# Horton v. Department of Veterans Affairs

> District Court, W.D. Oklahoma · July 30, 2024

URL: https://www.frixlaw.com/law-library/cases/10665926

## Case

- **Court:** District Court, W.D. Oklahoma
- **Decided:** July 30, 2024
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10665926

## How later opinions describe it (automated extraction)

- explaining that “conclusory allegations of jurisdiction are not enough”; plaintiff must “show, by a preponderance of the evidence, that jurisdiction exists” (internal quotation marks and citations omitted)
- explaining that an action under 5 U.S.C. § 702 must also satisfy the requirements of § 704
- noting that prudential standing concerns may prevent judicial resolution of a case even where constitutional standing exists
- explaining that the court must resolve issues of standing before it may reach the merits of the claims
- noting that the “Tenth Circuit has emphasized that all dismissals for lack of jurisdiction, including those for a failure to establish a waiver of sovereign immunity . . . should be without prejudice”

## Opinion text

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF OKLAHOMA

JOHN D. HORTON, Jerry Turrell, )
deceased as of February 21, 2019, )
located at Pecan Cemetery, Lawton, )
Oklahoma, by his first cousin and next )
of kin, )
)
Plaintiff, )
)
v. ) Case No. CIV-22-00452-JD
)
DEPARTMENT OF VETERANS )
AFFAIRS; FEDERAL PERSONNEL )
RECORDS CENTER; and NATIONAL )
GUARD BUREAU, )
)
Defendants. )

ORDER

Before the Court is Defendants’ Motion to Dismiss (“Motion”). [Doc. No. 25].
Plaintiff John D. Horton (“Mr. Horton”) responded in opposition (“Response”).1 [Doc.
No. 26]. Defendants move under Federal Rule of Civil Procedure 12(b)(1) to dismiss Mr.
Horton’s claims asserting that Mr. Horton lacks prudential standing to pursue claims on
behalf of his deceased cousin and that the Court lacks subject-matter jurisdiction to
adjudicate claims concerning veterans affairs (“VA”) benefits. Additionally, Defendants
move under Federal Rule of Civil Procedure 12(b)(6) to dismiss Mr. Horton’s claims

1 Mr. Horton’s Response includes a Motion for Sanctions Against the United
States for Conducting an Unlawful and “Without-a-Search-Warrant” Search of the
Plaintiff’s Internet Protocol Address to Geolocate the Plaintiff. Under Local Civil Rule
7.1(c), “[a] response to a motion may not also include a motion or a cross-motion made
by the responding party.” Thus, the Court disregards Mr. Horton’s motion.
against Defendants Federal Personnel Records Center (“NPRC”) and the National Guard
Bureau (“NGB”) for failure to state a claim upon which relief can be granted. Upon
consideration, the Court grants the Motion.

I. BACKGROUND
Mr. Horton brings this action on behalf of his deceased first cousin, Jerry Turrell,
to determine whether Mr. Turrell is entitled to VA benefits and eligible for internment in
the VA Cemetery in Elgin, Oklahoma. See Compl. [Doc. No. 1] ¶¶ 2, 3.2 Mr. Horton
alleges that he is Mr. Turrell’s next of kin and that Mr. Turrell has no surviving spouse,

children, or parents. See id. ¶ 2. He asks the Court to order Defendants to confer among
themselves “so that the appropriate defendant can issue a final ruling on the question of
whether Jerry Turrell is entitled to burial in the Veterans Affairs Cemetery, Elgin,
Oklahoma.” See id. at 5.3
II. STANDARD OF REVIEW

A. Legal Standard for Rule 12(b)(1) Motions
“Federal courts are courts of limited jurisdiction” and may exercise jurisdiction
only when specifically “authorized by Constitution and statute.” Kokkonen v. Guardian
Life Ins. Co. of Am., 511 U.S. 375, 377 (1994).

2 Mr. Horton alleges that Mr. Turrell is currently buried in the “‘Potter’s Field’ at
Pecan Cemetery without any markings.” Id. ¶ 2 (footnotes omitted); see also id. at n.8
(explaining that a potter’s field means a paupers’ or common grave and “is a place for the
burial of unknown, unclaimed or indigent people”).

