United States District Court, C.D. Illinois, Urbana Division
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).
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
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.
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. § 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 action against VA employees for constitutional torts in
the context of a dispute over veterans' benefits). Thus, to the
extent that Plaintiff's complaint attempts to state claims
against Defendants in their individual capacities, the Court must
dismiss those claims pursuant to Rule 12(b)(6).
B. Doctrine of Sovereign Immunity
Under the doctrine of sovereign immunity, the United States may
not be sued without its consent. Hercules, Inc. v. United
States, 516 U.S. 417, 422 (1996); Amwest Sur. Ins. Co. v.
United States, 28 F.3d 690, 694 (7th Cir. 1994). Sovereign
immunity acts as a jurisdictional bar, depriving courts of
subject matter jurisdiction. United States v. Sherwood,
312 U.S. 584, 586-87 (1941); Edwards v. United States Dep't of
Justice, 43 F.3d 312, 317 (7th Cir. 1994). This jurisdictional
bar blocks suits which threaten "to impose upon the United States
liability for money or property damages or some form of coercive
injunctive relief." United States v. Rural Elec. Convenience
Co-op. Co., 922 F.2d 429, 434 (7th Cir. 1991). Furthermore,
sovereign immunity "cannot be avoided by suing individual Federal
departments, such as the VA." Helfgott v. United States,
891 F. Supp. 327, 329-30 (S.D. Miss. 1994).
Congress may choose to waive sovereign immunity, but it must do
so explicitly. In re Skupniewitz, 73 F.3d 702, 704 n. 1 (7th
Cir. 1996). Although creation of a private right of action may be
inferred from a statute, a waiver of sovereign immunity may not
be inferred; it must be expressed unequivocally. United States
v. Mitchell, 445 U.S. 535, 538 (1980); Jones v. Brown,
41 F.3d 634, 638 (Fed. Cir. 1994). When Congress does waive sovereign
immunity, it may limit the circumstances of such waiver. Courts
should narrowly interpret the scope of a limited waiver. Lane v.
Pena, 518 U.S. 187, 192 (1996). Waiver of sovereign immunity cannot be found in
28 U.S.C. § 1331 or the Administrative Procedures Act (hereinafter "APA").
Section 1331 creates federal question jurisdiction for "civil
actions arising under the Constitution, laws, or treaties of the
United States," but it does not waive sovereign immunity. Reed
v. Reno, 146 F.3d 392, 397-98 (6th Cir. 1998); Lonsdale v.
United States, 919 F.2d 1440, 1443 (10th Cir. 1990). The APA
provides a limited waiver of sovereign immunity; however, it does
not waive immunity from monetary damage awards. Lane,
518 U.S. at 196. The APA provides as follows:
A person suffering legal wrong because of agency
action, or adversely affected or aggrieved by agency
action within the meaning of a relevant statute, is
entitled to judicial relief thereof. An action in a
court of the United States seeking relief other than
money damages and stating a claim that an agency or
an officer or employee thereof acted or failed to act
in an official capacity or under color of legal
authority shall not be dismissed nor relief therein
be denied on the ground that it is against the United
States or that the United States is an indispensable
5 U.S.C. § 702 (emphasis added). Thus, neither 28 U.S.C. § 1331
nor the APA waives sovereign immunity as to Plaintiff's claim for
monetary damages in the present case.
Two courts have stated that the VJRA provides a limited waiver
of sovereign immunity for litigants seeking judicial review of
benefits decisions by the Board of Veterans' Appeals. See
Helfgott, 891 F. Supp. at 329-30; McCulley,
851 F. Supp. at 1278. We will not address the issue of whether or to what extent
the VJRA waives sovereign immunity because the absence of federal
subject matter jurisdiction renders the issue moot.
C. Federal Subject Matter Jurisdiction
Assuming Plaintiff intends to state a claim against the United
States government, this Court must have a statutory grant of
subject matter jurisdiction before it can hear the case.
Section 1331 of Title 28 grants federal district courts broad
federal question jurisdiction. However, Congress has attempted to
"close the door" on district court jurisdiction to hear cases
arising out of veterans benefits claims by passing
38 U.S.C. § 511(a). The question of subject matter jurisdiction generally
arises in the context of three types of claims: Facial
constitutional challenges to the statute itself, benefits claims, and
constitutional challenges to the DVA's procedures or regulations.
