Burton v. United States

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

TAMPA DIVISION

JOHN BURTON,

Plaintiff,

v. Case No: 8:23-cv-1372-CEH-SPF

UNITED STATES OF AMERICA,

DENNIS RICHARD MCDONOUGH

and DEPARTMENT OF VETERANS

AFFAIRS,

Defendants.

ORDER

This matter comes before the Court on the Report and Recommendation

(“R&R”) of Magistrate Judge Sean P. Flynn (Doc. 31). In the R&R, Magistrate Judge

Flynn recommends that Plaintiff John Burton’s Motion to Proceed In Forma Pauperis

(Doc. 30) be denied and the action dismissed because of a filing injunction against

Burton in the Middle District of Florida.

Plaintiff, who is proceeding pro se,1 has filed a Motion for Reconsideration,

which the Court construes as an Objection in accordance with 28 U.S.C. § 636(b)(1).

Doc. 34. Upon consideration of the R&R and Plaintiff’s construed Objection, and the

1 Plaintiff has filed several motions to appoint counsel, all of which have been denied. See

Docs. 13, 20, 25, 26, 29; Docs. 15, 21, 32. He has also moved for class certification and

appointment of class counsel. See Docs. 27, 33. The Court denied his first motion for class

certification as premature, Doc. 28; his renewed motion remains pending.

Court’s independent examination of the file, the Court will overrule the construed

Objection, adopt the R&R, and dismiss this action.

BACKGROUND

Plaintiff filed a Complaint against the Department of Veteran Affairs on June

20, 2023, to challenge the denial of his application to receive benefits from the Veteran

Rapid Retraining Assistance Program (“VRRAP”) due to his age. Doc. 1. He also

moved to proceed in forma pauperis. Doc. 2. The magistrate judge issued an R&R on

December 7, 2023, recommending that the motion to proceed in forma pauperis be

denied and the Complaint dismissed without prejudice for lack of subject matter

jurisdiction. Doc. 6. This Court adopted the R&R, overruled Plaintiff’s five

Objections, and dismissed the Complaint without prejudice on May 15, 2024. Doc.

16.

Plaintiff subsequently filed an Amended Complaint2 and a renewed motion to

proceed in forma pauperis. Docs. 24, 30. In the Third Amended Complaint, like the

original Complaint, Plaintiff seeks to challenge the denial of his application to receive

benefits from VRRAP. Doc. 24. The Third Amended Complaint does not contain a

list of causes of action; instead, it presents arguments against the Court’s dismissal of

the original Complaint. See id.

The magistrate judge issued an R&R on Plaintiff’s renewed motion to proceed

in forma pauperis on September 9, 2024. Doc. 31. The R&R recommends that the

2 In fact, Plaintiff filed three Amended Complaints that are nearly identical. See Docs. 22, 23,

24. This Order will address the most recent, the Third Amended Complaint.

motion be denied and the action dismissed. Id. Without reaching the merits of the

motion or the Third Amended Complaint, the R&R observed that Plaintiff, under the

name Jamaal Ali Bilal, was subject to a filing injunction from a prior case that required

him to seek leave of Court before filing any lawsuit in the Middle District of Florida,

and to disclose the existence of the filing injunction when he did so. Id. at 2-3. Because

Plaintiff neither sought leave nor disclosed the existence of the injunction in this

action, he is in violation of the filing injunction. Id. at 3. The R&R therefore

recommended that the action be dismissed. Id.

In Plaintiff’s Motion for Reconsideration, which the Court construes as an

Objection to the R&R, Plaintiff argues that the filing injunction does not apply to this

action because it applies only to the Fort Myers division of the Middle District of

Florida; Plaintiff has filed only two cases in the Tampa division. Doc. 34 at 8-9. He

also argues that the injunction’s notice requirement is unlawful. Id. at 9. Finally,

Plaintiff asserts that he may raise his challenge to VRRAP in this Court pursuant to

Traynor v. Turnage, 485 F.S. 535 (1988). Id.

LEGAL STANDARD

Under 28 U.S.C. § 636(b)(1)(B), a district judge may designate a magistrate

judge to prepare recommendations for the disposition of a motion. A party may file

written objections to the proposed findings and recommendations. Id. § 636(b)(1)(C).

