Wallace v. United States of America

MOTION to Dismiss for Lack of Jurisdiction and Failure to State Claim

W.D.N.C.May 11, 2017

1 IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF NORTH CAROLINA CHARLOTTE DIVISION CIVIL NO. 3:17-CV-00117-FDW-DCK DON BRADLEY WALLACE, ) ) Plaintiff, ) ) RULE 12(b)(1) AND/OR 12(b)(6) v. ) MOTION TO DISMISS ) UNITED STATES OF AMERICA, ) ) Defendant. ) ____________________________________) COMES NOW the United States of America, by and through Jill Westmoreland Rose, United States Attorney for the Western District of North Carolina, and makes this Motion to Dismiss Plaintiff’s Complaint pursuant to Fed. R. Civ. P. 12(b)(1) and (6) on the grounds that: (1) this Court lacks subject matter jurisdiction in that: (1) Mr. Wallace has failed to allege the government’s waiver of sovereign immunity and to otherwise state a cognizable claim for relief under the Federal Tort Claims Act (the “FTCA”); (2) alternately, this action is barred by the intentional torts exception to the FTCA; or (3) the Complaint seeks an impermissible review of prior VA benefits-related decision. Mr. Wallace’s Complaint is also subject to dismissal pursuant to Rule 12(b)(6) for failure to state a claim due to the vague and conclusory nature of the allegations.1 In support of its Motion, the United States contemporaneously files its Memorandum of Law herewith, and incorporates the contents of the same by reference as if fully set out herein. In 1 The United States reserves its right to plead any/all affirmative defenses enumerated in Fed. R. Civ. P. 8 in response to Plaintiff’s Complaint, including statute of limitations, in the event its Motion to Dismiss is denied and as facts warrant. Case 3:17-cv-00117-FDW-DCK Document 9 Filed 05/11/17 Page 1 of 3 2 accordance with Local Rule 7.1(B), the undersigned has not conferred with or attempted to confer with pro se Plaintiff regarding this Motion. This the 11th day of May, 2017. Respectfully, JILL WESTMORELAND ROSE United States Attorney s/ Katherine T. Armstrong Assistant United States Attorney N.C. Bar No. 36305 227 West Trade Street, Suite 1650 Charlotte, NC 28202 Tel: 704-344-6222 Fax: 704-344-6629 E-Mail: Katherine.Armstrong@usdoj.gov Case 3:17-cv-00117-FDW-DCK Document 9 Filed 05/11/17 Page 2 of 3 3 CERTIFICATE OF SERVICE I CERTIFY that on the 11th day of May, 2017, the foregoing Motion to Dismiss was electronically filed with the Clerk of the Court using the CM/ECF system and served on the Plaintiff, pro se, by mailing a copy thereof, first class mail, postage prepaid, and properly addressed to: Don Bradley Wallace 1130 Gretna Green Dr. Charlotte, NC 28217 Plaintiff, pro se JILL WESTMORELAND ROSE United States Attorney s/ Katherine T. Armstrong Assistant United States Attorney N.C. Bar No. 36305 227 West Trade Street, Suite 1650 Charlotte, NC 28202 Tel: 704-344-6222 Fax: 704-344-6629 E-Mail: Katherine.Armstrong@usdoj.gov Case 3:17-cv-00117-FDW-DCK Document 9 Filed 05/11/17 Page 3 of 3 1 IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF NORTH CAROLINA CHARLOTTE DIVISION CIVIL NO. 3:17-CV-00117-FDW-DCK DON BRADLEY WALLACE, ) ) Plaintiff, ) ) MEMORANDUM OF LAW v. ) IN SUPPORT OF DEFENDANT’S ) MOTION TO DISMISS UNITED STATES OF AMERICA, ) ) Defendant. ) ____________________________________) Plaintiff Don Bradley Wallace claims that the VA lost his medical records and brings suit pursuant to the Federal Tort Claims Act (the “FTCA”), which provides a limited waiver of the United States’ sovereign immunity to be sued for certain state law torts. Mr. Wallace’s Complaint should be dismissed because this Court lacks subject matter jurisdiction in that: (1) Mr. Wallace has failed to allege the government’s waiver of sovereign immunity and to otherwise state a cognizable claim for relief under the FTCA; (2) alternately, this action is barred by the intentional torts exception to the FTCA; or (3) the Complaint seeks an impermissible review of a prior VA benefits-related decision. Mr. Wallace’s Complains is also subject to dismissal pursuant to Rule 