Assistant United States Attorney, Minneapolis, MN, on behalf of Defendant.
MEMORANDUM OPINION AND ORDER
I. INTRODUCTION
This matter is before the undersigned United States District Court Judge on review of the Report and Recommendation ("RR") of Magistrate Judge Janie S. Mayeron [Docket No. 31]. The RR addresses Plaintiff Billy F. Stephens' ("Plaintiff") Motion for Amended Complaint and Summary Judgment [Docket No. 11], Plaintiff's Motion to Dismiss Defendant's Motion for Summary Judgment [Docket No. 25], and Defendant Department of Veteran Affairs' ("Defendant") Motion to Dismiss or for Summary Judgment [Docket No. 16]. For the reasons set forth below, the RR is adopted, Plaintiff's Motion for Amended Complaint and Summary Judgment [Docket No. 11] is denied, Defendant's Motion to Dismiss [Docket No. 16] is granted, and Plaintiff's Complaint [Docket No. 1] is dismissed without prejudice.
II. BACKGROUND
The underlying facts of the above-captioned matter are sufficiently set forth in the RR and the parties' memoranda. The Court incorporates those facts by reference. Plaintiff challenges the reduction of his Veteran Affairs Administration pension ("veteran pension") benefits by the amount he receives in Social Security benefit payments.
III. DISCUSSION
A district court must make an independent, de novo evaluation of those portions of an RR to which objection is made and may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge. See 28 U.S.C. § 636(b)(1)(C); D. Minn. LR 72.1(c)(2).
While significant factual disputes exist between the parties, they are not currently subject to resolution in this forum. Jurisdiction is precluded by (A) 38 U.S.C. § 511, (B) the Tucker Act, (C) the sovereign immunity doctrine, and (D) improper suiteo nomine. Additionally, (E) Plaintiff may not seek judicial review until his administrative remedies have been exhausted. For these reasons, Plaintiff's claim is not properly before this Court.
Jurisdiction of this matter, by this court, is precluded by 38 U.S.C. § 511. Section 511 provides that, in general, "a decision by the Secretary [of Veteran Affairs] under a law that affects the provision of benefits by the Secretary to veterans . . . may not be reviewed . . . by any court." 38 U.S.C. § 511. Since Plaintiff challenges the method of calculation of his veteran pension benefits, his claim is precisely the type that courts cannot review under the restriction of § 511.
Plaintiff attempts to circumvent the bar of § 511 by his attempt to cast his grievance as a "constitutional" claim. Objection at 7. Claims making a facial challenge to the constitutionality of veteran pension benefits legislation can be heard by district courts despite § 51. Disabled Veterans v. United States Dep't of Veterans Affairs, 962 F.2d 136, 140 (2d Cir. 1992). Additionally, "pro se complaints are held to a less stringent standard than formal pleadings drafted by lawyers." Cruz v. Cardwell, 486 F.2d 550, 552 (8th Cir. 1973). As discussed in the RR, the constitutional basis for Plaintiff's Complaint s not cited, nor is any case authority. Compl. at 1, 2. Nonetheless, Plaintiff contends that his Complaint "claimed that he was discriminated against, which in itself is a violation of his civil rights, that being a [c]onstitutional statement." Objection at 7. Indeed, Plaintiff's Complaint states that he suffered unjust discrimination because of a statutory distinction in the provision of veteran pension benefits favoring those with service-related, instead of non-service-related, injuries. Applying a very generous interpretation, Plaintiff's vague allegations of discrimination premised on two classes of veterans that "should be treated equally," might suggest a challenge on Fifth Amendment due process grounds to the constitutionality of the statutes establishing this distinction. Compl. at 2.
However, even if such a constitutional claim were to be found, this Court does not have jurisdiction to hear it. The district courts are given jurisdiction of "all civil actions that arise under the Constitution." 28 U.S.C. § 1331. But, if a constitutional claim is "patently without merit," subject matter jurisdiction does not arise under § 1331. Duke Power Co. v. Carolina Envtl. Study Group. Inc., 438 U.S. 59, 70 (1978). With a measure of understanding, this Court appreciates that Plaintiff feels it is unfair for this divergence in treatment to exist among veterans who have all served their country meritoriously. Yet his claim that the Constitution forbids this distinction is without any grounding in constitutional text or jurisprudence. In fact, it is well established that lawmakers may make classifications as long as they are determined to be reasonable given a statute's purpose, and not "arbitrary and invidious," McLaughlin v. Florida, 379 U.S. 184, 191 (1964). When this determination is made, lawmakers are "given the benefit of every conceivable circumstance which might suffice to characterize the classification as reasonable." McLaughlin, 379 U.S. at 191. Given this extraordinarily wide latitude, the classification here is constitutionally sound. As a measure to encourage and reward active military service-to name but one conceivable justification-the distinction Plaintiff objects to is reasonable, and neither arbitrary nor invidious.
A higher level of scrutiny is occasionally called for if a statute makes classifications affecting "discrete and insular minorities" when prejudice against them as minorities might prevent their effective participation in the political process.United States v. Carolene Prods. Co., 304 U.S. 144, 153 (1938). Veterans with non-service-related disabilities suffer no unique prejudice that subverts their political efficacy, and Plaintiff does not argue otherwise. Therefore, no heightened scrutiny is required.
Accordingly, even if Plaintiff's Complaint may properly be characterized as containing a constitutional claim, it is a claim that is "patently without merit" under Duke Power, barring subject matter jurisdiction in this Court, and leaving Plaintiff without an exception to the jurisdictional bar of § 511. Duke Power, 438 U.S. at 70.