3 The Court uses CM/ECF page numbering from the top of docket filings in this
Order.
A Rule 12(b)(1) motion to dismiss for lack of subject-matter jurisdiction takes one
of two forms: a facial or factual attack. Pueblo of Jemez v. United States, 790 F.3d 1143,
1148 n.4 (10th Cir. 2015). A facial attack questions the sufficiency of the complaint’s

allegations. Id. In reviewing a facial challenge, a district court must accept the allegations
in the complaint as true. Id. However, in a factual attack, the moving party may go
beyond the allegations contained in the complaint and challenge the facts upon which
subject-matter jurisdiction depends. Id. A district court may not presume the truthfulness
of the complaint’s factual allegations when reviewing a factual attack on subject-matter

jurisdiction. Id. Rather, a court has wide discretion to allow affidavits, other documents,
and a limited evidentiary hearing to resolve disputed jurisdictional facts. Id.
Once challenged, the burden of proving subject-matter jurisdiction is on the
plaintiff. United States ex rel. Stone v. Rockwell Int’l Corp., 282 F.3d 787, 797–98 (10th
Cir. 2002) (explaining that “conclusory allegations of jurisdiction are not enough”;

plaintiff must “show, by a preponderance of the evidence, that jurisdiction exists”
(internal quotation marks and citations omitted)); see Port City Props. v. Union Pac. R.R.
Co., 518 F.3d 1186, 1189 (10th Cir. 2008) (“The burden of establishing subject-matter
jurisdiction is on the party asserting jurisdiction.”).
Defendants present a facial challenge to subject-matter jurisdiction. When the

Court’s jurisdiction over a claim is in question, the jurisdictional issue is a threshold
matter that the Court must resolve before reaching other matters that may dispose of the
claim. See Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 94 (1998).
B. Legal Standard for Rule 12(b)(6) Motions
To survive a motion to dismiss under Rule 12(b)(6), a complaint must contain
“enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v.

Twombly, 550 U.S. 544, 570 (2007). “A claim has facial plausibility when the plaintiff
pleads factual content that allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009). Although a complaint does not need detailed factual assertions, a pleading that
offers only “labels and conclusions” or “pleads facts that are merely consistent with a

defendant’s liability” will not suffice. Id. (internal quotation marks and citations omitted).
The burden is on the plaintiff to plead factual allegations that “raise a right to relief above
the speculative level.” Twombly, 550 U.S. at 555.
Under this standard, the Court accepts all well-pleaded factual allegations as true
and views the allegations in the light most favorable to the nonmovant. Peterson v.

Grisham, 594 F.3d 723, 727 (10th Cir. 2010). Conclusory statements, however, are not
entitled to the assumption of truth and courts are free to disregard them. Khalik v. United
Air Lines, 671 F.3d 1188, 1191 (10th Cir. 2012). “The court’s function on a Rule 12(b)(6)
motion is not to weigh potential evidence that the parties might present at trial, but to
assess whether the plaintiff’s complaint alone is legally sufficient to state a claim for

which relief may be granted.” Smith v. United States, 561 F.3d 1090, 1098 (10th Cir.
2009) (citation omitted).
C. Review of Pleadings Filed Pro Se
Mr. Horton is proceeding pro se; thus, the Court must construe his pleadings
“liberally” and hold them “to a less stringent standard than formal pleadings drafted by

lawyers.” Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991) (citing Haines v.
Kerner, 404 U.S. 519, 520–21 (1972), and Estelle v. Gamble, 429 U.S. 97, 106 (1976)).
However, the Court may not “assume the role of advocate for the pro se litigant.” Id. If
the Court can “reasonably read the pleadings to state a valid claim on which the plaintiff
could prevail, it should do so despite the plaintiff’s failure to cite proper legal authority,

his confusion of various legal theories, . . . or his unfamiliarity with pleading
requirements.” Id.
Nonetheless, “the court cannot take on the responsibility of serving as the
litigant’s attorney in constructing arguments and searching the record.” Garrett v. Selby
Connor Maddux & Janer, 425 F.3d 836, 840 (10th Cir. 2005). Nor can the Court “supply

additional factual allegations to round out a plaintiff’s complaint or construct a legal
theory on a plaintiff’s behalf.” Whitney v. New Mexico, 113 F.3d 1170, 1173–74 (10th
Cir. 1997) (citing Hall, 935 F.2d at 1110).
III. ANALYSIS
A. Mr. Horton lacks prudential standing to bring claims on his deceased
cousin’s behalf.