12(b)(6) for failure to state a claim. I. STATEMENT OF THE CASE Mr. Wallace served in the United States army from 2001 through 2004, during which time he was stationed in both Afghanistan and Iraq (Doc. No. 1 p. 1). Following his service, Mr. Wallace alleges that he sought treatment at VA facilities (Doc. No.1 p. 2). His complaint against the United States Department of Veteran’s Affairs (the “VA”) in the current lawsuit is that it negligently lost medical records pertaining to the treatment he received from 2004 through 2010 Case 3:17-cv-00117-FDW-DCK Document 9-1 Filed 05/11/17 Page 1 of 16 2 at a VA medical facility located in Durham, North Carolina (Doc. No. 1 pp. 1-2) (“Plaintiff again makes it clear that he is claiming the Department of Veterans affairs [sic] negligently lost his medical records.”). The instant matter is Mr. Wallace’s second FTCA action alleging negligence on the part of the VA. In his first FTCA action against the VA, see 3:17-cv-73-FDW-DCK (filed Feb. 17, 2017, W.D.N.C.), Mr. Wallace alleged that he was injured as a result of negligent psychiatric care (Doc. No. 1 p. 3). That case was dismissed following the Court’s frivolity review pursuant to 28 U.S.C. § 1915(e) on the grounds that: (1) the allegations were “rambling and confusing,” and the pleading did not comport with Rule 8 of the Federal Rules of Civil Procedure; (2) the complaint referred to “wholly unrelated events and purported claims”; and (3) the majority of Plaintiff’s allegations were “fantastic and delusional” (Doc. No. 5 pp. 3).1 A third FTCA action against the United States, seeking damages arising out of a “negligent psychiatric appointment,” is currently pending in the Western District. See 3:17-cv-138-RJC-DSC (filed March 17, 2017, W.D.N.C.).2 In this lawsuit, Mr. Wallace alleges that he “did not learn of these lost records until he was living in the city of Charlotte sometime on or around December of 2015,” when he received a notification “that his records disappeared from the V.A. file for the entire duration of his medical care at the Durham, N.C. V.A [sic]” (Doc. No. 1 p. 2). He attached a letter dated September 24, 2015 to his complaint; this letter indicates that his “Service Treatment Records cannot be located and therefore are unavailable for review” (Doc. No. 1 p. 7). Mr. Wallace alleges further that, but 1 The Court dismissed the complaint without prejudice, however, it instructed that “if Plaintiff wishes to file a subsequent action against the United States under the Federal Torts Claims Act based on alleged negligent medical care, his Complaint must comply with Rule 8 of the Federal Rules of Civil Procedure” (Id. at pp. 3-4). 2 The government’s deadline to answer or otherwise respond is currently set to expire on May 22, 2017. Case 3:17-cv-00117-FDW-DCK Document 9-1 Filed 05/11/17 Page 2 of 16 3 for the VA’s negligence, his records “would have been available …for the plaintiffs 2010 V.A. benefits application … [and] for other legal reasons” (Doc. No. 1 p. 2). He indicates on the civil cover sheet that he seeks $150,000,000.00 in damages (Doc. No. 1-1). Mr. Wallace initiated the above-captioned matter by filing a complaint on March 8, 2017 (Doc. No. 1). He cites the Federal Tort Claims Act, 28 U.S.C. § 1346(b), §§2671-2680, as the jurisdictional basis of his claims (Doc. No. 1 p. 1), and further alleges that he followed the FTCA’s administrative procedures, and notified the VA of his claim on August 4, 2016 (Doc. No. 1 p. 1) and that his claim was subsequently denied by the VA on September 17, 2016 (Doc. No. 1 pp. 1- 2). II. ARGUMENT A. LEGAL STANDARD FOR RULE 12(B)(1) AND 12(B)(6) MOTIONS Federal district courts are courts of limited jurisdiction. United States ex rel. Vuyyuru v. Jadhav, 555 F.3d 337, 347 (4th Cir. 2009), cert. denied 558 U.S. 875 (2009). “They possess only that power authorized by Constitution and statute.” Randall v. United States, 95 F.3d 339, 344 (4th Cir. 1996). “Thus, when a district court lacks subject matter jurisdiction over an action, the action must be dismissed.” Vuyyuru, 