Whether Section 511(a) precludes district court jurisdiction
depends on which of these claims is before the court. This Court
will now consider whether Section 511(a) precludes federal
district courts from exercising jurisdiction over each of these
types of claims.
In Johnson v. Robison, the Supreme Court construed the
jurisdictional implications of 38 U.S.C. § 211(a), the precursor
of Section 511(a), expressing concern that statutory preclusion
of facial challenges would "raise serious questions concerning
the constitutionality of § 211(a)." Johnson v. Robison,
415 U.S. 361, 366 (1974). The Supreme Court ultimately held that
Section 211(a) did not preclude district courts from reviewing
facial challenges to the constitutionality of the statute itself.
Id. at 373 ("a construction of § 211(a) that does not extend
the prohibitions of that section to actions challenging the
constitutionality of laws providing benefits for veterans . . .
is the most reasonable construction").
Even after Congress passed the VJRA in 1988, federal courts
have continued to follow Johnson, holding that Section 511(a)
does not preclude federal district court jurisdiction to consider
facial constitutional challenges. See Zuspann v. Brown,
60 F.3d 1156, 1158-59 (5th Cir. 1995) ("If Zuspann makes a facial
challenge to a statute, then the district court has jurisdiction
to hear his case."); Larrabee v. Derwinski, 968 F.2d 1497, 1501
(2d Cir. 1992); McCulley, 851 F. Supp. at 1281-82. But see
Hall v. United States Dep't Veterans' Affairs, 85 F.3d 532, 534
(11th Cir. 1996) ("In the wake of the VJRA, the vitality of the
Johnson holding with respect to the jurisdiction of the
district courts to entertain facial constitutional attacks on
veterans' benefits legislation (as opposed to the implementing
rules and regulations) is debatable."). Thus, this Court
continues to have jurisdiction to hear facial constitutional
Although district courts retain jurisdiction to review facial
constitutional challenges to veterans' benefits statutes, Section
511(a) effectively precludes district court review of veterans'
benefits claims. See McCulley, 851 F. Supp. at 1282 (stating
that the VJRA has channeled challenges to veterans' benefits decisions to the Court of
Veterans Affairs and the Federal Circuit); see also Marozsan v.
United States, 852 F.2d 1469, 1471 n. 3 (7th Cir. (Ind.) 1988)
("Section 211(a) clearly precludes our review of the
Administrator's decision to set benefits and disability levels")
(Marozsan I). Moreover, a plaintiff cannot avoid Section 511(a)
by disguising his benefits claim in constitutional clothing.
McCulley, 851 F. Supp. at 1280. The Seventh Circuit court has
stated that "the Due Process Clause is not a guarantee against
incorrect results." Marozsan v. United States, 90 F.3d 1284,
1289 (7th Cir. 1996) (Marozsan II). Thus, the Court does not
have jurisdiction to consider challenges to benefits decisions
even when those benefits claims are cloaked in constitutional
Lastly, this Court considers whether district courts retain
jurisdiction to hear constitutional challenges not to the statute
itself, but to the DVA's regulations and procedures. In Marozsan
I, the Seventh Circuit court extended Johnson v. Robison,
holding that Section 211(a) could not preclude district courts
from hearing constitutional attacks on the DVA's regulations and
procedures. Marozsan I, 852 F.2d at 1472. The Seventh Circuit
reasoned that "[i]t is hard to see how the Court would insist on
the right to review the constitutionality of legislation, but
hold immune from review all unconstitutional administrative
actions taken pursuant to that legislation." Id. at 1476. The
court also emphasized that if courts were precluded from
reviewing constitutional challenges to administrative actions,
veterans would be left without any forum to pursue those
constitutional claims. Id. at 1477-78.
A few months after the Marozsan I decision, Congress,
concerned that judicial extensions to Johnson would overexpose
DVA benefits decisions to judicial review, passed the VJRA.
Larrabee, 968 F.2d at 1500-01. The VJRA amended the former
Section 211(a) to provide as follows:
The Secretary 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. . . . [T]he 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). Other provisions of the VJRA establish the
path to appellate review of the Secretary's benefits decisions as
follows: Claimants may first appeal to the Board of Veterans'
Appeals (38 U.S.C. § 7104(a)), then to the Court of Appeals for
Veterans' Claims (38 U.S.C. § 7252(a)), to the Federal Circuit
(38 U.S.C. § 7292(c)), and ultimately to the Supreme Court
(id.). By channeling judicial review to the Federal Circuit
rather than completely precluding it, Congress hoped to avoid the
constitutional attacks that had previously limited the preclusive
effect of Section 211(a). Larrabee, 968 F.2d at 1501.
