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
"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