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King v U.S. of Veterans Affairs

Case No. 12-60835 (C.A. 5, Aug. 23, 2013)

This is an action under the Federal Tort Claims Act (“FTCA”), 28 U.S.C. §§ 1346(b)(1), 2671–80 (2006), in which Philip M. King (“King”) seeks compensatory damages for loss of property and personal injuries allegedly caused by the negligence and malice of the United States Department of Veterans Affairs and others (collectively, “the VA”). The VA moved to dismiss King’s claims, contending that the Veterans Judicial Review Act (“VJRA”), 38 U.S.C. § 511 (2006), and alternatively the United States’ sovereign immunity, barred the district court from exercising jurisdiction over King’s claims. The district court granted the VA’s motion to dismiss. We AFFIRM.

I.



King suffered injury in Iraq while serving in the United States Armed Forces. Based on his diagnosis of ruptured discs in his neck and back, radiculopathy, and nerve entrapment in his arms and legs, King applied for veterans’ benefits. In January 2006, the VA awarded him benefits based on an 80% service-connected disability rating. King disagreed with his rating, believing it should be increased to 100%; accordingly, he submitted additional information in support of an increase, including his status as a recipient of workers’ compensation benefits through his private insurance company. In July 2007, rather than increasing King’s disability rating, the VA terminated his benefits based on an apparent misunderstanding regarding his ability to receive simultaneously VA benefits and workers’ compensation benefits under the Defense Base Act, 42 U.S.C. § 1651 (2006).

In seeking reinstatement of his benefits, King submitted to the VA letters of support from both the Department of Labor and his private insurer. The VA did not change its decision, however. To the contrary, it attempted to recover from King the benefits it previously paid to him. King continued his attempts to resolve the situation with phone calls, letters, e-mails, and additional documentation. King also submitted a Freedom of Information Act (FOIA) request related to his benefits. Eventually, King spoke on the telephone with an attorney for the VA who took action to reinstate King’s benefits. In March 2008, eight months after it terminated King’s benefits, the VA retroactively awarded King a 100% disability rating and reinstated his benefits based on that rating. King alleges that the VA sent him a letter admitting that it had “erroneously terminated [his] benefits,” but he concedes that the VA eventually paid him all of the correct back payments and interest.
 

 

Judge(s): Jennifer Walker Elrod
Jurisdiction: U.S. Court of Appeals, Fifth Circuit
Related Categories: Administrative Law , Government / Politics , Torts
 
Circuit Court Judge(s)
Jennifer Elrod
Stephen Higginson
Philip Martinez

 

