Melvin v. United States Department of Veterans Affairs

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
___________________________________
)
PAMELA MELVIN, )
)
Plaintiff, )
)
v. ) Civil No. 12-1501 (EGS)
)
U.S. DEPARTMENT OF )
VETERANS AFFAIRS et al., )
)
Defendants. )
___________________________________)
MEMORANDUM OPINION
Pro se plaintiff and veteran Pamela Melvin has filed
Privacy Act and constitutional claims against the U.S.
Department of Veterans Affairs (VA).1 Am. Compl. (ECF No. 70).
The VA moves to dismiss the Amended Complaint for lack of
subject matter jurisdiction and for failure to state a claim.
Def.’s Mot. to Dismiss (ECF No. 74); FED. R. CIV. P. 12(b)(1),
12(b)(6). Upon consideration of the motion, Plaintiff’s response
and the VA’s reply, the entire record, and the applicable law,
the Court GRANTS the VA’s motion for the reasons set forth
herein.
1
Plaintiff initially brought seven claims against a larger
number of defendants. See Compl. (ECF No. 1). The Court granted
her leave to file an amended complaint pursuant to FED. R. CIV. P.
15(a)(2) after the VA filed a motion to dismiss. See Jan. 7,
2014 Minute Order; VA’s Mot. to Dismiss (Renewed) (ECF No. 57).
In her Amended Complaint, Plaintiff maintains her amended claims
only against the VA. See generally Am. Compl.
1
I. BACKGROUND
Pamela Melvin served in the United States Army in the
1970s. Am. Compl. ¶ 50. The allegations in her 76-page Amended
Complaint are somewhat unclear, but the thrust of her lawsuit
focuses on the treatment of her claims for VA benefits.
A. The Amended Complaint
The Amended Complaint primarily describes Plaintiff’s
attempts to claim benefits for post-traumatic stress disorder
(PTSD) by filing for service-connected benefits, and her
attempts to claim benefits for the treatment of her rheumatoid
arthritis by filing a claim under 38 U.S.C. § 1151.2 Further, the
Amended Complaint describes several other grievances the Court
must address.
1. The Claims.
Plaintiff lists eight causes of action in her Amended
Complaint. As described as follows, each cause of action (COA)
is labeled as a violation of the Privacy Act and claims willful
and intentional violation of the Act. Moreover, most of the
claims also allege constitutional violations, including denial
of Plaintiff’s access to the courts in violation of the First
and Fifth Amendments:
2
Generally speaking, 38 U.S.C. § 1151 authorizes compensation for
a disability caused by hospital care or treatment administered
by a VA employee, when the proximate cause was negligence, the
event was not reasonably foreseeable, or the disability was
proximately caused by rehabilitation treatment.
2
• COA I: Privacy Act and constitutional violations for the VA’s
failure to respond to Plaintiff’s July 2009 request to amend
her PTSD claims, id. ¶ 239, and for failure to respond to her
January 2011 requests for the Board’s January 6, 2010
decision, id. ¶¶ 239, 243, 250, 261.
• COA II: Privacy Act and constitutional violations for the
VA’s failure to respond to Plaintiff’s letters of 2011 and
2012 requesting records related to her § 1151 claim. Id. ¶¶
275–76, 281–84, 286, 287.
• COA III: Privacy Act and constitutional violations for the
VA’s failure to provide primary care clinic information to
Plaintiff after she sent the 2011 and 2012 letters requesting
the records relating to her PTSD and § 1151 claims. Id. ¶¶
292–99, 307. Plaintiff maintains the failures to respond to
her requests for records left her without a means to
challenge the failure to assign her a primary care clinic,
thereby precluding her from appealing the VA’s decision. Id.
¶¶ 301–08.
• COA IV: Privacy Act and constitutional violations for failure
to respond to Plaintiff’s July 2009 request to amend her PTSD
claims and for failure to maintain her record to include the
request. Id. ¶¶ 313–18, 320–22.
• COA V: Privacy Act and constitutional violations for the VA’s
intentional inclusion in her benefits record of the allegedly
fraudulent July 2008 appeal of Plaintiff’s § 1151 claim
decided that same month, which she did not file, as well as
the March 2009 decision regarding that appeal. Id. ¶¶ 331,
333, 336–39.
• COA VI: Privacy Act and constitutional violations for the
VA’s intentional exclusion from her benefits record of
Plaintiff’s July 2009 appeal of her § 1151 claim. Id. ¶¶ 343–
45, 348–350.
• COA VII: Privacy Act violation for the VA’s failure to assign
Plaintiff a primary care clinic in 2010. Id. ¶¶ 353–362.
• COA VIII: Privacy Act violation for the VA’s failure to
provide to Plaintiff the audio tape of her August 2005 Board
of Veterans’ Appeals hearing, as well as the destruction of
that tape. Id. ¶¶ 364–367.