Defendants argue that Mr. Horton lacks standing to bring claims on behalf
of Mr. Turrell. Specifically, Defendants contend that Mr. Horton’s lawsuit should
be dismissed for lack of prudential standing. Mr. Horton counters that he has
standing because he is the “nearest living relative” of Mr. Turrell. Response at 7.
A federal court may hear cases and controversies only when the plaintiff

has standing to sue.
Standing has two components. First, standing has a constitutional
component arising from Article III’s requirement that federal courts hear
only genuine cases or controversies. Second, standing has a prudential
component. See Habecker v. Town of Estes Park, Colo., 518 F.3d 1217,
1224 n.7 (10th Cir. 2008) (noting that prudential standing concerns may
prevent judicial resolution of a case even where constitutional standing
exists).
New Mexico v. McAleenan, 450 F. Supp. 3d 1130, 1164 (D.N.M. 2020); see also
Kowalski v. Tesmer, 543 U.S. 125, 128–29 (2004) (“The doctrine of standing asks
whether a litigant is entitled to have a federal court resolve his grievance. This inquiry
involves ‘both constitutional limitations on federal-court jurisdiction and prudential
limitations on its exercise.’”) (quoting Warth v. Seldin, 422 U.S. 490, 498 (1975)).
Standing is a preliminary determination, and the burden of establishing standing
rests on the party invoking federal jurisdiction. Here, that’s Mr. Horton. See W.
Watersheds Project v. Interior Bd. of Land Appeals, 62 F.4th 1293, 1296 (10th Cir.
2023); see also Colo. Outfitters Ass’n v. Hickenlooper, 823 F.3d 537, 543 (10th Cir.
2016) (explaining that the court must resolve issues of standing before it may reach the
merits of the claims). To that end, Horton must “allege . . . facts essential to show
jurisdiction.” FW/PBS, Inc. v. City of Dallas, 493 U.S. 215, 231 (1990). “It is a long-
settled principle that standing cannot be inferred argumentatively from averments in the
pleadings, but rather must affirmatively appear in the record.” Id. (internal quotation
marks and citations omitted); see Phelps v. Hamilton, 122 F.3d 1309, 1326 (10th Cir.
1997) (same).
“‘Prudential standing is not jurisdictional in the same sense as Article III

standing.’” McAleenan, 450 F. Supp. 3d at 1165 (quoting Finstuen v. Crutcher, 496 F.3d
1139, 1147 (10th Cir. 2007)). Thus, the Court “assume[s] without deciding that it is
appropriate to dismiss a complaint under Rule 12(b)(6), rather than Rule 12(b)(1), when
the plaintiff lacks prudential standing” because “such standing isn’t jurisdictional.” VR
Acquisitions, LLC v. Wasatch Cnty., 853 F.3d 1142, 1146 n.4 (10th Cir. 2017) (citing

cases holding dismissal for lack of prudential standing is under Rule 12(b)(6)).
Prudential standing has three requirements: (1) “‘a plaintiff must assert his own
rights, rather than those belonging to third parties’”; (2) “‘the plaintiff’s claim must not
be a generalized grievance shared in substantially equal measure by all or a large class of
citizens’”; and (3) “‘a plaintiff’s grievance must arguably fall within the zone of interests

protected or regulated by the statutory provision or constitutional guarantee invoked in
the suit.’” McAleenan, 450 F. Supp. 3d at 1165 (quoting Bd. of Cnty. Comm’rs of
Sweetwater Cnty. v. Geringer, 297 F.3d 1108, 1112 (10th Cir. 2002) (internal quotation
marks and citations omitted)). “[S]tanding is not dispensed in gross;” thus, a plaintiff
must demonstrate standing for each claim and for each form of relief. TransUnion LLC v.

Ramirez, 594 U.S. 413, 431 (2021).
Federal Rule of Civil Procedure 17(a)(1) “essentially codifies” the first
requirement of prudential standing by requiring an action to “be prosecuted in the name
of the real party in interest.” Brumfiel v. U.S. Bank, 618 F. App’x 933, 936 (10th Cir.
2015) (unpublished). Notwithstanding this rule, a plaintiff can assert the rights of others
under the doctrine of third-party standing if he can “make two additional showings.”
Kowalski v. Tesmer, 543 U.S. 125, 130 (2004). First, he must show that he “has a ‘close’

relationship with the person who possesses the right.” Id. (quoting Powers v. Ohio, 499
U.S. 400, 411 (1991)). Second, he must show that “there is a ‘hindrance’ to the
possessor’s ability to protect his own interest.” Id. (quoting Powers, 499 U.S. at 411).
Mr. Horton has not alleged any facts to show that he has a close relationship with
Mr. Turrell to satisfy third-party standing. Mr. Horton does not allege that he is the

