Matthews v. United States

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF OHIO

EASTERN DIVISION

ELAINE MATHEWS, ) Case No. 1:22-cv-01214

)

Plaintiff, ) Judge J. Philip Calabrese

)

v. ) Magistrate Judge

) Jennifer Dowdell Armstrong

UNITED STATES, )

)

Defendant. )

)

OPINION AND ORDER

Plaintiff Elaine Mathews’ late father, Arnold Wolfe, honorably served the

United States in World War II. Years later, Wolfe required care in a nursing home,

which his family thought his veterans’ benefits would cover. They were wrong and

were left with tens of thousands of dollars in bills. In trying to address the matter,

Wolfe’s family met an unresponsive bureaucracy, confusing forms, and traps for the

unwary—not assistance to obtain the benefits to which Wolfe’s service entitled him.

That response from the United States Department of Veterans Affairs led to the filing

of this lawsuit.

At bottom, the procedural question at hand requires determining whether

Plaintiff seeks benefits or compensation for injuries in tort. Under federal law, the

VA handles benefits decisions administratively within the agency, but federal courts

have jurisdiction over tort claims. The VA took inconsistent positions on whether

Plaintiff seeks benefits or damages for a civil wrong, to the great consternation,

frustration, and pain of Plaintiff, and the United States urges the Court to view her

case as involving a benefits decision, meaning the Court lacks jurisdiction.

The Magistrate Judge recommends that the Court grant Defendant’s motion

to dismiss Plaintiff’s action. (ECF No. 13.) Plaintiff, proceeding pro se, objects to that

recommendation. (ECF No. 14.) For the reasons that follow, the Court

OVERRULES Plaintiff’s objections, ADOPTS the Magistrate Judge’s Report and

Recommendation, and DISMISSES WITHOUT PREJUDICE Plaintiff’s claims.

STATEMENT OF FACTS

Relying on Plaintiff’s complaint, the Magistrate Judge outlined the relevant

facts and procedural history in her Report and Recommendation. (ECF No. 13,

PageID #111 n.1 & #112.) At this stage of the proceedings, the Court takes the

allegations in the complaint as true and construes them in Plaintiff’s favor.

A. Materials Considered

In addition to that background, the facts below incorporate the exhibits to

Plaintiff’s complaint and Defendant’s motion to dismiss. When deciding a motion to

dismiss, courts “may consider exhibits attached to the complaint . . . [and] defendant’s

motion to dismiss, so long as they are referred to in the complaint and are central to

the claims contained therein.” DeShetler v. FCA US LLC, No. 3:18-cv-78, 2018 WL

6257377, at *4 (N.D. Ohio Nov. 30, 2018) (quoting Gavitt v. Born, 835 F.3d 623, 640

(6th Cir. 2016)). Here, Plaintiff references the exhibits to her complaint. (ECF No. 1,

PageID #1 & #3.) Though not explicitly described in the complaint, Defendant’s

exhibit—the VA’s administrative denial of Plaintiff’s claim—is central to the dispute

and to the parties’ respective claims and defenses. Further, Plaintiff attached to her

complaint the VA’s denial of that ruling on reconsideration, making its original

determination proper for consideration on a motion to dismiss. (See ECF No. 1-2,

PageID #8 (noting that the VA completed reconsideration of Plaintiff’s administrative

tort claim without describing the initial ruling).)

B. Relevant Facts

Wolfe served in the Marine Corps during World War II and received wartime

veterans’ pension benefits from the VA. (ECF No. 1, PageID #2 & #3; see also ECF

No. 1-3; ECF No. 1-5.) Around March 2017, his medical conditions began requiring

around-the-clock care and assistance. (ECF No. 1, PageID #2.) Unfortunately, the

Sandusky Veterans Home was unavailable and, in any event, would have separated

Wolfe from his wife. (Id.) A social worker from the Parma VA Clinic advised Wolfe

to find a VA-contracted nursing home. (Id.) The social worker did not otherwise

“seek[] help” for Wolfe. (Id.)

On March 17, 2017, Wolfe was admitted to Rae-Ann Suburban Nursing Home.

