KEITH STARRETT, District Judge.
This cause came before the Court on Defendants' Motion to Dismiss [17]. Plaintiffs have responded [21], and Defendants filed a reply [22]. The Defendants move to dismiss the action pursuant to Federal Rule of Civil Procedure 12(b)(1), arguing that the Court lacks subject matter jurisdiction. The Court acknowledges from the outset that complaints filed by pro se plaintiffs are held to a less stringent standard than complaints filed by lawyers, and documents filed by pro se litigants are "to be liberally construed . . . ." Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per curiam). This Court has given Plaintiffs' Complaint and response to the instant motion a thoughtful reading, but finds, nevertheless, in light of the relevant legal authority, Plaintiffs are unable to support federal jurisdiction. Consequently, for the reasons that follow, the Court grants Defendant's Motion to Dismiss.
Plaintiff Linda Holmes ("Ms. Holmes") brings this suit on her own behalf and on behalf of her son, Kentron Holmes ("Veteran Holmes") (collectively, "Plaintiffs"), a disabled veteran for whom she is the full-time caregiver and for whom she has a power of attorney. See [2] at I. A
In 2002 Veterans Holmes was diagnosed with a service-connected brain disease that presented as paranoid schizophrenia. [2] at III A. In 2003, Veteran Holmes first attempted suicide while suffering from hallucinations. Id. In 2006, he made his second attempt by cutting his own throat. Id. To prevent her son from successfully committing suicide, Ms. Holmes resigned from her job to provide full-time, in-home care for Veteran Holmes in September 2006. Id. By 2011 regardless of the medications prescribed, Veteran Holmes had suffered for over a decade from auditory and visual hallucinations, as well as other mental and social disabilities, including chronic paranoia. Id.
After five years of caring for Veteran Holmes without steady or substantial income, Ms. Holmes was accepted into the Caregivers Support Program in May 2011
[8-2] (hereinafter referred to as "Notice of Rights").
Plaintiffs claim that although Veteran Holmes still required the same level of in-home caregiving services, by 2015, the culture at the VAMC in Jackson had changed and the coordinators in the program began to make petty verbal assessments regarding Veteran Holmes' need for care. [2] at IV.B. Plaintiffs also claim that over the course of a year leading up to October 2015, Jackson CSP coordinators and the clinical review team intentionally concocted information, plotted against Plaintiffs, and falsified Veteran Holmes' medical records so as to "intentionally and maliciously" misattribute his mental illness and incompetency, which then led to a deliberate under-assessment Veteran Holmes' physical condition. [2] at IV.B. As a consequence of these deliberate acts, on October 16, 2015, Veteran Holmes' level of in-home health care was lowered from a Tier-3 to a Tier-1 level of care,
In the October 16, 2015 letter notifying Plaintiffs' of the reduction in benefits, the process for appealing stated: "You may appeal this decision in writing to the G.V. (Sonny) Montgomery VA Director or his/her designee, within 90 days of the date of this notice. A clinical appeal is your formal written request with substantiating documentation to support your dispute." [8-4] at p. 1. Ms. Holmes had asked for an updated Notice of Rights letter, but the follow up from the VMAC indicated that information regarding her right to appeal had been noted in the October 16, 2016 letter. [8-4] at p. 11. Plaintiffs also received a notice from the VA Caregiver Support Program office in Denver, Colorado, which included a Notice of Rights that was identical to the one Plaintiffs received in 2011, giving her 180 days to submit a disagreement. [8-4] at pp. 14-15.
In November 2015, Ms. Holmes filed an appeal of the VA's decision to lower the Tier level, which appeal was denied on December 15, 2015. [2] at IV. C.; [8-3] at pp. 11-26; [8-4] at p. 17. In the December 2015 notification letter, Ms. Holmes was advised:
[8-4] at p. 17. Plaintiffs claim that the decisionmakers implemented their own flawed appeal criteria, manipulating, modifying, and implementing it as they went along. [2] at IV.C. Plaintiffs allege the modified appellate criteria was strategically designed by the CSP coordinators to be disadvantageous for Plaintiffs, and that in an effort to humiliate Ms. Holmes, the December denial was mailed so that Ms. Holmes would receive the denial on Christmas Eve. Id.
Ms. Holmes then appealed the denial of her first appeal, as directed, to the VISN Director on December 30, 2015. [2] at IV. D; [8-3] at pp. 1-7. On January 28, 2016, Ms. Holmes was notified that there needed to be further medical evaluation to determine the proper tier but for the meantime she was reinstated back into the CSP at Tier Level 3 and the corresponding monthly stipend for Tier Level 3 would resume. [8-5] at p. 1. She was also provided back-payment to October 16, 2015. Id.
