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April 14, 2005.

ALLAN E. MURRHEE, Plaintiff,
ANTHONY PRINCIPI, Director of the Department of Veterans Affairs, and LINDA BELTON, Regional Director of the Department of Veterans Affairs, Defendants.

The opinion of the court was delivered by: DAVID BERNTHAL, Magistrate Judge


In October 2004, Plaintiff, Allan Murrhee, acting pro se, filed a Complaint (#2) against Defendants, Anthony Principi, Director of the Department of Veterans Affairs, and Linda Belton, Regional Director. In January 2005, Defendants filed a Second Motion To Dismiss Plaintiff's Complaint for Failure To State a Valid Cause of Action (#20). After reviewing the parties' pleadings and memoranda, this Court GRANTS Defendants' Second Motion To Dismiss Plaintiff's Complaint for Failure To State a Valid Cause of Action (#20).

  I. Background

  The following background is taken from the complaint. In 1980, Plaintiff applied for a nonservice-connected pension. In March 1981, the Regional Office (hereinafter "RO") of the Department of Veterans Affairs (hereinafter "DVA") awarded him benefits based on medical evidence showing that he was permanently and totally disabled from a spinal cord injury. The award included a special monthly pension based on his need for regular aid and attendants. Plaintiff married in September 1988. In June 1990, Plaintiff submitted an Improved Pension Eligibility Verification Report reflecting his income and his wife's income. In a decision letter dated September 1990, the RO terminated Plaintiff's monthly pension benefits effective April 1, 1990.

  In September 1998, a congressman forwarded to the DVA a letter from Plaintiff and requested that the letter be treated as (1) a request for review of the termination of Plaintiff's pension benefits, and (2) a claim for payment of pension and aid and attendants benefits without regard to Plaintiff's wife's income. In December 1998, the RO determined that Plaintiff's wife's income may be excluded when calculating income for the purpose of establishing entitlement to pension benefits. As a result, the RO reinstated Plaintiff's pension benefits effective October 1, 1998.

  Plaintiff then asked for his pension benefits to be restored for the period prior to October 1, 1998. Plaintiff contended that the RO had wrongfully terminated his pension benefits because the RO had either actual or constructive knowledge of the nature of Plaintiff's wife's income. It appears that Plaintiff's claim was ultimately successful because Plaintiff's complaint alleged as follows: "The imperiled pleader disspite the D.A.V.'s complicity omissions, sought and gained full reinstatement of his much needed aid and attendants benefits" (sic). (#2, p. 7.)

  Plaintiff's complaint alleges that Defendants denied him due process by making him wait eight years before his pension benefits were reinstated and by delaying for another four years after reinstating his benefits before paying him back benefits for the eight-year gap. Specifically, Plaintiff's complaint states as follows: "I submit the D.V.A's. complicity omissions caused the imperiled pleader to incur the insufficient due process which recklessly endangered the imperiled pleader" (sic). (#2, p. 7.) His complaint also alleges: "Motion for judgment of reckless endangerment by the D.V.A. for failure to permit the imperiled pleader sufficient due process. Causing the imperiled pleader to grievously suffer the loss of much needed aid and attendants benifits thus entitling the imperiled pleader to reckless endangerment damage relief" (sic). (#2, p. 10.) As a result of these delays, Plaintiff seeks damages in the amount of $8,000,000.

  II. Standard of Review

  "Rule 12(b)(1) requires that an action be dismissed if the court lacks jurisdiction over the subject matter of the lawsuit." McCulley v. United States Dep't of Veterans Affairs, 851 F. Supp. 1271, 1276 (E.D. Wis. 1994), quoting Unity Sav. Ass'n v. Fed. Sav. & Loan Ins. Corp., 573 F. Supp. 137, 140 n. 4 (N.D. Ill. 1983). When ruling on such a motion, the Court "is not bound to accept as true the allegations of the complaint which tend to establish jurisdiction where a party properly raises a factual question concerning the jurisdiction of the . . . court to proceed with the action." Grafon Corp. v. Hausermann, 602 F.2d 781, 783 (7th Cir. 1979). Instead, the Court should "look beyond the jurisdiction allegations in the complaint and view whatever evidence has been submitted on the issue in determining whether in fact subject matter jurisdiction exists." Id. at 783. Where subject matter jurisdiction is at issue, the party invoking jurisdiction bears the burden of supporting the allegations of jurisdictional facts with competent proof. Id. at 783; McCulley, 851 F. Supp. at 1276.

  III. Analysis

  Defendants argue that the Court should dismiss the case for lack of subject matter jurisdiction. Defendants contend that, under Rule 12(b)(1), subject matter jurisdiction is lacking because Section 511 of Title 38 precludes district courts from exercising subject matter jurisdiction. Section 511 replaced 38 U.S.C. ยง 211 following enactment of the Veterans' Judicial Review Act (hereinafter "VJRA") (Pub.L. No. 100-687, 102 Stat. 4105 (1988) (codified as amended in scattered sections of Title 38)).

  As an initial matter, it is unclear whether Plaintiff intends to assert an action against the United States government or against employees of the government in their individual capacities. Therefore, the Court will address both claims.

  A. Claims Against Employees in Their Individual Capacities

  If Plaintiff intended to sue Defendants in their individual capacities rather than the United States government, he has failed to state a claim for which relief can be granted. A Bivens action may be maintained against government employees who are sued in their individual capacities. See Farmer v. Brennan, 511 U.S. 825, 851 (1994); Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971). However, the United States Supreme Court has declined to create Bivens remedies when Congress has created "adequate remedial mechanisms for constitutional violations that may occur." Schweiker v. Chilicky, 487 U.S. 412, 423 (1988). Here, the comprehensive remedial structure of the statute provides an adequate remedy for constitutional violations, and thus precludes Bivens claims. Hicks v. Small, 69 F.3d 967, 969 (9th Cir. 1995); Marozsan v. United States, 849 F. Supp. 617, 646-47 (N.D. Ind. 1994), aff'd, 90 F.3d 1284 (7th Cir. 1996); Thomas v. Principi, 394 F.3d 970, 975-76 (holding that the combination of a comprehensive remedial system and statutory preclusion of judicial review of benefits disputes forecloses a Bivens ...

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