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Click the maroon box above for a formatted PDF of the decision.
case: 12-60835 document: 00512352235 page: 4 date filed: 08/23/2013 to resolve the situation with phone calls, letters, e-mails, and additional immunity only for claims “seeking relief other than money damages.” 5 u.s.c. lyle w. cayce v. the district court’s dismissal also comports with the reasoning in price v. the united states should be dismissed for lack of subject-matter jurisdiction. the apa does not waive sovereign immunity from monetary damages awards. the secretary shall decide all questions of law and fact necessary to eight months after it terminated king’s benefits, the va retroactively awarded see id. (citation omitted). we may determine that subject-matter jurisdiction is shinseki, in his official capacity as secretary of the united states department eight months. after hearing nothing in response to his administrative claim, this is an action under the federal tort claims act (“ftca”), 28 u.s.c. believing it should be increased to 100%; accordingly, he submitted additional case: 12-60835 document: 00512352235 page: 5 date filed: 08/23/2013 base act. no. 12-60835 3 king sued the va in may 2011, asserting state-law tort claims.2 there, a veteran endured a “nine-year odyssey to win disability benefits from the 7 e.g., jaso v. the coca cola co., 435 f. app’x 346, 358 n.12 (5th cir. 2011) (unpublished but actions taken in connection with the denial of [his] administrative claim for 60 f.3d 1156, 1158–59 (5th cir. 1995) (footnotes omitted). under these misrepresentation because, through those claims, the veteran sought “review of determine first whether the va acted properly in handling price’s request for barred the district court from exercising jurisdiction over king’s claims. the exception to the ftca’s waiver of immunity. king timely appealed. agents knew or should have known that the denial of king’s benefits was wrong. that the district court correctly rejected these arguments and dismissed king’s case: 12-60835 document: 00512352235 page: 8 date filed: 08/23/2013 benefits by the secretary to veterans or the dependents or survivors the united states court of appeals for veterans claims, and that sovereign claims based on doctor’s alleged negligence in issuing a psychiatric evaluation appeal of the va’s benefits decisions. the district court concluded that they did, for veterans to appeal benefits decisions: as an alternative argument to establish the district court’s jurisdiction case: 12-60835 document: 00512352235 page: 2 date filed: 08/23/2013 provisions, the district court lacked jurisdiction if king’s claims amounted to an decisions is conferred exclusively on the court of veterans appeals. phillip m. king, complaint seeks exclusively money damages, and the apa waives sovereign and statutory provisions, to the extent presented and necessary to in the district court addressed a foia claim. therefore, king has waived any foia claim he district judge of the western district of texas, sitting by designation. 6 failure to consider established or admitted facts . . . and finally and most 224–25. here, by contrast, king’s claims would require the district court to to dismiss king’s claims for lack of subject-matter jurisdiction under rule district court’s dismissal on any ground the record supports. moncrief oil int’l plaintiff - appellant, for the fifth circuit in seeking reinstatement of his benefits, king submitted to the va letters the district court correctly concluded that king’s ftca claims against all defendants except that it lacked subject-matter jurisdiction under the vjra to adjudicate king’s unlawfully and that he sustained damages based on the loss of his benefits for section 511, the dambach court reasoned that the veteran’s claims fell outside the district court’s first reason is not sufficient to conclude that king cannot rely (citation omitted)). letter explaining that king was receiving workers’ compensation benefits pursuant to the a decision by the secretary under a law that affects the provision of iii. 394 f.3d 970, 974–75 (d.c. cir. 2005) (allowing a plaintiff to proceed on a claim persuasive) (concluding that a plaintiff waived an argument “by failing to raise it below in i. no. 12-60835 united states, 74 f.3d 657, 659 (5th cir. 1996)). ultimately, we may affirm the iv. (1) king’s complaint makes no reference to jurisdiction under the apa; and (2) benefits based on an apparent misunderstanding regarding his ability to receive the va alleging that it wrongfully failed to comply with its legal obligation to king filed an administrative claim in 2010. he alleged that the va acted radiculopathy, and nerve entrapment in his arms and legs, king applied for jurisdiction” (citation omitted)). nevertheless, for the second reason in the v. brown, other provisions in the vjra establish “an exclusive review procedure” consider the facts in his letters and e-mails and to apply correctly the defense instructive. 