Kent Mehrkens v. Art Blank ( 2009 )


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  •                     United States Court of Appeals
    FOR THE EIGHTH CIRCUIT
    ___________
    No. 07-3303
    ___________
    Kent Mehrkens,                         *
    *
    Appellant,                 *
    * Appeal from the United States
    v.                               * District Court for the
    * District of Minnesota.
    Art Blank, M.D.; Gilbert Westreich,    *
    M.D.; Harry K. Russell, M.D.;          *
    John Does I; Jane Roes I; C.A. Foye;   *
    Ronald J. Henke; Charles Milbrandt;    *
    John Does II; Jane Roes II,            *
    *
    Appellees.                 *
    ___________
    Submitted: October 17, 2008
    Filed: February 25, 2009
    ___________
    Before LOKEN, Chief Judge, BYE, and SMITH, Circuit Judges.
    ___________
    SMITH, Circuit Judge.
    Kent Mehrkens commenced this action in Minnesota state court, and the United
    States removed the case to federal district court. Mehrkens filed this action against
    doctors and employees of the Department of Veterans Affairs ("VA officials") seeking
    damages under 42 U.S.C. §§ 1983 and 1985 and under the principles of Bivens v. Six
    Unknown Named Agents of Federal Bureau of Narcotics, 
    403 U.S. 388
    (1971).
    Mehrkens alleged that it was beyond the scope of the VA officials'1 employment to
    lie to him and others about his Post-Traumatic Stress Disorder (PTSD) and to
    withhold treatment from him. According to Mehrkens, these VA officials "interfered
    with and deprived" him "of his rights to medical care and other veterans' benefits." He
    also alleged that they "knowingly and intentionally conspired . . . to misrepresent the
    facts and diagnoses from him and deny him his equal rights and privileges to medical
    care and veterans' benefits" and "induced others" to "withhold from [Mehrkens] his
    rights to treatment and veterans' benefits." Finally, Mehrkens alleged that the VA
    officials violated his due-process rights by withholding information from him about
    his diagnosis of PTSD and preventing him from obtaining proper treatment for that
    condition. The district court2 concluded that it lacked subject matter jurisdiction,
    granted the VA officials' motion for summary judgment, and dismissed Mehrkens's
    claims without prejudice. Because we agree that the district court lacked subject
    matter jurisdiction, we affirm.
    I. Background
    A. Facts
    Kent Mehrkens, a Vietnam War veteran, sought treatment from the Minneapolis
    VA Medical Center after experiencing "a loss of conscious control of his actions."
    Mehrkens alleges that physicians at the VA had diagnosed him with PTSD, but
    intentionally withheld this information from him and failed to provide treatment for
    this condition.
    1
    Specifically, Mehrkens filed suit against Art Blank, M.D., Gilbert Westreich,
    M.D., Harry K. Russell, M.D., John Does I and Jane Roes I, C.A. Foye, Ronald J.
    Henke, John Does II and Jane Roes II, and Charles Milbrandt.
    2
    The Honorable Richard H. Kyle, United States District Judge for the District
    of Minnesota.
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    In 1992, Mehrkens filed a claim for military service-connected PTSD with the
    VA Regional Office. Later that year, the VA denied his PTSD claim because "the
    diagnosis of PTSD was not supported by the details of any service-connected stressor"
    and the medical evidence did not show symptoms of PTSD. In 1993, he reopened his
    claim, but the VA denied his claim in 1994, citing no diagnosis of PTSD and stating
    that the evidence in the record did not show symptoms of PTSD. The Disabled
    American Veterans organization filed a claim on Mehrkens's behalf in 1999. The VA
    denied this claim as well because the diagnosis of PTSD was not supported by any
    symptoms and also finding that there was no evidence of a specific combat stressor.
    In 2001, Mehrkens moved to reopen his claim, but the VA later ruled that there was
    no new and material evidence to justify reopening his case. In 2003, Mehrkens filed
    a Notice of Disagreement with the decision. Upon review, the VA reversed its prior
    decisions and granted VA benefits to Mehrkens for PTSD, retroactive to 1992. That
    same year Mehrkens was issued two payments for retroactive benefits totaling
    $216,246. Mehrkens currently receives $2,610 monthly in benefits payments.