(Id.) For months, he and his wife lived there, believing the VA was covering their

expenses. (See id.) It did not. (Id.) According to Plaintiff, the social worker from the

Parma VA Clinic failed to notify the administration that Wolfe had moved to Rae-

Ann. (Id., PageID #3.) From August through November 2017, Rae-Ann

unsuccessfully attempted to evict Wolfe and his wife for failure to pay. (Id.; see also

ECF No. 1-6, PageID #33–47.) Wolfe passed away on November 18, 2017. (ECF

No. 1, PageID #3.) Rae-Ann continues to pursue his unpaid expenses. (Id.)

Four years later, Plaintiff filed an administrative tort claim under the Federal

Tort Claims Act with the VA. (ECF No. 11-2.) She alleged that the VA failed to

properly process, coordinate, and pay Wolfe’s claim for benefits while he was a

resident at Rae-Ann, which led to Rae-Ann suing Wolfe and his wife for over

$26,000.00. (Id., PageID #92.) The VA denied Plaintiff’s claim initially because, in

its view, her claim involved the administration of VA benefits, not a tort. (Id.) As a

result, the VA lacked jurisdiction. (Id.) The VA also denied Plaintiff’s claim on

reconsideration. (ECF No. 1-2.) It determined that Plaintiff lacked evidence of any

negligence by a VA employee acting within the scope of their employment. (Id.) When

denying Plaintiff’s claim on reconsideration, the VA indicated that it did so under the

Federal Tort Claims Act and directed Plaintiff to federal court. (Id., PageID #8.)

STATEMENT OF THE CASE

Consistent with the VA’s directions, Plaintiff filed suit in federal court against

the United States on July 11, 2022. (ECF No. 1, PageID #1.) Her pro se complaint

does not set out specific counts or causes of action. (See generally ECF No. 1.) Instead,

it generally alleges that the social worker from the Parma VA Clinic, by failing in and

neglecting her duties, “cost [Plaintiff’s] family emotional duress, financial duress,”

and “unwarranted persecution and loss.” (Id., PageID #2 & #3.) As compensation,

Plaintiff seeks $100,000.00 total, including $26,886.61 “for [Wolfe’s] charges to Rae-

Ann,” $25,000.00 in legal fees “to defend [Rae-Ann’s] lawsuit,” and other damages.

(Id., PageID #3–4.)

Defendant moves to dismiss. (ECF No. 11.) It argues that the Court lacks

subject-matter jurisdiction because the United States has not waived its immunity

for review of VA benefits decisions. (ECF No. 11-1, PageID #89–90.) The Magistrate

Judge issued a Report and Recommendation. (ECF No. 13.) Construing Defendant’s

motion as a facial attack on jurisdiction, she recommends that the Court grant the

motion. (Id., PageID #114 & #115.) In her view, “the essence of [Plaintiff’s] claim is

that the VA wrongfully determined that [Wolfe] did not qualify for reimbursement

from the VA through his wartime pension for his stay at Rae-Ann—a VA benefits

decision.” (Id., PageID #116.) Therefore, it “is not within the subject matter

jurisdiction of the district court.” (Id., PageID #117; see also id., PageID #118.)

Plaintiff timely objected. (ECF No. 14.)

MEETING WITH THE COURT

After outlining her objections, Plaintiff requested “a face to face explanatory

meeting with [the undersigned].” (Id., ¶ 8, PageID #122.) The Court granted her

request (ECF No. 15) and met with Plaintiff and counsel for the United States in

Chambers on June 6, 2023 (Minutes, June 6, 2023). After discussing Plaintiff’s

objections, the Court ordered file supplemental briefing and took the matter under

advisement. (Id.) Defendant filed a supplemental brief on June 30, 2023. (ECF

No. 16.) Plaintiff responded, reiterating many of her objections. (See generally ECF

No. 17.)

ANALYSIS

When reviewing a report and recommendation, if a party objects within the

allotted time, the district court is required to “make a de novo determination of those

portions of the report or specified proposed findings or recommendations to which

objection is made.” 28 U.S.C. § 636(b)(1)(C); see also Fed. R. Civ. P. 72(b). “Objections

must be specific, not general” and should direct the Court’s attention to a particular

dispute. Howard v. Secretary of Health & Hum. Servs., 932 F.2d 505, 509 (6th Cir.

