R. DAVID PROCTOR, UNITED STATES DISTRICT JUDGE.
This case is before the court on Defendants' Motion and Brief to Dismiss, or in
Plaintiff is pro se. His Complaint and Amended Complaint
The scant facts in his Amended Complaint state that Plaintiff enlisted in the United States Air Force in 1972, and was discharged in 1974 for medical reasons. (Doc. # 6). He then made claims for Veteran's benefits with the United States Department of Veterans Affairs ("VA"). (Id.). Plaintiff alleges that his military records show the onset of his disabilities, and that he raised the existence of racial disparity in educational and training opportunities, and in promotions. (Id.). He is an Alabama resident and avers that the Alabama Department of Veterans Affairs ("ADVA") in Montgomery, Alabama, delayed and denied his benefits, denied him proper medical treatment, and violated his civil rights. (Id.). Plaintiff relocated to Georgia. (Id.). There, the VA in Atlanta helped him obtain his military and medical records. (Id.). Although he does not state when he left Georgia, Plaintiff signs his court filings with an address in Birmingham, Alabama, which is his address of record. (E.g., Id.). Plaintiff's primary claims appear to be for Veteran's benefits, medical negligence, and deprivation of civil rights.
In their Motion, Defendants argue that pursuant to Federal Rules of Civil Procedure 12(b)(1), 12(b)(3), and 12(b)(5), this court lacks jurisdiction over this case, and Plaintiff has failed to comply with (or plead that he complied with) requisite conditions precedent and exhaust his administrative remedies. (Docs. # 12, 15). Specifically, Defendants contend that sovereign immunity and the Veterans' Judicial Review Act ("VJRA"), 38 U.S.C. § 511, preclude judicial review of the Veteran's benefits claim by this court. (Doc. # 12). Further, Defendants assert that Plaintiff failed to file an administrative claim pursuant to the Federal Tort Claims Act ("FTCA"), 28 U.S.C. § 2675, for his medical negligence claim. (Id.). Defendants also claim that 42 U.S.C. § 1983 only applies to the States, the Supreme Court has refused to extend Section 1983 claims based upon the federal Constitution against the United States or its federal agencies. (Id.). And, Defendants argue Title VII and the Civil Service Reform Act provide the exclusive judicial
Defendants also claim that there are no genuine issues of material fact in dispute. See Federal Rule of Civil Procedure 56. Defendants have attached as exhibits to their Motion the following documents: Plaintiff's Complaint (Doc. # 1); Plaintiff's Amended Complaint (Doc. # 6); and a declaration by William Robert Boulware, an attorney with the VA Office of District Counsel in Montgomery, Alabama. (Doc. # 12). In his declaration, Mr. Boulware states that, as the primary handler for claims filed in Alabama under the FTCA for the past three years, he has not received a tort claim filed by or on behalf of Plaintiff. (Id. at DEX-3). Further, Mr. Boulware states that he reviewed Defendants' electronic tracking system and found no record of a tort claim by Plaintiff. (Id.).
Plaintiff has filed an opposition brief. Therein, he asserts that the United States Court of Appeals for Veterans' Claims in Washington, D.C. has established that it is not a court of equity, and informed Plaintiff of the district courts' original jurisdiction pursuant to 28 U.S.C. § 1331 ("The District Courts shall have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States."). (Doc. # 16).
Certain of Plaintiff's claims do require the exhaustion of administrative remedies before they may be filed in this court. (See Docs. # 6, 12, 16). Thus, this court ordered Plaintiff to show good cause in writing on or before December 30, 2015, that he has satisfied the administrative prerequisites for his medical negligence and statutory employment discrimination claims. (Doc. # 23). The court also ordered Plaintiff to set forth the time at which his claims arose, the timing of his administrative exhaustion, and to explain why the court should not dismiss his claims for Veteran's benefits and violations of civil and federal constitutional rights. (Id.).
