United States District Court, E.D. Pennsylvania
March 3, 2004.
JOHN S. DUKE, Plaintiff,
UNITED STATES OF AMERICA, Defendant
The opinion of the court was delivered by: JAN DUBOIS, District Judge
ORDER AND MEMORANDUM
AND NOW, this 3rd day of March, 2004, upon
consideration of the United States' Motion for Summary Judgment (Document
No. 13, filed January 2, 2004), following a hearing on November 13, 2003,
with both parties present, IT IS ORDERED that Defendant's
Motion for Summary Judgment is GRANTED.
A. PLAINTIFF'S COMPLAINT
Plaintiff, an Army veteran, filed the Complaint in this case on August
8, 2003. The gravamen of the Complaint is plaintiff's belief that he is
entitled to 100 percent service connected disability benefits retroactive
to his discharge from the Army in 1946. See Tr. of Nov. 13,
2003 Hr'g at 12. Plaintiff's claims relate to alleged improper medical
treatment for a number of
ailments, alleged errors made by the Department of Veterans Affairs
("DVA") in his medical records, and decisions made by the DVA as to the
severity and service connected nature of his disability.
From the Complaint, it is difficult for the Court to determine the
legal basis of plaintiff's claims. However, when considering the
sufficiency of a pro se plaintiffs complaint, the Court must be
mindful that pro se plaintiffs are not held to as high a
pleading standard as other litigants and pro se pleadings must
be construed liberally. Haines v. Kerner, 404 U.S. 519, 520
Counts one and two of the Complaint assert claims for medical
malpractice. Counts three and five challenge benefits determinations made
by the DVA. Count four alleges that the DVA refused to provide plaintiff
with copies of his medical record. In count six, plaintiff contends that
defendant made errors in his Department of Veterans Affairs Adjudication
and Veterans Record ("Veterans Records"). Count seven reiterates the
allegations in counts one, two, three, four, and five. Thus, the Court
will treat that part of count seven which deals with allegedly negligent
medical treatment similar to counts one and two as a tort
claim. That part of count seven that alleges errors in plaintiff's
Veterans Record will be treated the same as count four. That part of
count seven that challenges DVA benefits decisions will be considered
with counts three and five. Counts eight and nine assert that defendant
discriminated against plaintiff on the basis of his race and that the DVA
procedures for determining his service connected benefits denied him his
Constitutional due process rights.
Defendant moved for summary judgment, asserting, inter alia,
that this Court does not have jurisdiction to review DVA benefits
determinations and that plaintiff's remaining claims are either moot,
barred by sovereign immunity, or barred by plaintiff's failure to exhaust
administrative remedies. Mot. for Summ. J. at 2, 9, 11. For the
reasons set forth in this Memorandum, the Court grants defendant's Motion
for Summary Judgment.
B. PLAINTIFF'S MEDICAL HISTORY
Plaintiff, pro se, is an eighty-one year old veteran of the
United States Army ("Army") of African American ancestry. Compl. ¶ 2.
He was recruited by the Army to perform in an "all black Army band" in
December of 1942 (Id. ¶ 4) and was inducted into the Army
on January 22, 1943. Id. ¶ 6.
On November 17, 1945, while still in the Army, plaintiff developed
"complete right facial paralysis" and was hospitalized until January 15,
1946. Id. ¶ 7-8. Despite his claim that "his right facial
paralysis made it impossible for [him] to play the trumpet," plaintiff
was returned to active duty and the band on January 17, 1946.
Id. ¶¶ 8-10. According to plaintiff, he received no further
treatment for this condition despite the fact that "his face remained
twisted, his eyes watered, and he drooled incessantly" and "was never
able to pay the trumpet again." Id. ¶ 11.
In addition to the claimed inadequate medical treatment, plaintiff
asserts that defendant made a number of errors in his Veterans Records.
Specifically, he argues that his record does not mention his "service
connected illness [facial paralysis] or his loss of occupational
speciality [ability to play the trumpet]." Id. ¶ 12.
