Brouchet v. United States

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF LOUISIANA

LAKE CHARLES DIVISION

FREDERICK BROUCHET ET AL CASE NO. 2:24-CV-00148

VERSUS JUDGE JAMES D. CAIN, JR.

USA MAGISTRATE JUDGE LEBLANC

MEMORANDUM RULING

Before the Court is the “United States Motion to Dismiss” (Doc. 9), wherein

Defendant moves to dismiss this lawsuit for lack of jurisdiction.

BACKGROUND

This lawsuit involves Plaintiffs’ complaint that the Department of Veterans’ Affair

(“VA”) improperly denied Plaintiff, Frederick Brouchet, and Arthur Cormier veteran

benefits. Plaintiff, Tammy Cormier is the wife of Arthur Cormier. Plaintiffs seek to recover

damages for the harm caused by the alleged negligent failure of the VA to address the

longstanding delays and denials contrary to constitutional rights afforded to protect

veterans’ rights.

RULE 12(b)(1) STANDARD

Rule 12(b)(1) of the Federal Rules of Civil Procedure provides:

Every defense to a claim for relief in any pleading must be

asserted in the responsive pleading if one is required. But a

party may assert the following defenses by motion: (1) lack of

subject-matter jurisdiction. . .

A court may base its disposition of a motion to dismiss under Rule 12(b)(1) on: (1)

the complaint alone; (2) the complaint supplemented by undisputed facts; or (3) the

complaint supplemented by undisputed facts plus the court’s resolution of disputed facts.

Robinson v. TCI/US West Communications, Inc., 117 F.3d 900 (5th Cir. 1997), citing

Williamson v. Tucker, 645 F.2d 404, 413 (5th Cir.), cert. denied, 454 U.S. 897, 102 S.Ct.

396, (1981).

Courts may consider affidavits and exhibits submitted in connection with a Rule

12(b)(1) motion to dismiss. Moran v. Kingdom of Saudi Arabia, 27 F.3d 169, 172 (5th Cir.

1994). Once challenged with competent proof, the plaintiff must prove by a preponderance

of the evidence that the court has subject matter jurisdiction. Middle South Energy, Inc. v.

City of New Orleans, 800 F.2d 488, 490 (5th Cir. 1986). A motion to dismiss under Rule

12(b)(1) should be granted only if it appears certain that the plaintiff cannot prove any set

of facts in support of his claims that would entitle plaintiff to relief. Ramming v. United

States, 281 F.3d 158, 161 (5th Cir. 2001).

Motions filed under Rule 12(b)(1) of the Federal Rules of Civil Procedure allow a

party to challenge the subject matter jurisdiction of the district court to hear a case. The

burden of proof for a Rule 12(b)(1) motion to dismiss is on the party asserting jurisdiction.

McDaniel v. United States, 899 F.Supp. 305, 307 (E.D.Tex.1995). The party asserting

jurisdiction has the burden of pleading and proving that the Court has subject matter

jurisdiction and must do so by a preponderance of the evidence. Alabama-Coushatta Tribe

of Texas v. United States, 757 F.3d 484, 487 (5th Cir. 2014). A case is properly dismissed

for lack of subject matter jurisdiction when the court lacks the statutory or constitutional

power to adjudicate the case. Home Builders Ass’n of Miss., Inc. v. City of Madison, Miss.,

143 F.3d 1006, 1010 (5th Cir. 1998).

When reviewing a “facial attack” on jurisdiction, the well-pleaded factual

allegations of the Complaint are accepted as true, and the Court evaluates the sufficiency

of those allegations. Isom v. Louisiana Off. of Juv. Just., No. CV 21-00013, 2021 WL

5763560, at *2 (M.D. La. Dec. 3, 2021) (citing Paterson v. Weinberger, 644 F.2d 521, 524

(5th Cir. 1981)). A motion to dismiss under Rule 12(b)(1) is analyzed under the same

standard as a motion to dismiss under Rule 12(b)(6). Hall v. Louisiana, 974 F. Supp. 2d

978, 985 (M.D. La. 2013) (citing Benton v. U.S., 960 F.2d 19, 21 (5th Cir.1992)).

LAW AND ANALYSIS

First, the United States maintains that it has not waived sovereign immunity, thus

the Complaint must be dismissed because this Court lacks subject matter jurisdiction. Next,

the United States maintains that the Complaint must be dismissed because this Court lacks

jurisdiction pursuant to the Veterans’ Judicial Review Act (“VJRA”).

Sovereign Immunity

Sovereign immunity shields the Federal Government and its agencies from suit.

