Hale v. United States

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF NEW YORK

MICHAEL HALE SR.,

Plaintiff,

23-CV-299-LJV

v. DECISION & ORDER

UNITED STATES,

Defendant.

On April 4, 2023, the pro se plaintiff, Michael Hale Sr., commenced this action

against the United States under the Federal Tort Claims Act (the “FTCA”).1 Docket Item

1. Hale alleges that the United States Department of Veterans Affairs (the “VA”)

wrongfully denied him medical benefits. See id.

On April 5, 2024, the United States moved to dismiss the complaint for lack of

subject matter jurisdiction under Federal Rule of Civil Procedure 12(b)(1) or in the

alternative, for summary judgment under Federal Rule of Civil Procedure 56. A short

time later, Hale responded.2 Docket Item 11.

1 While Hale’s complaint does not refer explicitly to the FTCA, he says that the

federal basis for this suit is a “tort claim” and names only the United States as a

defendant. See Docket Item 1 at 1-2. So this Court construes his complaint as

asserting claims under the FTCA. See 28 U.S.C. § 1346(b) (providing for certain tort

actions to be brought against the United States); see also Triestman v. Fed. Bureau of

Prisons, 470 F.3d 471, 474 (2d Cir. 2006) (stating that “the submissions of a pro se

litigant must be construed liberally and interpreted to raise the strongest arguments that

they suggest” (citation, emphasis, internal quotation marks, and italics omitted)).

2 The United States did not reply, and the time to do so now has expired. See

Docket Item 10.

For the reasons that follow, this Court lacks subject matter jurisdiction over

Hale’s claims and therefore dismisses his complaint without prejudice.3

BACKGROUND4

On March 26, 2018, Hale—whom this Court assumes to be a veteran—

underwent surgery on his “left foot and ankle.” Docket Item 9-2 at 3; see Docket Item 1

at 1. The surgery had been “approved” by the VA, or more specifically, by the “VA

Medical Center’s Care in the Community Office” (the “VA Office of Community Care”).

Docket Item 9-2 at 3 (italics omitted); see Docket Item 1 at 1. It was performed by Dr.

Jennifer Gurske, a doctor at “UB Orthopedics and Sports and Spine Medicine” in whom

3 Because this Court lacks jurisdiction over Hale’s claims, it does not reach the

United States’ alternative motion for summary judgment. See Docket Item 9.

4 On a motion to dismiss for lack of subject matter jurisdiction under Federal Rule

of Civil Procedure 12(b)(1), “a district court may consider evidence outside the

pleadings.” Morrison v. Nat’l Australia Bank Ltd., 547 F.3d 167, 170 (2d Cir. 2008),

aff’d, 561 U.S. 247 (2010). Accordingly, the following facts are taken from the

complaint, Docket Item 1, and the copies of Hale’s administrative claim and the

government’s denial of that claim filed by the United States, Docket Items 9-2 and 9-3.

See McLean v. United States, 2022 WL 976828, at *1 (S.D.N.Y. Mar. 31, 2022)

(considering administrative claim records that were not submitted with complaint on

motion to dismiss for lack of subject matter jurisdiction under Rule 12(b)(1)). If the

defendant presents “extrinsic evidence” that is “material and controverted, the district

court [must] make findings of fact in aid of its decision as to [jurisdiction].” Katz v.

Donna Karan Co., 872 F.3d 114, 120 (2d Cir. 2017) (quoting Carter v. HealthPort

Techs., LLC, 822 F.3d 47, 57 (2d Cir. 2016)).

Here, Hale has not disputed the accuracy of the exhibits submitted by the

government. See Docket Item 11 at ¶¶ 1-2. On the contrary, because the FTCA makes

administrative exhaustion a jurisdictional requirement, his claims implicitly rely on the

fact that he exhausted his administrative remedies. See 28 U.S.C. § 2675(a) (providing

that “[a]n action shall not be instituted [under the FTCA] . . . unless the claimant shall

have first presented the claim to the appropriate [f]ederal agency”); Celestine v. Mount

Vernon Neighborhood Health Ctr., 403 F.3d 76, 82 (2d Cir. 2005) (holding that FTCA’s

exhaustion “requirement is jurisdictional and cannot be waived”).

Hale “ha[s] the utmost confidence.” Docket Item 9-2 at 3. Hale was “scheduled” for

“follow[-]up treatment,” and his “expected recovery time” was nine to twelve months. Id.