1991). “The filing of objections to a magistrate’s report enables the district judge to

focus attention on those issues—factual and legal—that are at the heart of the

parties’ dispute.” Thomas v. Arn, 474 U.S. 140, 147 (1985).

On review, the Court “may accept, reject, or modify, in whole or in part, the

findings or recommendations made by the magistrate judge.” 28 U.S.C.

§ 636(b)(1)(C). Significantly, the Court’s job is not to conduct a free-wheeling

examination of the entire report and recommendation, but only to address any

specific objections that a party has advanced to some identified portion. Accordingly,

it is the Court’s task to review the Magistrate Judge’s Report and Recommendation

de novo, based on the specific objections Plaintiff raises, but only those objections.

Though presented across seven numbered paragraphs, Plaintiff appears to

raise three objections. First, she argues that Defendant failed to provide sufficient

evidence that the Court lacks subject-matter jurisdiction. (ECF No. 14, ¶¶ 1–2, 4 &

7, PageID #121 & #122.) Second, Plaintiff objects that the Report and

Recommendation relies on inaccurate facts. (Id., ¶ 5, PageID #122.) Finally, Plaintiff

contends that she raises a tort claim—not a claim for VA benefits. (Id., ¶¶ 4 & 6,

PageID #122.) The Court addresses each objection in turn.

I. Lack of Evidence

Plaintiff argues that Defendant has not provided “physical evidence”

supporting its position. (See id., ¶¶ 1, 4 & 7, PageID #121 & #122.) In her view,

Defendant only claims that Plaintiff “did not follow proper protocol” to resolve her

complaint. (Id., ¶ 2, PageID #121.)

Plaintiff’s objection fails for three reasons. First, along with its motion to

dismiss, Defendant provided a brief in support outlining the basis for its request and

citing several authorities supporting its position. (See ECF No. 11-1, PageID #88–

90.) Second, jurisdiction presents a legal question that does not require or turn on

physical evidence. Third, and in any event, “where subject matter jurisdiction is

challenged . . . the plaintiff has the burden of proving jurisdiction.” Rogers v. Stratton

Indus., Inc., 798 F.2d 913, 915 (6th Cir. 1986). In other words, Plaintiff must

demonstrate that the Court can hear her claim. The Court can only do so under the

Federal Tort Claims Act if Plaintiff does not seek payment of VA benefits, which the

Court addresses below in Plaintiff’s third objection. Subject to that discussion, the

Court OVERRULES Plaintiff’s first objection.

II. Inaccurate Facts

Plaintiff objects that the Report and Recommendation wrongly asserts that she

seeks $100,000.00 in emotional damages. (ECF No. 14, ¶ 5, PageID #122 (citing page

two of the Report and Recommendation).) The Court agrees. Plaintiff seeks a total

of $100,000.00, including $26,886.61 “for [Wolfe’s] charges to Rae-Ann,” $25,000.00

in legal fees, and physical damages “for emotional events.” (ECF No. 1, PageID #3–4.)

Even so, that error is not material and does not preclude the Court from adopting the

Magistrate Judge’s recommendation for the ultimate disposition of Defendant’s

motion. Indeed, the Magistrate Judge’s analysis references only Plaintiff’s request

for “money damages of $26,886.61.” (ECF No. 13, PageID #115–19.) Accordingly, the

Court OVERRULES Plaintiff’s second objection.

III. Tort Claim

Principally, Plaintiff argues that the Court has subject-matter jurisdiction

because her claim arises under the Federal Tort Claims Act. (ECF No. 14, ¶¶ 4 & 6,

PageID #122.) Specifically, Plaintiff contends that she has a “right to use this

Court . . . per ‘Exhibit A.’” (Id., ¶ 6, PageID #122.) Exhibit A, in turn, provides that

“a tort claim that is administratively denied may be presented to a Federal district

court.” (ECF No. 14-1, PageID #123.)

