Swanson v. Attorney General et al

Motion to Dismiss for Lack of Jurisdiction Pursuant to Fed. R. Civ. P. 12

D. Or.May 12, 2017

Page 1- DEFENDANTS’ MOTION TO DISMISS BILLY J. WILLIAMS, OSB #901366 United States Attorney District of Oregon RENATA A. GOWIE, TX Bar #08239250 renata.gowie@usdoj.gov Assistant United States Attorney United States Attorney’s Office 1000 SW Third Avenue, Suite 600 Portland, Oregon 97204-2936 Telephone: (503) 727-1021 Attorneys for Defendants UNITED STATES DISTRICT COURT DISTRICT OF OREGON PORTLAND DIVISION MICHAEL RAY SWANSON, Plaintiff, v. UNITED STATES ATTORNEY GENERAL, et al. Defendants. Case No. 3:17-cv-00216-MO DEFENDANTS’ MOTION TO DISMISS PURSUANT TO FED. R. CIV. P. 12(b)(1) AND SUPPORTING LEGAL MEMORANDUM MOTION The Defendants, as represented by Billy J. Williams, United States Attorney for the District of Oregon, through Assistant United States Attorney Renata A. Gowie, respectfully move to dismiss the Complaint and Amended Complaint for lack of subject-matter jurisdiction. See Fed. R. Civ. P. 12(b)(1). Case 3:17-cv-00216-MO Document 7 Filed 05/12/17 Page 1 of 12 Page 2- DEFENDANTS’ MOTION TO DISMISS The exact nature of Plaintiff’s claims is unclear. To the extent that Plaintiff alleges tort claims for monetary damages under the Federal Tort Claims Act (“FTCA”), 28 U.S.C. §§ 1346(b), 2671-80, Plaintiff failed to present these claims to the federal agency through an administrative process. See 28 U.S.C. § 2675(a). To the extent that Plaintiff challenges the denial of Veterans Administration (“VA”) benefits, the Veterans’ Judicial Review Act (“VJRA”) expressly precludes judicial review of the denial of VA benefits. See 38 U.S.C. § 511. Either way, dismissal is required under Rule 12(b)(1). Pursuant to Local Rule 7-1, undersigned counsel has consulted with the pro se Plaintiff about this motion. Plaintiff opposes the motion. SUPPORTING LEGAL MEMORANDUM I. Procedural and Factual Background Plaintiff filed a pro se Complaint on February 9, 2017, and a pro se Amended Complaint on May 2, 2017, in which he purports to raise a federal question under 28 U.S.C. § 1331. Doc. 1, at 3; Doc. 6, at 3-4. As the basis for federal jurisdiction, he cites several federal crimes: 18 U.S.C. § 1031 (major fraud against the United States), § 287 (false, fictitious or fraudulent claims), § 2387 (activities affecting armed forces generally, which is under Ch. 115, treason, sedition, and subversive activities), and Ch. 47 (§§ 1001-40, fraud and Case 3:17-cv-00216-MO Document 7 Filed 05/12/17 Page 2 of 12 Page 3- DEFENDANTS’ MOTION TO DISMISS false statements). Doc. 1, at 4; Doc. 6, at 4.1 In the Amended Complaint, he also cites the FTCA, 28 U.S.C. § 1346(b). Doc. 6, at 4. In the Complaint, Plaintiff cited the following United States Code sections governing Veterans’ Benefits: 38 U.S.C. § 1111 (presumption of sound condition under wartime disability compensation), § 303 (Secretary of Veterans Affairs), and § 511 (Decisions of Secretary, finality). Doc. 1, at 4. He also cites several sections of the Code of Regulations pertaining to the VA: 38 C.F.R. § 3.2 (periods of war), § 3.3 (pension), § 3.4 (compensation), and § 2.1 (general provisions under delegations of authority). Doc. 1, at 4. In the Amended Complaint, the only VA related-provision that he cites is § 511. Doc. 6, at 4. In his “statement of claim,” Plaintiff seemingly alleges a connection between Parkinson’s Disease and an exposure to chemicals or toxic drinking water. Doc. 1, at 5; Doc. 6, at 5. In his Complaint, he requests relief in the form of an “automatic disability rating of 100% and never do a re-evaulation” and that his claim be “hand picked” for immediate approval. Doc. 1, at 6. In his Amended Complaint, he similarly wants the “VA to hand pick my 2nd appeal and approved [sic] immediately with a 100% disable rate and never do a re- evaluation.” Doc. 6, at 6. 1 He also cites “18 U.S. Code Article 3/Treason.” Doc. 1, at 4; see Doc. 6, at 4. Case 3:17-cv-00216-MO Document 7 Filed 05/12/17 Page 3 of 12 Page 4- DEFENDANTS’ MOTION TO DISMISS In his Complaint, he requested the following monetary damages: $648,000 time of chemicals exposure (1986) to date filed claim (2014) to [VA], $15,000 for med/dent and unpaid bills (claim denied twice), co-pays. $63,000,000 for loss of enjoyment of life, physical/mental stress, emotional stress, became disabled and lost home equity along with $140K down payment, bad marks on my credit report, PPSTD inflicted upon me over this whole ordeal, Plus have NRC2009, have NRC solely tell [VA] what all chemicals cause and cover the illness/conition [sic]. Doc. 1, at 6.2 In the Amended Complaint, he requests $700,000,000 for “loss of enjoyment of life[,] physical/mental, emotional stress, torture.” Doc. 6, at 6. It is unclear whether Plaintiff alleges a tort claim for monetary damages or whether he challenges the denial of VA benefits. To the extent that he raises a tort claim, Plaintiff did not file an administrative tort claim with the VA before filing his lawsuit. See Declaration of Kristen Nelson, Deputy Chief Counsel for the Department of Veterans Affairs. 