But despite previously having approved the surgery, the VA Office of Community

Care “stopped paying the bill for [Hale’s] surgery.” Id.; Docket Item 1 at 4 (stating that

VA Office of Community Care “failed to monitor [Hale’s] medical file” after his surgery,

which “left [him] with no care during [his] recovery period”). Hale was “notified of non-

payment by the provider,” and all his future follow-up visits with Dr. Gurske were

“cancelled.” Docket Item 9-2 at 3; Docket Item 1 at 4.

Because the VA Office of Community Care “reneg[ed] on [its] agreement to pay

for [his] medical treatment,” Hale was unable to access proper follow-up care. Docket

Item 1 at 1, 4. This led to “extensive damage to [his] foot and ankle,” which is

“memorialized” in Hale’s medical records. Id. at 4. Hale ultimately had to undergo a

second surgery to address that damage. Id. at 3-4; Docket Item 9-2 at 3-4. And when

Hale contacted the VA, it “did nothing to mitigate the damage to [his] foot”; in fact, it did

nothing at all to help him. See Docket Item 1 at 4. He seeks $95,000 in damages and

“a promise of future care, including outside the VA if necessary.” Id. at 4.

On October 5, 2021, Hale filed an administrative claim with the VA based on its

failure to pay for his medical care. Docket Item 9-2. On September 26, 2022, the VA

denied Hale’s administrative claim. Docket Item 9-3. Hale then filed this action, Docket

Item 1; the government moved to dismiss the complaint or in the alternative, for

summary judgment, Docket Item 9; and Hale responded to that motion as described

above, Docket Item 11.

LEGAL PRINCIPLES

“A case is properly dismissed for lack of subject matter jurisdiction under

[Federal] Rule [of Civil Procedure] 12(b)(1) when the district court lacks the statutory or

constitutional power to adjudicate it.” Makarova v. United States, 201 F.3d 110, 113 (2d

Cir. 2000) (citing Fed. R. Civ. P. 12(b)(1)); see Durant, Nichols, Houston, Hodgson &

Cortese-Costa P.C. v. Dupont, 565 F.3d 56, 62 (2d Cir. 2009) (“‘[F]ederal courts are

courts of limited jurisdiction’ and lack the power to disregard such limits as have been

imposed by the Constitution or Congress.” (quoting Owen Equip. & Erection Co. v.

Kroger, 437 U.S. 365, 374 (1978))). “In resolving a motion to dismiss for lack of subject

matter jurisdiction under Rule 12(b)(1), a district court . . . may refer to evidence outside

the pleadings.” Makarova, 201 F.3d at 113 (citing Kamen v. Am. Tel. & Tel. Co., 791

F.2d 1006, 1011 (2d Cir.1986)).

“A plaintiff asserting subject matter jurisdiction has the burden of proving by a

preponderance of the evidence that it exists.” Id. And “[a]lthough courts hold pro se

complaints to less stringent standards than formal pleadings drafted by lawyers, pro se

litigants [still] must establish subject matter jurisdiction.” Panchitkhaew v. Long Island

Jewish Med. Ctr., 2019 WL 1492780, at *2 (E.D.N.Y. Apr. 4, 2019) (internal citations,

internal quotation marks, and italics omitted).

DISCUSSION

The United States argues that this Court lacks jurisdiction over Hale’s claims

because “Congress has expressly precluded district courts from reviewing [veterans’

benefits] determinations” of the kind that Hale seeks to challenge here. Docket Item 9-7

at 5-13. For the reasons that follow, this Court agrees.

“Since Congress first legislated in the area of veterans’ benefits over [80] years

ago, it has consistently precluded judicial review of veterans’ benefits determinations.”5

Larrabee ex rel. Jones v. Derwinski, 968 F.2d 1497, 1499 (2d Cir. 1992); see Johnson

v. Robison, 415 U.S. 361, 368 (1974) (“No-review clauses . . . have been a part of

veterans’ benefits legislation since 1933.”). Under 38 U.S.C. § 511(a),

[t]he Secretary [of the VA] 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.

Id.; see Sugrue v. Derwinski, 26 F.3d 8, 10 (2d Cir. 1994). In other words, section

511(a) creates a general bar on judicial review of veterans’ benefits determinations.

See Hassan v. U.S. Dep’t of Veterans Affs., 137 F. App’x 418, 420 (2d Cir. 2005)

(summary order). Section 511(b) then carves out certain exceptions, providing that “the

second sentence of subsection (a) does not apply to” certain civil actions regarding life

insurance, housing, small business loans, and the rules and regulations that agencies

must promulgate under the Freedom of Information Act. 38 U.S.C. § 511(b); see

Sugrue, 26 F.3d at 11; Brown v. United States, 2011 WL 4439314, at *1 n.2 (W.D.N.Y.