On December 28, 2015, Plaintiff filed a response to that Order. (Doc. # 24). In that response, he asserts that his claims commenced in 1974, and he appealed them to Veteran's Appeals Court on July 25, 2014. (Id.). Additionally, Plaintiff stated that the Veteran's Appeals Court "concluded that there were issues of the Law cited by the Plaintiff of U.S. Constitutional significance and pertinent in the just enforcement under U.S. Laws, and The Constitution Of The United States. [That] court further revealed that it was not a Court of relief in equity and without Jurisdiction," and reminded Plaintiff of the original jurisdiction of district courts to hear such claims.
When "a Rule 12(b)(1) motion is filed in conjunction with other Rule 12 motions, the court should consider the Rule 12(b)(1) jurisdictional attack before addressing any attack on the merits." Ramming v. United States, 281 F.3d 158, 161 (5th Cir.2001) (citing Hitt v. City of Pasadena, 561 F.2d 606, 608 (5th Cir. 1977));
A Rule 12(b)(1) motion permits a facial or factual attack. Willett v. United States, 24 F.Supp.3d 1167, 1173 (M.D.Ala. 2014) (citing McElmurray v. Consol. Govt. of Augusta-Richmond Cty., 501 F.3d 1244, 1251 (11th Cir.2007)). "Facial attacks on the complaint `require[] the court merely to look and see if [the] plaintiff has sufficiently alleged a basis of subject matter jurisdiction, and the allegations in his complaint are taken as true for the purposes of the motion." Garcia v. Copenhaver, Bell & Assocs., M.D.'s, P.A., 104 F.3d 1256, 1261 (11th Cir.1997) (quoting Lawrence v. Dunbar, 919 F.2d 1525, 1528-29 (11th Cir. 1990)) (other citations omitted). On the other hand, "factual attacks" challenge "the existence of subject matter jurisdiction in fact, irrespective of the pleading, and matters outside the pleadings, such as testimony and affidavits, are considered." Id. In other words, when a party raises a factual attack to subject-matter jurisdiction, the court is not obligated to take the allegations in the complaint as true, but may consider extrinsic evidence such as affidavits. Odyssey Marine Exploration, Inc. v. Unidentified Shipwrecked Vessel, 657 F.3d 1159, 1169 (11th Cir.2011) (citations omitted).
Of course, the analysis of a factual attack does not simply end with a consideration of extrinsic evidence when a factual attack on subject matter jurisdiction also implicates an element of the cause of action. See Garcia, 104 F.3d at 1261. If an element of a cause of action is implicated,
Id. (quoting Williamson v. Tucker, 645 F.2d 404, 415-16 (5th Cir.1981), cert. denied, 454 U.S. 897, 102 S.Ct. 396, 70 L.Ed.2d 212 (1981)) (changes in original). Stated otherwise, when a Rule 12(b)(1) motion attacks the merits of a cause of action, a district court should review those attacks under the standards of a Rule 12(b)(6) motion to dismiss for failure to state a claim, or a Rule 56 motion for summary judgment. Accordingly, to survive a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), a complaint must "state a claim to relief that is plausible on its face," Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). This occurs "when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009). And, pursuant to Federal Rule of Civil Procedure 56(c), summary judgment is proper "if the pleadings,...together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).
For the reasons stated below, Defendants' Motion will be treated in part as a Rule 12(b)(6) challenge where the jurisdictional facts are intertwined with the merits and in part as a Rule 12(b)(1) facial challenge to jurisdiction.
The majority of Plaintiff's Amended Complaint appears to allege claims for Veteran's benefits.