2 In addition, in his Complaint, Plaintiff claimed that the amount in controversy was as follows: 27 years from chemicals exposu [sic] to file claim with VA-$648,000 (calculated at $2,000 mo) $15,000 med/den ut f [sic] pocket and misc unpaid bills plus all court fees and travel tyo [sic] and from court. Doc. 1, at 5. In his Amended Complaint, Plaintiff claims $348,000 for loss of home, and $10,000,000 for 30 years of effects of poison drinking water, medical bills, ruined credit, and lost wages. Doc. 6, at 5. Case 3:17-cv-00216-MO Document 7 Filed 05/12/17 Page 4 of 12 Page 5- DEFENDANTS’ MOTION TO DISMISS To the extent that Plaintiff challenges the denial of VA benefits, it is unclear whether he ever brought these particular claims regarding Parkinson’s Disease to the VA. On November 22, 2014, the Louisville Regional Office denied Plaintiff’s claim for service connection for Cerebellar Ataxia (claimed as a neurobehavioral condition as a result of contaminated water exposure). See Declaration of Kurtis Harris, Assistant Coach, Portland Regional Office, Department of Veterans Affairs. After he was timely notified of that decision by letter, Plaintiff pursued administrative remedies at the regional office level. Id. On September 23, 2016, the Louisville Regional Office released a Statement of the Case (“SOC”), outlining the reasons and bases for the denial of benefits and the applicable law in effect at the time of that rating. Id. To perfect an appeal and have the case reviewed by the Board of Veteran’s Appeals, Plaintiff had to submit a VA Form 9 (Substantive Appeal) to the VA within 60 days of the date of the SOC, i.e., by November 22, 2016. Id. Plaintiff was provided with the VA Form 9 and advised of how to perfect an appeal to the Board of Veterans’ Appeals. Id. Plaintiff did not submit a Form 9 within the requisite time frame and the appeal is considered closed. Id. Plaintiff submitted additional evidence to the VA in February and April 2017. Id. In response, the VA sent two letters to Plaintiff instructing him on how to properly formalize a claim; as of May 8, 2017, the VA has not received a formalized claim. Id. Case 3:17-cv-00216-MO Document 7 Filed 05/12/17 Page 5 of 12 Page 6- DEFENDANTS’ MOTION TO DISMISS II. Argument A. Rule 12(b)(1) Standard for Dismissal Federal courts are courts of limited jurisdiction, possessing “only that power authorized by Constitution and statute.” Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994). “It is to be presumed that a cause lies outside this limited jurisdiction, and the burden of establishing the contrary rests upon the party asserting jurisdiction.” Id. (citations omitted). This Court must dismiss a claim if the court lacks subject-matter jurisdiction. Fed. R. Civ. P. 12(b)(1). “The defense of lack of subject matter jurisdiction cannot be waived, and the court is under a continuing duty to dismiss an action whenever it appears that the court lacks jurisdiction.” Augustine v. United States, 704 F.2d 1074, 1077 (9th Cir. 1983). A Rule 12(b)(1) jurisdictional attack may be facial, i.e., the allegations in the complaint are facially insufficient to invoke federal jurisdiction, or factual, i.e., the truth of the allegations are disputed, regardless of whether the complaint otherwise would invoke jurisdiction. Safe Air for Everyone v. Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004). This Court may consider the face of the pleadings and extrinsic evidence, “such as affidavits and testimony, to resolve factual disputes concerning the existence of jurisdiction.” McCarthy v. United States, 850 F.2d 558, 560 (9th Cir. 1988). In a factual attack, this Court need not presume the Case 3:17-cv-00216-MO Document 7 Filed 05/12/17 Page 6 of 12 Page 7- DEFENDANTS’ MOTION TO DISMISS truthfulness of the plaintiff’s allegations. Safe Air for Everyone, 373 F.3d at 1039. Rather, after the defendant has presented affidavits or other evidence in support of a Rule 12(b)(1) motion, the plaintiff must furnish affidavits or other evidence to satisfy his burden to establish subject-matter jurisdiction. See id. B. This Court lacks jurisdiction under the FTCA. To the extent that Plaintiff purports to seek monetary damages for an alleged tort, his claim is governed by the Federal Tort Claims Act (“FTCA”), 28 U.S.C. §§ 1346(b), 2671-80. The FTCA provides a limited waiver of sovereign immunity permitting suits against the United States for recovery of monetary damages for torts of federal employees. The FTCA is the exclusive remedy for alleged torts of federal employees. 