Plaintiff also claims: (1) that an "Authorization for Furnishing Medical
or Dental Services dated October 1, 1946" incorrectly states that he
received treatment for Bell's Palsy right, instead of Bell's Palsy left;
(2) that his records state he left music school for "personal reasons,"
even though he was receiving treatment for panic attacks; (3) that his
record incorrectly states he was treated for a left shoulder condition;
and (4) that a 1948 DVA report does not mention his left facial history
and incorrectly describes his treatment history.
Compl. ¶¶ 20, 21, 22, 27.
According to plaintiff, he was given a "convenience of the government
discharge" on May 12, 1946. Id. ¶ 14. Prior to his
discharge, plaintiff says he was told to sign a "claims form" and assured
that "his medical condition would be taken care of by the defendant."
Id. ¶ 13. In addition, he "was obliged to sign pension and
compensation documents that stated that upon discharge plaintiff was not
to receive hospitalization or domiciliary care by the U.S. or any
political subdivision thereof." Id. ¶ 14.
After his discharge, plaintiff claims he began experiencing panic
attacks. The first attack occurred on June 1, 1946, and plaintiff
received treatment from a private physician. Id. ¶ 15.
After the third panic attack, plaintiff allegedly reported to a DVA
mental hygiene clinic in Detroit, Michigan. Id. ¶ 16. At
about the same time, plaintiff contends he also developed left facial
paralysis. Id. ¶ 19. Over the next year, plaintiff claims
his condition worsened and he was forced to quit music school.
Id. ¶ 21. By September 27, 1947, plaintiff asserts that he
was hospitalized "unable to talk and totally out of touch with
reality, confined to bed, suffering conversion reactions, anxiety,
feelings of impending danger to himself and to others, tremors, tensions,
hyperhidrosis, symptoms of distress, belching gas and palpitations of the
heart." Id. ¶ 25.
Over the ensuing decades, plaintiff describes continuing health
problems and repeated attempts by the DVA to deny him the benefits he
claims he deserved. In 1958, plaintiff says he was "sedated and locked up
with the mentally insane" during a hospitalization in Detroit, Michigan.
Id. ¶ 29. In 1968, plaintiff suffered from a body rash and
panic attacks and contends that the DVA again denied his claim for
disability benefits related to these conditions. Id. ¶ 30.
When he asked the DVA for a copy of his Veterans Record in November of
2002, he claims he
was informed that the DVA had lost the file. Id. ¶
The DVA's account of plaintiff's request for his file and its
description of plaintiff's benefits history differs from plaintiff's
version of the facts in a number of respects. Defendant provided the
Court with a three volume, 2,135 page copy of plaintiff's Veterans
Record. The record details plaintiff's medical treatment and his
administrative proceedings before the DVA. According to his Veterans
Record, plaintiff reviewed his file on a number of occasions and received
a copy of the file on at least six occasions.*fn1 In addition, a copy of
plaintiff's Veterans Record was sent to the office of Senator Arlen
Specter at plaintiff's request. Mot. for Summ. J. at Exhibit A ¶ 20
(Declaration of Gary Hodge, Supervisory Veterans Service Representative,
Department of Veterans Affairs); Department of Veterans Affairs
Adjudication and Veterans Record for John S. Duke ("Vets. Rec.") at 1423.
Finally, in a declaration attached to defendant's Motion, Gary Hodge, a
Supervisory Veterans Service Representative for the DVA, describes a
November 21, 2003 meeting with plaintiff and Assistant United States
Attorney Nancy Griffin, defendant's attorney. At this meeting, plaintiff
was offered another copy of his Veterans Record but, according to Hodge,
"indicated" that he already had a copy. Exh. A ¶ 21.
C. PLAINTIFF'S DVA BENEFITS HISTORY
Plaintiff's Veteran's Record contains transcripts, records, and
decisions relating to plaintiff's benefits proceedings before the DVA.
Hodge, "an employee of the [DVA] with
substantial experience with [DVA] benefits," summarizes these
proceedings in his declaration. Mot. for Summ. J. at 2 & Exhibit A
¶ 1-3 (Declaration of Gary Hodge, Supervisory Veterans Service
Representative, Department of Veterans Affairs). According to this
summary and plaintiff's Veterans Record:
Plaintiff was honorably discharged from the Army in May of 1946. Ex. A
¶ 3 and Vets. Rec. at 6, 1419. A report of his last physical
examination prior to discharge lists a diagnosis of "Bell's palsy, right
side of face" and gives an onset date of November 1945 for this
condition.*fn2 Vets. Rec. at 34, block 11. There is no evidence in this
report of a psychiatric disorder. Id. at block 32.