When a party makes a timely and specific objection to a magistrate judge’s report and

recommendation, the district judge “shall make a de novo determination of those

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

objection is made.” Id.; see Fed. R. Civ. P. 72(b)(3). The district judge may accept,

reject, or modify, in whole or in part, the findings and recommendations. 28 U.S.C. §

636(b)(1)(C). The district judge reviews legal conclusions de novo. See Cooper-Houston

v. S. Ry. Co., 37 F.3d 603, 604 (11th Cir. 1994); Ashworth v. Glades Cnty. Sch. Bd. of Cnty.

Comm’rs, 379 F. Supp. 3d 1244, 1246 (M.D. Fla. 2019).

DISCUSSION

In his construed Objection, Plaintiff first challenges the R&R’s application of a

filing injunction issued by the Middle District of Florida’s Fort Myers division to the

instant action in the Tampa division. Doc. 34 at 8. He also challenges the injunction’s

notice requirement. Id. at 9.

On August 21, 2019, Senior District Judge John E. Steele issued the following

injunction against Plaintiff:

Before filing any lawsuit with this Court, Bilal is ordered to seek

leave of court. In seeking leave, Bilal must inform the Court of the

pertinent facts about the action he wishes to bring, including

referencing the existence of this injunction and any other pending

litigation against the proposed defendants.

The proposed action will be reviewed and screened by a

Magistrate Judge in the division in which the action is sought to

be filed. A Magistrate Judge will determine whether the proposed

action has arguable merit. If a Magistrate Judge’s preliminary

review results in a finding that Bilal's proposed action is frivolous,

that proposed action will not be filed with the Court but will be

returned to Bilal. If the Court issues such a finding, then Bilal will

be subject to sanctions such as a monetary assessment. See In re

Roy Day Litig., 976 F. Supp. 1460 (M.D. Fla. 1995). If a Magistrate

Judge's preliminary review results in a finding that Bilal's proposed

action is not frivolous, then a Magistrate Judge will direct the

Clerk to file his case.

Bilal v. Fennick, No. 2:16-cv-799, Doc. 40, 6-7 (M.D. Fla. Aug. 21, 2019).

Contrary to Plaintiff’s argument, the injunction applies to all actions filed in the

Middle District of Florida, not just the Fort Myers division. See id. (“Before filing any

lawsuit with this Court… The proposed action will be…screened by a Magistrate Judge

in the division in which the action is sought to be filed.”) (emphasis added). The Middle

District of Florida is made up of five divisions, including Fort Myers and Tampa.

Accordingly, the injunction applies to the instant action even though it was filed in the

Tampa division of the Middle District of Florida. Cf. Bilal v. Fennick, 740 F. App’x 705,

706 (Mem) (11th Cir. 2018) (filing injunction that “by its terms, applied to only new

civil actions in the United States District Court for the Northern District of Florida”

did not apply to an action filed in the Middle District of Florida).

Nor does Plaintiff’s prior appeal in Bilal v. Fennick, 740 F. App’x 705, support

his argument against the injunction’s requirements. In Bilal v. Fennick, the Eleventh

Circuit noted that a filing injunction “cannot be expanded beyond the meaning of its

terms absent notice and an opportunity to be heard.” Id. at 706. Here, however, the

R&R directly relied on the injunction’s requirement that Plaintiff seek leave of Court

by providing information about the proposed action that would allow a magistrate

judge to screen it and determine whether it is frivolous. Plaintiff’s argument is

unavailing.

The Court therefore agrees with the R&R that this action violates the August

21, 2019 filing injunction and it is due to be dismissed. Plaintiff’s construed Objection

is due to be overruled.

In the alternative, however, even if the Court reviewed the merits of the Third

Amended Complaint, it would find that the Third Amended Complaint is due to be

dismissed for lack of subject matter jurisdiction. See Univ. of South Ala. v. Am. Tobacco

Co., 168 F.3d 405, 409-10 (11th Cir. 1999) (federal courts must ensure that they have

subject matter jurisdiction over the action before they may proceed; “once a federal

court determines that it is without subject matter jurisdiction, the court is powerless to

continue.”).

As detailed in this Court’s May 15, 2024 Order, the magistrate judge’s

December 7, 2023 R&R, and various communications to Plaintiff by other parties,3

Plaintiff’s claims are barred by the Veterans’ Judicial Review Act (“VJRA”). The

VJRA precludes judicial review by federal district courts of a decision by the Secretary

of the Department of Veterans Affairs that “affects the provision of benefits” to

veterans. See Smith v. United States, 7 F.4th 963, 965 (11th Cir. 2021), quoting 38 U.S.C.