555 F.3d at 347; see, e.g., Sumwalt v. U.S. Dept. of Veterans Affairs, No. 3:13-cv-00367-MOC-DCK, 2013 WL 6056602 (W.D.N.C. Nov. 15, 2013). The existence of federal subject matter jurisdiction is a threshold issue, Jones v. Am. Postal Workers Union, 192 F.3d 417, 422 (4th Cir.1999), and a challenge to the court’s subject matter jurisdiction is properly considered on a motion under Federal Rule of Civil Procedure 12(b)(1). See Clinton v. Brown, No. 3:15-cv-0048-FDW-DSC, 2015 WL 4941799 (W.D.N.C. Aug. 19, 2015). Case 3:17-cv-00117-FDW-DCK Document 9-1 Filed 05/11/17 Page 3 of 16 4 The burden of establishing federal subject matter jurisdiction rests on the plaintiff. Adams v. Bain, 697 F.2d 1213, 1219 (4th Cir.1982). The moving party should prevail on a motion to dismiss pursuant to a lack of federal jurisdiction if material jurisdictional facts are not in dispute, and the moving party is entitled to prevail as a matter of law. Richmond, Fredericksburg & Potomac R.R. Co. v. U.S., 945 F.2d 765 (4th Cir.1991). A complaint attacked by a Rule 12(b)(6) motion to dismiss will survive if it contains “sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009) quoting Bell Atlantic Corp. v. Twombly, 127 S. Ct. 1955, 1974 (2007). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 129 S. Ct. at 1949. And “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice” to state a claim for relief. Id. While “[a] pro se complaint, however inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by lawyers,” Estelle v. Gamble, 97 S. Ct. 285, 292 (1976), the courts are not required to rewrite deficient pleadings. Chubirko v. Better Bus. Bureau of Southern Piedmont, Inc., 763 F. Supp. 2d 759, 2011 U.S. Dist. LEXIS 13409 (W.D.N.C. 2011) (unpublished) (citations omitted). And courts cannot act as the pro se plaintiff’s advocate or develop claims which the plaintiff failed to raise clearly on the face of his complaint. Gordon v. Leeke, 574 F.2d 1147, 1152 (4th Cir. 1978) (recognizing that district courts are not expected to assume the role of advocate for the pro se plaintiff). As a result, even a pro se plaintiff’s claim for relief “requires more than labels and conclusions....” Twombly, 127 S. Ct. at 1965. Like plaintiffs who are represented by counsel, a pro se plaintiff must still “allege facts sufficient to state all the elements of [the] claim.” Bass v. E.I. Dupont de Nemours & Co., 324 F.3d 761, 765 (4th Cir. 2003). Conclusory statements with insufficient factual Case 3:17-cv-00117-FDW-DCK Document 9-1 Filed 05/11/17 Page 4 of 16 5 allegations, even when asserted by pro se plaintiffs, will not survive a motion to dismiss under Rule 12(b)(6), and the mere possibility that a defendant acted unlawfully is not sufficient for a claim to survive a motion to dismiss. Nemet Chevrolet, Ltd. v. Consumeraffairs.com, Inc., 591 F.3d 250, 256 (4th Cir. 2009). B. PLAINTIFF HAS FAILED TO ALLEGE A WAIVER OF SOVERIGN IMMUNITY AND TO OTHERWISE ASSERT A COGNIZABLE CLAIM FOR RELIEF PURSUANT TO THE FTCA. Federal agencies and their employees may not be sued for tort claims, except as permitted by the FTCA, Smith v. Medda, No. 3:08-CV-427-MR-DCK, 2009 WL 102504, at *1 (W.D.N.C. Jan. 13, 2009) citing 28 U.S.C. §§ 1346(b), 1402(b), 2401(b), 2671-2680, and courts should not admit at the back door that which has been legislatively turned away at the front door. Laird v. Nelms, 406 U.S. 797, 802 (1972) (holding that claimant could not “dress up” a substantive claim of strict liability “in the garments of common-law trespass” in order to proceed under the FTCA). The sole waiver of sovereign immunity for torts involving federal officials or agencies of the federal government is the FTCA, which provides that a suit against the United States shall be the exclusive remedy for persons with claims for damages resulting from the negligent or wrongful acts or omissions of federal employees taken within the scope of their office or employment. 