After plaintiff's discharge, the DVA initially gave plaintiff a 10
percent disability rating*fn3 for his Bell's Palsy effective May 12,
1946. Ex. A ¶ 5, Vets. Rec. at 656. This rating was increased to 30
percent effective May 12, 1946, by a rating decision dated September 18,
1946. Ex. A ¶ 5, Vets. Rec. at 568.
On April 29, 1969, Mr. Duke submitted a claim to the DVA requesting
service connection*fn4 for a mental disorder as secondary to his service
connected Bell's Palsy. The DVA denied service connection in a rating
decision dated April 22, 1970 on the ground that there was
no record of mental illness while he was in the service, within one
year of discharge, or as secondary to his Bell's Palsy. Ex. A ¶ 6,
Vets. Rec. at 1247-1248.
On March 18, 1987, Mr. Duke filed another claim for service connection
for his mental disorder as secondary to his Bell's Palsy. On November 14,
1987, the DVA granted service connection for his anxiety disorder, and
this disorder was assigned a disability rating of 30 percent effective
March 18, 1987. Ex. A ¶ 7, Vets. Rec. at 1416-18. When this
disability rating was combined with the disability rating for his Bell's
Palsy, plaintiff's combined service connected evaluation was increased to
50 percent.*fn5 Exh. A ¶ 8, Vets. Rec. at 1416-18.
Plaintiff appealed this disability rating and the effective date
assigned by the DVA. He provided testimony at a hearing on November 10,
1988. Ex. A ¶ 9, Vets. Rec. at 1083-1101. After this hearing, the
hearing officer increased the individual disability evaluation for
plaintiff's anxiety disorder to 50 percent in a decision dated April 21,
1989. Vets. Rec. at 1059-60. When plaintiff's 50 percent anxiety
disability and 30 percent disability from Bell's Palsey were considered
together, his combined evaluation became 70 percent, effective March 18,
A ¶ 9, Vets. Rec. at 1059-1060, 1670-1671.
Plaintiff appealed this decision, requesting an earlier effective date
for his disability benefits. The appeal was forwarded to the DVA Board of
Veterans Appeals ("Board"). In a decision dated May 10, 1991, the Board
denied plaintiff's request for an earlier effective date for his anxiety
disorder. Ex. A ¶ 10, Vets. Rec. 895-899.
On March 12, 1991, plaintiff again presented a claim for an earlier
effective date for his anxiety disorder. He also claimed service
connection for arthritis of the thoracic spine. Ex. A ¶ 12, Vets.
Rec. at 933. The DVA denied an earlier effective date in a rating
decision dated January 8, 1992. Ex. A ¶ 12, Vets. Rec. at 873-876.
However, in that decision, the DVA granted plaintiff a 10 percent
disability rating for arthritis. This additional rating was not
sufficient to increase his overall disability evaluation above 70
percent. Ex. A ¶ 2, Vets. Rec. at 873-876.
Plaintiff filed a Notice of Disagreement with the January 8, 1992
rating decision on February 7, 1992. This is the first step in appealing
a decision to the Board of Veterans Appeals. Vets. Rec. at 1957. By a
decision dated January 20, 1995, the Board denied entitlement to an
earlier effective date for plaintiff's anxiety disorder. Ex. A ¶ 13,
Vets. Rec. at 1661-1666. This decision was later upheld by the United
States Court of Appeals for Veterans Claims (formerly the Court of
Veterans Appeals) in a decision dated June 5, 1997. Ex. A ¶ 13, Vets.
Rec. at 1602-1607.
On April 28, 1998, plaintiff presented a claim to the DVA seeking
individual unemployability benefits and an increased disability rating
for his service connected disabilities. On May 25, 1999, his service
connected anxiety disorder evaluation was increased to 70 percent
effective April 28, 1998. With plaintiff's 70 percent disability for his
anxiety disorder, 30 percent
disability for Bell's Palsy, and 10 percent disability for
arthritis, his combined disability evaluation was increased to 80
percent. Ex. A ¶ 14, Vets. Rec. at 1565-70.
