TIFFANY ANESTIS, ET AL. Plaintiffs,
UNITED STATES OF AMERICA, Defendant.
MEMORANDUM OPINION AND ORDER
DAVID L. BUNNING, District Judge.
Plaintiffs commenced this negligence action under the Federal Tort Claims Act against the United States. According to Plaintiffs, the Department of Veterans Affairs failed to provide the decedent, Cameron Anestis, proper and appropriate medical care, thereby resulting in his suicide.
This matter is before the Court on Defendant's Motion to Dismiss for Lack of Subject Matter Jurisdiction or, Alternatively, for Failure to State a Claim. (Docs. # 89). Upon reviewing the motion and its attendant briefing (Docs. # 111, 118), the Court ordered Plaintiffs to file a supplemental response addressing the applicability of the Veterans Judicial Review Act and the District of Columbia Circuit's decision in Thomas v. Principi, 394 F.3d 970 (D.C. Cir. 2005). (Doc. # 129). In light of the supplemental briefing (Docs. # 131, 133), Defendant's motion is hereby granted.
II. Standard for Motion to Dismiss
In Ohio National Life Insurance Co. v. United States, 922 F.2d 320, 325 (6th Cir. 1990), the Sixth Circuit laid out the procedural framework for motions brought under Federal Rule of Civil Procedure 12(b)(1):
Rule 12(b)(1) motions to dismiss based upon subject matter jurisdiction generally come in two varieties. A facial attack on the subject matter jurisdiction alleged by the complaint merely questions the sufficiency of the pleading. In reviewing such a facial attack, a trial court takes the allegations in the complaint as true, which is a similar safeguard employed under 12(b)(6) motions to dismiss. On the other hand, when a court reviews a complaint under a factual attack, as here, no presumptive truthfulness applies to the factual allegations. Such a factual attack on subject matter jurisdiction commonly has been referred to as a "speaking motion." When facts presented to the district court give rise to a factual controversy, the district court must therefore weigh the conflicting evidence to arrive at the factual predicate that subject matter jurisdiction exists or does not exist. In reviewing these speaking motions, a trial court has wide discretion to allow affidavits, documents and even a limited evidentiary hearing to resolve disputed jurisdictional facts.
(Citations omitted). Because Defendant herein has mounted a factual attack, the Court will consider the deposition testimony provided by both parties.
III. Factual Background
Cameron Anestis was a member of the United States Marine Corps and a combat veteran. Notwithstanding his background, the parties agree that he was deemed ineligible for health care services by the Department of Veterans Affairs (VA) on August 12, 2009. (Docs. # 89-1, at 4); (Doc. # 111, at 8); (Doc. # 118, at 3-5); (Doc. # 131, at 7-8); (Doc. # 133, at 3).
Nonetheless, Mr. Anestis presented to the VA facility on Leestown Road in Lexington, Kentucky five days later. (Doc. # 88-3, at 16-18). In accord with the VA's determination, Carol McIntosh, an in-take clerk for the mental health clinic, could not find him as eligible for benefits and thus instructed him to visit the facility on Cooper Drive. ( Id. at 9, 12-13, and 39-40).
Mr. Anestis, though, was again denied treatment at Cooper Drive,  as he did not have a copy of his Form DD214. (Doc. #88-12, at 107). Tragically, he committed suicide shortly thereafter, compelling Plaintiffs to commence this negligence action. Discovery having since been completed, Defendant has filed a litany of dispositive motions, including a request for dismissal pursuant to the Veterans Judicial Review Act. (Docs. # 89).
IV. The Veterans Judicial Review Act
Defendant contends that the Act deprives this Court of jurisdiction, as it precludes district courts from reviewing benefit decisions. The Ninth Circuit outlined the three fundamental changes to the procedures and statutes affecting review of VA decisions in Veterans for Common Sense v. Shinseki, 678 F.3d 1013, 1021-1022 (9th Cir. 2012) cert. denied, 133 S.Ct. 840 (2013):
First, the VJRA placed responsibility for reviewing decisions made by VA Regional Offices and the Board of Veterans' Appeals in a new Article I court, the United States Court of ...