28 U.S.C. § 2679(b)(1); see Williams v. United States, 50 F.3d 299, 305 (4th Cir. 1995). “The FTCA … provides for a limited waiver of the United States’ sovereign immunity,” and should be considered tantamount to a “traversable bridge across the moat of sovereign immunity.” Jaffee v. United States, 592 F.2d 712, 717 (3rd Cir. 1979). The “plaintiff bears the burden of persuading the court that it has subject matter jursidiciton under the FTCA’s general waiver of immunity …” Autery v. United States, 992 F.2d 1512, 1526 n.6 (11th Cir. 1993) (citations omitted). And “[b]eing a waiver of sovereign immunity, the FTCA Case 3:17-cv-00117-FDW-DCK Document 9-1 Filed 05/11/17 Page 5 of 16 6 is strictly construed, and all ambiguities are resolved in favor of the United States.” Williams, 50 F.3d at 305. Moreover, sovereign immunity is jurisdictional in nature. F.D.I.C. v. Meyer, 510 U.S. 471, 475 (1994). “Indeed, the ‘terms of [the United States’] consent to be sued in any court define that court’s jurisdiction to entertain the suit’” Id. quoting United States v. Sherwood, 312 U.S. 584, 586, (1941); see also 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”); Hornbeck Offshore Transp., LLC v. United States, 569 F.3d 506, 512 (D.C. Cir. 2009) (“The extent of the waiver of sovereign immunity under the FTCA is coextensive with the district court’s subject-matter jurisdiction to hear the case.”). Finally, the FTCA only authorizes suit for claims which are cognizable under 28 U.S.C. § 1346(b), Meyer, 510 U.S. at 476; see 28 U.S.C. 1346(b), meaning that § 1346(b) grants the federal district courts jurisdiction over a certain category of claims, specifically, state torts, for which the United States has waived its sovereign immunity and “render[ed]” itself liable. Meyer, 510 U.S. at 477 citing Richards v. United States, 369 U.S. 1, 6 (1962); Ochran v. United States, 273 F.3d 1315, 1317 (11th Cir. 2001) (“…the FTCA was not intended as a mechanism for enforcing federal statutory duties … [it] was designed to provide redress for ordinary torts recognized by state law.”) (citation omitted). In order for a claim to be cognizable under the FTCA, it must meet the following requirements, specifically, it must be a claim: “[1] against the United States, [2] for money damages, ... [3] for injury or loss of property, or personal injury or death [4] caused by the negligent or wrongful act or omission of any employee of the Government [5] while acting within the scope of his office or employment, [6] under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred.” Case 3:17-cv-00117-FDW-DCK Document 9-1 Filed 05/11/17 Page 6 of 16 7 28 U.S.C. § 1346(b). For the reasons discussed below, this Complaint should be dismissed because the Court lacks subject matter jurisdiction as a result of Mr. Wallace’s failure to allege a cognizable claim pursuant to § 1346(b) and the United States has not otherwise waived its sovereign immunity to be sued for the conduct alleged in the Complaint. 1. The Complaint does not clearly indicate that this is a claim for which Mr. Wallace seeks money damages. The FTCA’s exclusive remedy is money damages: “…the district courts … shall have exclusive jurisdiction of civil actions on claims against the United States, for money damages…” 28 U.S.C. § 1346(b)(1). Equitable relief is not available under the FTCA. Here, Mr. Wallace does not allege what, if any, monetary or compensatory damages he has suffered as a result of the loss of his medical records. At best, the allegations suggest that the missing records may have played a part in the VA’s decision regarding his prior application for increased disability benefits, see Doc. No. 1 ¶¶ 9-10, p. 2, however, such a claim is explicitly barred by 38 U.S.C. § 511(a), see Section D, below. Alternately, Mr. Wallace’s allegations are too vague, conclusory and disjointed to state a claim and put the United States on notice as to how and to what extent Mr. Wallace has suffered as a result of the VA’s conduct,3 or how the VA’s conduct resulted in a harm or injury compensable by monetary damages. 