In addition, on May 25, 1999, the DVA found plaintiff was entitled to
individual unemployability benefits. This determination allowed plaintiff
to receive compensation at the 100 percent rate, even though his combined
disability was only 80 percent.*fn6 Id. As a result, the DVA
considered plaintiff permanently and totally disabled as of that date.
Ex. A ¶ 16.
On June 8, 1999, plaintiff filed a Notice of Disagreement with the
DVA's May 25, 1999 decision and requested a 1946 effective date for his
individual unemployability benefits. At a DVA hearing on December 16,
1999, plaintiff was provided an opportunity to argue and present evidence
as to why his 100 percent rating should be retroactive to 1946. Ex. A
¶ 17, Vets. Rec. at 1533-1553. In a March 20, 2002 statement of the
case, the DVA found no basis to consider the earlier effective date.
Vets. Rec. at 1479-1495. Plaintiff had until to May 20, 2002 to file a
substantive appeal with the Board. 38 U.S.C. § 7105(d)(3). He did not
do so. According to Mr. Hodge, plaintiff does not have any appeals or
claims pending with the DVA. Exh. A ¶ 17. As of January 21, 2004,
plaintiff was receiving $2,239 a month in DVA benefits.
A. STANDARD FOR SUMMARY JUDGMENT
"[I]f the pleadings, depositions, answers to interrogatories, and
admissions on file, together with affidavits, if any, show that there is
no genuine issue as to any material fact and that the moving party is
entitled to a judgment as a matter of law[,]" summary judgment should be
granted. Fed.R.Civ.P. 56(c). The Supreme Court describes the summary
judgment determination as "the threshold inquiry of determining whether
there is the need for a trial whether, in other words, there are
any genuine factual issues that properly can be resolved only by a finder
of fact because they may reasonably be resolved in favor of either
party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250
(1986). Therefore, "a motion for summary judgment must be granted unless
the party opposing the motion can adduce evidence which, when considered
in light of that party's burden of proof at trial, could be the basis for
a jury finding in that party's favor." J.E. Mamiye & Sons, Inc.
v. Fidelity Bank, 813 F.2d 610, 618 (3d Cir. 1987).
"[O]n summary judgment the inferences to be drawn from the underlying
facts . . . must be viewed in the light most favorable to the party
opposing the motion." Matsushita Elec. Indus. Co. v. Zenith Radio
Corp., 475 U.S. 574, 587-588 (quoting United States v. Diebold,
Inc., 369 U.S. 654, 655 (1962)). The nonmoving party, however,
cannot rely merely upon bare assertions, conclusory allegations, or
suspicions to support its claim. Fireman's Ins. Co. v.
DuFresne, 676 F.2d 965, 969 (3d Cir. 1982). When the movant files a
properly supported motion for summary judgment, the burden shifts to the
nonmoving party to prove "specific facts showing that there is a genuine
issue for trial." Fed.R.Civ.P. 56(e). "One of the principal purposes
of the summary judgment rule is to isolate and dispose of factually
unsupported claims." Celotex Corp. v. Catrett, 477 U.S. 317,
323-24 (1986). "Only disputes over facts that might affect the outcome of
the suit under the governing law will properly preclude the entry of
summary judgment." Anderson v.
Liberty Lobby. Inc., 477 U.S. 242, 248. (1986).
B. PLAINTIFF'S TORT CLAIMS (COUNTS ONE, TWO, AND SEVEN)
The Court will treat counts one, two and that part of count seven that
alleges that plaintiff received negligent medical treatment while in the
Army as tort claims. In count one, plaintiff alleges defendant "denied
plaintiff medical treatment when he originally contracted right facial
paralysis." Compl. ¶ 36. The Court will treat this as a claim for
medical malpractice. Count two asserts that defendant "discharged
plaintiff to duty after he developed right facial paralysis."
Id. ¶ 38. The Court will also treat this as a claim for
medical malpractice because plaintiff essentially argues that defendant
returned him to duty before he recovered from his right facial paralysis.
The Court will apply the same analysis to that part of count seven in
which plaintiff makes similar allegations.