§ 511(a). District courts lack subject matter jurisdiction over challenges to “any and

all determinations by the Secretary as to eligibility, entitlement, or the scope of

benefits,” and any decision made “in the course of” making a benefits determination.

Smith, 7 F.4th 963, 985. Here, the Third Amended Complaint still seeks to challenge

3 See Doc. 1-1 (VA denial of administrative tort claim); Doc. 25-1 at 1 (legal advice letter from

Bay Area Legal Services)

the VA’s decision that Plaintiff is ineligible for VRAPP due to his age. See Doc. 24.

This constitutes a challenge to a benefits decision that must be appealed through the

Board of Veterans’ Appeals rather than this Court.

Plaintiff’s reliance on Traynor v. Turnage, 485 U.S. 535 (1988) is unavailing. See

Doc. 34 at 9; Doc. 24 ¶¶ 64-82. As the Eleventh Circuit explained in Smith, the

Supreme Court decided Traynor based upon a prior version of the VJRA. See Smith, 7

F.4th at 974. Congress then amended the VJRA in response to the Traynor decision,

expanding its language to ensure that it would preclude judicial review of benefits

decisions. Id. at 975. Thus, Plaintiff cannot rely on Traynor’s holding to argue that his

claims are not precluded.4

The May 15, 2024 Order granted Plaintiff the opportunity to amend his

Complaint to correct the deficiencies addressed in the Order. Doc. 16 at 9-10. Rather

than redrafting his claims, however, Plaintiff filed a Third Amended Complaint that

raises arguments attempting to refute the reasons stated in the May 15 Order. The

Third Amended Complaint does not state a valid claim over which this Court has

subject matter jurisdiction.

“The jurisdiction of a court over the subject matter of a claim involves the

court’s competency to consider a given type of case, and cannot be waived or otherwise

4 Plaintiff’s arguments regarding Traynor refer to the Americans with Disabilities Act and the

Rehabilitation Act of 1973, but the applicability of those statutes to his claims is not clear. As

the Court discussed in its May 15, 2024 Order, the ADA excludes from coverage all federal

entities and any age-based benefits criteria established by statute. See Doc. 16 at 7. And,

although the VJRA does not preclude facial challenges to statutory provisions, see id.,

Plaintiff’s Third Amended Complaint does not contain such a cause of action.

conferred upon the court by the parties.” Jackson v. Seaboard Coast Line R.R. Co., 678

F.2d 992, 1000 (11th Cir. 1982). Accordingly, for the reasons stated in the May 15,

2024 Order and the magistrate judge’s R&R, the Third Amended Complaint is due to

be dismissed.5

It is ORDERED:

1. Plaintiff’s Motion for Reconsideration (Doc. 34), construed as an Objection

to the Report and Recommendation, is OVERRULED.

2. The Report and Recommendation entered by United States Magistrate

Judge Sean P. Flynn on September 9, 2024 (Doc. 31) is adopted, confirmed,

and approved in all respects and is made a part of this Order for all purposes,

including appellate review.

3. Plaintiff’s Motion to Proceed In Forma Pauperis (Doc. 30) is DENIED, and

this action is DISMISSED.

4. Plaintiff’s Motion for Writ of Ad Testificandum (Doc. 36) is DENIED.

5. The Clerk is directed to terminate all pending motions and deadlines and

CLOSE this case.

6. Plaintiff is advised that future violations of the filing injunction may result

in monetary sanctions.

5 On October 1, 2024, after the conclusion of the fourteen-day objection period pursuant to

28 U.S.C. § 636, Plaintiff filed a “Motion for Writ of Ad Testificandum” in which he asked

“to provide evidence seeking reversal of [the] R&R.” Doc. 36. He did not specify the nature

of the evidence or the reason for his belated request. In any event, the Court finds that

evidence and testimony are unnecessary to resolve the R&R. Plaintiff’s motion is therefore

denied.

DONE and ORDERED in Tampa, Florida on October 1, 2024.

At Rbsgeo: AiJtarnda No Ts pl el

Charlene Edwards Honeywell

United States District Judge

Copies furnished to:

Counsel of Record

Unrepresented Parties