3
Plaintiff seeks damages of $2–3 million per cause of
action, attorney’s fees, and any other relief the Court deems
adequate and just. Id. at 75–76.
2. The PTSD Claim.
Ms. Melvin filed an application for service-connected
compensation with the VA in 2001 claiming mental and emotional
distress for sexual trauma during her military service; in 2005,
the VA identified her claim as one for PTSD. Am. Compl. ¶¶ 50,
235. Her claim appears to have been considered and appealed to
the Board of Veterans’ Appeals. Id. ¶¶ 50–73. The ALJ heard the
appeal on August 1, 2005 and remanded to the Winston-Salem
Regional Office (“RO”) for, among other things, a medical
evaluation for psychotic disorder. Id. ¶¶ 70–73. The medical
evaluation took place in February 2007. Id. ¶¶ 111–142, 237.
Sometime after this August 2005 hearing, Ms. Melvin supplemented
her PTSD claim to include allegations about two distinct sets of
sexual trauma incidents. Id. ¶¶ 75, 146.
Because Plaintiff included additional information for
consideration of her PTSD claim after her August 2005 hearing,
she sent a letter requesting another hearing before the Board of
Veterans’ Appeals. Id. ¶ 146. In response, Ms. Melvin alleges
the Board of Veterans’ Appeals sent her a document by which she
could request a hearing, which she completed and returned. Id. ¶
4
147. Plaintiff claims she never received an additional hearing.
Id. ¶ 148.
In October 2009, Ms. Melvin inquired about the status of
her PTSD claim by calling the VA’s toll-free hotline. Id. ¶¶
179–180. She alleges the representative on the call informed her
that the PTSD appeal was still pending. Id. The Appeals
Management Center allegedly denied her appeal in September 2009,
and the Board of Veterans’ Appeals issued a final decision
denying her PTSD claim on January 6, 2010. Id. ¶¶ 197, 148.
Ms. Melvin did not learn of this outcome in 2010, and only
learned of the decision when she called the VA’s toll-free
hotline in January 2011 for an update on her benefits claims.
Id. ¶¶ 181–182, 240, 241. Ms. Melvin made several calls to the
VA during January 2011. Id. ¶¶ 181, 196. During these calls
Plaintiff requested, among other things, a copy of the January
2010 decision. Id. ¶ 202. Each representative responding to her
calls indicated there was no written record of the decision. Id.
¶ 208. Ms. Melvin also promptly sent several letters to
different VA officials and offices requesting records related to
her PTSD claim. Id. ¶¶ 186–190, 203–07. She sent additional
letters requesting her PTSD claim records in April 2011, id. ¶¶
211–16, 270–71, and again in January and February 2012, id. ¶¶
217–220, 272–73.
5
Aware of the 120-day appeal window, Plaintiff believed her
opportunity to challenge the decision had closed even though she
had not timely received the January 2010 decision. Id. ¶¶ 244–
48, 251. Nevertheless, in one of her January 2011 letters
requesting a copy of the decision, she attempted to notify the
VA that she wanted to appeal the January 2010 decision. Id. Ex.
G. Plaintiff alleges she received the January 6, 2010 decision
for the first time in March 2012. Id. ¶¶ 221, 223, 244.
3. The 38 U.S.C. §1151 Claim.
In addition to the PTSD claim Ms. Melvin filed in 2001, the
Amended Complaint also describes a benefits claim filed in May
2007 with the Winston-Salem RO. In that claim, Plaintiff
requested compensation under 38 U.S.C. § 1151 for the rheumatoid
arthritis treatment she had received at VA hospitals. Am. Compl.
¶¶ 149, 325. In July 2008, the RO denied the § 1151 claim. Id.
¶¶ 150, 326. In July 2009, Plaintiff timely appealed. Id. ¶¶
151, 153, 327, 328. With her appeal, she also enclosed a letter
seeking to amend her records pertaining to the PTSD claim to
include additional facts and to challenge the inclusion of
allegedly false statements from the doctor who performed her
February 2007 medical evaluation. Id. ¶¶ 154–56, 238, 313.
Plaintiff did not receive a response from the VA regarding
her July 2009 request to amend her records. Id. ¶¶ 239, 314. She
contends this failure to act or to amend her record was
6
intentional or willful. Id. ¶ 315. Ms. Melvin alleges the VA
instead sent her a letter scheduling a medical reevaluation for
her service-connected claim. Id. ¶¶ 159–160. She did not attend
the scheduled medical examination, however, because she
allegedly feared her medical records would be falsified as they
allegedly were during her February 2007 evaluation. Id. ¶ 161.