Plaintiff's tort claims are barred by sovereign immunity. "The United
States, as sovereign, is immune from suit save as it consents to be sued,
and the terms of its consent to be sued in any court define that court's
jurisdiction to entertain the suit." United States v. Sherwood,
312 U.S. 584, 586 (1941). Sovereign immunity deprives a court of subject
matter jurisdiction over claims against the United States. Richards
v. United States, 176 F.3d 652, 654 (3d Cir. 1999). While a limited
waiver of sovereign immunity exists for tort claims against the United
States under the Federal Tort Claims Act, plaintiff's claims are barred
by his failure to exhaust administrative remedies, the expiration of the
statute of limitations, and the Feres doctrine.
1. Plaintiff's Tort Claims Are Barred by His
Failure to Exhaust Administrative Remedies.
The Federal Tort Claims Act ("FTCA"), 28 U.S.C.A. § 2671 et
seq., is a statutory
waiver of sovereign immunity for tort claims. Gotha v. United
States, 115 F.3d 176, 179 (3d Cir. 1997). The FTCA allows the
government to be sued " in the same manner and to the same extent as a
private individual under like circumstances." 28 U.S.C.A. § 2674.
However, as the FTCA is an express waiver of sovereign immunity, strict
compliance with its provisions is required. Livera v. First Nat'l
Bank, 879 F.2d 1186, 1194 (3d Cir. 1989).
As a prerequisite to suit under the FTCA, a claim must first be
presented to the federal agency and be denied by the agency. The FTCA
An action shall not be instituted against the
United States for money damages for injury or loss
of property or personal injury . . . unless the
claimant shall have first presented the claim to
the appropriate Federal agency and his claim shall
have been finally denied by the agency in writing
and sent by certified or registered mail.
28 U.S.C. § 2675(a). "The statutory language is clear that a
court does not have jurisdiction before administrative remedies have been
exhausted, and a court must dismiss any action that is initiated
prematurely." Wilder v. Luzinski, 123 F. Supp.2d 312, 313 (E.D.
Pa. 2000) (citing McNeil v. United States, 508 U.S. 106 (1993);
Wujick v. Dale & Dale, 43 F.3d 790
, 793-94 (3d Cir. 1994)).
Defendant submitted a declaration by Jose Lopez, the Regional Counsel
for the DVA and the individual responsible for the administrative
adjudication of claims against the DVA under the FTCA. Mot. for Summ. J.
at Exh B ¶¶ 1, 2 (Declaration of Jose H. Lopez). Mr. Lopez examined
DVA records and determined that plaintiff never filed an administrative
claim with the DVA. Id. at Exh. B ¶ 7. There is no evidence
to contradict this statement. Consequently, the Court does not have
jurisdiction to hear plaintiff's tort claims, and the government is
entitled to summary
judgment on counts one, two, and that part of count seven
addressing allegedly negligent medical treatment on that ground.
2. Plaintiffs tort claims are barred by the FTCA's
statute of limitations.
Plaintiffs tort claims are also time barred. The FTCA's statute of
limitations provides that an administrative claim must be filed within
two years of the claim's accrual. 28 U.S.C. § 2401(b). Plaintiff's
medical malpractice claims relate to medical treatment he received "when
he originally contracted right facial paralysis" in 1945 and the Army's
decision to discharge plaintiff to duty in 1946. Compl. ¶¶ 36, 38. The
statute of limitations for filing an administrative complaint based on
these claims expired more than fifty years ago. Thus, plaintiff's tort
claims are barred by the FTCA's statute of limitations and the government
is entitled to summary judgment on these claims for that additional
3. Plaintiff's tort claims are barred by the Feres
Finally, the Supreme Court limited the right of recovery under the FTCA
for members of the armed forces in Feres v. United States,
340 U.S. 135, 146 (1950). In Feres, the Court held that the FTCA
does not apply "where the injuries arise out of or are in the course of
activity incident to service." Feres v. United States,
340 U.S. 135, 146 (1950). The doctrine acknowledges:
the peculiar and special relationship of the
soldier to his superiors, the effects of the
maintenance of such suits on discipline, and the
extreme results that might obtain if suits under
the Tort Claims Act were allowed for negligent
orders given or negligent acts committed in the
course of military duty.