211 f. app’x 105 (3d cir. 2006) (unpublished but persuasive). at 108. the same holds true here. king bases his claims on the va’s earlier one covered by [the apa], and, hence, sovereign immunity has not been waived.” forces. based on his diagnosis of ruptured discs in his neck and back, delve into the va’s benefits decisions because the va admitted that it u.s.c. § 511 (2006), and alternatively the united states’ sovereign immunity, district court’s jurisdiction. persuasive authority illustrates this point. case: 12-60835 document: 00512352235 page: 6 date filed: 08/23/2013 united states, 281 f.3d 158, 161 (5th cir. 2001) (citing barrera-montenegro v. although king originally asserted claims against individual persons, the united over his claims, king urges that his complaint “implicitly” invoked provisions in claims. see dambach, 211 f. app’x 107–08; price, 228 f.3d at 422; weaver, 98 for the southern district of mississippi that the administrative procedure act (“apa”) provides a basis for the district the district court’s jurisdiction because they “challenge[d] earlier denials of a solis, in her official capacity as secretary of the united states department of king a 100% disability rating and reinstated his benefits based on that rating. 1 before elrod and higginson, circuit judges, and martinez, district king’s claims, contending that the veterans judicial review act (“vjra”), 38 2007, rather than increasing king’s disability rating, the va terminated his b. in march 2008, king contends that the district court erred in holding that it lacked subject- defendants - appellees. from king the benefits it previously paid to him. king continued his attempts states’ sovereign immunity barred king’s claims because they fell within an clerk the united states court of appeals for the federal circuit has 2 that analysis would involve questions of law and fact related to the va’s jurisdiction over his claims because the va removed “certain key documents from his foia * that the va failed to inform him of a schizophrenia diagnosis because the claim packet.” as the district court noted, however, neither king’s complaint, nor any of his briefing as this court explained in zuspann no. 12-60835 caused by the negligence and malice of the united states department of case: 12-60835 document: 00512352235 page: 9 date filed: 08/23/2013 38 u.s.c. § 511(a) (2006) (emphasis added).4 importantly the failure to apply controlling federal statutory law.” id. at 107 his claims fall within any of them. the va moved on the apa to show jurisdiction. see taylor-callahan-coleman cntys. dist. dismissed a veteran’s claims against the va for conspiracy, fraud, and king alleges that the va sent him a letter admitting that it had “erroneously might have had and may not rely on foia to demonstrate the district court’s jurisdiction. see, no. 12-60835 simultaneously va benefits and workers’ compensation benefits under the of support from both the department of labor and his private insurer. the va benefits decisions, and those are issues that section 511 places outside the court of appeals “exclusive jurisdiction” to “interpret constitutional states is the proper and exclusive defendant for his claims under the ftca. see atorie air, appeal from the united states district court board of veterans’ appeals. jurisdiction to review the board’s 8 information in support of an increase, including his status as a recipient of reviewed by any other official or by any court, whether by an action 4 “bears the burden of proof for a 12(b)(1) motion to dismiss.” see id. (citation 12(b)(1). it contended that king’s exclusive avenue for redress was by appeal to claims. compensatory damages for loss of property and personal injuries allegedly the vjra cabins judicial review of veterans’ benefits determinations. exclusive jurisdiction to review the decisions of the court of review of the va’s actions in connection with the denial of his benefits, but assess the va’s benefits decisions. therefore, we agree with the district court no. 12-60835 benefits”). a decision.” 2 5 for the reasons above, we affirm the district court’s dismissal of king’s veteran’s claims for lack of subject-matter jurisdiction, the price court explained judge.* terminated [his] benefits,” but he concedes that the va eventually paid him all veterans affairs and others (collectively, “the va”). the va moved to dismiss under the ftca must be brought against the united states.” (citation omitted)). therefore, no. 12-60835 no. 12-60835 subject-matter jurisdiction under the ftca. we need not address this issue, however, because castillo, the courts concluded that section 511 did not apply because the claims lacking based on “(1) the complaint alone; (2) the complaint supplemented by of veterans. subject to subsection (b), the decision of the secretary specifically, section 511(a) provides that: king also asserts that foia provides an “additional” basis for the district court’s it did not admit to negligence, much less malice. to award king damages based undisputed facts evidenced in the record; or (3) the complaint supplemented by immunity barred king’s state-law tort claims. the district court agreed. it in the united states court of appeals 781 (5th cir. 2012) (citations omitted). as the party asserting jurisdiction, king denials of his benefits. moreover, just as the veteran in dambach challenged the the apa.5 substance of the complaint at issue is a claim for money damages, the case is not benefits. see thomas, 394 f.3d at 974–75; cortes castillo, 433 f. supp. 2d at from exercising jurisdiction over king’s claims, and (2) alternatively, the united the vjra allows veterans to appeal benefits determinations to the 80% service-connected disability rating. king disagreed with his rating, acted in bad faith or with negligence would require the district court to king’s arguments fall into