During her January 2011 calls to the VA’s toll-free
hotline, Plaintiff also inquired about her § 1151 claim and
learned her file contained an appeal, dated on or around July
2008, of the VA’s decision on that § 1151 claim. Id. ¶¶ 196–97,
329. Plaintiff contends she did not file this July 2008 appeal.
Id. ¶¶ 200, 230. She maintains the VA intentionally included in
her file the July 2008 appeal she did not file. Id. ¶¶ 336–37.
The VA denied this July 2008 appeal in March 2009. Id. ¶ 197.
Plaintiff’s § 1151 claim was allegedly closed after she did not
appeal the March 2009 decision. Id. ¶ 278.
Plaintiff further contends the VA hotline representatives
each informed her that there was no record of her July 2009
appeal of the § 1151 claim or a request to amend her records.
Id. ¶ 201.
One of Ms. Melvin’s January 2011 letters to VA officials,
referenced above, requested a copy of the March 2009 decision.
Id. ¶¶ 203–06, 330. The VA did not respond to her request. Id. ¶
207. Ms. Melvin’s letters of April 2011, January 2012, and
7
February 2012 repeated her request for records relating to her §
1151 claim. Id. ¶¶ 211–220, 270–72. She sent yet another letter
requesting these records in June 2012. Id. ¶¶ 224–25. In March
2011, Plaintiff alleges she ultimately received a copy of the
March 2009 decision. Id. ¶¶ 209, 330.
4. Other Grievances.
Plaintiff’s Amended Complaint raises two other issues.
First, she alleges she has been denied assignment to a primary
care clinic. Plaintiff registered for enrollment for on-going
medical treatment at the Fayetteville, North Carolina VA
hospital in July 2010. Id. ¶ 163. After twice attempting to
receive emergency care for treatment of her arthritis in August
2010, VA employees informed Plaintiff she would receive an
appointment for care within several weeks. Id. ¶¶ 164–65. When
she had not received an appointment by November 2010, Ms. Melvin
called the hospital and learned she had not been assigned a
primary care clinic. Id. ¶¶ 166–69. Further, the VA apparently
had mailed Plaintiff an appointment notice in September 2010,
but because she had missed her appointment, she had been placed
on a lengthy waitlist for treatment. Id. ¶¶ 170–71. Plaintiff
submits she has been unable to receive medical treatment because
she has not been assigned a primary care clinic. Id. ¶ 357.
The second other grievance Plaintiff alleges in her Amended
Complaint relates to an audio tape of the August 1, 2005 hearing
8
before the Board of Veterans’ Appeals. Ms. Melvin allegedly
submitted several requests for the audio tape of the August 2005
hearing. The Amended Complaint describes four such requests in
October 2005, April 2011, January 2012, and February 2012. Id.
¶¶ 232, 214–220, 224–25. Plaintiff claims she has not received
the tape, and believes it has been destroyed. Id. ¶¶ 233, 366.
B. VA’s Motion to Dismiss
The VA has moved to dismiss the Amended Complaint for lack
of subject matter jurisdiction and for failure to state a claim.3
The VA argues all of Plaintiff’s claims are based upon
substantive decisions by the VA and are therefore barred from
review by this Court by 38 U.S.C. § 511(a). Def.’s Mot. to
Dismiss at 5. As discussed in detail, the VA argues the Veterans
Judicial Review Act (VJRA) provides the appropriate forum for
Plaintiff to challenge the substance of her veterans benefits
determinations, including the statutory and constitutional
claims before the Court. Id. at 6–8. Further, the VA argues the
fourth and eight causes of action of the Amended Complaint are
barred by the two-year limitation for bringing Privacy Act
claims. Id. at 8–9. Finally, to the extent Plaintiff alleges
tort claims, the VA contends her claims have not been
3
The VA also moves to amend the case caption to reflect that the
VA is the only named defendant in the case. Def.’s Mot. to
Dismiss at 1. Ms. Melvin did not address this portion of the
motion, so the Court GRANTS AS CONCEDED the VA’s request.
9
administratively exhausted and are, in any event, time-barred.
Id. at 10–11.
Plaintiff opposes the VA’s motion to dismiss, generally
arguing this Court has jurisdiction to hear her properly pleaded
claims. Pl.’s Opp’n to Def.’s Mot. to Dismiss (ECF No. 86) at 1.
She maintains the VA’s Privacy Act violations and the VA’s
statute of limitations challenges to her pending appeals in the
Court of Appeals for Veterans Claims have deprived her of an
opportunity to present her case regarding her record with, and
benefits from, the VA. Id. at 4–5. Thus, she argues she was
effectively denied access to the courts in violation of the
First and Fifth Amendments to the Constitution. Id. at 2.