28 U.S.C. § 2679(b)(1). The FTCA requires that, before filing suit, a plaintiff must present his claim for administrative review and determination by the appropriate federal agency. 28 U.S.C. § 2675(a). This presentment requirement is jurisdictional. McNeil v. United States, 508 U.S. 106, 109, 111-13 (1993) (district court properly dismissed FTCA claim for lack of subject-matter jurisdiction because plaintiff failed to first exhaust administrative remedies); Vacek v. United States Postal Serv., 447 F.3d 1248, 1250 (9th Cir. 2006) (“We have repeatedly held that the exhaustion requirement [of § 2675(a)] is jurisdictional in nature and must be Case 3:17-cv-00216-MO Document 7 Filed 05/12/17 Page 7 of 12 Page 8- DEFENDANTS’ MOTION TO DISMISS interpreted strictly.”). There is no futility exception to the FTCA presentment requirement. See Spawr v. United States, 796 F.2d 279, 281 (9th Cir. 1986). As shown by Kristen Nelson’s Declaration, Plaintiff failed to present any tort claim to the Department of Veterans Affairs before filing his lawsuit, as required by § 2675(a). This failure deprives this Court of subject-matter jurisdiction over Plaintiff’s claims against the United States; his claims must be dismissed under Rule 12(b)(1). See, e.g., Coleman v. United States, No. 6:16- cv-02252-MC, 2017 WL 659015, at *2 (D. Or. Feb. 16, 2017) (dismissing FTCA claims with prejudice because the plaintiff had failed to exhaust his administrative remedies); Wright v. United States, No. 3:14-cv-01861-PK, 2015 WL 1931962, at *4 (D. Or. Apr. 27, 2015) (“Because Wright has not exhausted her administrative remedies under the FTCA, this court lacks subject matter jurisdiction over Wright’s claims against the United States.”). C. This Court lacks jurisdiction under the VJRA. To the extent that Plaintiff challenges the denial of requested VA benefits, this Court lacks jurisdiction over that claim as well. In 1988, Congress passed the Veterans’ Judicial Review Act (“VJRA”), codified in various sections in Title 38, United States Code, which sets forth a specific procedural scheme for the adjudication of veterans benefit claims. See Veterans for Common Sense v. Shineski, 678 F.3d 1013, 1021-22 (9th Cir. 2012) (en banc). Case 3:17-cv-00216-MO Document 7 Filed 05/12/17 Page 8 of 12 Page 9- DEFENDANTS’ MOTION TO DISMISS The VJRA expressly provides that the Secretary of Veterans Affairs has the final and conclusive decision regarding veterans’ benefits: The Secretary shall decide 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. Subject to subsection (b), the 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).3 Under the VJRA, jurisdiction to hear claims relating to the denial of veterans’ benefits rests exclusively in a three-tiered review process: (1) the VA regional office, where the claim is first brought; (2) the Board of Veterans’ Appeals, the first level of review; and (3) the United States Court of Appeals for Veterans Claims (“Veterans Court”), the next level of review. See 38 U.S.C. §§ 7101, 7104(a), 7252(a); Veterans for Common Sense, 678 F.3d at 1021-22. Review of Veterans Court decisions is exclusively in the United States Court 3 The exceptions where the Secretary’s decision is not final are: (1) matters subject to 38 U.S.C. § 502—the Secretary’s actions under 5 U.S.C. § 552(a)(1) (public information; agency rules, opinions, orders, records, and proceedings) or § 553 (rule making), in which judicial review is only in the United States Court of Appeals for the Federal Circuit; (2) matters covered by 38 U.S.C. §§ 1975, 1984, regarding suits on life insurance, in which the federal district court has original jurisdiction; (3) matters arising under Ch. 37 of Title 38, United States Code, regarding small business loans; and (4) matters covered by Ch. 72 of Title 38, United States Code, regarding the United States Court of Appeals for Veterans Claims. See 38 U.S.C. § 511(b). These exceptions do not apply here. Case 3:17-cv-00216-MO Document 7 Filed 05/12/17 Page 9 of 12 Page 10- DEFENDANTS’ MOTION TO DISMISS of Appeals for the Federal Circuit, which generally is limited to a review of legal questions. See 38 U.S.C. § 7292(c)-(d); Veterans for Common Sense, 678 F.3d at 1022. The Federal Circuit’s decision is subject to review by the Supreme Court upon certiorari. 