United States v. Shearer, 473 U.S. 52
, 57 (1985).
The Third Circuit has consistently applied the Feres doctrine
to bar suits by active duty
servicemembers under the FTCA. In Loughney v. United
States, 839 F.2d 186 (3d Cir. 1988), the court ruled that a medical
malpractice claim based on treatment received while a member of the armed
forces was barred by the Feres doctrine. According to the
court, "Feres prohibits any case-by-case inquiry into whether
judicial review of a service member's tort claim would unduly interfere
with military operations. It is simply the military status of the
claimant that is dispositive." Id. at 188.
Plaintiff's claims in counts one and two and the similar allegations in
count seven relate to medical treatment he received and decisions made by
doctors while he was a member of the Army. Because these claims "arise
out of injuries incurred "in the course of activity incident to service,"
they are barred by the Feres doctrine.
C. VETERANS RECORDS
1. Plaintiff Has Been Provided with Copies of His
Veterans Records (Count Six).
Count six relates to defendants' alleged refusal to provide plaintiff
with copies of his medical records. Id. ¶ 46. Because the
Court finds that plaintiff was provided access to his records and a copy
of his records on numerous occasions, legal analysis of this claim is
According to documents in plaintiff's Veterans Record, he reviewed a
copy of this record on a number of occasions and received a copy of the
file on at least six occasions. See supra note 1. The Court
also received a copy of plaintiff's Veterans Record. According to Mr.
Hodge's declaration, plaintiff was offered a similar copy at a November
21, 2003 meeting with defendant but "indicated" that he already had a
copy. Exh. A ¶ 21. Plaintiff has presented no evidence to
the contrary. The Court finds that plaintiff received a copy of his
Veterans Record and, as a result, grants defendant's motion for summary
judgment on count six.
2. Plaintiff's Privacy Act Claim is Barred Because
He Has Not Been Injured by Any Errors in His Veterans Record (Counts Four
In Count Four, plaintiff alleges that defendants made "material
omissions and misstatements" in his medical records. ¶ 42. The Court
will treat this count as a claim under the Privacy Act,
5 U.S.C. § 552a. The Court will also treat that part of count seven alleging
negligence in the "compilation and maintenance of plaintiff's records" as
a Privacy Act claim.
The Privacy Act, 5 U.S.C.A. § 552a (b), provides the method by
which an individual may review his or her government records and request
that they be corrected. The Privacy Act also provides a remedy for
individuals aggrieved by an error in their federal government records.
"[U]nder the Privacy Act, an individual is authorized to institute a
civil cause of action against a federal agency for failure to amend a
record, and therefore provides a limited waiver of sovereign immunity."
See 5 U.S.C. § 552a(g)(1)(A), Schaeuble v. Reno,
87 F. Supp.2d 383, 387 (D.N.J. 2000). The Privacy Act provides a civil
remedy when any agency:
(A) makes a determination under subsection (d)(3)
of this section not to amend an individual's
record in accordance with his request, or fails to
make such review in conformity with that
(B) refuses to comply with an individual request
under subsection (d)(1) of this section [dealing
with access to records];
(C) fails to maintain any record concerning any
individual with such accuracy, relevance,
timeliness, and completeness as is necessary to
assure fairness in any determination relating to
the qualifications, character, rights, or
opportunities of, or benefits to the individual
that may be made on the basis of such record, and
consequently a determination is made which is
adverse to the individual; or
(D) fails to comply with any other provision of
this section, or any rule
promulgated thereunder, in such a way as to
have an adverse effect on an individual,
5 U.S.C. § 552a(g)(1).
"Although the Privacy Act does not expressly require a plaintiff to
exhaust administrative remedies prior to filing a civil suit, `that
requirement has been imposed by the courts as a general principle of
administrative law.'" Schaeuble, 87 F. Supp.2d at 387 (quoting
Hammie v. Soc. Sec. Admin., 765 F. Supp. 1224, 1225 (E.D.