B. The Tucker Act
The Tucker Act also precludes jurisdiction in this Court. The Tucker Act grants jurisdiction of certain cases against the United States to the district courts, but notably excludes "any civil action or claim for a pension." 28 U.S.C. § 1346(d). Claims for veteran pension benefits are considered claims for pensions under the Tucker Act. See, e.g., Randolph v. United States, 158 F.2d 787, 788 (5th Cir. 1946), cert. denied, 330 U.S. 839 (1947). Since Plaintiff's suit seeks restoration of a portion of his veteran pension benefits, his claim falls within the confines of the Tucker Act. 28 U.S.C. § 1346(d).
Plaintiff argues that the Tucker Act is very old and "should be deemed obsolet[e], because so many new laws have been passed [that overrule] the Tucker Act." Objection 7, 8. However, Plaintiff does not cite any intervening authority that overrules the Tucker Act, and its application cannot just be disregarded based on the age of the legislation.
C. Sovereign Immunity
Sovereign immunity doctrine is a third barrier to jurisdiction for Plaintiff's case. Under this doctrine, the United States cannot be sued without its consent. United States v. Testan, 424 U.S. 392, 399 (1976). As a federal department, sovereign immunity also extends to Defendant. Shelton v. United States Customs Serv., 565 F.2d 1140, 1141 (9th Cir. 1977). In the present case, Plaintiff brings suit against Defendant, yet the federal government has not authorized such a suit. Therefore, the doctrine of sovereign immunity bars jurisdiction.
Plaintiff claims that by failing to respond to a letter he sent Defendant, Defendant consented to be sued under sovereign immunity doctrine. Objection at 9. However, "where jurisdiction has not been conferred by Congress, no officer of the United States has power to give any court jurisdiction of a suit against the United States." State of Minnesota v. United States, 305 U.S. 382, 388-89 (1939). Accordingly, the actions of the officers of the Department of Veteran Affairs, even if they have failed to respond to Plaintiff's letter, are insufficient to confer jurisdiction.
D. Suit Eo Nomine
Additionally, jurisdiction is lacking because the Defendant Department of Veteran Affairs cannot be sued eo nomine, in its own name. Explicit or implied Congressional authorization is required for a federal agency to be sued eo nomine. Blackmar v. Guerre, 342 U.S. 512, 514-15 (1952); Smallwood v. United States, 358 F. Supp. 398, 407 (E.D. Mo. 1973). Such authorization has not been granted for the Defendant. ESP Fidelity Corp. v. Dep't of Hous. and Urban Dev., 512 F.2d 887, 890 (9th Cir. 1975); Evans v. United States Veterans Admin. Hosp., 391 F.2d 261, 262 (2d Cir. 1968), cert. denied, 393 U.S. 1040 (1969); Osorio v. Veterans Admin., 514 F. Supp. 94, 96 (P.R. 1981); Colorado v. Veterans Admin., 430 F. Supp. 94, 96 (P.R. 1981); Colorado v. Veterans Admin, 430 F. Supp. 551, 557-8 (Colo. 1977), cert. denied, 444 U.S. 1014 (1980). Because Plaintiff sues Defendant eo nomine, this Court may not exercise jurisdiction over the claim.
Plaintiff argues that because he is not an attorney, and because he does not fully understand the eo nomine issue, he should be excused from its consequences. Objection at 4. However, the general proposition that "ignorance of the law is no excuse" applies here in full force. E.g. Graham-Humphreys v. Memphis Brooks Museum of Art, Inc., 209 F.3d 552, 561 (6th Cir. 2000) (holding that "even a ro se litigant, whether a plaintiff or a defendant, is required to follow the law");McNeil v. United States, 508 U.S. 106, 113 (1993) ("We have never suggested that procedural rules in ordinary civil litigation should be interpreted so as to excuse mistakes by those who proceed without counsel."). Plaintiff's ignorance regarding eo nomine suits does not change the law's application here.
E. Exhaustion of Administrative Remedies
Plaintiff is still entitled to have his complaints heard and adjudicated under the review scheme established by Chapter 71 of Title 38 of the United States Code. Initiation of this procedure requires filing a notice of disagreement with the Department of Veteran Affairs by September 19, 2003, that expresses disagreement with the decision to reduce his veteran pension benefits and his desire for appellate review of that decision.See, 38 U.S.C. § 71; 38 C.F.R. § 20.
Plaintiff claims that he has already filed a notice of disagreement by means of a letter dated September 28, 2002, and that the failure to respond to this letter entitles him to review in this Court. However, in general, a party may not seek judicial review of an administrative action until all administrative remedies have been exhausted. E.g., Myers v. Bethlehem Shipbuilding Corp., 303 U.S. 41, 50-51 (1938). Therefore, the question of whether or not the letter of September 28, 2002 constitutes a valid notice of disagreement is moot. Even if the letter should be regarded as a notice of disagreement, Plaintiff has not exhausted his administrative remedies because he may still avail himself of the statutory appeals process by following the prescribed procedure before September 19, 2003. Because of the continuing availability of administrative remedies, review in this Court is inappropriate. Defendant's Motion to Dismiss is granted.
IV. CONCLUSION
For the reasons set forth above and based on all the files, records, and proceedings herein, IT IS HEREBY ORDERED that:
1. The RR [Docket No. 31] is ADOPTED,
2. Plaintiff's Motion for Amended Complaint and Summary Judgment [Docket No. 11] is DENIED,
3. Plaintiff's Motion to Dismiss Defendant's Motion for Summary Judgment [Docket No. 25] is DENIED,
4. Defendant's Motion to Dismiss [Docket No. 16] is GRANTED, and
5. Plaintiff's Complaint [Docket No. 1] is DISMISSED WITHOUT PREJUDICE for lack of jurisdiction.