II. STANDARD OF REVIEW
A. Rule 12(b)(1)
The VA challenges the Court’s jurisdiction to hear
Plaintiff’s claims under Rule 12(b)(1). The plaintiff bears the
burden of establishing the court has subject matter jurisdiction
on a motion to dismiss for lack of subject matter jurisdiction
pursuant to Rule 12(b)(1). See McNutt v. Gen. Motors Acceptance
Corp. of Ind., 298 U.S. 178, 182–83 (1936). Federal district
courts are courts of limited jurisdiction and “possess only that
power conferred by [the] Constitution and [by] statute.” Logan
v. Dep’t of Veterans Affairs, 357 F. Supp. 2d 149, 152 (D.D.C.
2004) (quoting Kokkonen v. Guardian Life Ins. Co. of Am., 511
10
U.S. 375, 377 (1994)) (alteration in original). “There is a
presumption against federal court jurisdiction and the burden is
on the party asserting the jurisdiction, the plaintiff in this
case, to establish that the Court has subject matter
jurisdiction over the action.” Id. at 153 (citing McNutt, 298
U.S. at 182–83); see also Lujan v. Defenders of Wildlife, 504
U.S. 555, 561 (1992).
Because subject matter jurisdiction focuses on a court’s
power to hear a claim, the court must give a plaintiff’s factual
allegations closer scrutiny when resolving a Rule 12(b)(1)
motion than would be required for a Rule 12(b)(6) motion for
failure to state a claim. Macharia v. United States, 334 F.3d
61, 64, 67 (D.C. Cir. 2003). Thus, to determine whether it has
jurisdiction over a claim, the court may consider materials
outside the pleadings where necessary to resolve disputed
jurisdictional facts. Herbert v. Nat’l Acad. of Scis., 974 F.2d
192, 197 (D.C. Cir. 1992).
B. Rule 12(b)(6)
The VA also argues the Amended Complaint should be
dismissed for failure to state a claim. Def.’s Mot. to Dismiss
at 2; FED. R. CIV. P. 12(b)(6). A motion to dismiss under Rule
12(b)(6) tests the legal sufficiency of the complaint. Browning
v. Clinton, 292 F.3d 235, 242 (D.C. Cir. 2002). To be viable, a
complaint must contain “a short and plain statement of the claim
11
showing that the pleader is entitled to relief, in order to give
the defendant fair notice of what the . . . claim is and the
grounds upon which it rests.” Bell Atl. Corp. v. Twombly, 550
U.S. 544, 555 (2007) (citation and quotation marks omitted). The
plaintiff need not plead all of the elements of a prima facie
case in the complaint, Swierkiewicz v. Sorema N.A., 534 U.S.
506, 511–14 (2002), nor must the plaintiff plead facts or law
that match every element of a legal theory. Krieger v. Fadely,
211 F.3d 134, 136 (D.C. Cir. 2000). Despite this liberal
standard, a complaint still “must contain sufficient factual
matter, accepted as true, to state a claim for relief that is
plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009) (quoting Twombly, 550 U.S. at 570) (quotation marks
omitted).
When ruling on a defendant’s motion to dismiss, the court
must give the plaintiff “the benefit of all inferences that can
be derived from the facts alleged.” Kowal v. MCI Commc’ns Corp.,
16 F.3d 1271, 1276 (D.C. Cir. 1994) (citation omitted). Pro se
plaintiffs’ complaints filed “without the assistance of counsel
are held ‘to less stringent standards than formal pleadings
drafted by lawyers.’” Brown v. Dep’t of Veterans Affairs, No.
94-1119, 1996 WL 263636, at *1 (D.D.C. May 15, 1996) (quoting
Haines v. Kerner, 404 U.S. 519, 520 (1972)). Nevertheless, a
court “need not accept inferences drawn by plaintiff[] if such
12
inferences are unsupported by the facts set out in the
complaint.” Kowal, 16 F.3d at 1276. Further, “[t]hreadbare
recitals of elements of a cause of action, supported by mere
conclusory statements” are not sufficient to state a claim.
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Twombly, 550
U.S. at 555).
III. ANALYSIS
A. Privacy Act Claims
The Privacy Act of 1974, 5 U.S.C. § 552a, governs the
collection and dissemination of information and maintenance of
records by the government. The Privacy Act requires an agency to
“maintain all records which are used by the agency in making any
determination about any individual with such accuracy,
relevance, timeliness, and completeness as is reasonably
necessary to assure fairness to the individual in the
determination.” 5 U.S.C. § 552a(e)(5). An individual may access
an agency’s records pertaining to her, and she may request
amendment of such records. See 5 U.S.C. § 552a(d). That
individual may file a civil action against an agency that “makes
a determination . . . not to amend an individual’s record in
accordance with his request.” 5 U.S.C. § 552a(g)(1)(A). In
addition, an individual may bring suit against an agency under
subsection (g)(1)(C) if the agency
13
fails to maintain any record concerning any individual
with such accuracy, relevance, timeliness, and
completeness as is necessary to assure fairness in any
determination relating to the qualifications,
character, rights, or opportunities of, or benefits to
the individual that may be made on the basis of such
record, and consequently a determination is made which
is adverse to the individual.