Pa. 1991); Anderson v. United States Postal Serv., 7 F. Supp.2d 583,
586 n.3 (E.D. Pa. 1998)); see also Quinn v. Stone,
978 F.2d 126, 137 (3d Cir. 1992). However, this exhaustion requirement is
not a jurisdictional requirement but a "practical" requirement "meant to
provide courts with the benefit of an agency's expertise, and serve
judicial economy by having the administrative agency compile the factual
record." Id. at 388. Therefore, although plaintiff has not
exhausted administrative remedies under the Privacy Act, the Court has
subject matter jurisdiction over this claim. Id.
Plaintiff argues that defendant made "material omissions and
misstatements" in his Veterans Record causing him "substantial personal
and economic harm." However, plaintiff presented no evidence of any harm.
Specifically, plaintiff claims: (1) that an "Authorization for Furnishing
Medical or Dental Services dated October 1, 1946" incorrectly states that
he received treatment for Bell's Palsy right, instead of Bell's Palsy
left; (2) that his records state he left music school for "personal
reasons," even though he was receiving treatment for panic attacks; (3)
that his record incorrectly states he was treated for a left shoulder
condition; and (4) that a 1948 DVA report does not mention his left
facial history and incorrectly describes his treatment history. Compl.
¶¶ 20, 21, 22, 27.
According to defendant, plaintiff never asked the DVA to make any
corrections to his records and there is no evidence that plaintiff ever
made such a request under the Privacy Act. Mot. for Summ. J. at Ex. B
¶ 6 (Lopez Dec.). Not only has plaintiff failed to exhaust his
administrative remedies, he has failed to produce any evidence that he
has suffered any injury as required by the civil remedy provisions of the
Privacy Act. Specifically, plaintiff produced no evidence that: (A) the
DVA failed to amend or review his record after his request, (B) the DVA
failed to provide him with access to his records, (C) the errors in his
record effected the fairness of any benefits determination made with
respect to plaintiff, or (D) the alleged errors had any adverse effect on
him. As a result, the Court grants defendant's Motion for Summary
Judgment on count six and that part of count seven alleging negligent
"compilation and maintenance" of plaintiff's records.
D. DVA BENEFITS DETERMINATIONS
1. The Court Does Not Have Jurisdiction to Review
DVA Benefits Determinations (Counts Three. Five, and Seven).
In counts three, five, and that part of seven that repeats the
allegations of these counts, plaintiff challenges benefits decisions made
by the DVA.
In count three, plaintiff claims he was given "a discharge for the
convenience of the government rather than a service connected discharge."
Id. ¶ 40. According to his file with the DVA and Hodge's
affidavit, plaintiff was given an honorable discharge. Exh. A ¶ 3,
Vets. Rec. at 1419. A "service connected discharge" does not exist and
plaintiff could not have received a discharge more favorable than
honorable. Exh. A ¶ 4. Therefore, the Court concludes that this claim
really disputes the benefits determinations made by the DVA and it will
be treated like count
five. In count five, plaintiff states defendant "denied [him] the
benefits to which he was entitled because of his service connected
disability." Compl. ¶ 44. This count will be analyzed as a challenge
to the benefits decisions made by the DVA.
Congress established specific procedures for the adjudication of
veterans benefits claims when it passed the Veterans Judicial Review Act
("VJRA") in 1988. See Beamon v. Brown, 125 F.3d 965, 967 (6th
Cir. 1997). Under the procedures set out by the VJRA, a claimant first
must file a claim for benefits with a regional office of the DVA.
Id. Upon receiving a decision from the regional office, the
claimant may appeal to the Board of Veterans' Appeals, which either
issues the final decision of the Secretary or remands the claim to the
regional office for further development and subsequent appeal.
See 38 U.S.C. § 7104. The Board's decision may be appealed
to the United States Court of Appeals for Veterans Claims ("CVA").
38 U.S.C. § 7252(a). The CVA, an Article I court, has exclusive
jurisdiction to review decisions of the Board. 38 U.S.C. § 7251,
If the claimant is challenging the validity or interpretation of a
statute or regulation relied upon by the CVA, he or she may appeal the
decision of the CVA to the United States Court of Appeals for the Federal
Circuit. See 38 U.S.C. § 7292. The Federal Circuit has
"exclusive appellate jurisdiction over decisions of the CVA."
Beamon, 125 F.3d at 967 (citing 38 U.S.C. § 7292). This
statutory review process vests exclusive jurisdiction to review DVA
benefits decisions with the CVA, thereby depriving a federal district
court of subject matter jurisdiction. Id. at 970.