two categories relevant to our decision: first, omitted). to meet that burden, king “must prove by a preponderance of the request related to his benefits. eventually, king spoke on the telephone with an we conclude that the district court correctly dismissed king’s claims based on the vjra. no. 12-60835 for benefits “was wrongfully denied more than thirteen times . . . [because of] the evidence that the court has jurisdiction based on the complaint and evidence.” section 511(b) lists several exceptions to this provision, but king does not allege that claim for benefits as well as related decisions on questions of fact and law.” id. the district court rejected king’s attempt to rely on the apa because with no medical basis because the claims did not challenge the factual or legal inc. v. oao gazprom, 481 f.3d 309, 311 (5th cir. 2007). va’s “failure to consider established [and] admitted facts . . . [and] to apply the third circuit’s decision in dambach v. united states is particularly labor; john does 1-10; united states of america, on his complaint, the district court would have to analyze whether the va’s case: 12-60835 document: 00512352235 page: 1 date filed: 08/23/2013 f.3d at 519–20. reimburse him for certain medical expenses and caused him additional harm of veterans affairs; united states department of labor; hilda l. “erroneously terminated [his] benefits.” even if the va admitted error, however, united states court of appeals king also contends that the district court erred in holding that it lacked handling his requests for benefits. see id. king essentially seeks district court case: 12-60835 document: 00512352235 page: 3 date filed: 08/23/2013 adult probation dep’t v. dole, 948 f.2d 953, 956 (5th cir. 1991) (recognizing that inc. v. f.a.a. of u.s. dep’t of transp., 942 f.2d 954, 957 (5th cir. 1991) (“all suits brought documentation. king also submitted a freedom of information act (foia) district court granted the va’s motion to dismiss. we affirm. veterans appeals. congress expressly gave the federal circuit controlling federal statutory law,” id. at 107, king challenges the va’s failure to section 511 prohibits such review. see id.; see also weaver v. united states, 98 matter jurisdiction based on the vjra. second and alternatively, king asserts determinations upon which the va awarded benefits). in thomas and cortes f i l e d veterans’ benefits. in january 2006, the va awarded him benefits based on an supp. 2d 221, 224–25 (d.p.r. 2006) (concluding that section 511 did not bar 5 when it sought to collect unpaid medical bills on behalf of medical service according to king, the general counsel’s office sent the jackson regional office a the “failure to cite a specific jurisdictional grant in [a] complaint does not defeat §§ 1346(b)(1), 2671–80 (2006), in which philip m. king (“king”) seeks court to assert jurisdiction over his claims. for the reasons below, we conclude fifth circuit no. 12-60835 the cases that king relies on are distinguishable. see thomas v. principi, reimbursement.” id. at 422. king’s claims, like the veteran’s claims in price, august 23, 2013 698, 701 (5th cir. 2004))). that section 511 foreclosed judicial review because deciding “whether the va undisputed facts plus the court’s resolution of disputed facts.” ramming v. united states, 228 f.3d 420, 421–22 (d.c. cir. 2000). the veteran in price sued 4 3 as to any such question shall be final and conclusive and may not be workers’ compensation benefits through his private insurance company. in july drug enforcement admin., 82 f.3d 679, 682 (5th cir. 1996) (“[w]hen the (alterations in original). in affirming the district court’s dismissal based on we review de novo the district court’s dismissal for lack of subject-matter did not change its decision, however. to the contrary, it attempted to recover king suffered injury in iraq while serving in the united states armed claims.3 f.3d 518, 519–20 (10th cir. 1996) (holding that a district court properly defense base act, so he could receive both his va benefits and workers’ compensation benefits. response to defendants’ motion to dismiss” (citing miller v. nationwide life ins. co., 391 f.3d 9 granted the va’s motion to dismiss, concluding that (1) the vjra foreclosed it district court’s order, king’s attempt to rely on the apa is unavailing: his in handling [his] benefits request”); cortes castillo v. veterans admin., 433 f. call for the district court to determine whether the va acted properly in case: 12-60835 document: 00512352235 page: 7 date filed: 08/23/2013 providers. 228 f.3d at 421. in affirming the district court’s dismissal of the ii. § 702 (2006) (emphasis added); see armendariz-mata v. u.s. dep’t of justice, attorney for the va who took action to reinstate king’s benefits.1 king’s primary argument on appeal is that the district court need not and we agree. united states department of veterans affairs; eric k. [va].” id. at 106. he then sued the va under the ftca, alleging that his claim in the nature of mandamus or otherwise. defense base act, 42 u.s.c. § 1651 (2006). jennifer walker elrod, circuit judge: of the correct back payments and interest. a. jurisdiction under rule 12(b)(1). ballew v. cont’l airlines, inc., 668 f.3d 777, at issue did not challenge the propriety of the va’s handling of a veteran’s would not require the court “to determine first whether the va acted properly


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