5 U.S.C. § 552a(g)(1)(C).
Though the Privacy Act vests broad discretion in a district
court to “order the agency to amend the individual’s record in
accordance with his request or in such other way as the court
may direct,” the remedy generally is limited to the correction
of inaccurate or incomplete documents. 5 U.S.C. § 552a(g)(2)(A).
The Privacy Act thus cannot be used as a vehicle to “correct” a
substantive decision unfavorable to an individual’s interest.
See Byrnes v. Merit Sys. Prot. Bd., No. 04-742, 2005 WL 486156,
at *2 (D.D.C. Mar. 2, 2005); Douglas v. Agric. Stabilization and
Conservation Serv., 33 F.3d 784, 785 (7th Cir. 1994) (“We join
many other circuits in holding that the Privacy Act does not
authorize relitigation of the substance of agency decisions.”).
That is, the Privacy Act provisions for amending records “are
not designed to permit collateral attack upon that which has
already been the subject of a judicial or quasi-judicial
action.” Kennedy v. Andrus, 459 F. Supp. 240, 242 (D.D.C.
1978). In cases of willful or intentional Privacy Act
14
violations, as pleaded here, the Court may award actual damages.
5 U.S.C. § 552a(g)(4).
The Privacy Act is not “‘a vehicle for amending the
judgments of federal officials or . . . other[s] . . . as those
judgments are reflected in records maintained by federal
agencies.’” Kleiman v. Dep’t of Energy, 956 F.2d 335, 337–38
(D.C. Cir. 1992) (quoting Rogers v. U.S. Dep't of Labor, 607 F.
Supp. 697, 699 (N.D. Cal. 1985)) (alteration in original);
accord Baker v. Winter, 210 F. App’x 16, 18 (D.C. Cir. 2006)
(“The Privacy Act requires modification only of factual errors,
not of errors in opinion[.]”) (citation omitted); see also
Levant v. Roche, 384 F. Supp. 2d 262, 270 (D.D.C. 2005) (noting
a complaint “not about the accuracy of [ ] records, but about
the underlying decision they reflect” is not cognizable under
the Privacy Act); McCready v. Principi, 297 F. Supp. 2d 178, 190
(D.D.C. 2003) (“The [Privacy Act] allows for correction of facts
but not correction of opinions or judgments, no matter how
erroneous such opinions or judgments may be.”) (citations
omitted), rev’d in part on other grounds sub nom. McCready v.
Nicholson, 465 F.3d 1 (D.C. Cir. 2006).
In the context of the VA, 38 U.S.C. § 511(a) further limits
the scope of the Privacy Act so that it cannot be used to
challenge the VA’s benefits decisions. “[A]ll questions of law
and fact necessary to a decision by the Secretary under a law
15
that affects the provision of benefits by the Secretary to
veterans” must be decided by the Secretary. 38 U.S.C. § 511.
Instead, such challenges should be brought in the system of
courts established by the VJRA. See Price v. United States, 228
F.3d 420, 421 (D.C. Cir. 2000) (per curiam) (“As amended by the
Veterans Judicial Review Act, the Veterans’ Benefits Act of 1957
precludes judicial review in Article III courts of VA decisions
affecting the provision of veterans’ benefits . . . .”), cert.
denied, 534 U.S. 903 (2001) (internal citations omitted).
The law is settled that this Court may not hear claims
attempting to challenge impermissibly the underlying VA benefits
decisions; to allow such Privacy Act claims would require this
Court to intrude impermissibly on the province of the Secretary
of Veterans Affairs. See Thomas v. Principi, 394 F.3d 970, 975
(D.C. Cir. 2005) (affirming dismissal pursuant to § 511 of
Privacy Act claims that “allege only that the VA’s failure to
maintain accurate and complete records adversely affected
[plaintiff]’s benefits determinations”).
1. The First Seven Causes of Action.
The VA argues the Privacy Act violations alleged in all
eight causes of action should be dismissed for lack of subject
matter jurisdiction. The VA argues Plaintiff’s causes of action
essentially amount to attacks on the VA’s benefits decisions on
her claims. Def.’s Mot. to Dismiss at 3. Thus, the VA argues the
16
Court lacks subject matter jurisdiction to hear Plaintiff’s
claims because 38 U.S.C. § 511 bars courts from considering
“questions of law or fact necessary to a decision . . . under a
law that affects the provision of benefits . . . .” Def.’s Mot.
to Dismiss at 5–6; 38 U.S.C. §511(a).4 Plaintiff opposes, and
seems to argue a VA benefits decision cannot strip her of an
accurate VA benefits record under the Privacy Act. Pl.’s Opp’n
at 5.
