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Douse v. Louisville Kentucky Veteran Admin. Reg'l Office Managing Director

United States District Court, W.D. Kentucky, Louisville Division

September 27, 2017

JAMES NATHANIEL DOUSE PLAINTIFF
v.
LOUISVILLE KY VETERAN ADMIN. REG'L OFFICE MANAGING DIRECTOR et al. DEFENDANTS

          MEMORANDUM OPINION

          JOSEPH H. MCKINLEY, JR., CHIEF JUDGE

         Plaintiff, 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.

         I.

         According 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, Milwaukee, Wisconsin.

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 and processing.

         The 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.

         As relief, Plaintiff asks for punitive and compensatory damages, retroactive back-pay, and fees and costs.

         II.

         Because 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.

         III.

         This 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).

         Plaintiff 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).

         Plaintiff 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, ...


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