Townsend v. United States , 49 F. App'x 822 ( 2002 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
OCT 21 2002
TENTH CIRCUIT
PATRICK FISHER
Clerk
GLEN TOWNSEND,
Plaintiff - Appellant,
No. 02-3142
v. D.C. No. 01-CV-2496-JWL
(D. Kansas)
UNITED STATES OF AMERICA,
Defendant - Appellee.
ORDER AND JUDGMENT*
Before SEYMOUR, HENRY and BRISCOE, Circuit Judges.
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of this
appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore ordered
submitted without oral argument.
Glen Townsend, appearing pro se, appeals the district court's dismissal of his civil
action. We have jurisdiction under 28 U.S.C. § 1291 and affirm.
*
This order and judgment is not binding precedent, except under the doctrines of
law of the case, res judicata, and collateral estoppel. The court generally disfavors the
citation of orders and judgments; nevertheless, an order and judgment may be cited under
the terms and conditions of 10th Cir. R. 36.3.
I.
Townsend was a resident of the Veterans Administration Medical Center (VAMC)
Domiciliary in Leavenworth, Kansas, from May 1999 until November 1999 as part of the
homeless veterans program. He left the VAMC in November 1999 to attend a “Veterans'
Stand Down” and to work in Kansas City. Although he alleges that before he left he
informed staff that he would be working in the temporary labor market in the Kansas City
area, and that he tried to check in while he was absent, he was discharged from the
VAMC domiciliary as “absent without leave” on or about November 22, 1999.
On December 22, 1999, Townsend returned to VAMC to recover his personal
property that he had left in his room. He discovered several items of personal property
were missing. Townsend filed an administrative tort claim on March 29, 2000, claiming
he was improperly deprived of his personal property. His claim was denied on July 26,
2000, and he received notice of the denial on July 31, 2000. Townsend's request for
reconsideration was denied on November 2, 2000. The uncontroverted evidence
established that notice of the November 2 decision was sent, via certified letter, to
Townsend's residence.
Townsend filed this action on October 10, 2001, alleging he was wrongfully
discharged from the homeless veterans program and that the VAMC staff negligently
maintained his personal property. The district court granted defendant's motion to
dismiss, finding that the court did not have subject matter jurisdiction of his wrongful
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discharge claim and that his loss of property claim was barred by the six-month statute of
limitations contained in 28 U.S.C. § 2401(b).
II.
This court reviews de novo the district court's determination that it was without
subject matter jurisdiction and that the loss of property claim was barred by the statute of
limitations. See Laurino v. Tate, 220 F.3d 1213, 1216 (10th Cir. 2000) (discussing statute
of limitations); U.S. West Inc. v. Tristani, 182 F.3d 1202, 1206 (10th Cir. 1999)
(discussing subject matter jurisdiction).
The district court construed Townsend's wrongful discharge claim as being a
decision of the Secretary of Veterans' Affairs that was beyond its purview pursuant to 38
U.S.C. § 511(a).
The Secretary shall decide all questions of law and fact necessary to
a decision by the Secretary under a law that affects the provision of benefits
by the Secretary to veterans or the dependents or survivors of veterans.
Subject to subsection (b), the decision of the Secretary as to any such
question shall be final and conclusive and may not be reviewed by any other
official or by any court, whether by an action in the nature of mandamus or
otherwise.
38 U.S.C. 511(a). Because domiciliary care is a “benefit” the Secretary of Veterans'
Affairs is permitted to provide, see, e.g., 38 U.S.C. § 1701, we find the district court
correctly concluded that it lacked subject matter jurisdiction to review this claim. See
Weaver v. United States, 98 F.3d 518, 519-20 (10th Cir. 1996).
Townsend properly filed an administrative claim for negligent loss of property on
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March 29, 2000. The claim was denied via certified letter on July 26, 2000, and his
motion to reconsider was denied on November 2, 2000, again via certified letter. Nearly
one year later, on October 10, 2001, Townsend filed this action in the district court. “A
tort claim against the United States shall be forever barred unless it is . . . begun within
six months after the date of mailing, by certified or registered mail, of notice of final
denial of the claim by the agency to which it was presented.” 28 U.S.C. § 2401(b)
(emphasis added). We agree with the district court's finding that the statute of limitations
began to run on November 2, 2000, and that the claim was barred.1
The judgment of the district court is AFFIRMED. Townsend's “Motion to Support
Appeal” has been treated as additional authority in support of his appeal.
Entered for the Court
Mary Beck Briscoe
Circuit Judge
1
Townsend contends that he did not live at the address where the notice was sent
from July 6, 2001, through November 11, 2001. Br. at 3. However, the letter was mailed
on November 2, 2000, and whether Townsend lived at that address in July 2001 is
irrelevant.
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