As detailed in Section I.C of this Memorandum, plaintiff has taken
advantage of this statutory review process and has a long history of
proceedings before the DVA, the Board, and
the CVA. As a result, plaintiff has been compensated at the 100
percent rate since April 28, 1998. Most recently, the DVA explained its
decision not to apply this rate retroactively to 1946 in a statement of
the case dated March 20, 2002. Vets. Rec. at 1479-1495. Plaintiff had
until to May 20, 2002 to appeal this decision to the Board, and he failed
to do so. 38 U.S.C. § 7105(d)(3).
The VJRA provides the appropriate review process for plaintiff's claims
relating to DVA benefits determinations. Because the Act deprives this
Court of subject matter jurisdiction over these claims, summary judgment
is granted on counts three, five, and that part of count seven dealing
with DVA benefits decisions.
2. The Court Does Not Have Jurisdiction to Review
Plaintiff's Constitutional Claims (Counts Eight and Nine).
Counts eight and nine assert that defendant violated plaintiff's
Constitutional rights. Count eight alleges that defendant "discriminated
against plaintiff on the basis of race." Id. ¶ 50. Count
nine alleges that the injuries recited in counts one through five
violated plaintiff's "rights and privileges" under the United States
Constitution, "including the right to due process of law." Id.
at 52. These counts will be treated as Bivens claims because
this is the only avenue for receiving compensatory damages from federal
officials for alleged violations of constitutional rights.*fn7
Although the Third Circuit has not ruled on the issue, "federal courts
have held repeatedly that they lack jurisdiction over constitutional
challenges to [DVA] benefits decisions." Beamon v.
Brown, 125 F.3d 965, 972 (6th Cir. 1997) (citing
Zuspann v. Brown, 60 F.3d 1156 (5th Cir. 1995), Sugrue v.
Derwinski, 26 F.3d 8 (2d Cir. 1994), Hicks v. Veterans
Admin., 961 F.2d 1367 (8th Cir. 1992)). "[T]he courts do not acquire
jurisdiction to hear challenges to benefits determinations merely because
those challenges are cloaked in constitutional terms." Sugrue,
26 F.3d at 11.
In a case with similar facts, Cheves v. Department of Veterans
Affairs, 227 F. Supp.2d 1237 (M.D. Fla. 2002), the court dismissed a
plaintiff's due process and racial discrimination claims against the DVA
for lack of subject matter jurisdiction. According to the
Cheves court, "Congress clearly intended to preclude district
court jurisdiction over [DVA] decisions relating to benefits claims,
including decisions of constitutional issues. The decisions of the [DVA]
as to any question of law or fact affecting the benefits to veterans or
their dependents are "final and conclusive and may not be reviewed by any
other official or by any court." Id. at 1243 (citing
38 U.S.C. § 511(a)).
The Cheves court concluded that it lacked subject matter
jurisdiction to hear the plaintiff's constitutional claims because they
were, in essence, challenges to the DVA's decision to deny benefits.
Although the plaintiff did not argue that these claims were
Bivens claims, the court analyzed them as such because that was
the only avenue for seeking compensatory damages from federal officials
for alleged violations of constitutional rights. Id. at 1246.
The Cheves court then dismissed the Bivens claims on
the ground that the VJRA precludes Bivens actions against DVA
officials, following a number of decisions in other circuits.
Id. at 1247 (citing Sugrue v. Derwinski, 26 F.3d 8,
12 (2d Cir. 1994); Zuspann v. Brown, 60 F.3d 1156, 1160-61 (5th
Cir. 1995); Hicks v. Small, 69 F.3d 967, 969 (9th Cir. 1995)).
The Court agrees with the reasoning of Cheves and the several
circuit courts that have denied relief for constitutional challenges to
DVA benefits decisions on jurisdictional grounds. In counts eight and
nine, plaintiff disputes DVA benefits decisions and cloaks his
allegations in constitutional terms. Sugrue v. Derwinski,
26 F.3d 8, 11 (2d Cir. 1994). The Court will treat these counts as
Bivens claims and grant summary judgment for lack of subject
For the foregoing reasons, the Court grants defendant's Motion for