"Because of continued intent to commit actionable harm through and including 08 March 2018," Ms. Holmes filed a "Claim for Damage, Injury, or Death" with the VAMC on April 6, 2018. [2] at IV. E; [8-14]. On May 3, 2018, the Office of General Counsel for the Department of Veterans Affairs notified Ms. Holmes that her claim was denied. [20-1].
Plaintiffs claim that even though they suffered actionable harm, which was the reduction in the tier level in October 2015, the Defendants' CSP coordinators at the VAMC had enacted a conspiracy to limit/eliminate Veteran Holmes' in-home care by "manipulating and falsifying his healthcare records as far back as March 27, 2015." [2] at V.A.
Plaintiffs brings this suit under the Federal Tort Claims Act. ("FTCA"). [2] at II.A. They assert a variety of claims and damages, which can be summarized as follows: That the VAMC coordinators, clinical review and medical providers and therapists conspired to fraudulently remove Plaintiffs' caregiver benefits via the fabrication of medical records both before and after the Tier level was lowered. [2] at V. A, B; VI. A. Second, that the Defendants' actions and indifference intentionally and negligently inflicted emotional distress on Plaintiffs. [2] VI. B. Third, Plaintiffs seek an "Order of Enforcement" compelling the Defendants to cease and desist their "retaliation, resentment, issuance of threats, defamation of Caregiver Holmes' character, refusal to accept transparency by Caregiver Holmes on behalf of Veteran Holmes, and the adversarial indifference to the transportation safety standards that are adhered to by Caregiver Holmes for the support and safety of Veteran Holmes." [2] at p. 28.
Plaintiffs Linda Holmes and Kentron Holmes have filed this action under the Federal Tort Claims Act ("FTCA") complaining about various intentional and malicious acts and behaviors of those administering the CSP at the VAMC surrounding the temporary reduction in their caregiver benefits. The Defendants filed a motion to dismiss, alleging that this Court does not have subject matter jurisdiction to hear claims, and that even if jurisdiction existed, the Defendants have not waived sovereign immunity. [18] at pp. 2-3. Defendants claim that while Plaintiffs clothe the Complaint in tort, Plaintiffs' issue is really a denial of benefits, a decision over which this Court does not have jurisdiction due to the exclusive jurisdiction of the Veterans Judicial Review Act ("VJRA"). Defendants also argue that even if there was a possibility of this Court's having jurisdiction, the Defendants are not subject thereto because the United States has not waived sovereign immunity for any actions in Plaintiffs' Complaint that sound in tort. The Court will address each argument below.
Federal Rule of Civil Procedure 12(b)(1) requires dismissal for lack of subject matter jurisdiction if the court lacks statutory or constitutional power to adjudicate the case. See Home Builders Ass'n of Miss., Inc. v. City of Madison, 143 F.3d 1006, 1010 (5th Cir. 1998). Federal courts are courts of limited jurisdiction; without jurisdiction conferred by statute, they lack the power to adjudicate claims. See Stockman v. Fed. Election Comm'n, 138 F.3d 144, 151 (5th Cir. 1998). The Fifth Circuit recognizes a distinction between a "facial attack" and a "factual attack" upon a complaint's subject matter jurisdiction. Rodriguez v. Tex. Comm'n on the Arts, 992 F.Supp. 876, 878 (N.D. Tex. 1998). "A facial attack requires the court merely to decide if the plaintiff has correctly alleged a basis for subject matter jurisdiction" by examining the allegations in the complaint, which are presumed to be true. Id. (citation omitted). Regardless of the attack, the burden of proof is on the party asserting jurisdiction. Ramming v. United States, 281 F.3d 158, 161 (5th Cir. 2001).
Here, Defendants' Motion makes a facial attack on the Court's subject matter jurisdiction. Defendant did not submit evidence in support of its assertion that the Court lacks subject matter jurisdiction over Plaintiffs' claims, and Defendants argue that Plaintiffs' jurisdictional claim fails on legal, not factual, grounds. Thus, all of Plaintiffs' factual allegations will be accepted as true for the purpose of determining whether the Court has jurisdiction over their claims.
Defendants contend there is no jurisdiction in this Court because Plaintiffs' claims relate to a determination of benefits and the Veterans Judicial Review Act ("VJRA") gives the Court of Veteran Appeals exclusive jurisdiction. In response, Plaintiffs argue that throughout their Complaint it is evident that Plaintiff is not appealing any benefits decision, as those appeals are complete. Rather, they are seeking damages for injuries inflicted by the alleged tortious acts of the Defendants' employees during the scope of their employment and that the claim has nothing to with a determination of benefits. [20] at p. 2.