executor, administrator, or personal representative of Mr. Turrell’s estate. Notably, he is
not even referenced in Mr. Turrell’s obituary. [Doc. No. 1-1].4 Nor does he claim to have
borne any expense for Mr. Turrell’s burial.
Although Mr. Horton alleges that he is Mr. Turrell’s “next of kin and first cousin,”
and that Mr. Turrell “has no surviving spouse, children or parents,” these allegations are

insufficient to confer third-party standing. See Fed. R. Civ. P. 17(a)(1); 38 U.S.C.
§ 5121(a); 38 U.S.C. § 101 (defining “veteran,” “surviving spouse,” “child,” and “parent”
for purposes of veterans’ benefits); Morris v. Shinseki, 26 Vet. App. 494, 500 (Vet. App.
2014) (explaining that the plaintiff’s status as the deceased veteran’s brother, which is not
one of the categories of persons listed in section 5121(a), makes him ineligible for

4 In analyzing a motion to dismiss, the Court may consider documents that the
complaint incorporates by reference, documents referred to in the complaint if they are
central to the plaintiff’s claims and the parties do not dispute their authenticity, and
matters of which the Court may take judicial notice. See Gee v. Pacheco, 627 F.3d 1178,
1186 (10th Cir. 2010).
accrued benefits due and unpaid); see also Youngman v. Shinseki, 699 F.3d 1301, 1304
(Fed. Cir. 2012) (concluding that the veteran’s fiduciary did “not have standing or
authority to receive accrued benefits that were unpaid at the veteran’s death, other than in

accordance with payments as provided in 38 U.S.C. § 5121(a), to designated family
members or for reimbursement of the expenses of last sickness and burial”).
Accordingly, Mr. Horton lacks prudential standing to bring claims on his deceased
cousin’s behalf, and the Court dismisses without prejudice Mr. Horton’s claims.5
B. This Court also lacks subject-matter jurisdiction to adjudicate claims
regarding veterans’ benefits.

Defendants alternatively claim that Mr. Horton’s claims should be dismissed for
lack of subject-matter jurisdiction because of sovereign immunity. See Motion at 8
(“While Plaintiff’s claims are not entirely clear, he generally seeks a determination of

5 The Court acknowledges there are cases where dismissal has been with
prejudice, without expressly deciding the issue. See VR Acquisitions, LLC v. Wasatch
Cnty., 853 F.3d 1142, 1149, 1146 n.4 (10th Cir. 2017) (affirming the district court’s
ruling that the plaintiff “lacks prudential standing . . . and its order dismissing [the
plaintiff’s] federal claims with prejudice”; noting that because the plaintiff “doesn’t
challenge the district court’s decision to dismiss the [federal] claims with prejudice,” the
circuit “need not consider whether the district court should have dismissed those claims
without prejudice”). Here, no party takes a position on whether dismissal should be with
or without prejudice. Given the additional basis of dismissal for lack of subject-matter
jurisdiction analyzed below, the Court opts to dismiss the claims without prejudice. There
also is authority that supports dismissal without prejudice for lack of prudential standing.
See Brumfiel v. U.S. Bank, 618 F. App’x 933, 935–38 (10th Cir. 2015) (unpublished)
(affirming judgment of district court of dismissal without prejudice but relying on lack of
prudential standing instead of Article III standing, which was the district court’s focus);
cf. Brereton v. Bountiful City Corp., 434 F.3d 1213, 1216, 1218 (10th Cir. 2006)
(explaining that a dismissal for lack of standing should be without prejudice where the
court lacks jurisdiction over the action and “is incapable of reaching a disposition on the
merits of the underlying claims).
[Mr. Turrell’s] eligibility for VA benefits.”). Defendants point out that they have not
waived sovereign immunity in federal district court for claims involving VA benefits. Mr.
Horton contends that the Court has federal question jurisdiction to hear his lawsuit under

28 U.S.C. § 1331 and alleges that remedies under the Administrative Procedure Act
(“APA”) have been exhausted. See Compl. ¶ 1. He also asserts his action is in the nature
of mandamus relief. See Response at 4 (requesting that the Court “issue a mandamus-type
order”). But under the doctrine of sovereign immunity, the United States is immune from
suit unless it consents to be sued. United States v. Mitchell, 445 U.S. 535, 538 (1980).

Waiver of sovereign immunity “‘must be unequivocally expressed.’” Id. (quoting
United States v. King, 395 U.S. 1, 4 (1969)). Absent clear congressional consent, there is
no jurisdiction to entertain suits against the United States. See id.
(1) 38 U.S.C. § 511(a) precludes review of VA benefits claims by
federal district courts regardless how the plaintiff’s claims are
styled.