While the first seven causes of action allege Privacy Act
violations of the statutory access to and maintenance of Ms.
Melvin’s benefits record, the purpose or effect of these seven
claims is to challenge the underlying benefits determinations as
a consequence of the alleged Privacy Act violations. Am. Compl.
at 53–74. Specifically, the first and fourth causes of action
allege the VA failed to respond to Ms. Melvin’s request to amend
her PTSD claims. Id. ¶¶ 156, 234–68, 312–323. Plaintiff’s second
cause of action challenges the VA’s accurate maintenance of, and
her access to, her benefits record, claiming she was harmed by
the VA’s failure to respond to her requests for copies of the
January 6, 2010 decision in 2011 and 2012. Id. ¶¶ 269–290. The
third cause of action alleges Ms. Melvin’s requests for the
records about her pending claims should have triggered the VA to
4
There are statutory exceptions to the framework, but none of
these exceptions apply here. See 38 U.S.C. § 511(b); Def.’s Mot.
to Dismiss at 6–7 (citing statute).
17
assign her a primary care clinic, or put in writing its refusal
to do so. Id. ¶¶ 291–311. Similarly, Plaintiff’s seventh cause
of action claims the VA violated the Privacy Act by failing to
assign her to a primary care clinic. Id. ¶¶ 352–362. The fifth
and sixth causes of action challenge not only the maintenance of
Ms. Melvin’s record regarding her § 1151 appeal, but the
treatment of those appeals. Id. ¶¶ 324–351. These requests
venture beyond the Privacy Act’s requirement that the VA
maintain accurate records and into the substantive decisions of
the VA, which should be challenged within the court system
established by the VJRA.
Plaintiff does not simply seek to amend her records.
Rather, the Amended Complaint seeks damages for harm to Ms.
Melvin’s pending benefits claims resulting from the alleged
Privacy Act violations. Id. at 75–76. Plaintiff’s claims are
based on her allegations that the VA’s willful failure to
maintain accurate and complete records adversely affected her
benefits determinations or access to services. See id. ¶¶ 321,
338, 349, 360.
The Court agrees the VJRA, rather than the Privacy Act,
provides the exclusive forum for bringing the challenges
Plaintiff raises here. The Veterans Judicial Review Act of 1988
establishes the process by which veterans may appeal the
substance of VA decisions: after a Regional Office makes a
18
determination on the claim, a veteran may appeal, within one
year, to the Board of Veterans’ Appeals. 38 U.S.C. §§ 7104,
7105; see generally Veterans Judicial Rev. Act of 1988, Pub. L.
100-687, 102 Stat. 4105 (1988). The Board of Veterans’ Appeals
may either remand back to the RO or issue a final VA decision.
38 U.S.C. §§ 7103, 7104. From there a veteran may appeal, within
120 days, to the Court of Appeals for Veterans claims, an
Article I court. 38 U.S.C. §§ 7251, 7252, 7266. Finally, a
veteran may appeal, within 60 days, to the Court of Appeals for
the Federal Circuit any legal issue, such as the validity or
interpretation of a statue, regulation, or rule of law. 38
U.S.C. § 7292; FED. R. APP. P. 4(a)(1)(B). To the extent Plaintiff
wanted to argue the VA’s alleged Privacy Act violations affected
her substantive benefits decisions, she was free to raise them
within the confines of judicial review described in Title 38.
See 38 U.S.C. §§ 511, 7104, 7252, 7292; see also supra at 17–18.
In view of the statutory scheme to address Plaintiff’s
statutory and constitutional claims, this Court lacks subject
matter jurisdiction to hear them. Indeed, “[t]he courts have
consistently held that a federal district court may not
entertain constitutional or statutory claims whose resolution
would require the court to intrude upon the VA’s exclusive
jurisdiction.” Price, 228 F.3d at 422 (citation omitted); see
also Rosen v. Walters, 719 F.2d 1422, 1424 (9th Cir. 1983)
19
(affirming dismissal of Privacy Act claim based on destruction
of medical records pertinent to claim for veterans’ disability
benefits). Rather, “[t]he exclusive avenue for redress of
veterans’ benefits determinations is appeal to the Court of
Veterans Appeals [renamed Court of Appeals for Veterans Claims]
and from there to the United States Court of Appeals for the
Federal Circuit.” Price, 228 F.3d at 421 (citing 38 U.S.C. §§
511, 7252, 7292) (other citations omitted). Consequently, the
Court dismisses the first seven Privacy Act claims pursuant to
Rule 12(b)(1). See Hunt v. Dep’t of Veterans Affairs, 739 F.3d
706, 707 (D.C. Cir. 2014) (affirming summary judgment because
district court lacked subject matter jurisdiction over
plaintiff’s Privacy Act claims for damages).
