Summary
dismissing prisoner's claim seeking medical treatment from VA while incarcerated for lack of subject matter jurisdiction
Summary of this case from BROWDER v. HAASOpinion
Case No. 02-3279-JTM
November 4, 2003
MEMORANDUM AND ORDER
Pro se plaintiff Phillip A. Moore is a military prisoner at the U.S. Disciplinary Barracks (USDB) at Fort Leavenworth, Kansas. Moore brought the present action against the Department of Veterans Affairs on August 30, 2002, alleging he has been wrongfully denied health and pension benefits after his court-martial, incarceration, and dishonorable discharge. He seeks declaratory and injunctive relief, a writ of mandamus, and any other appropriate relief.
Moore is the only plaintiff in the present action. A pleading entitled "Complaint — Class Action" was filed in this case by 87 other USDB inmates on September 6, 2002. However, the court denied the motion for class certification on April 24, 2003, which it interpreted to have been filed on behalf of plaintiff Phillip A. Moore. The remaining 87 inmates are not parties to the present action, and will be shown as terminated on the docket sheet.
Only one of the 87 has paid a partial filing fee. Only one (Rochester Thomas) has filed a Motion to Proceed In Forma Pauperis (Dkt. No. 16). The motion will be denied. As noted above, none of the putative class members are before the court.
The VA has moved to dismiss Moore's claims under Fed.R.Civ.P. 12(b)(1) or, in the alternative, for failure to state a claim upon which relief may be granted under Fed.R.Civ.P. 12(b)(6). It argues that, as a military prisoner, Moore is explicitly barred from receiving pension or health benefits under 38 U.S.C. § 105(b).
The court finds that subject matter jurisdiction does not exist as to Moore's claims, since they are barred by sovereign immunity. Moore relies on a provision in the Administrative Procedures Act (APA), in support of his contention that sovereign immunity has been waived, 5 U.S.C. § 702. But this argument is without merit. APA waiver under Chapter 7 will be found only if there are no other federal statutes precluding judicial review. See 5 U.S.C . § 701. Here, 38 U.S.C. § 511 expressly provides that the Court of Appeals for Veterans Claims is the exclusive forum for reviewing decisions regarding veterans' benefit claims. 5 U.S.C. § 702 does not establish waiver of sovereign immunity in light of the statutory scheme created by Congress for the review of veterans' benefit claims.
By means of the Veterans' Judicial Review Act (VJRA), Pub.L. No. 100-687, Div. A § 101, 102 Stat. 4105 (1988), Congress has carefully constructed a separate and multi-tiered system of judicial review for the consideration of pension and benefit claims by service members founded on the United States Court of Appeals for Veterans Claims. Appeals from the Court of Appeals for Veterans Claims are made to the United States Court of Appeals for the Federal Circuit, and from there to the United States Supreme Court. This procedure is both adequate and exclusive, and precludes the present litigation in United States District Court. 38 U.S.C. § 511(a). SeeBeamon v. Brown, 125 F.3d 965, 967 (6th Cir. 1997).
The VJRA serves two legitimate legislative goals: protecting the federal courts and VA from time-consuming veterans' benefits litigation, and providing a specialized forum where the technical and complex decisions regarding such cases can be made more appropriately. See Weaver v. United States, 98 F.3d 518 (10th Cir. 1996).
The plaintiff here cannot avoid exclusive nature of VJRA jurisdiction merely by denominating his claim as constitutional in nature. First, the VJRA bars consideration of facial constitutional attacks on veterans' benefits legislation. Velayo v. V.A. Domiciliary Aftercare Program, No. 01-3330, 2002 WL 1272237 at *1 (10th Cir. June 10, 2002); Wanlessv. Veterans Administration, No. 95-5177, 1995 WL 681471 at *2 (10th Cir. Nov. 16, 1995). But see Scherer v. United States, No. 02-3067, 2003 WL 191463 at *1 (10th Cir. Jan. 29, 2003). Second, even assuming the court could consider such constitutional attacks, Moore's claim cannot succeed Such a constitutional claim will not be considered where it is only a cloak for a challenge to a benefit decision. Sugrue v. Derwinski, 26 F.3d 8, 11 (2d Cir. 1994). Moore's claim here, although styled as a personal constitutional injury, is essentially and ultimately a challenge to the denial of his claim for benefits. Maintenance of the present action is barred by 38 U.S.C. § 511(a) for lack of subject matter jurisdiction.
Further, the present action is precluded because Moore has failed to exhaust available administrative remedies. Moore has brought the present challenge to the VA's denial of benefits here rather than appealing the decision to the Board of Veterans' Appeals under 38 U.S.C. Chapter 71, i.e., he has attempted to seek judicial review in the district court. Moore has not pursued the matter through the exclusive administrative appeal process created under the VJRA. Because he has not exhausted his administrative remedies, the current claims against the VA are not ripe for judicial review. See Davis v. United States, 36 Fed. CI. 556, 560 (1996).
Because the court finds that sovereign immunity bars the present action, it need not address the additional contention of the VA that the case should be dismissed for failure to state a claim under Fed.R.Civ.P. 12(b)(6).
IT IS ACCORDINGLY ORDERED this 4th day of November, 2003 that the defendant's Motion to Dismiss (Dkt. No. 12) is hereby granted; the motion to proceed in forma pauperis of Rochester Thomas (Dkt. No. 16) is hereby denied, all as provided herein.