In 1988 Congress enacted the VJRA "to create an opportunity for veterans to challenge VA benefits decisions, but also to assign exclusive jurisdiction over their claims to a centralized systems comprised
Moreover, to the extent Plaintiff attempts to couch his claims for benefits as a deprivation of constitutional rights, that maneuver cannot rescue him from dismissal. "A veteran may not circumvent these jurisdictional limitations [set forth in the VJRA] by cloaking a benefits claim in constitutional terms." Karmatzis, 553 Fed. Appx. at 619 (citing Veterans for Common Sense v. Shinseki, 678 F.3d 1013, 1023 (9th Cir.2012) (collecting cases)); accord Pate v. Dept. of Veterans Affairs, 881 F.Supp. 553, 556 (M.D.Ala.1995) (same). This is because the VJRA provides that "all questions of law and fact" relating to benefits must be determined within the contours of that statute. 38 U.S.C. § 511(a) (emphasis added). Therefore, this court has no jurisdiction over any constitutional claims Plaintiff alleges that relate to benefits decisions, including his claim that racial disparity played into the decisions affecting his benefits. See Cheves v. Dept. of Veterans Affairs, 227 F.Supp.2d 1237, 1246-47 (M.D.Fla.2002); see also Hicks v. Veterans Admin., 961 F.2d 1367, 1368-70 (8th Cir. 1992) (holding that plaintiff's claim of constitutional retaliation under the First Amendment, leading to a reduction in his benefits, may only be heard in accordance with the VJRA).
However, this analysis does not yet end the court's inquiry because "under § 511(a) certain constitutional claims are not precluded from review by the district court." Pate, 881 F.Supp. at 556 (citing Larrabee by Jones v. Derwinski, 968 F.2d 1497, 1500 (2d Cir.1992)). District courts retain jurisdiction over facial challenges to acts of Congress or an agency rule under the scope of 5 U.S.C. § 552 (including VA regulations that violate other lawful acts of Congress). See Traynor v. Turnage, 485 U.S. 535, 544, 108 S.Ct. 1372, 99 L.Ed.2d 618 (1988) (holding that "the question whether a [VA] regulation violates the Rehabilitation Act is not foreclosed from judicial review by" the VJRA); Beamon, 125 F.3d at 972-73. But, this case does not present such a challenge.
Here, the court construes Plaintiff's complaint to challenge what he contends is unequal treatment of veterans based on race. (Doc. # 6). But that claim for unequal treatment concerns, in substance, the handling of Plaintiff's benefits claims. The
Plaintiff also advances claims for what appear to be medical negligence and employment discrimination by the VA. These claims are separate and distinct from his claims for benefits and are not governed by the VJRA. See Shinseki, 678 F.3d at 1023 (holding that district courts could consider FTCA claims alleging negligence against VA doctors because it would not have any effect on benefits); see also generally Slater, 175 Fed.Appx. 300 (recognizing the difference between claims relating to benefits and administrative tort claims). Nevertheless, both claims are barred because Plaintiff did not exhaust the administrative remedies required for this court to obtain jurisdiction over them.
Plaintiff asserts claims for medical negligence. The claims sound in tort. A medical negligence claim against the VA implicates the sovereign immunity of the federal government. See Zelaya v. United States, 781 F.3d 1315, 1321 (11th Cir.2015). "Absent a waiver, sovereign immunity shields the Federal Government and its agencies from suit." F.D.I.C. v. Meyer, 510 U.S. 471, 475, 114 S.Ct. 996, 127 L.Ed.2d 308 (1994). This is because sovereign immunity is jurisdictional in nature. Id. Accordingly, in order for there to be a statutory waiver of immunity for torts committed by federal employees, Congress has required that a plaintiff first satisfy certain administrative prerequisites under the FTCA. 28 U.S.C. §§ 1346, 2671-2680; see 28 U.S.C. § 2675; see also Meyer, 510 U.S. at 475-76, 114 S.Ct. 996; 28 U.S.C. § 1346(b).
The FTCA provides in pertinent part:
28 U.S.C. § 2675(a). "This procedure is jurisdictional and cannot be waived." Lykins v. Pointer, Inc., 725 F.2d 645, 646 (11th Cir.1984). The written notice must be provided in writing to the appropriate federal agency within two years after the
Here, Defendants attached to their dismissal motion the Boulware Declaration. (Doc. # 12 at DEX-3). The Declaration states that the VA has no records of any written notice of a tort claim filed by Plaintiff. (Id.). Plaintiff did not provide any substantive response to that statement in his opposition brief or in response to the court's Order To Show Cause. (See Docs. # 16, 24). His closest argument on this point appears to be his reference to the closure of his suit in Veteran's Appeals Court. (See Doc. # 16 at Item 1). However, that case was an appeal of a denial of benefits. See Walton v. McDonald, No. 14-2664, slip op. (Vet.App. July 16, 2015). Therefore, the court concludes that because Plaintiff did not comply with the FTCA, this court has no jurisdiction over his medical negligence claim against the VA.
