Camer v. Department of Veterans Affairs

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

FORT MYERS DIVISION

MARCO VINICIO CAMER,

Plaintiff,

v. Case No: 2:22-cv-575-JES-NPM

DEPARTMENT OF VETERANS

AFFAIRS AND HONORABLE DENIS

RICHARD MCDONOUGH,

Defendants.

OPINION AND ORDER

This matter comes before the Court on review of defendants’

Motion to Dismiss For Lack of Subject Matter Jurisdiction (Doc.

#9) filed on September 19, 2022. Plaintiff did not file a response

and the time to do so has passed.1 For the reasons set forth below,

the motion is granted.

I.

On August 2, 2022, pro se Plaintiff Marco Vinicio Camer

(Plaintiff) initiated a lawsuit with the County Court of the

Twentieth judicial Circuit in and for Lee County, Florida, against

the United States Department of Veterans Affairs (the VA) and the

Secretary of the VA, Denis Richard McDonough, in his official

capacity (Defendants). (Doc. #3.) Liberally construed, Plaintiff

1 On October 19, 2022, the Court directed Plaintiff to respond

to Defendants’ Motion to Dismiss within fourteen days of the Order.

(Doc. #10.) Plaintiff did not file a response.

appears to allege that the VA owes him $8,000 because it engaged

in discrimination when it provided access to dentistry services

only to service members who were prisoners of war or awarded Purple

Hearts.2 (Id., p. 1.)

On September 12, 2022, the United States of America, on behalf

of Defendants, removed this action to this Court pursuant to 28

U.S.C. § 1442(a)(1).3 (Doc. #1.) Thereafter, Defendants filed the

present motion to dismiss, arguing that this Court and the state

court lack subject matter jurisdiction over this case because the

Veterans’ Judicial Review Act (VJRA), 38 U.S.C. § 511(a), generally

precludes judicial review of the VA’s benefits eligibility

determinations. (Doc. #9, p. 3.)

II.

A. Subject Matter Jurisdiction

Subject matter jurisdiction relates to the Court's power to

adjudicate a case. Morrison v. Nat'l Austl. Bank Ltd., 561 U.S.

247 (2010). "It is a fundamental precept that federal courts are

courts of limited jurisdiction . . . [and] limits upon federal

jurisdiction . . . must be neither disregarded nor evaded." Owen

2 The VA provides medical care to veterans through the

Veterans Health Administration ("VHA"). The Secretary of Veterans

Affairs (the "Secretary") manages the provision of health benefits

to eligible veterans. Smith v. United States, 7 F.4th 963, 966

(11th Cir. 2021).

3 Section 1442(a)(1) of Title 28 permits the government to

remove a civil case that is filed against an agency of the United

States in state court. 28 U.S.C. § 1442(a)(1).

Equip. & Erection Co. v. Kroger, 437 U.S. 365, 374 (1978). "They

are empowered to hear only those cases within the judicial power

of the United States as defined by Article III of the Constitution,

and which have been entrusted to them by a jurisdictional grant

authorized by Congress." Andrews v. Sec'y, VA, 845 F. App'x 880,

883 (11th Cir. 2021) (quoting Univ. of S. Alabama v. Am. Tobacco

Co., 168 F.3d 405, 409 (11th Cir. 1999)). If jurisdiction is found

lacking, the Court can not proceed at all; its sole remaining duty

is to state that it lacks jurisdiction and dismiss the case. Steel

Co. v. Citizens for a Better Env't, 523 U.S. 83, 94 (1998); see

also Univ. of S. Ala. v. Am. Tobacco Co., 168 F.3d 405, 410 (11th

Cir. 1999)("[O]nce a federal court determines that it is without

subject matter jurisdiction, the court is powerless to

continue.").

A plaintiff must affirmatively allege facts that, taken as

true, show the existence of federal subject matter jurisdiction.

Kokkonen v. Guardian Life Ins. Co., 511 U.S. 375, 377 (1994). See

also Travaglio v. Am. Express Co., 735 F.3d 1266, 1268 (11th Cir.

2013). "In a given case, a federal district court must have at

least one of three types of subject matter jurisdiction: (1)

jurisdiction under a specific statutory grant; (2) federal

question jurisdiction pursuant to 28 U.S.C. § 1331; or (3)

diversity jurisdiction pursuant to 28 U.S.C. § 1332(a)." Baltin v.

Alaron Trading Corp., 128 F.3d 1466, 1469 (11th Cir. 1997).

B. Rule 12(b)(1) Motion To Dismiss

Federal Rule of Civil Procedure 12(b)(1) authorizes the

filing of a motion to dismiss for lack of subject matter

jurisdiction. Fed. R. Civ. P. 12(b)(1). When a party facially

attacks the Complaint, “the Court merely look[s] [to] see if the

plaintiff has sufficiently alleged a basis of subject matter

jurisdiction, and the allegations in his complaint are taken as

true for the purposes of the motion.” Lawrence v. Dunbar, 919 F.2d

1525, 1529 (11th Cir. 1990). To survive dismissal, the factual

allegations in a complaint must be “plausible” and “must be enough

to raise a right to relief above the speculative level.” Bell

Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (citation omitted).

See also Edwards v. Prime Inc., 602 F.3d 1276, 1291 (11th Cir.

2010).