III.A. Sovereign Immunity

To sue the United States, a plaintiff must identify a waiver of sovereign

immunity. Reetz v. United States, 224 F.3d 794, 795 (6th Cir. 2000). Plaintiff here

identifies the Federal Tort Claims Act. That statute provides a limited waiver of

immunity for plaintiffs to bring tort claims against the United States in federal

district court. 28 U.S.C. § 1346(b)(1); Mynatt v. United States, 45 F.4th 889, 894 (6th

Cir. 2022) (citing Millbrook v. United States, 569 U.S. 50, 52 (2013)). In identifying

the Federal Tort Claims Act as her basis for waiver, Plaintiff appears to follow the

VA’s lead. When the VA denied Plaintiff’s claim on reconsideration, it purported to

do so under the Federal Tort Claims Act. (ECF No. 1-2, PageID #8.)

But the Court does not simply defer to Plaintiff or the VA’s characterization of

her claims. Indeed, doing so would potentially prove futile—the VA has

inconsistently interpreted Plaintiff’s claims. (Compare id., with ECF No. 11-2,

PageID #92 (determining that Plaintiff’s claim “involve[s] the administration of VA

benefits and not a tort”).) In any event, precedent requires that the Court assess the

substance of Plaintiff’s allegations. Anestis v. United States, 749 F.3d 520, 527 (6th

Cir. 2014); see also Jones v. United States, 727 F.3d 844, 849 (8th Cir. 2013).

In her Report and Recommendation, the Magistrate Judge determined that the

essence of Plaintiff’s complaint involved a VA benefits decision. (ECF No. 13,

PageID #116–17.) If correct, the Court lacks subject-matter jurisdiction. After all,

the Veterans Judicial Review Act precludes federal district courts from exercising

jurisdiction over claims regarding VA benefits decisions. Beamon v. Brown, 125 F.3d

965, 974 (6th Cir. 1997) (interpreting 38 U.S.C. § 511).

The Veterans Judicial Review Act provides a separate, multi-tiered system for

reviewing benefits decisions. Hiles v. Army Rev. Bd. Agency, No. 1:12-cv-673, 2015

WL 4778831, at *13 (S.D. Ohio Aug. 13, 2015), report and recommendation adopted,

No. 1:12-cv-673, 2016 WL 561186 (S.D. Ohio Feb. 12, 2016). Under that system,

review begins with the Secretary of the VA and then the Board of Veterans’ Appeals.

38 U.S.C. § 7104(a). The Court of Appeals for Veterans Claims, in turn, possesses

exclusive jurisdiction to review the Board’s decisions. Id. § 7252(a). Subsequent

appeals are proper only to the Federal Circuit and, finally, the United States Supreme

Court. Id. § 7292.

Accordingly, the Court must determine whether Plaintiff asserts a tort or

requires the Court to review a decision regarding a VA benefits decision. Anestis, 749

F.3d at 525. If the latter, then the Court lacks jurisdiction. Id. In making that

determination, the Court liberally construes Plaintiff’s pro se complaint. Williams v.

Curtin, 631 F.3d 380, 383 (6th Cir. 2011).

III.B. Plaintiff’s Allegations

Review of the complaint, even liberally construed, shows that the gist of

Plaintiff’s claim involves a benefits decision. In this context, a benefit is “any

payment, service, commodity, function, or status, entitlement to which is determined

under laws administrated by [the] VA.” Waksmundski v. Williams, 727 F. App’x 818,

820 (6th Cir. 2018) (citing 38 C.F.R. § 14.627(e)). Here, the complaint clearly seeks

an order that the VA failed to provide benefits. (See ECF No. 1, PageID #3 (seeking,

among other things, “$26,886.61 for [Wolfe’s] charges to Rae-Ann”).) Indeed, Plaintiff

states as much in her objection. She purports to “bring[] this lawsuit to seek

compensation of the funds which were never submitted on behalf of the VA for [her]

father’s case while staying at [Rae-Ann].” (ECF No. 14, PageID #122.) Therefore, to

resolve Plaintiff’s claim, the Court will need to determine whether the VA handled

Wolfe’s benefits properly. But only the Board of Veterans’ Appeals, and those courts

provided in Sections 7104, 7252, and 7292, have authority to do so. Bush v. United

States, No. 1:13-cv-587, 2013 WL 5722802, at *6 (S.D. Ohio Oct. 21, 2013).

To be sure, liberally construed, some allegations in Plaintiff’s complaint

resemble those of a tort claim. For example, Plaintiff alleges that the social worker

from the Parma VA Clinic was “neglectful[]” and “failed” to perform “her duties.”