Several courts have reached decisions that indicate the VJRA
was successful in this regard. See Beamon v. Brown,
125 F.3d 965, 974 (6th Cir. 1997); Larrabee, 968 F.2d at 1501; Menendez
v. United States, 67 F. Supp. 2d 42, 47 (D.P.R. 1999);
McCulley, 851 F. Supp. at 1282. Thus, by leaving the door
partly open, it appears that Congress has successfully precluded
district courts from hearing constitutional challenges to the
DVA's regulations and procedures.
Given the changes to Section 211(a) enacted by the VJRA, it
might appear that Maroszan I is no longer good law. However, in
Czerkies v. United States Department of Labor, the Seventh
Circuit stated, "Marozsan [I] was an en banc decision, and
nothing has happened since it was decided that would justify our
overruling it." Czerkies v. United States Dep't of Labor,
73 F.3d 1435, 1438 (7th Cir. 1996). At first blush, this language
from Czerkies seems to imply that the VJRA was unsuccessful in
precluding district court review of constitutional challenges to
DVA regulations and procedures. But closer inspection of
Czerkies does not support such a conclusion.
In Czerkies, the plaintiff, a federal employee, brought a due
process claim premised on denial of workers' compensation
benefits under the Federal Employees Compensation Act
(hereinafter "FECA"). Id. at 1437. The FECA contains a
door-closing provision that attempts to preclude judicial review
of all constitutional challenges to administrative regulations
and procedures. See 5 U.S.C. § 8128(b). In Czerkies, the
Seventh Circuit court considered "the applicability of [the FECA]
door-closing provision, and ones like it, to constitutional
claims." Id. (emphasis added). By "ones like it," the Supreme
Court was referring to door-closing provisions that completely preclude judicial review of
constitutional claims as opposed to provisions which merely
channel judicial review. To illustrate, the Supreme Court
referred to its decision in Thunder Basin Coal Co. v. Reich,
510 U.S. 200, 215 (1994), which held that a doorclosing statute
contained in the Mine Safety Act could preclude district court
review of due process claims. The Czerkies court distinguished
the judicial review provision at issue in Thunder Basin because
of a "most important point decisions [of the agency that
regulated mine safety] were reviewable by a federal court of
appeals." Czerkies, 73 F.3d at 1439.
According to the Czerkies court, Section 211(a), the pre-VJRA
provision at issue in Marozsan I, was indeed similar to the
door-closing provision in the FECA because it attempted to
completely preclude judicial review of constitutional claims.
Czerkies held that provisions similar to Section 211(a) and the
relevant FECA provision cannot preclude district court review of
constitutional challenges because plaintiffs would be left
without any forum in which to bring such claims. However, Section
511(a) differs from Section 211(a) and the FECA because it merely
channels judicial review to the Federal Circuit instead of
completely precluding it. Thus, the Czerkies court's statement
that Marozsan I is still good law should be read as an
affirmation of the Marozsan I holding that door-closing
provisions cannot completely preclude judicial review of
constitutional attacks on agency regulations. Nevertheless,
because Section 511(a) does not attempt to completely preclude
judicial review, the rule articulated in Marozsan I and
affirmed in Czerkies allowing district courts to review
constitutional challenges to an agency's regulations and
procedures does not apply to it.
Based on the foregoing discussion, this Court concludes that it
can exercise subject matter jurisdiction over only one type of
challenge to veterans' benefits claim, the facial constitutional
challenge to the veterans' benefits statutes themselves. Here,
Plaintiff's complaint challenges the agency's conduct, therefore,
the claim cannot be construed to raise a facial constitutional
challenge. Because district courts lack subject matter
jurisdiction to consider the other two types of claims, the Court
dismisses Plaintiff's case pursuant to Rule 12(b)(1) for lack of
subject matter jurisdiction. IV. Summary
For the reasons set forth above, the Court GRANTS Defendant's
Second Motion To Dismiss Plaintiff's Complaint for Failure To
State a Valid Cause of Action (#20). This case is terminated.
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