Regardless of the labels he attaches to them, whether mandamus or otherwise, Mr.
Horton generally seeks a determination of his deceased cousin’s eligibility for VA
benefits, which is “beyond the jurisdiction” of this Court. See Turner v. United States,
501 F. App’x 840, 843 (10th Cir. 2012) (unpublished) (explaining that, regardless of the
plaintiff’s attempts to frame his case as one for medical malpractice or negligence, the
case was “at its core, a challenge to the VA’s decision regarding benefits” and exclusive
jurisdiction to decide such questions rests with the Secretary of Veterans Affairs under 38
U.S.C. § 511(a)). This section “precludes federal court review of V.A. administrative
decisions.” Velayo v. V.A. Domiciliary Aftercare Program, 36 F. App’x 403, 404 (10th
Cir. 2002) (unpublished).
Section 511(a) states, in pertinent part:

The Secretary 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 or the dependents or survivors of veterans.
Subject to subsection (b), the decision of the Secretary as to any such
question 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); see also Nails v. Slusher, 628 F. App’x 625 (10th Cir. 2016)
(unpublished) (concluding that the plaintiff’s claims challenging the VA’s denial of
benefits were outside the jurisdiction of the district court); Johnson v. Dep’t of Veterans
Affs., 351 F. App’x 288, 290–91 (10th Cir. 2009) (unpublished) (affirming that the
district court lacked subject-matter jurisdiction to consider veteran’s claims because
review is authorized only by the Board of Veterans’ Appeals, the Court of Appeals for
Veterans Claims, the Federal Circuit, and the United States Supreme Court).
Moreover, “general jurisdictional statutes, such as 28 U.S.C. § 1331, do not waive
the Government’s sovereign immunity . . . .” Normandy Apartments, Ltd. v. U.S. Dep’t of
Hous. & Urb. Dev., 554 F.3d 1290, 1295 (10th Cir. 2009). Thus, Mr. Horton’s invocation
of federal question jurisdiction does not save his suit from Defendants’ sovereign
immunity.
(2) Waiver of sovereign immunity under the APA is not applicable to
Mr. Horton’s claims.

Mr. Horton alleges that remedies under the APA have been exhausted. Compl. ¶ 1
n.4. Any attempt by Mr. Horton to raise VA benefits claims under the APA fails,
however, because the APA’s waiver of sovereign immunity does not apply.
The APA provides a broad waiver of sovereign immunity, codified at 5 U.S.C.
§ 702. See 5 U.S.C. § 702 (“An action in a court of the United States seeking relief other
than money damages . . . shall not be dismissed nor relief therein be denied on the ground
that it is against the United States . . . .”). The waiver, however, is limited by two
exceptions. First, § 701(a)(1) provides that Chapter 7 of the APA, including § 702’s
waiver of sovereign immunity, does not apply to cases in which “statutes preclude

judicial review.” 5 U.S.C. § 701(a)(1); see Normandy Apartments, 554 F.3d at 1295
(quoting Robbins v. U.S. Bureau of Land Mgmt., 438 F.3d 1074, 1080 (10th Cir. 2006))
(explaining the “‘waiver does not apply where any other statute that grants consent to suit
expressly or impliedly forbids the relief which is sought’”). Second, under the APA, a
federal district court may only review “[a]gency action made reviewable by statute and

final agency action for which there is no other adequate remedy in a court.”6 See 5 U.S.C.
§ 704; see also Lujan v. Nat’l Wildlife Fed’n, 497 U.S. 871, 882 (1990) (explaining that
an action under 5 U.S.C. § 702 must also satisfy the requirements of § 704).

6 Additionally, the Court notes that Mr. Horton has failed to adequately plead that
he is challenging a final agency action. See 5 U.S.C. § 704. Rather, he asks the Court to
order the parties to confer “so that the appropriate defendant can issue a final ruling on
the question of whether Jerry Turrell is entitled to burial in the Veterans Affairs
Cemetery, Elgin, Oklahoma.” Compl. at 5 (emphasis added).
Here, 38 U.S.C. § 511 expressly precludes federal district court review of VA
benefits claims, and the Veterans’ Judicial Review Act of 1988 (“VJRA”), codified in
sections scattered in 38 U.S.C., establishes a multi-tiered framework for adjudication of

claims regarding veterans benefits. See Velayo v. V.A. Domiciliary Aftercare Program, 36
F. App’x 403, 404–05 (10th Cir. 2002) (unpublished); Beamon v. Brown, 125 F.3d 965,
967–70, 974 (6th Cir. 1997).7 Thus, the system of judicial review outlined in the VJRA
provides Mr. Horton with an alternate adequate remedy. See Beamon, 125 F.3d at 974
(concluding “that Congress intended to preclude district court jurisdiction over VA

decisions relating to benefits claims,” that the plaintiff veterans had an alternate adequate
remedy in the United States Court of Veterans Appeals,8 and the APA’s waiver of
sovereign immunity was not applicable to their claims).

