Opinion
Case No. 01-2496-JWL.
March 28, 2002
MEMORANDUM ORDER
Plaintiff Glen Townsend, proceeding pro se, alleges that he was negligently discharged from the Homeless Veterans Program and denied transportation benefits, and that the staff negligently failed to secure and store his clothes and other property. The matter is before the court on defendant's motion to dismiss or, alternatively, for summary judgment. (Doc. 8). Defendant argues that this court does not have subject matter jurisdiction over plaintiff's claim for negligently discharging him from the Homeless Veterans Program and denying him transportation benefits, and that the statute of limitations has run on plaintiff's claim related to his lost personal property. For the reasons set forth below, the motion is granted.
I. Uncontroverted Facts
Plaintiff was a resident of the Veterans Administration Medical Center (VAMC) Domiciliary in Leavenworth, Kansas, as a member of the Homeless Veterans Program (HVP) from May 25, 1999 until November 1999. In November, he left the VA Domiciliary in Leavenworth to attend a Veterans' Stand Down and to work in Kansas City, Missouri. After leaving the VA Domiciliary, plaintiff alleges that he tried to call the Domiciliary several times from Kansas City to check in but the number he was given was wrong. Consequently, according to plaintiff, despite telling the staff at a monthly meeting before he left that he would be working in Kansas City in the temporary labor market, he was discharged from the Domiciliary as absent without leave (AWOL) on or about November 22, 1999. Plaintiff also argues that he was improperly denied transportation back to the VA Domiciliary on a minibus owned by the Department of Veterans Affairs on November 17, 1999. Plaintiff returned to the VA Domiciliary in Leavenworth and picked up a bag of his belongings on or about December 22, 1999. According to plaintiff, his other clothes and belongings, including flannel shirts, short sleeve t-shirts, pleated front slacks, a starter jacket, a Sony AM-FM clock radio, a GE electronic hot water pot and a Burma shaving kit, were no longer available.
Apparently, residents in the Homeless Veterans Program are required to call and check in if they are going to be off the grounds for more than 24 hours.
Plaintiff filed an administrative tort claim on March 29, 2000, alleging loss of his personal property, including the items listed above, from the VA Leavenworth Domiciliary. Plaintiff's administrative claim was denied on July 26, 2000. He signed the certified mail receipt on July 31, 2000. The denial letter set forth plaintiff's right to request reconsideration or to file suit within six months of the denial of his claim. On August 1, 2000, plaintiff filed for reconsideration with the Office of General Counsel. On November 2, 2000, plaintiff's request for reconsideration was denied. Plaintiff filed suit in this court on October 10, 2001, alleging the staff's negligence led to the loss of his personal property and that he was negligently discharged from the Homeless Veterans Program.
III. Plaintiff's Claim For Veteran's Benefits
Plaintiff alleges that the Homeless Veterans Program staff negligently discharged him from the program and denied him transportation benefits. He alleges that his failure to telephone the program to check in, which according to him was the cause of his discharge from the program, was not his fault. He urges the court to review his claim pursuant to 28 U.S.C. § 2401(b). Defendant argues that the cause of action should be dismissed for lack of subject matter jurisdiction because plaintiff is asking this court to review an administrative decision made by the VA Domiciliary to terminate benefits, in the form of dismissal from the Veterans Homeless Program and denial of transportation on the VA minibus. The court agrees that plaintiff's claim is seeking review of VA administrative decisions and, consequently, the court does not have subject matter jurisdiction over plaintiff's claim.
Federal law states that veterans' benefits decisions are not subject to review in the federal courts:
The Secretary [of Veterans' Affairs] shall decide all questions of law and fact necessary to a decision by the Secretary under a law that affects the provisions of benefits by the Secretary to veterans. . . . [T]he decision of the Secretary as to any such question 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.38 U.S.C. § 511(a) (emphasis added); see also Weaver v. United States, 98 F.3d 518, 519-20 (10th Cir. 1996) (affirming district court's dismissal of a plaintiff's claim for veterans' disability benefits); Johnson v. Robinson, 415 U.S. 361, 370 (1974) (explaining federal statute's dual purpose of ensuring consistent decisions regarding benefits and VA policy and insulating VA courts from veterans benefits litigation) (construing prior statute, 38 U.S.C. § 211(a)); H.R. Rep. No. 1166, 91st Cong., 2d Sess. (1970), reprinted in 1970 U.S.C.C.A.N. 3723, 3731 ("Congress intends to exclude from judicial review all determinations with respect to noncontractual benefits provided for veterans. . . .")).