2. The Eighth Cause of Action.
The eighth cause of action is somewhat different than the
first seven. The eighth cause of action describes a Privacy Act
violation for the VA’s failure to provide to Ms. Melvin the
audio tape of the August 1, 2005 Board of Veterans’ Appeals
hearing, as well as the ultimate destruction of the tape. Am.
Comp. ¶¶ 363–67. Because the cause of action requests damages
related to the allegedly intentional denial of access to a
portion of Ms. Melvin’s benefits record, it cannot be construed
as a collateral attack on her benefits determinations. Section
20
511(a) therefore poses no jurisdictional bar to the Amended
Complaint’s eighth cause of action.
The Court next considers whether the remaining eighth cause
of action survives the VA’s Rule 12(b)(6) challenge. The VA
argues the eighth claim of the Amended Complaint should be
dismissed pursuant to Rule 12(b)(6) as barred by the Privacy
Act’s two-year time limitation. Def.’s Mot. to Dismiss at 8–9.
The requirement that Privacy Act claims be brought within two
years is not jurisdictional, and these claims are therefore
reviewable under the rubric of Rule 12(b)(6). Kursar v. TSA, 751
F. Supp. 2d 154, 165 (D.D.C. 2010). The statute of limitation
begins to run when the plaintiff knows, or should have known, of
the alleged violation. Id. (quoting Tijerina v. Walters, 821
F.2d 789, 798 (D.C. Cir. 1987)).
Plaintiff does not address specifically her eighth cause of
action in her opposition to the VA’s motion to dismiss, but she
notes the two-year limitation does not apply where “an agency
has materially and willfully misrepresented any information
required . . . to be disclosed . . . and the information so
misrepresented is material to establishment of the liability of
the agency . . . .” 5 U.S.C. § 552a(g)(5); Pl.’s Opp’n at 9. But
in the Amended Complaint, Plaintiff alleges she requested the
hearing tape at least as early as October 21, 2005. Am. Compl.
¶¶ 226, 232. Ms. Melvin does not explain why she waited almost
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seven years to bring her Privacy Act claim regarding the August
1, 2005 hearing tape.5 Consequently, the Court dismisses the
Amended Complaint’s eighth cause of action pursuant to Rule
12(b)(6) as time-barred.6
B. Denial of Access to Courts Claims
Though somewhat dispersed throughout the Privacy Act
claims, the Amended Complaint further describes constitutional
violations regarding Plaintiff’s access to courts to litigate
her VA claims. See Am. Compl. at 53–65, 67–72. In brief,
Plaintiff asserts she has been denied an opportunity to litigate
her VA benefits claims because her benefits record was
inaccurately maintained or amended. Id.
“The Supreme Court has long recognized that citizens have a
right of access to the courts.” Broudy v. Mather, 460 F.3d 106,
117 (D.C. Cir. 2006) (citation omitted). A claim for denial of
access may be backward-looking or forward-looking. Id. at 117–
118. Backward-looking claims are those where claims that “cannot
now be tried . . . no matter what office action may be in the
5
In the initial motion to dismiss filed in this case, the
defendants argued Ms. Melvin did, in fact, receive a copy of the
August 1, 2005 hearing tape, and supported their claim with a
declaration. See Mem. in Supp. of Defs.’ Mot. to Dismiss (ECF
No. 17-1) at 15; Decl. of A. Wold (ECF No. 17-2) ¶ 3, Ex. 1. The
VA did not raise this argument in the pending motion.
6
The Court also notes that Ms. Melvin admits receiving a
transcript of the hearing, and has not explained why she is
entitled to an audio tape, rather than a transcript of the
proceedings, at all. See Am. Compl. Ex. Q, at 8.
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future.” Id. (quoting Christopher v. Harbury, 536 U.S. 406, 413–
414 (2002)). Forward-looking claims deny “an opportunity to
litigate for a class of potential plaintiffs. The opportunity
has not been lost for all time, however, but only in the short
term . . . .” Harbury, 536 U.S. at 413.
Regardless of whether Plaintiff brings forward- or
backward-looking constitutional claims, they fail in the same
fashion as the Privacy Act claims on which they rely.
Plaintiff’s constitutional challenges here are facial attacks on
VA benefits determinations, not allegations she was foreclosed
from challenging those determinations. “Although [plaintiff]’s
complaints invoke provisions of the Fifth Amendment and are
styled in part as constitutional actions, the courts do not
acquire jurisdiction to hear challenges to benefits
determinations merely because those challenges are cloaked in
constitutional terms.” Sugrue v. Derwinski, 26 F.3d 8, 11 (2d
Cir. 1994) (citing Pappanikoloaou v. Admin. of Veterans Admin.,
762 F.2d 8, 9 (2d Cir. 1985) (per curiam) (noting, “we agree
with those circuits that have held that one may not circumvent §
[5]11(a) by seeking damages on a constitutional claim arising
out of a denial of benefits,” and collecting cases), cert.
denied, 474 U.S. 851 (1985)).