A pro se amended complaint is to be liberally construed and

“held to less stringent standards than complaints drafted by

lawyers.” Stephens v. DeGiovanni, 852 F.3d 1298, 1318 n.16 (11th

Cir. 2017). Liberal construction means that a federal court

sometimes must "look beyond the labels used in a pro se party's

complaint and focus on the content and substance of the

allegations" to determine if a cognizable remedy is available.

Torres v. Miami-Dade Cty., Fla., 734 F. App'x 688, 691 (11th Cir.

2018). Yet, there are limits to the court’s flexibility since the

Court does not have the “license to serve as de facto counsel for

a party, or to rewrite an otherwise deficient pleading in order to

sustain an action.” Campbell v. Air Jamaica Ltd., 760 F.3d 1165,

1168-69 (11th Cir. 2014).

III.

“Through the Veterans' Judicial Review Act (VJRA), Congress

created an exclusive scheme for the review of claims affecting

veterans' benefits.” Andrews, 845 F. App'x at 883. The Eleventh

Circuit has explained that

The VJRA provides the decision of the Secretary as to

any "questions of law and fact necessary to a decision

by the Secretary under a law that affects the provision

of benefits . . . 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) (emphasis added). The

term "benefit" means "any payment, service, commodity,

function, or status, entitlement to which is determined

under laws administered by the Department of Veterans

Affairs pertaining to veterans and their dependents and

survivors." 38 C.F.R. § 20.3(e).

The VJRA does not completely eliminate judicial review

of benefits decisions. Rather, determinations of the

Secretary may be appealed to the Board of Veterans'

Appeals ("Board"), whose ruling becomes the final

decision of the Secretary. 38 U.S.C. § 7104(a).

Decisions of the Board may then be reviewed exclusively

by the U.S. Court of Appeals for Veterans Claims, an

Article I court established by the VJRA. Id. §§ 7251,

7252(a), 7266(a). Decisions of the Court of Appeals for

Veterans Claims are in turn appealable only to the U.S.

Court of Appeals for the Federal Circuit. Id. § 7292(a),

(c). The judgment of the Federal Circuit is then subject

to review by the Supreme Court by writ of certiorari.

Id. § 7292(c).

Accordingly, pursuant to the VJRA, "judicial review of

a particular application of the law made by the Secretary

with respect to a veteran's entitlement to benefits may

be had only by appealing to the Board, then to the Court

of Veterans Appeals, the Federal Circuit Court of

Appeals and the Supreme Court." Hall v. U.S. Dep't of

Veterans Affairs, 85 F.3d 532, 534 (11th Cir. 1996) (per

curiam) (emphasis added).

Milbauer v. United States, 587 F. App'x 587, 590 (11th Cir.

2014)(emphasis in original). “Because the VJRA establishes an

exclusive regime, district courts are divested of jurisdiction

where the VJRA applies.” Andrews, 845 F. App'x at 883.

“The VJRA is broad. Indeed, courts have consistently held

that its scope extends to constitutional or tort claims whose

resolution would require the court to intrude upon the VA's

exclusive jurisdiction." Andrews, 845 F. App'x at 883-84 (quoting

Price v. United States, 228 F.3d 420, 422, 343 U.S. App. D.C. 302

(D.C. Cir. 2000) (per curiam)(internal citation and quotation

marks omitted)). “The question, then, is whether the gravamen of

Plaintiffs' claims places them within the scope of the VJRA.” Id.

at 884.

Here, Plaintiff appears to allege that the VA denied him

dental health care benefits because he was not a service member

who was classified as a prisoner of war or a Purple Heart

recipient. (Doc. #3.) However, “any and all determinations by the

Secretary as to eligibility, entitlement, or the scope of benefits

(including health care benefits) is ‘a decision by the Secretary

under a law that affects the provision of benefits.’" Smith v.

United States, 7 F.4th 963, 985 (11th Cir. 2021)(quoting 38 U.S.C.

§ 511(a))(noting that “[i]t is obvious that any type of substantive

benefits decision itself is unquestionably shielded from judicial

review by § 511(a).”). Thus, taking Plaintiff’s allegations as

true, the District Court lacks jurisdiction to determine

Plaintiff’s entitlement to dental health care benefits pursuant to

Section 511(a) as his claim falls within the scope of the VJRA.

Andrews, 845 F. App'x at 884. Plaintiff’s eligibility for VA

benefits is a decision left solely to the discretion of the

Secretary, and is only appealable to the Board of Veterans' Appeals

("Board"), and thereafter to the U.S. Court of Appeals for the

Federal Circuit. Accordingly, Defendants’ motion is granted and

Plaintiff’s Complaint is dismissed without prejudice for lack of

subject-matter jurisdiction.

Accordingly, it is now

ORDERED:

1. Defendants’ Motion to Dismiss For Lack of Subject Matter

Jurisdiction (Doc. #9) is GRANTED.

2. Plaintiff’s Complaint (Doc. #3) is DISMISSED without

prejudice for lack of subject-matter jurisdiction. The

Clerk is directed to enter judgment accordingly, terminate

any pending motions and deadlines, and close the file.

DONE AND ORDERED at Fort Myers, Florida, this 7th day of

November, 2022.

Z tivo

JGHH E. STEELE

5 IOR UNITED STATES DISTRICT JUDGE

Copies:

Counsel of record