    B. Procedural History
    In 2004, after being granted his retroactive payments, Mehrkens filed a claim
    with the VA under the Federal Tort Claims Act for medical malpractice and
    negligence. In 2005, he filed the current action in Minnesota state court, but the
    United States removed the case to federal court. Mehrkens alleged that because the
    VA doctors lied to him about his diagnosis and withheld treatment from him, they
    "deprived him of his rights to medical care and other veterans' benefits." Mehrkens
    sought damages under 42 U.S.C. § 1983 and under the principles of Bivens. He also
    sought damages under 42 U.S.C. § 1985, alleging that the VA officials "knowingly
    and intentionally conspired" to misrepresent his treatment and "withheld treatment and
    benefits." Finally, he alleged that VA officials violated his due-process rights by
    withholding information about his diagnosis and preventing him from obtaining
    proper treatment. He asserts that this violation "deprived him of his rights to medical
    care and other veterans' benefits." Mehrkens insists that he is not attempting to
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    relitigate his benefits case. According to Mehrkens, he seeks damages only for the VA
    officials' alleged misrepresentations about his PTSD and the alleged conspiracy to
    withhold information from him about his condition. Their acts, he contends, prevented
    him from obtaining proper medical treatment outside the VA.
    The district court found that because the Veterans' Judicial Review Act of 1988
    (VJRA), 38 U.S.C. § 511(a), created an exclusive review procedure for veterans to
    resolve their disputes, it lacked jurisdiction over Mehrkens's claims, despite
    Mehrkens's contention that they sounded in constitutional and tort law. The district
    court found that because Mehrkens was essentially challenging a decision affecting
    his benefits by bringing a constitutional claim, the district court's jurisdiction was
    preempted by the VJRA. See generally Hicks v. Veterans Admin., 
    961 F.2d 1367
    ,
    1369 (8th Cir. 1992) (holding that a First Amendment challenge to a denial of benefits
    was beyond the reach of federal court jurisdiction). The district court found that
    because Mehrkens sought review of the VA's actions taken in connection with his
    claim for benefits, this effectively amounted to a challenge to the underlying benefits
    decision. Weaver v. United States, 
    98 F.3d 518
    , 519–20 (10th Cir. 1996) (holding that
    claims for veteran disability benefits are unreviewable in federal courts).
    The district court also denied Mehrkens's Bivens claim, finding that because
    Congress had set up an elaborate remedial scheme regarding VA benefits, the Bivens
    action could not lie. Bush v. Lucas, 
    462 U.S. 367
    , 388–89 (1983) (holding that an
    elaborate remedial system prevented a NASA employee from bringing a Bivens action
    based on a First Amendment violation against a NASA director); see also Schweiker
    v. Chilicky, 
    487 U.S. 412
    , 428–29 (1988) (holding that Social Security recipients did
    not have a private right of action against federal administrators because Congress set
    up other remedies). In short, because Congress provided an exclusive review
    procedure, it has indicated that the federal courts should not exercise jurisdiction over
    VJRA claims. Sugrue v. Derwinski, 
    26 F.3d 8
    , 12 (2d Cir. 1994) (declining to imply
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    a Bivens remedy against VA employees arising from denial of benefits); accord
    Zuspann v. Brown, 
    60 F.3d 1156
    , 1161 (5th Cir. 1995).
    Based on these principles of law, the district court concluded that it lacked
    subject matter jurisdiction, granted the VA officials' motion for summary judgment,
    and dismissed Mehrkens's case without prejudice.
    II. Discussion
    On appeal, Mehrkens asks this court to reverse the lower court's summary
    judgment disposition, arguing that VA officials interfered with his constitutional right
    to seek medical treatment and that the district court has jurisdiction to hear this
    constitutional claim. Moreover, he argues that the district court did not properly
    address his §§ 1983 and 1985 claims. We affirm.
