Opinion
Case No. 01-2277-JWL
October 3, 2001
MEMORANDUM ORDER
The pro se plaintiff Benjamin Velayo filed suit against the defendant Veterans' Administration Domiciliary Aftercare Program ("VA") in the District Court of Leavenworth County, Small Claims Division. The plaintiff alleges that the defendant unjustifiably terminated his transportation benefits. The defendant removed the action to federal court. This matter is presently before the court on the defendant's motion to dismiss for lack of jurisdiction and insufficiency of service of process. (Doc. 8). The court grants the motion to dismiss for lack of jurisdiction because it concludes that it is not permitted to review decisions regarding VA benefit claims. Defendant also argues the United States is the proper party defendant. The court agrees.
A suit is considered one against the United States if the judgment sought would expend itself on the public treasury. Dugan v. Rank, 372 U.S. 609, 620, 83 S.Ct. 999, 1006 (1963); see also Weaver, 98 F.3d at 519 (affirming district court's decision to substitute the United States as the proper party in an action to recover veterans disability benefits). Here the plaintiff is seeking money damages from the VA Domiciliary Aftercare Program, a federal government program. A judgment would expend money from the public treasury. The United States is the proper defendant.
According to the plaintiff's small claims court petition, he seeks compensation for damages allegedly caused by the defendant's decision to terminate his transportation benefits. The defendant removed the action to federal court pursuant to 28 U.S.C. § 1441 and 1442(a)(1). The defendant argues this case should be dismissed because 38 U.S.C. § 511 (a) precludes federal court review of VA administrative decisions. The plaintiff responds by arguing his claim is a civil lawsuit and not a complaint about his veterans' benefits.
The defendant also argues that service of process was improper; however, it is unnecessary to address that argument because the court holds that it does not have jurisdiction over the plaintiff's claim.
Although the plaintiff alleges that his case is a civil lawsuit and not a claim for veterans' benefits, the court construes the plaintiff's small claims court petition as a claim for money damages caused by the termination of the plaintiff's transportation benefits. Federal law regarding veterans' benefits provides that decisions regarding veterans' benefits are unreviewable 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 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).
The plaintiff did not allege a claim for anything other than the termination of his transportation benefits. But to the extent that he is trying to bring a tort action seeking money damages from the VA Domiciliary Aftercare program, such a claim is barred by the United States' sovereign immunity. Weaver, 98 F.3d at 520. The plaintiff's small claims court petition and response point to no basis for finding a waiver of sovereign immunity. One potential basis for waiver of sovereign immunity is the Federal Tort Claims Act (FTCA). Any potential claim the plaintiff may allege under the FTCA, however, is barred because exhaustion of administrative remedies is a jurisdictional prerequisite to bringing such a claim. 28 U.S.C. § 2675 (a); McNeil v. United States, 508 U.S. 106, 110, 113 S.Ct. 1980, 1984, 124 L.Ed.2d 21 (1993); Pipkin v. United States Postal Serv., 951 F.2d 272, 273 (10th Cir. 1991). Therefore, no proper grounds exist for jurisdiction in federal court and the plaintiff's claim is dismissed.
IT IS THEREFORE ORDERED BY THE COURT THAT the defendant's motion to remand is denied.
IT IS SO ORDERED.
JUDGMENT IN A CIVIL CASE
Decision by Court. This action came before the Court. The issues have been considered and a decision has been rendered.IT IS ORDERED AND ADJUDGED
pursuant to the Memorandum and Order filed on October 3, 2001, that the plaintiff take nothing, that the action is dismissed, and that the defendant United States of America shall recover of plaintiff Benjamin Velayo its costs of action.