As with her Privacy Act claims, Plaintiff had the
opportunity to bring these claims before a court with
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jurisdiction to hear them, such as the courts established by the
VJRA. Those courts have jurisdiction to hear statutory and
constitutional claims related to veterans benefits
determinations. The limitations of judicial review imposed by 38
U.S.C. § 511 thus do not restrict Ms. Melvin’s “First Amendment
right of free speech or abridge [her] right to seek redress of
[her] grievances. . . . [R]ather, § 511 directs [her] to the
proper judicial” forum. Peavey v. Holder, 657 F. Supp. 2d 180,
186 (D.D.C. 2009). Pursuant to Rule 12(b)(1), the Court
therefore dismisses for lack of subject matter the denial access
to courts constitutional claims of the Amended Complaint.
C. Federal Tort Claims Act
While the Amended Complaint does not expressly allege any
tort actions against the VA, the Amended Complaint claims harm
from the VA’s treatment (or lack thereof) of Ms. Melvin’s
conditions. See Def.’s Mot. to Dismiss at 10. Arguably, then,
she may be asserting tort claims against the federal government.
Such claims are governed by the Federal Tort Claims Act (FTCA),
which waives sovereign immunity in limited circumstances,
permitting plaintiffs to sue the United States for torts “where
the United States, if a private person, would be liable to the
claimant in accordance with the law of the place where the act
or omission occurred.” 28 U.S.C. § 1346(b)(1); Sloan v. Dep’t
of Hous. & Urban Dev., 236 F.3d 756, 759 (D.C. Cir. 2001).
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Before filing suit under the FTCA, a plaintiff must first
present her alleged claims “to the appropriate Federal agency.”
28 U.S.C. § 2675(a). Exhaustion of administrative remedies is a
mandatory, jurisdictional prerequisite to filing such a lawsuit
in federal court. See Jones v. U.S., 296 F. App’x 82, 83 (D.C.
Cir. 2008); Simpkins v. D.C. Gov’t, 108 F.3d 366, 370–71 (D.C.
Cir. 1997); GAF Corp. v. United States, 818 F.2d 901, 917–920
(D.C. Cir. 1987).
To exhaust administrative remedies under the FTCA, a
plaintiff must have presented the agency with “(1) a written
statement sufficiently describing the injury to enable the
agency to begin its own investigation, and (2) a sum-certain
damages claim.” GAF Corp., 818 F.2d at 905. Further, the agency
must have either denied the claim in writing or failed to
provide a final disposition within six months of the filing of
the claim. Id.; Thomas v. Nicholson, 539 F. Supp. 2d 205, 213
(D.D.C. 2008). The claimant must present the administrative
claim to the agency within two years of discovery of “both his
injury and its cause.” Sexton v. United States, 832 F.2d 629,
633 (D.C. Cir. 1987) (quoting U.S. v. Kubrick, 444 U.S. 111, 119
(1979)); see 28 U.S.C. §§ 2401(b), 2675(a).
To the extent Plaintiff alleges tort claims against the VA
in her Amended Complaint, those claims must fail because she did
not exhaust her administrative remedies. The Amended Complaint
25
alleges instances of Ms. Melvin’s requesting assistance from the
VA in reviewing or amending her record. Am. Compl. ¶¶ 153–54,
185–190, 203–205, 211, 214, 217, 219, 223, 224, 226, 232, Exs.
C, D, G, H, J–M, O. The requests, however fail to identify at
least a “sum-certain damages claim” as required by the FTCA. 28
U.S.C. § 1346(b). Plaintiff has failed to allege that she has
identified a sum-certain damages claim in any of her
correspondence regarding her grievances with the VA. See
generally Am. Compl. Exs. A, C, D, G, H, J–M, O. Because
Plaintiff failed to invoke properly the FTCA’s limited waiver of
sovereign immunity, the Court does not have jurisdiction to hear
her claims. Pursuant to Rule 12(b)(1), the Court dismisses any
construable claims under the FTCA.
IV. CONCLUSION
For the foregoing reasons, the Court GRANTS the VA’s motion
to dismiss. Plaintiff’s Amended Complaint is dismissed in its
entirety. The Court GRANTS AS CONCEDED the VA’s motion to amend
the case caption. Finally, the Court DENIES AS MOOT Plaintiff’s
pending motion to issue subpoenas and motion for partial summary
judgment.
An appropriate Order accompanies this Memorandum Opinion.
SO ORDERED.
Signed: Emmet G. Sullivan
United States District Judge
September 30, 2014
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