    A. Standard of Review
    We review a grant of summary judgment de novo, applying the same standard
    as the district court. Henerey v. City of St. Charles, Sch. Dist., 
    200 F.3d 1128
    , 1131
    (8th Cir. 1999). Summary judgment should be granted if the evidence, viewed in the
    light most favorable to the nonmoving party, indicates that no genuine issue of
    material fact exists and that the moving party is entitled to judgment as a matter of
    law. Id.; Fed. R. Civ. P. 56(c). A party opposing summary judgment may not rest upon
    mere allegations or denials contained in the pleadings, but must, by sworn affidavits
    and other evidence, set forth specific facts showing that there is a genuine issue for
    trial. Fed. R. Civ. P. 56(e).
    B. Subject Matter Jurisdiction
    Mehrkens alleges that the VA officials interfered with his right to get private
    medical care by misrepresenting his condition. Mehrkens argues that he should be
    allowed to seek redress in federal court because the VA officials' misrepresentations
    violated his federal constitutional rights. Mehrkens further contends that if the VJRA
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    is his exclusive remedy then he is left without a remedy because the VJRA does not
    give the VA jurisdiction to grant damages for withholding of treatment. We hold that
    the VJRA is Mehrkens's exclusive remedy and affirm.
    1. VJRA
    In 1988, Congress enacted the VJRA3 to establish a framework for the
    adjudication of veterans' benefits claims. The process begins with the veteran filing
    a claim for benefits with a regional office of the Department of Veterans Affairs and
    includes several levels of appeal. The regional office decides all questions of law and
    fact as they relate to the claim. 38 U.S.C. § 511(a). If aggrieved, the claimant may then
    appeal to the Board of Veterans' Appeals (BVA). 38 U.S.C. § 7104. BVA decisions
    may be appealed to the Court of Appeals for Veterans Claims, to which Congress
    vested exclusive jurisdiction to review BVA decisions. 38 U.S.C. § 7252(a).
    Claimants may appeal unsatisfactory decisions of the Court of Appeals for Veterans
    Claims to the Federal Circuit, which has exclusive appellate jurisdiction over such
    matters. 38 U.S.C. § 7292. Finally, a claimant may appeal to the Supreme Court. 38
    U.S.C. § 7291.
    2. Bivens and its Progeny
    In Bivens, the Supreme Court established a right of individuals to sue individual
    federal agents for damages for unconstitutional conduct in violation of the Fourth
    Amendment. 
    Bivens, 403 U.S. at 389
    . The Court later extended this holding to
    encompass violations of the Fifth Amendment, Davis v. Passman, 
    442 U.S. 228
    ,
    248–49 (1979), and the Eighth Amendment, Carlson v. Green, 
    446 U.S. 14
    , 32–33
    (1980).
    3
    The VJRA can be found in various sections of Title 38 of the United States
    Code.
    -6-
    Later, in Bush v. Lucas, the Supreme Court held that a Bivens claim could not
    lie for a First Amendment violation by a Civil Service Commission supervisor. 
    462 U.S. 367
    , 368 (1983). The Bush Court assumed that a federal right had, in fact, been
    violated and that the petitioner did not have an adequate remedy apart from a Bivens
    action. 
    Id. at 373.
    But the Court noted that constitutional challenges are fully
    cognizable under Congress's elaborate Civil Service Commission scheme. 
    Id. at 386.
    The Court stressed that the fact that the wrong would otherwise go unredressed was
    irrelevant. 
    Id. at 388.
    The real question was whether Congress had set up a plan after
    careful attention to conflicting policy considerations. 
    Id. If Congress
    had set up such
    an elaborate scheme in a particular area, then courts should not augment that scheme
    by creating a Bivens remedy. 
    Id. Because Congress
    could better evaluate the impact
    of a Bivens remedy, the Court declined to exercise jurisdiction. 
    Id. at 389–90.
    That
    same year, in Chappell v. Wallace, the Court declined to extend Bivens to military
    personnel seeking damages for constitutional violations. 