2. Mr. Wallace does not allege that he suffered a personal injury or loss of property, as contemplated by the FTCA. The thrust of Mr. Wallace’s claim against the VA in this action is that it lost his medical 3 In his Complaint, Mr. Wallace describes multiple events and incidents that appear unrelated to both the VA and the loss of his medical records, such as crimes or assaults allegedly committed against him and plots to surveil or kill him allegedly orchestrated or perpetrated by various military and government agents or agencies, and general harassment by the “intelligence community” (see generally Doc. No. 1). Case 3:17-cv-00117-FDW-DCK Document 9-1 Filed 05/11/17 Page 7 of 16 8 records. He has not alleged that he suffered a personal injury or loss of property as a result of any tort, such as medical malpractice. While Mr. Wallace may be entitled to view and receive copies of his medical records pursuant to the Privacy Act, codified at 5 U.S.C. § 552a,4 he does not have an ownership or property interest in the records, which are the property of the federal agency which maintains them. 3. Mr. Wallace has failed to allege a negligent or wrongful act or omission of any employee of the government while acting within the scope of his office or employment. The alleged tortfeasor’s status as an “employee of the government” is the sine qua non of liability under the FTCA. Means v. United States, 176 F.3d 1376, 1379 (11th Cir. 1999). This means that the “basic waiver” of immunity under the FTCA covers only torts committed by government employees acting within the scope of their employment. Sheridan v. United States, 487 U.S. 392, 400-01 (1988). The term “employee” is defined by 28 U.S.C. § 2671, and subject to narrow exceptions, typically does not include contractors or employees of contractors. Here, Mr. Wallace has not alleged facts identifying a VA employee or tortfeasor. As a result of his failure to plead such facts, the United States is unable to ascertain whether the alleged negligent acts or omissions were committed by an employee of the government while acting within the scope of his office or employment, and, as a result, Mr. Wallace has failed to plead an essential element of an FTCA claim. In other words, because the United States’ waiver of its sovereign immunity under the FTCA is dependent on the conduct of a government employee-actor, the Court 4 The Privacy Act of 1974 was enacted to “protect the privacy of individuals identified in information systems maintained by Federal agencies.” Aquino v. Stone, 957 F.2d 139, 141 (4th Cir. 1992) (quotations omitted). “The Privacy Act gives agencies detailed instructions for managing their records and provides various sorts of civil relief to persons aggrieved by the Government’s failure to comply with the Act’s requirements,” Doe v. Chao, 124 S. Ct. 1204, 1205 (2004). Case 3:17-cv-00117-FDW-DCK Document 9-1 Filed 05/11/17 Page 8 of 16 9 should not, in its evaluation of subject matter jurisdiction, simply presume that this factor indicating waiver is present. 4. Mr. Wallace has not alleged conduct that gives rise to a state law tort claim. Under the FTCA, the United States is liable in the same manner and extent as a private individual under similar circumstances pursuant to the law where the act or omission occurred. 28 U.S.C. § 2674; 28 U.S.C. § 1346(b)(1); Anderson v. U.S., 669 F.3d 161, 164 (4th Cir. 2011). “In other words, a claimant has a FTCA cause of action against the government only if she would also have a cause of action under state law against a private person in like circumstances.” Anderson, 669 F.3d at 164 (quotations and citations omitted). This means that the substantive laws of the state where the cause of action arises applies. Id. North Carolina does not recognize an independent cause of action for lost records or spoliation.5 Grant v. High Point Reg. Health Sys., 645 S.E.2d 851, 856 (N.C. Ct. App. 2007) (rejecting plaintiff’s contention that North Carolina recognizes a cause of action for spoliation where plaintiff alleged that hospital destroyed patient’s medical records, which allegedly precluded