In his Amended Complaint, Plaintiff appears to advance allegations of racial disparity in training opportunities and promotions. (See Doc. # 6 at ¶ 6). Although the court is doubtful that these claims are cognizable, it (quite liberally) construes these averments as allegations of employment discrimination. The Civil Rights Act of 1964, as amended by the Civil Service Reform Act, "provides the exclusive judicial remedy for claims of discrimination in federal employment." Brown v. Gen. Servs. Admin., 425 U.S. 820, 835, 96 S.Ct. 1961, 48 L.Ed.2d 402 (1976); see also 42 U.S.C. § 2000e-16(c). Plaintiff has not pled or otherwise pointed to a receipt of notice of a final adverse employment action by the VA, or to an Equal Employment Opportunity Commission notice as required by Section 2000e-16(c). To be sure, Plaintiff attached to his responsive brief the Veteran's Appeals Court's mandate, stating: "The time for reconsideration, review, or appeal of the Court's decision has expired. That decision is final and is not subject to further review." (Doc. # 16 at Item 1). But, as is clear from Veteran's Appeals Court's Memorandum Decision, that case concerned Plaintiff's claim for veteran's benefits, not an employment discrimination claim. See Walton, No. 14-2664, slip op. (Vet. App. July 16, 2015). The record is clear: Plaintiff has not complied with the administrative perquisites of the Civil Rights Act concerning the filing of an employment discrimination claim. Accordingly, any such claims are due to be dismissed.
In order to state a claim under 42 U.S.C. § 1983, a plaintiff must allege deprivation of constitutional rights, and must show that the deprivation was committed by a person acting under color of state law.
The next question is whether Plaintiff has attempted to advance a Bivens claim and whether he may do so here. In Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971), the Supreme Court "recognized for the first time an implied private action for damages against federal officers alleged to have violated a citizen's constitutional rights." Corr. Servs. Corp. v. Malesko, 534 U.S. 61, 66, 122 S.Ct. 515, 151 L.Ed.2d 456 (2001). To be held liable under Bivens, a federal official must have participated personally in the alleged wrongdoing, and liability cannot be premised upon a theory of vicarious liability or respondeat superior. See Iqbal, 556 U.S. at 675-77, 129 S.Ct. 1937 ("Because vicarious liability is inapplicable to Bivens ... suits, a plaintiff must plead that each Government-official defendant, through the official's own individual actions, has violated the Constitution."). Here, Plaintiff's Complaint and Amended Complaint do not even mention the Secretary of the VA outside of the case caption, and thus neither pleading states any facts implicating the Secretary or suggesting that the Secretary was personally involved in any of the alleged misconduct. (See Docs. # 1, 6). Therefore, to the extent Plaintiff's citation to Section 1983 in his pleadings could be liberally construed to assert a Bivens claim against the Secretary, "such claim would in any event require dismissal under Rule 12(b)(6) for failure to state a claim upon which relief can be granted." Halim, 951 F.Supp.2d at 208.