Defendants rely exclusively on the case of King v. United States, 901 F.Supp.2d 781 (S.D. Miss. 2012) as authority for the dismissal in this case. However, as the Plaintiffs point out, the King case involved different facts, and most importantly, involved the denial of different benefits. The benefits at issue here were not veteran's disability benefits, as in King, but rather caregiver benefits under Title 1 of the Caregivers and Veterans Omnibus Health Services Act of 2010, which was only signed into law in May 2010. See Fed. Reg. Vol. 76, No. 87 at 26148. Defendants claim Plaintiffs' only avenue is the Court of Veteran Appeals. [18] at p. 4. However, Defendants have cited no authority, other than King, which the Court finds inapplicable, to establish that the resolution of benefits decisions under the Caregivers and Veterans Omnibus Health Services Act of 2010 fall within the exclusive jurisdiction of the VJRA. Without additional authority, and based on its own research and the facts of this case, the Court is not certain that the VJRA applies here, even if the Plaintiffs were complaining only about a denial of benefits.
The Veteran's Judicial Review Act was enacted in 1988 to create an opportunity for veterans to challenge VA benefits decision, but also to assign exclusive jurisdiction over their claims to a centralized system comprised of the Board of Veteran's Appeals, a newly established Court of Veterans Appeals (now named the Court of Appeals for Veterans Claims, and the Federal Circuit), and the Federal Circuit. Walton v. Sec'y Veterans Admin., 187 F.Supp.3d 1317, 1325-26 (N.D. Ala. 2016) (quoting Beamon v. Brown, 125 F.3d 965, 972 (6th Cir. 1997). Section 511 of Title 38 provides that 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 provision of benefits by the Secretary to veterans or the dependents or survivors of veterans." Id. at 1326 (quoting 38 U.S.C. § 511(a)). In the VJRA, "Congress conferred on the Veterans Court `exclusive jurisdiction' to review decisions of the Board of Veterans Appeals, 38 U.S.C. § 7252(a), and its powers include the authority to decide any question of law relating to benefits proceedings . . . ." Veterans for Common Sense v. Shinseki, 678 F.3d 1013, 1021-22 (9th Cir. 2012).
The documentation that the VA sent to Plaintiffs refers to the process of assessing caregiver benefits as a "clinical decision," and based on the statements in the Notices of Rights provided to Plaintiffs, it appears that jurisdiction may not fall under the VJRA. Each of the Notice of Rights specifically stated, "The clinical appeals process does not allow for you or your representative to appeal a clinical decision to the Board of Veterans Appeal. You should follow the clinical appeals process as outlined in this letter. The clinical decision is final and cannot be appealed to a higher authority." If these types of benefit decisions are not reviewable by the Board of Veterans Appeals, then Plaintiffs would not become a part of that centralized system for challenging benefits decisions for which the VJRA was set up. Thus, it would appear that these particular caregiver benefit determinations may indeed fall outside the scope of the VJRA.
Be that as it may, the Court need not reach a definitive resolution of the issue in this case because the Court finds, even if the VJRA does not have exclusive jurisdiction over Plaintiffs' claims, the claims are barred by sovereign immunity.
The Defendants also contend that the Court lacks subject matter jurisdiction because they have sovereign immunity from the claims in this case. Plaintiffs contend that their claims under the FTCA are proper because they are seeking damages caused by the negligent acts of federal government employees acting within the scope of their federal employment as authorized by the FTCA and that the May 3, 2018 letter denying their tort claims provided them authorization to sue. [21] at p. 2; [20] at pp. 7-8
The United States and its agencies have sovereign immunity from suit unless Congress has specifically consented. Block v. North Dakota ex rel. Bd. of Univ. & Sch. Lands, 461 U.S. 273, 287 (1983); United States. v. Mitchell, 463 U.S. 206, 212 (1983) ("It is axiomatic that the United States may not be sued without its consent and that the existence of consent is a prerequisite for jurisdiction."). The plaintiff bears the burden of showing that Congress waived sovereign immunity. Freeman v. United States, 556 F.3d 326, 334 (5th Cir. 2009). Congress's waiver must be "unequivocally expressed in statutory text . . . and will not be implied." Lane v. Pena, 518 U.S. 187, 192 (1996) (internal citations omitted).
Based on this general law, to the extent Plaintiff argues that the May 3, 2018 letter from the Office of General Counsel for the Department of Veterans Affairs, notifying Ms. Holmes that her claim was denied [20-1], is an implied waiver, such argument is not tenable. Again, there must be an explicit statutory waiver. Thus, whatever may be implied from the letter, even if it were an "authorization by Defendants to file suit against Defendants" or a "consent to suit" as Plaintiffs claim,
Defendants correctly state that under certain listed exceptions in the FTCA, the United States
The Court first notes that are instances in both the Complaint, as well as in their response and memorandum in opposition to the Motion to Dismiss, where Plaintiffs describe the Defendants' actions as "negligence" or "negligent," such as using the words "negligent infliction of emotional distress" in the Complaint. [2] at VI.B. However, Plaintiffs cannot evade the jurisdictional limitations of Section 2680(h) by artful pleading that attempts to assign another label to what are actually claims arising from an exception to the waiver. See, e.g., Garcia v. United States, 776 F.2d 116, 118 (5th Cir. 1985) (explaining assault and battery exception cannot be circumvented by labeling his claim as one for "negligence").