(ECF No. 1, PageID #2 & #3.) Even those allegations, however, are best understood

as a decision by the VA denying Wolfe’s benefits. In other words, those actions are

the product of a VA benefits decision, which the Court lacks jurisdiction to consider.

Beamon, 125 F.3d at 974. Additionally, to state a tort claim, Plaintiff would need to

allege a legal duty and a breach of that duty. Instead, the gravamen of her complaint

rises and falls on the VA’s benefits decisions. See Anestis, 749 F.3d at 527 (contrasting

allegations that “resulted from a decision by the VA or [were] the result of the VA’s

negligence in failing to abide by a legal duty”).

For these reasons, the Court discerns no error in the Magistrate Judge’s

recommendation. Accordingly, the Court OVERRULES Plaintiff’s third objection.

IV. Transfer

Where a court determines that it lacks jurisdiction, 28 U.S.C. § 1631 provides

one basis for transfer. Jackson v. L&F Martin Landscape, 421 F. App’x 482, 483 (6th

Cir. 2009). Specifically, “[w]henever a court finds that there is a want of jurisdiction,

the court shall, if it is in the interest of justice, transfer such action to any other such

court in which the action could have been brought at the time it was filed.” 28 U.S.C.

§ 1631 (cleaned up). As explained above, the Veterans Judicial Review Act outlines

three potential forums: the Board of Veterans’ Appeals, the Court of Appeals for

Veterans Claims, and the Federal Circuit. Hiles, 2015 WL 4778831, at *13.

As Defendant contends in its supplemental brief (ECF No. 16, PageID #128),

none is an appropriate transferee forum here. The first two options are not “courts,”

as that term is used in Section 1631. That statute contemplates transfer only to the

courts identified in 28 U.S.C. § 610, which, defines courts primarily as “courts of

appeals and district courts of the United States.” See 28 U.S.C. §§ 610 & 1631.

Neither the Board of Veterans’ Appeals (an board within an administrative agency)

nor the Court of Appeals for Veterans Claims (an Article I court) fall within that

definition. Jackson v. United States, 80 Fed. Cl. 560, 566 (2008) (“The Board of

Veterans’ Appeals is an administrative agency . . . and 28 U.S.C. § 1631 does not

permit transfer from this Court . . . to an administrative agency.”); Kalick v. United

States, 109 Fed. Cl. 551, 561, aff’d, 541 F. App’x 1000 (Fed. Cir. 2013) (“[T]he [Court

of Appeals for Veterans Claims] is not a proper transferee court under 28 U.S.C.

§ 1631.”). Though the Federal Circuit constitutes a court as defined under the

statute, transfer is still inappropriate because Plaintiff could not initially have

brought her claim there. Review by the Federal Circuit occurs only “[a]fter a decision

of the United States Court of Appeals for Veterans Claims is entered.” 38 U.S.C.

§ 7292(a). The record does not suggest that the Court of Appeals for Veterans Claims

has addressed Plaintiff’s claim.

Accordingly, Section 1631 does not permit transfer of this action. Instead, the

Court DISMISSES Plaintiff’s claims WITHOUT PREJUDICE.

CONCLUSION

Arnold Wolfe fought for his country. When he needed its assistance, its

representatives were allegedly unresponsive and unhelpful. In the present

procedural posture, the Court does not decide the merits of Plaintiff’s claims. Instead,

the Court only determines whether Congress has given it authority to resolve this

dispute. It did not.

In so holding, the Court fears that this decision will result in further

aggravation, more questions, and prolonging the dispute between the parties.

Ultimately, what Plaintiff needs is, to paraphrase the words of the request in her

objection, a simple explanation from a decisionmaker with authority. For its part,

Defendant needs a definitive end to this dispute. But the Court lacks jurisdiction to

proceed in this case.

For the reasons explained above, the Court OVERRULES Plaintiffs

objections (ECF No. 14), ADOPTS the Magistrate Judge's Report and

Recommendation (ECF No. 13), and DISMISSES WITHOUT PREJUDICE

Plaintiffs claims for lack of subject-matter jurisdiction.

SO ORDERED.

Dated: July 21, 2023

J.Philip Calabrese

United States District Judge

Northern District of Ohio

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