Plaintiff also names ADVA — an Alabama state agency — as a Defendant. (Doc. # 6); see Ala. Code § 31-5-2. Thus, a Section 1983 claim arguably may lie against ADVA (as a state actor) for constitutional violations. See West, 487 U.S. at 48, 108 S.Ct. 2250. However, it is unclear what precise cause of action Plaintiff seeks to assert against ADVA. (See Doc. # 6). To be sure, Plaintiff states that ADVA misrepresented him, and denied him "proper medical examinations, medical treatment and proper care, by qualified and professionally certified medical examiner." (Id. at 2-3). And, obviously one of ADVA's statutory duties is to assist veterans in presenting and pursuing claims against the United States for veteran's benefits arising under laws of the United States or of Alabama if that veteran has given ADVA a power of attorney. Ala. Code § 31-5-4; see also Ala. Admin. Code r. 920-X-3-.01. But, an allegation that ADVA made an improper misrepresentation amounts to a negligence or legal malpractice claim, just as an allegation of improper medical care would amount to a medical malpractice claim. And, "[a] malpractice [claim] will not lie under [Section] 1983" because it is a claim arising under state common law — not a constitutional violation. Bass v. Sullivan,
Plaintiff appears to assert a claim pursuant to Title VI of the Civil Rights Act of 1964 (42 U.S.C. § 2000d et seq.) ("Title VI"). (See Doc. # 6 at ¶ 2). Section 601 of Title VI provides that no person shall, "on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity" covered by Title VI. 42 U.S.C. § 2000d; Alexander v. Sandoval, 532 U.S. 275, 279, 121 S.Ct. 1511, 149 L.Ed.2d 517 (2001). The statutory definitions of "program or activity" and "program" do not include federal agencies. See 42 U.S.C. § 2000d-4a. And, Title VI does not apply to programs conducted directly by federal agencies such as the VA. Halim, 951 F.Supp.2d at 207. Because Title VI does not apply to the VA, it also is inapplicable to the Secretary of the VA, and Plaintiff's claims in this regard are due to be dismissed.
To begin, it is unclear whether Plaintiff alleges a Title VI claim against ADVA. Nevertheless, the court will assume for the sake of argument that Plaintiff has advanced such a claim. Title VI actually applies to ADVA (at least with respect to the issues raised in this case).
A plaintiff may only bring claims for intentional discrimination under
And, notwithstanding the foregoing, courts in the Eleventh Circuit hold that to establish a prima facie case under Title VI, a plaintiff must show (1) a defendant receives federal funds, (2) the plaintiff was discriminated against, and (3) the plaintiff's race, color, or national original was the motive behind that discriminatory conduct. See, e.g., Camellia Therapeutic Foster Agency, LLC v. The Ala. Dept. of Human Res., No. 06-cv-735, 2007 WL 3287342, at *3 (M.D.Ala. Nov. 5, 2007); Ellis v. Morehouse Sch. Of Medicine, 925 F.Supp. 1529, 1549 (N.D.Ga.1996). Plaintiff alleges in a merely conclusory statement that he seeks redress under Title VI. (Doc. # 6 at ¶ 2). Similarly, he only provides conclusory statements of racial disparity concerning the provision of benefits to him, or claims of speaking out about racial disparity that are recorded in his military records from the 1970s. (See Doc. # 6). This court disregards "naked assertion[s]" without supporting factual allegations. Twombly, 550 U.S. at 557, 127 S.Ct. 1955. Therefore, even if a Title VI claim against ADVA could stand, Plaintiff has not pled one, and it is due to be dismissed.
Defendants also assert, pursuant to Federal Rule of Civil Procedure 12(b)(3), that venue is improper. (Doc. # 12). When a defendant asserts a defense of improper venue the plaintiff must make a prima facie showing of venue. Delong Equip. Co. v. Wash. Mills Abrasive Co., 840 F.2d 843, 845 (11th Cir.1988). "In considering a motion under Rule 12(b)(3), a court must accept the facts in a plaintiff's complaint as true." Malik v. Hood, No. 11-cv-81090, 2012 WL 1906306, at *1 (S.D.Fla. May 25, 2012) (citations omitted). Taking Plaintiff's factual allegations as true, the causes of action he pleads against ADVA concern ADVA in Montgomery, Alabama, which is located in the Middle District of Alabama. This court encompasses the Northern District of Alabama. Therefore, if Plaintiff has a Title VI claim against ADVA, that claim is due to be dismissed because it has been filed in the wrong venue.
Plaintiff names fictitious parties in the caption of his Amended Complaint ("Agents, Assigns," etc.). (Doc. # 6). "As a general matter, fictitious-party
For these reasons, Defendants' Motion (Doc. # 12) is due to be granted and this case is due to be dismissed. A separate order will be entered.