The reason the Court finds that claims are not founded in negligence is because the Complaint is replete with references to intentional fraudulent conduct by the CSP coordinators and the clinical review team. For example, in the Complaint the Plaintiff allege: "after almost a year of intentionally concocting, plotting, and falsifying Veteran Holmes' medical records, on October 15, 2015, Defendants VAMC Jackson's CSP-Coordinators and Clinical Review Team intentionally and maliciously implemented the misattribution . . . leading to a deliberate under-assessment of Veteran Holmes' physical condition." [2] at III.B. These actions resulted in the lowering of the tier level, which was an "intentional effort to deliberately place Veteran Holmes in danger . . . ." [2] at VI.B. "Defendants went to great lengths to defraud Veteran Holmes out of his in-home caregiver services." [2] at IV. B. "Subsequent to the appeal process . . . the falsification of medical records by the CSP-Coordinators and their clinical therapists continued. . . ." [2] at V.D. Based on these and other allegations in the Complaint, the Court finds they do not arise from simple negligence, but even if the acts were intentional, the question is do they arise from either deceit or misrepresentation.
Deceit is defined as "the act of intentionally giving a false impression." BLACK'S LAW DICTIONARY 413, 670 (7th ed. 1999). "Black's Law Dictionary defines `misrepresentation' as `[t]he act of making a false or misleading assertion about something, usu[ally] with the intent to deceive.'" NPR Investments, L.L.C. ex rel. Roach v. United States, 740 F.3d 998, 1007 (5th Cir. 2014) (citing BLACK'S LAW DICTIONARY 1091 (9th ed. 2009)). The Supreme Court has held that the "misrepresentation" exception to the waiver of sovereign immunity applies to both willful and negligent misrepresentations. United States v. Neustadt, 366 U.S. 696, 698 (1961).
After a number of full reviews of the Complaint, the Court finds that the gravamen of Plaintiffs' Complaint is that the temporary reduction in benefits exposed Plaintiffs to danger and that the reduction in benefits was the result of a conspiracy to harm the Plaintiffs by the intentional and malicious falsifying of medical records and mischaracterizing Veteran Holmes' disability so as to under-assess his condition. [2] at V.A. [8-6; 8-7; 8-8]. This conclusion is also supported by the following allegations:
[2] at V.A. The essential acts giving rise to all of Plaintiffs' claims are the falsifying of the medical records. Thus, the claims based on such conduct clearly arise from deceit and misrepresentation.
[2] at V.B. Clearly, these claims arise from deceit and misrepresentation.
In addition, there are other secondary complaints, namely that the Defendants manipulated and modified the appellate process, which was modifications were designed to be disadvantageous to Plaintiffs. [2] at IV.C. In this claim, the Plaintiffs appear to take issue with the appellate process being represented a different way each time she was notified. In August 2011, the Notice of Rights stated that Plaintiffs had 180 days to appeal. In the October 2015 letter, Plaintiffs were given 90 days to appeal, when the CSP letter from Denver, which was sent a few days later, indicated 180 days. In the December 2015 letter, denying Plaintiffs' first appeal, she was told she had 10 days to submit any disagreement with the findings. Plaintiffs themselves allege the appeals process was "riddled with flaws and penetrated with illegal actions of misrepresentations . . ." [2] at V.B. This claim, too, arises from misrepresentation.
Finally, Plaintiffs complain about the members of the CSP Clinical Review Team being kept a secret. [2] at V.A, B. This conduct, too, is indicative of deceit on the part of the Defendants.
The Fifth Circuit has held explicitly that "causes of action distinct from those excepted under § 2680(h) are nevertheless deemed to be barred when the underlying governmental conduct `essential' to the plaintiff's claim can fairly be read to `arise out of' conduct that would establish an excepted cause of action." Atorie Air, Inc. v. FAA, 942 F.2d 954, 958 (5th Cir. 1991). Based on the foregoing analysis, the Court finds that all of the alleged conduct of the Defendants' employees that underlie and are essential to the Plaintiffs' claims arises out of conduct that constitutes deceit or misrepresentation, which is conduct specifically enumerated in Section 2680(h). Therefore, there has been no waiver of sovereign immunity, and the Plaintiffs' claims must be dismissed.
THEREFORE, it is hereby ORDERED that the Defendants' Motion to Dismiss is GRANTED. Plaintiffs' claims are hereby dismissed with prejudice. Pursuant to Federal Rule of Civil Procedure 58, a separate judgment will be entered.
SO ORDERED AND ADJUDGED.
