United States District Court, W.D. Kentucky, Louisville Division
H. MCKINLEY, JR., CHIEF JUDGE
James Nathaniel Douse, filed a pro se, in forma
pauperis complaint. This matter is before the Court for
screening pursuant to 28 U.S.C. § 1915(e)(2) and
McGore v. Wrigglesworth, 114 F.3d 601 (6th Cir.
1997), overruled on other grounds by Jones v. Bock,
549 U.S. 199 (2007). For the reasons set forth below, the
action will be dismissed.
to the complaint and its attachments, Plaintiff is a veteran
of the United States Armed Forces who has been adjudged to be
entitled to both service-connected compensation and
veterans' pension benefits. He disagrees with the
calculation of the amount of benefits he is to receive, even
after the Board of Veterans' Appeals remanded his case to
the Department of Veterans Affairs (VA). Plaintiff names as
Defendants the Louisville Kentucky Veteran Administration
Regional Office Managing Director; the Veteran Administration
Pension Management Center's Managing Director, Milwaukee,
Wisconsin; Alice Johnson, Support Service Chief of Pension
Management Center, Milwaukee, Wisconsin; and Greg Wilson,
Support Service Chief of Pension Management Center,
The complaint describes the nature of this action as:
Defendant's failure to adequately compute and is engage
in Fraudulent practices with regard to calculating and
dispersing Plaintiff's Non-Service Connection Pension
Retroactive Pay and Plaintiff's Retroactive Pay for
Service Connection Injuries, which is approximately 29,
800.00 in shortages or under payment on Plaintiff's Earn
Benefits. Defendant has violated Plaintiff 14th
Amendment Constitutional Rights where Due Process and Equal
Protection are Protected and guarantee to this Plaintiff
under the United States Constitution. Other Veterans
correct Retroactive Pay which was computed correctly, but not
mine. Defendant is also in violation to a previous Order from
Board of Veteran Appeals Court where it Remanded my case
regarding my pension to the VA Regional Office for payment
complaint also alleges that VA employees are engaging in
fraudulent acts and that the Pension Management Center has
violated the Freedom of Information Act (FOIA) in refusing to
show him what methods they use to calculate his retroactive
pay. He alleges that Defendants have violated 18 U.S.C.
§ 242; 42 U.S.C. § 1983; 10 U.S.C. § 1207; and
28 U.S.C. § 2679.
relief, Plaintiff asks for punitive and compensatory damages,
retroactive back-pay, and fees and costs.
Plaintiff is proceeding in forma pauperis, this
Court must review the instant action. See 28 U.S.C.
§ 1915(e)(2); McGore v. Wrigglesworth, 114 F.3d
at 604-05. Upon review, this Court must dismiss a case at any
time if the Court determines that the action is
“frivolous or malicious, ” fails to state a claim
upon which relief may be granted, or seeks monetary relief
from a defendant who is immune from such relief. 28 U.S.C.
§ 1915(e)(2)(B). Additionally, “federal courts
have a duty to consider their subject matter jurisdiction in
regard to every case and may raise the issue sua
sponte.” Answers in Genesis of Ky., Inc. v.
Creation Ministries Int'l, 556 F.3d 459, 465 (6th
Cir. 2009); Fed.R.Civ.P. 12(h)(3) (“If the court
determines at any time that it lacks subject-matter
jurisdiction, the court must dismiss the action.”).
Upon examination of the complaint, it is clear that this
Court lacks jurisdiction over this action.
Court has no jurisdiction to review the denial of
veterans' benefits. See 38 U.S.C. § 511(a).
When a veteran seeks to challenge the denial of benefits, he
must seek review as proscribed by the Veterans Judicial
Review Act (VJRA). All benefits decisions are subject to one
appellate review by the Secretary of Veterans Affairs. 38
U.S.C. § 7104. After the Secretary's final decision,
the veteran may appeal to the Board of Veterans' Appeals.
Id. The Court of Appeals for Veterans Claims has
exclusive jurisdiction to review the decisions of the Board
of Veterans' Claims. 38 U.S.C. § 7252. Under limited
circumstances, the United States Court of Appeals for the
Federal Circuit has jurisdiction to review the decision of
the Court of Appeals for Veterans Claims. 38 U.S.C. §
7292. Therefore, because the VJRA does not provide for review
by a district court, this Court is without jurisdiction to
review the denial of Plaintiff's benefits. See
Cotrich v. Nicholson, No. 606CV1772ORL19JGG, 2006 WL
3842112, at *2 (M.D. Fla. Dec. 19, 2006).
cannot side-step the statutory review process for
veterans' benefits by claiming civil-rights or other
statutory bases for his claim. The VJRA “includes all
claims, whatever their bases, as long as the claim is
‘necessary to a decision by the Secretary under a law
that affects the provision of benefits by the Secretary to
veterans.'” Hicks v. Veterans Admin., 961
F.2d 1367, 1369 (8th Cir. 1992) (citation omitted);
Larrabee by Jones v. Derwinski, 968 F.2d 1497, 1501
(2d Cir. 1992) (holding that the VJRA “amply evinces
Congress's intent to include all issues, even
constitutional ones, necessary to a decision which affects
benefits in this exclusive appellate review scheme”
(internal quotation marks and citations omitted)). Nor does
the Court have subject-matter jurisdiction to review
Plaintiff's claim that Defendants have engaged in
fraudulent practices in calculation and dispersing his
benefits. Such claims of fraud are outside this Court's
jurisdiction when “[t]hey are, in substance, nothing
more than a challenge to the underlying benefits
decision.” Weaver v. United States, 98 F.3d
518, 520 (10th Cir. 1996). Accordingly, Plaintiff does not
have separate claims under 42 U.S.C. § 1983 or the other
statutes that Plaintiff cites that this Court may review.
These claims are “subsumed into his benefits claim that
can only be addressed by the exclusive veterans' benefits
review scheme.” See Braggs v. Dep't of Veterans
Affairs, No. CIV. A. 09-0756-KD-M, 2010 WL 551325, at *4
(S.D. Ala. Feb. 10, 2010).
also alleges that the Pension Management Center has
consistently violated FOIA and has “adamant refuse to
give me or show me what methods they use to calculate my
Retroactive Pension pay and how my Service Connection
Retroactive pay is calculated. They have miscalculated and
Still owe me in Excess of $29, 800.” The Court finds
that this attempt to style his claim related to his benefits
determination as one under FOIA also fails to confer
jurisdiction on this Court. See Sugrue v. Derwinski,
26 F.3d 8, ...