    462 U.S. 296
    , 297 (1983).
    Because Congress had plenary control over the military and had not provided for
    damages remedies in this context, the Court would not encroach upon Congress's
    authority and judicially create a new remedy. 
    Id. at 301,
    307. Finally, in Schweiker v.
    Chilicky, the Supreme Court refused to judicially create a due-process violation
    remedy for the denial of Social Security disability benefits because Congress had set
    up a complex remedial scheme in the Social Security area but had not created a Bivens
    remedy. 
    487 U.S. 412
    , 414 (1988); see also United States v. Stanley, 
    483 U.S. 669
    ,
    684 (1987) (refusing to create a Bivens remedy for a due-process violation by a
    military superior for fear that liability would be increased by a judicially-created
    remedy).
    In the instant case, Mehrkens attempts to bring a Bivens action against VA
    officials for alleged constitutional violations committed while handling his benefits
    claim. We note the Supreme Court has applied Bivens sparingly outside of the Fourth
    Amendment context and never in the context of a complex statutory remedial scheme.
    We decline to create a Bivens remedy in this case. See 
    Bush, 462 U.S. at 389
    –90.
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    Congress has preempted the field for veterans' benefits and set up an elaborate
    remedial scheme and, therefore, that body is better suited to augment that scheme with
    new remedies. See 
    Schweiker, 487 U.S. at 414
    . Considering Congress's careful
    structuring of the VJRA, we will not assume that Congress inadvertently failed to
    provide Bivens-type relief. 
    See supra
    Part II.B.1.
    Furthermore, Mehrkens is bringing a claim only for a delay of benefits. Had he
    been granted benefits in 1992 instead of 2004, he would not have brought the current
    action. In this case, there is no meaningful legal difference between a delay of benefits
    and an outright denial of benefits. In either case, Congress has charged the VJRA with
    exclusive jurisdiction. See 38 U.S.C. §§ 511(a)–7292. This holding aligns us with our
    sister circuits who have addressed similar issues. See Beamon v. Brown, 
    125 F.3d 965
    ,
    966 (6th Cir. 1997) (refusing constitutional challenge for delays in veterans claims in
    federal court system); Weaver v. United States, 
    98 F.3d 518
    , 519–20 (10th Cir. 1996)
    (refusing jurisdiction where claimant brought a conspiracy and fraud challenge
    because VA employees allegedly concealed his medical records); Hicks v. Small, 
    69 F.3d 967
    , 969–70 (9th Cir. 1995) (refusing to allow a Bivens action due to the VJRA's
    comprehensive, remedial structure); Zuspann v. Brown, 
    60 F.3d 1156
    , 1159–60 (5th
    Cir. 1995) (refusing to grant a Bivens remedy for constitutional violations because
    Congress had set up an elaborate remedial structure through the VJRA and because
    appellant was merely "complaining about a denial of benefits"); Sugrue v. Derwinski,
    
    26 F.3d 8
    , 10 (2d Cir. 1994) (refusing to recognize a Bivens action for alleged due-
    process violations for failure of VA doctors to maintain medical records with accuracy
    and completeness). Because we lack subject matter jurisdiction, Mehrkens's claim is
    denied.
    C. Sections 1983 and 1985 Claims
    Mehrkens also argues that his case should be remanded so the district court may
    expressly rule on his §§ 1983 and 1985 claims. Because these claims are without
    merit, we decline to remand.
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    Sections 1983 and 1985 both regulate officials acting under color of any statute
    of any "State or Territory." 42 U.S.C. §§ 1983 and 1985 (emphasis added). Because
    the VJRA was enacted under federal law, §§ 1983 and 1985 do not apply. 
    See supra
    Part II.B.1. Therefore, a remand to the district court for an express finding in this
    regard is unnecessary because it amounts to harmless error. See generally United
    States v. Baker, 
    491 F.3d 421
    , 424 (8th Cir. 2007) (refusing remand for harmless error
    committed by the district court).
    III. Conclusion
    Accordingly, we affirm the order of the district court.
    ______________________________
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