F.D.I.C. v. Meyer, 510 U.S. 471, 475 (1994) (citing Loeffler v. Frank, 486 U.S. 549, 554

(1988)). Without the express intent by Congress to waive the United States’ sovereign

immunity for a particular action, a plaintiff cannot recover against the United States.

Therefore, Plaintiffs’ burden to establish jurisdiction includes identifying an express

waiver of the United States’ sovereign immunity. In the absence of a waiver of sovereign

immunity, this Court lacks subject matter jurisdiction over a claim involving the United

States. United States v. Mitchell, 463 U.S. 206 (1983); Wagstaff v. U.S. Dep't of Educ., 509

F.3d 661, 664 (5th Cir. 2007). Sovereign immunity not only protects the United States from

liability, it also deprives the court of subject matter jurisdiction over claims against the

United States. Id. In determining whether subject matter jurisdiction exists, “[c]ourts must

strictly construe all waivers of the federal government's sovereign immunity, [resolving]

all ambiguities in favor of the sovereign.” Linkous v. United States, 142 F.3d 271, 275 (5th

Cir. 1998).

The United States has not waived its sovereign immunity as to review of Department

of Veterans Affairs (VA) decisions or procedures by any court other than the United States

Court of Appeals for Veterans Claims (Veterans Court)1, the United States Court of

Appeals for the Federal Circuit, and the United States Supreme Court. In re Russell, 155

F.3d 1012, 1013 (8th Cir. 1998).

Because there has been no waiver of sovereign immunity, Plaintiffs’ complaint must

be dismissed for lack of jurisdiction.

Lack of Jurisdiction Pursuant to the VJRA

The United States also maintains that this Court lacks jurisdiction because the VJRA

prohibits individuals from disputing their benefits determinations, or VA decisions

affecting those determinations, in Federal District Courts. 38 U.S.C. § 511. The United

States argues that Plaintiffs’ claims cannot be disguised as claims under the Federal Tort

Claims Act (“FTCA”) to create subject matter jurisdiction.

The VJRA provides in pertinent part that the “Secretary [of Veterans Affairs] shall

decide all questions of law and fact necessary to a decision by the Secretary under a law

that affects the provision of benefits by the Secretary to veterans.” 38 U.S.C. § 511(a)

(emphasis added). Under the VJRA, the Secretary’s decisions may only be appealed to the

Board of Veterans’ Appeals (an entity within VA), whose decisions may be appealed to

the Court of Appeals for Veterans Claims, then to the Court of Appeals for the Federal

Circuit, and finally to the Supreme Court. See 38 U.S.C. §§ 7104, 7252, 7292. Federal

District Courts are expressly excluded from this process. See Programs Enhancement Act

of 1998, Pub. L. No. 105-368, §§ 511(a) and 513, 112 Stat. 3315, 3341, 3342. 38 U.S.C. §

511(b); Sugrue v. Derwinski, 26 F.3d 8, 11 (2d Cir. 1994).

Numerous circuits have made clear that, pursuant to this statutory scheme, there is

no subject matter jurisdiction in district court over claims that involve questions of fact or

law relating to veterans’ benefits. See Sugrue, 26 F.3d at 12; King v. U.S. Dep’t of Veterans

Affairs, 728 F.3d 410, 414 (5th Cir. 2013); Veterans for Common Sense v. Shinseki, 678

F.3d 1013, 1025 (9th Cir. 2012); Dambach v. United States, 211 F. App’x 105, 108 (3d

Cir. 2006); Price v. United States, 228 F.3d 420, 421 (D.C. Cir. 2000); Beamon v. Brown,

125 F.3d 965, 974 (6th Cir. 1997); Hicks v. Veterans Admin., 961 F.2d 1367, 1369 (8th

Cir. 1992).

This is true even where a plaintiff attempts to frame a benefits dispute as another

cause of action. Sugrue, 26 F.3d at 11 (“Although Sugrue’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 . . . . Similarly, neither the Privacy Act nor

the FOIA may be used as a rhetorical cover to attack VA benefits determinations. . . .”);

Larrabee by Jones v. Derwinski, 968 F.2d 1497, 1501 (2d Cir. 1992) (distinguishing facial

attacks against legislation affecting veterans from “other constitutional and statutory

claims” relating to benefits, over which district courts do not have jurisdiction).

As such, this Court lacks subject-matter jurisdiction over Plaintiffs’ claims.

CONCLUSION

For the reasons explained herein, the Court will grant the United States Motion to

Dismiss (Doc. 9) and dismiss this lawsuit without prejudice.

THUS DONE AND SIGNED in Chambers on this 10th day of October, 2024.

UNITED STATES DISTRICT JUDGE

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