the estate from bringing medical malpractice claims against the hospital); see Stevens v. United States, No. 09-623C, 2010 WL 147918, at *1 (Fed. Cl. Jan. 7, 2010) (“Certain states recognize a cause of action in tort for spoliation of evidence … but North Carolina is not one of those states.”). Mr. Wallace has not alleged facts giving rise to a recognized state law cause of action against the VA. Because Mr. Wallace has failed to allege the elements necessary to establish a waiver of sovereign immunity pursuant to the FTCA, the Complaint is subject to dismissal pursuant to Rule 5 North Carolina courts do recognize spoliation in the context of an inference arising in ongoing litigation from the intentional destruction of evidence. Grant, 645 S.E.2d at 856. Case 3:17-cv-00117-FDW-DCK Document 9-1 Filed 05/11/17 Page 9 of 16 10 12(b)(1) for lack of subject matter jurisdiction. C. THERE IS NO FTCA REMEDY FOR INTENTIONAL TORTS. In the event Mr. Wallace’s Complaint can be construed to allege that the VA willfully mishandled or intentionally destroyed his medical records, these intentional tort claims are nonetheless barred because the FTCA expressly excludes intentional torts from its waiver of sovereign immunity. Section 2680(h) specifically preserves the government’s immunity from suit for intentional torts, which include: “[a]ny claim arising out of assault, battery, false imprisonment, false arrest, malicious prosecution, abuse of process, libel, slander, misrepresentation, deceit, or interference with contract rights.” 28 U.S.C. 2680(h). In Omegbu v. United States, 475 Fed. Appx. 628 (7th Cir. 2012), the plaintiff alleged that federal officials deliberately falsified information in his application for naturalization. The Seventh Circuit held that the FTCA exceptions for misrepresentation and deceit encompassed claims for the willful mishandling of records, and affirmed dismissal of the case on the merits, because “the intentional torts exceptions is a mandatory rule of decision rather than a restriction on subject-matter jurisdiction.” Id. (citations omitted); see also Muniz-Rivera v. United States, 326 F.3d 8, 13 (1st Cir. 2003) (FTCA exception for misrepresentation “insulates the government against liability for conveying false or inaccurate information”); Deloria v. Veterans Admin., 927 F.2d 1009, 1012 (7th Cir. 1991) (“The FTCA exceptions for misrepresentation and deceit certainly encompass [plaitniff’s] claim that VA officials conspired to distort his medical records and misrepresent the law.”); see also Smith v. United States, No. 15-cv-33-NJR-PMF, 2016 Wl 3165533, at *4 (S.D. Ill. June 7, 2016) (claims barred by the intentional tort exception are subject to dismissal with prejudice pursuant to Rule 12(b)(6)). Case 3:17-cv-00117-FDW-DCK Document 9-1 Filed 05/11/17 Page 10 of 16 11 Similarly, in Talbert v. United States, 932 F.2d 1064 (4th Cir. 1991), plaintiff brought an FTCA action following his termination, alleging that the government had negligently maintained his personnel record by including contradictory, erroneous information and false assertions in his file. The government argued that the claim was barred by the exemption from liability for defamatory statements in § 2680(h). Plaintiff contended, however, that the gravamen of his claim was not the communication of defamatory material, but rather a breach of a duty of care in maintaining the accuracy of his personnel records. The Fourth Circuit agreed with the government’s position, noting, among other things, that the damages appeared to flow from the communication of the contents of his personnel files, and that the “logical force of the government’s position is buttressed by the precedents. Most courts which have considered claims for negligent recordkeeping have found them barred under the libel and slander exception to the FTCA.” Id. at 1067 (emphasis added); see also Moessmer v. United States, 760 F.2d 236 (8th Cir.1985) (no FTCA liability where employer negligently allowed false information to be placed in employee’s