38 U.S.C. § 7292(c); Veterans for Common Sense, 678 F.3d at 1022. In short, challenges to any VA determination of benefits may not be brought in federal district court. See Veterans for Common Sense, 678 F.3d at 1025 (“we conclude that § 511 precludes jurisdiction over a claim if it requires the district court to review VA decisions that relate to benefits decisions, including any decision made by the Secretary in the course of making benefits determinations”) (internal quotation marks and citations omitted). To the extent that Plaintiff claims that the VA denied him any benefits to which he feels he is entitled, the provisions of the VJRA apply. Because the VJRA expressly divests this Court of subject-matter jurisdiction to hear challenges to VA benefits determinations, the Complaint and Amended Complaint must be dismissed for lack of subject matter jurisdiction. See Fed. R. Civ. P. 12(b)(1).4 4 Similarly, the Administrative Procedure Act (“APA”), 5 U.S.C. § 500 et seq., does not provide any basis for relief in this Court. The APA does not allow for judicial review if another statute precludes relief. See 5 U.S.C. § 701(a) (providing for judicial review unless “statutes preclude judicial review”), § 702 (precluding relief “if any other statute that grants consent to suit expressly or impliedly forbids the relief which is sought.”). As explained above, the VJRA expressly precludes review by a federal district court; therefore, relief cannot be obtained under the APA. See Moore v. Johnson, 582 F.2d 1228, 1233 (9th Cir. 1978) (recognizing that veterans’ benefits are Case 3:17-cv-00216-MO Document 7 Filed 05/12/17 Page 10 of 12 Page 11- DEFENDANTS’ MOTION TO DISMISS CONCLUSION Plaintiff failed to exhaust his administrative remedies before bringing a tort suit, as jurisdictionally required under § 2675(a). In addition, this Court lacks jurisdiction to review an alleged denial of VA benefits. Consequently, the Complaint and Amended Complaint must be dismissed under Rule 12(b)(1) for lack of subject-matter jurisdiction.5 Dated this 12th day of May, 2017. Respectfully submitted, BILLY J. WILLIAMS United States Attorney /s/ Renata A. Gowie RENATA A. GOWIE Assistant United States Attorney “committed to agency discretion by law; and by reason of the Administrative Procedure Act, 5 U.S.C. § 701(a)(2), agency action with respect thereto is not subject to judicial review”); Vaughn v. U.S. Dep’t of Veterans Affairs, No. 14C575, 2014 WL 3610913, at *2 (N.D. Ill. July 22, 2014) (“Because the VJRA ‘precludes judicial review’ of Vaughn’s suit, jurisdiction is not proper under the APA.”) (quoting Beamon v. Brown, 125 F.3d 965, 970 (6th Cir. 1997)). The APA does not apply for other reasons. For instance, the APA applies only if the plaintiff is “seeking relief other than money damages.” 5 U.S.C. § 702. The plaintiff here seeks money damages. 5 Plaintiff’s pro se status does not alter the applicability of Rule 12(b)(1), particularly since he is not incarcerated and this is a civil case. See McNeil, 508 U.S. at 113 (“While we have insisted that the pleadings prepared by prisoners who do not have access to counsel be liberally construed, and have held that some procedural rules must give way because of the unique circumstance of incarceration, we have never suggested that procedural rules in ordinary civil litigation should be interpreted so as to excuse mistakes by those who proceed without counsel.”) (citations omitted); Ghazali v. Moran, 46 F.3d 52, 54 (9th Cir. 1995) (while federal prisoners are entitled to a liberal construction of their pro se pleadings, they still are “bound by the rules of procedure”). Case 3:17-cv-00216-MO Document 7 Filed 05/12/17 Page 11 of 12 Page 12- DEFENDANTS’ MOTION TO DISMISS CERTIFICATE OF SERVICE I hereby CERTIFY that a copy of the foregoing motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(1) and supporting legal memorandum was sent by first-class pre-paid postage and deposited in the United States mail in Portland, Oregon, on May 12, 2017 and addressed as follows to the pro se plaintiff: Michael Ray Swanson 226 Gerth Ave. Salem, Oregon 97304 Pro Se Plaintiff /s/ Renata A. Gowie RENATA A. GOWIE Assistant United States Attorney Attorney for Defendants Case 3:17-cv-00216-MO Document 7 Filed 05/12/17 Page 12 of 12