Plaintiff does not allege a claim for anything other than the termination of his veteran benefits. But to the extent that he is trying to bring a tort action seeking money damages from the VA Domiciliary, such a claim is barred by the United States sovereign immunity. Weaver, 98 F.3d at 520. Plaintiff's papers point to 28 U.S.C. § 2401(b) as a basis for finding a waiver of sovereign immunity. While plaintiff is correct that one basis for waiver of sovereign immunity is the Federal Tort Claims Act (FTCA), an act which gives the district court subject matter jurisdiction over tort claims against the United States falling under 28 U.S.C. § 2401(b), federal jurisdiction exists only after the tort claim has run its course through the administrative process. 28 U.S.C. § 2675(a). In the instant action, plaintiff did not file an administrative claim relating to termination from the program and denial of transportation benefits. Unlike plaintiff's negligence claim for his lost personal property, the claim for denial of veteran benefits was not raised in plaintiff's administrative tort claim. Therefore, any potential claim plaintiff may allege under the FTCA is barred because exhaustion of administrative remedies is a jurisdiction prerequisite to bringing such a claim. 28 U.S.C. § 2675(a); McNeil v. United States, 508 U.S. 106, 110 (1993); Pipkin v. United States Postal Serv., 951 F.2d 272, 273 (10th Cir. 1991).
III. Plaintiff's Claim for Lost Personal Property
Plaintiff filed Administrative Claim No. 657/02, an administrative tort claim alleging loss of personal property, in a timely fashion on March 29, 2000. The claim was denied by Regional Counsel David E. Davenport by certified letter on July 26, 2000. Plaintiff then filed a motion for reconsideration of the Regional Counsel's decision. The motion for reconsideration was denied by certified letter on November 2, 2000. Plaintiff subsequently filed suit in this court on October 10, 2001, nearly a year after his motion for reconsideration was denied. Defendant argues that plaintiff's claim should be dismissed because plaintiff failed to comply with the FTCA mandate that an appeal from an administrative decision must be filed within six months of the administrative decision. The court agrees.
According to 28 U.S.C. § 2401(b), "[a] tort claim against the United States shall be forever barred unless it is . . . begun within six months after the date of mailing . . . of notice of final decision of the claim by the agency to which it was presented." Within six months of a "final denial," a claimant may either file suit in district court, in accordance with 28 U.S.C. § 2401(b), or file a request for reconsideration with the agency, pursuant to 28 C.F.R. § 14.9(b). If the claimant is dissatisfied with the decision on the request for reconsideration, he or she has six months from the date of mailing of the denial to bring suit in district court. 28 C.F.R. § 14.9(b).
In the instant action, plaintiff filed suit in this court on October 10, 2001, nearly a year after his motion for reconsideration was denied by certified letter mailed on November 2, 2000. Plaintiff implies that he never received the denial of his motion to reconsider. The uncontroverted evidence establishes, however, that the denial of plaintiff's motion for reconsideration was mailed, by certified mail, to 821 Harrison Street, Kansas City, Missouri, plaintiff's residence. For whatever reason, plaintiff chose not to claim the letter any of the times delivery was attempted. Regardless of whether plaintiff received the denial letter, under the plain language of 28 U.S.C. § 2401(b) the limitations period began to run on "the date of mailing . . . of notice of final denial of the claim by the agency to which it was presented." Thus, the limitations period began to run on November 2, 2000. Plaintiff does not argue that the statute should be tolled and the court concludes that tolling the statute would be inconsistent with federal law. The Tenth Circuit has held that absent clear congressional intent, the FTCA limitations period is not subject to equitable tolling. Pipken v. United States Postal Service, 951 F.2d 272, 275 (10th Cir. 1991). In sum, plaintiff's claim is barred by federal law because the six month time period to file suit in the district court had already passed.
IT IS THEREFORE ORDERED BY THE COURT THAT defendant's motion to dismiss (Doc. 8) is granted.
IT IS SO ORDERED.