personnel file and reliance on this information injured plaintiff when prospective private employer refused to hire him); Hoesl v. United States, 629 F.2d 586 (9th Cir.1980) (action dismissed pursuant to defamation exception in the FTCA where plaintiff’s injury stemmed from the use of the allegedly incorrect report in making a personnel decision, not from any improper medical treatment); Bergman v. United States, 751 F.2d 314, 317 (10th Cir.1984) (claim alleging negligent maintenance of records was really one for misrepresentation, deceit and slander and as such was barred by the FTCA). In the event the Complaint is construed to state a claim for an intentional tort, it should be dismissed with prejudice pursuant to Rule 12(b)(6). Case 3:17-cv-00117-FDW-DCK Document 9-1 Filed 05/11/17 Page 11 of 16 12 D. THIS COURT DOES NOT HAVE SUBJECT MATTER JURISDICTION BECAUSE JUDICIAL REVIEW OF A DETERMINATION REGARDING A VETERAN’S BENEFITS IS BARRED BY 38 U.S.C. § 511(A). As an initial matter, the United States has not waived its sovereign immunity for review of VA decisions or procedures by any court other than the Court of Appeals for Veterans Claims (the “Veterans Court”), the United States Court of Appeals for the Federal Circuit, and the United States Supreme Court. In re Russell, 155 F.3d 1012, 1013 (8th Cir. 1998). The Veterans’ Judicial Review Act (“VJRA”), enacted in 1988, provides a limited waiver of sovereign immunity for lawsuits seeking review of VA benefit decisions, by vesting exclusive jurisdiction in the Veterans Court to review such decisions, subject to certain stated limitations. See 38 U.S.C. ch. 72. An appeal from the Secretary’s decision concerning benefits lies with the Board of Veterans’ Appeals, which is the division within VA responsible for deciding appeals from decisions on claims for veterans’ benefits. 38 U.S.C. § 7104(a); 38 C.F.R. § 20.101(a). The Board of Veterans’ Appeals’ decision may be appealed by the claimant to the Veterans Court, pursuant to 38 U.S.C. § 7252(a), and then, under certain circumstances, to the United States Court of Appeals for the Federal Circuit, pursuant to 38 U.S.C. §§ 7252(c), 7292, and, ultimately to the Supreme Court of the United States. Additionally, this Court’s review of Mr. Wallace’s claim, which can be construed as one seeking district court review of the VA’s determination under a law that affects the provision of benefits,6 is prohibited by 38 U.S.C. § 511(a), which 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. Subject to subsection (b),[ ] the 6 The Code of Federal Regulations defines “benefit” as “any payment, service, commodity, function or status, entitlement to which is determined under laws administered by the Department of Veterans Affairs pertaining to veterans and their dependents and survivors.” 38 C.F.R. § 20.3. Case 3:17-cv-00117-FDW-DCK Document 9-1 Filed 05/11/17 Page 12 of 16 13 decision of the Secretary as to any 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. Section 511 preclusion extends to “those decisions that may affect” veterans’ benefits cases, Veterans for Common Sense v. Shinseki, 678 F.3d 1013, 1025 (9th Cir. 2012) (en banc), and to challenges brought pursuant to the FTCA, Quarles v. United States, 731 F.Supp. 428 (D.Kan. Jan. 26, 1999), “cloaked in constitutional terms,” or based on the Privacy or Freedom of Information Act. See Sugrue v. Derwinski, 26 F.3d 8, 11 (2d Cir. 1994) cert. denied, 515 U.S. 1102 (1995); Christianson v. Colt Indus. Operating Corp., 486 U.S. 800, 818 (1988) (even in the interest of justice, courts may not extend their jurisdiction where none exists); see also King v. U.S. Dept. of Veterans Affairs, 728 F.3d 410 (5th Cir. Aug. 23, 2013) (veteran’s FTCA action relating to termination of disability benefits precluded by 38 U.S.C. § 511(a)); Menendez v. United States, 67 F.Supp.2d 42 (D.P.R. Sept. 3, 1999) (dismissing FTCA suit alleging VA negligently maintained medical records because “suit would force the Court to decide the issue of negligence only as precursor to a determination