7 The process starts when a claimant files for benefits with the regional office of
the Department of Veterans Affairs. Upon receiving a decision from the regional office,
the claimant may appeal to the Board of Veterans’ Appeals (“BVA”). The United States
Court of Appeals for Veterans Claims has exclusive jurisdiction over appeals from the
final decisions by the BVA, and the Court of Appeals for the Federal Circuit has
exclusive appellate jurisdiction over decisions of the United States Court of Appeals for
Veterans Claims. If necessary, a claimant may petition the United States Supreme Court
to review the decision of the Federal Circuit. See 38 U.S.C. §§ 511(a), 7104, 7251,
7252(a), 7266, 7291, and 7292; see also Beamon, 125 F.3d at 967; Velayo, 36 F. App’x at
404–05.

8 The Court formerly known as the United States Court of Veterans Appeals was
redesignated as the United States Court of Appeals for Veterans Claims. See Veterans
Programs Enhancement Act of 1998, Pub. L. No. 105-368, 112 Stat. 3315, § 511; see
also 38 U.S.C. § 7251.
Accordingly, under 5 U.S.C. § 701(a)(1) and § 704, the APA’s waiver of
sovereign immunity does not apply to Mr. Horton’s claims, and the Court also dismisses
without prejudice Mr. Horton’s claims for lack of subject-matter jurisdiction.9

C. To the extent that Mr. Horton is attempting to raise claims against
Defendants NPRC and NGB for a VA benefits eligibility
determination, they are not proper defendants.

Finally, Defendants contend that NPRC and NGB lack authority to grant the relief
Mr. Horton seeks and should be dismissed for failure to state a claim. Mr. Horton
maintains that NPRC has not complied with his request and should be directed to comply.
“Title 38 U.S.C. § 511(a) vests exclusive jurisdiction with the Secretary of
Veterans Affairs to ‘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.’”
Turner v. United States, 501 F. App’x 840, 843 (10th Cir. 2012) (unpublished) (quoting
38 U.S.C. § 511(a)). Thus, the Secretary of the Department of Veterans Affairs would be
the proper defendant in a lawsuit filed in a court with jurisdiction to hear such claims.
To the extent Mr. Horton is attempting to raise claims against NPRC and NGB, his
creative styling of claims does not transform his inquiry about VA benefits into a claim
raised against these additional defendants. Cf. id. These agencies have no authority to
make VA benefits eligibility determinations.

9 Cf. Warren v. United States, 244 F. Supp. 3d 1173, 1217 (D.N.M. 2017) (noting
that the “Tenth Circuit has emphasized that all dismissals for lack of jurisdiction,
including those for a failure to establish a waiver of sovereign immunity . . . should be
without prejudice”); see also Brereton, 434 F.3d at 1216 (explaining that “[a]
longstanding line of cases from this circuit holds that where the district court dismisses an
action for lack of jurisdiction, as it did here, the dismissal must be without prejudice”).
IV. CONCLUSION
For these reasons, the Court GRANTS Defendants’ Motion to Dismiss [Doc. No.
25]. The Court dismisses without prejudice Mr. Horton’s claims for lack of standing and
subject-matter jurisdiction. The Court also dismisses without prejudice Mr. Horton’s
claims against Defendants Federal Personnel Records Center and National Guard Bureau.
Given the dismissal of the action, the Court does not address the payment of filing fees
issue raised by Defendants in their Motion.!°
IT IS SO ORDERED this 30th day of July 2024.

W. DISHMAN
UNITED STATES DISTRICT JUDGE

'0 Additionally, this would appear to involve a reconsideration or the setting aside
of the late United States Magistrate Judge Gary Purcell’s order issued on June 3, 2022
[Doc. No. 5], and Defendants do not address those legal standards in their Motion. The
Court declines to do so in the first instance.
15

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10665926. Public record. Not legal advice.