regarding the proprietary of the denial of benefits to plaintiff”); Goings v. United States, No. 07-1620, 287 Fed. Appx. 543 (8th Cir. July 18, 2008) (unpublished) (plaintiff’s FTCA claim precluded because 42 U.S.C. § 405(h) restricted the method and manner for review of a decision of the Commissioner of Social Security); see also Rosen v. Walters, 719 F.3d 1422, 1422-25 (9th Cir. 1983) (in the context of a Privacy Act claim, rejecting argument that § 511(a)’s predecessor statute, 38 U.S.C. § 211(a), which similarly limited judicial review of VA benefits decisions, was unconstitutional, and noting that preclusion was appropriate where the damages claim would require the district court to determine not only that the VA intentionally failed to maintain complete records, but also whether, but for the missing records, Case 3:17-cv-00117-FDW-DCK Document 9-1 Filed 05/11/17 Page 13 of 16 14 plaintiff should have been awarded disability benefits, which necessarily involved the impermissible review of a prior adverse VA decision). Here, Mr. Wallace alleges that had “the V.A. not negligently lost these [medical] records they would have been available not only for the plaintiffs 2010 V.A. benefits application but also for other legal reasons” (Doc. No. 1 ¶ 10 p. 2). He has not alleged what role, if any, the medical records would have played in his ability to obtain disability benefits, or whether he followed through on his application for disability benefits; nor has he alleged that benefits were denied or that he availed himself of and exhausted the applicable administrative remedies seeking a reversal or modification of a benefits decision prior to filing suit.7 Moreover, the allegations require this Court to “second guess” a VA benefits-related decision by speculating as to what may or may not have happened to Mr. Wallace’s benefits application and status, because of the purportedly missing records. This Complaint should be dismissed for lack of subject matter jurisdiction pursuant to Rule 12(b)(1) because it is precluded by § 511(a). III. CONCLUSION The United States respectfully requests that the Complaint be dismissed pursuant to Rule 12(b)(1), or, alternately, Rule 12(b)(6). 7 Plaintiff alleges that he followed the FTCA’s administrative process and made a claim, which was subsequently denied by the VA (Doc. No. 1 ¶8 p. 1), however, the FTCA claims process is not applicable or relevant to claims seeking review of benefits-related decisions, and the exhaustion of the FTCA administrative remedies does not satisfy the jurisdictional prerequisite for judicial review of a benefits-related claim. Case 3:17-cv-00117-FDW-DCK Document 9-1 Filed 05/11/17 Page 14 of 16 15 IV. CERTIFICATION OF COMPLIANCE The undersigned counsel hereby certifies that this Memorandum of Law does not exceed 4,500 words and complies with the word limitation as set forth in Paragraph 3(b)(iv) of the Standard Initial Scheduling Order. This the 11th day of May, 2017. Respectfully, JILL WESTMORELAND ROSE United States Attorney s/ Katherine T. Armstrong Assistant United States Attorney N.C. Bar No. 36305 227 West Trade Street, Suite 1650 Charlotte, NC 28202 Tel: 704-344-6222 Fax: 704-344-6629 E-Mail: Katherine.Armstrong@usdoj.gov Case 3:17-cv-00117-FDW-DCK Document 9-1 Filed 05/11/17 Page 15 of 16 16 CERTIFICATE OF SERVICE I CERTIFY that on the 11th day of May, 2017, the foregoing Memorandum of Law in Support of Defendant’s Motion to Dismiss was electronically filed with the Clerk of the Court using the CM/ECF system and served on the Plaintiff, pro se, by mailing a copy thereof, first class mail, postage prepaid, and properly addressed to: Don Bradley Wallace 1130 Gretna Green Dr. Charlotte, NC 28217 Plaintiff, pro se JILL WESTMORELAND ROSE United States Attorney s/ Katherine T. Armstrong Assistant United States Attorney N.C. Bar No. 36305 227 West Trade Street, Suite 1650 Charlotte, NC 28202 Tel: 704-344-6222 Fax: 704-344-6629 E-Mail: Katherine.Armstrong@usdoj.gov Case 3:17-cv-00117-FDW-DCK Document 9-1 Filed 05/11/17 Page 16 of 16