5 “From 1957 to 1991, the provision precluding judicial review of veterans’

benefits determinations was codified at 38 U.S.C. § 211,” and decisions from that period

refer to that section. See Larrabee ex rel. Jones v. Derwinski, 968 F.2d 1497, 1499 n.1

(2d Cir. 1992). In 1991, “Congress . . . renumbered [t]itle 38 and the current version of

section 211 now appears at 38 U.S.C. § 511.” Larrabee, 968 F.2d at 1499 n.1.

Sept. 23, 2011), report and recommendation adopted, 2011 WL 4809138 (W.D.N.Y.

Oct. 11, 2011).

As amended by the Veterans’ Judicial Review Act of 1988 (the “VJRA”), section

511(b) also provides for judicial review of veterans’ benefits determinations in the Court

of Appeals for Veterans Claims, an Article I court; the United States Court of Appeals for

the Federal Circuit; and ultimately, the Supreme Court. See Sugrue, 26 F.3d at 11;

Larrabee, 968 F.2d at 1501; see also Conyers v. United States, 2018 WL 1157754, at

*6 (E.D.N.Y. Jan. 31, 2018) (explaining that VJRA “provides for a multi-tiered review of

veteran[s’] benefits claims [that] . . . begins with an appeal to the [Board of Veterans’

Appeals], the decision of which is solely reviewed by the Court of Appeals for Veterans

Claims”; “[t]hose decisions are then appealable only to the . . . Federal Circuit, which is

then subject to review in the United States Supreme Court” (internal quotation marks

omitted) (citing, inter alia, 38 U.S.C. §§ 7104(a) and 7252(a))), report and

recommendation adopted, 2018 WL 1157823 (E.D.N.Y. Mar. 2, 2018). In other words,

section 511, as amended by the VJRA, “establish[es] an exclusive mechanism for

appellate review of decisions of the Secretary [of the VA]” in a court different from this

one.6 See Larrabee, 968 F.2d at 1501; Conyers, 2018 WL 1157754, at *6 (explaining

6 The VJRA creates an “exclusive mechanism” for challenging veterans’ benefits

determinations, but not all such determinations may be challenged through that

channel. Indeed, the government argues that under federal law, determinations about

“whether to authorize Community Care with non-VA providers ‘shall be subject to the

[VA’s] clinical appeals process, and such decisions may not be appealed to the Board of

Veterans Appeals.’” Docket Item 9-7 at 8 (quoting 38 U.S.C. § 1703(f)). Because Hale

challenges precisely such a determination here, see Docket Item 1 at 1, 4, the

government says that this Court “lacks . . . subject matter jurisdiction [over his claims] at

two levels.” See Docket Item 9-7 at 8, 12-13. This Court, however, need not reach the

question of whether Hale’s claims are doubly barred. For the reasons explained,

that “the [VJRA’s] statutory scheme forecloses the possibility of review for disputed

veterans[’] benefits claims in any federal district court”).

In Johnson, the Supreme Court held that section 511 precludes district courts

from “review[ing] . . . those decisions of law or fact that arise in the [VA’s] administration

. . . of a statute providing benefits for veterans”—that is, decisions involving “the

interpretation or application of a particular provision of the statute to a particular set of

facts.” 415 U.S. at 367. But section 511 does not “preclude judicial cognizance of

constitutional challenges to veterans’ benefits legislation,” the Court held. Id. at 373.

The Second Circuit has explained that Johnson effectively “distinguished between

attacks upon the statute as drafted,” which district courts may entertain under section

511, and challenges to “the statute as applied,” which they may not. See Larrabee, 968

F.2d at 1500; Sugrue, 26 F.3d at 11. And while section 511(a) does not bar

constitutional claims, “the [district] courts do not acquire jurisdiction to hear challenges

to benefits determinations merely because those challenges are cloaked in

constitutional terms.” Sugrue, 26 F.3d at 11 (collecting cases); see Larrabee, 968 F.2d

at 1500 (noting that it is “clearly establish[ed]” that section 511(a) “precludes federal

courts from hearing claims—even if draped in constitutional terms—seeking a particular

type or level of medical care”).

Further, just as the Constitution may not be used as a cloak, federal statutes

“may [not] be used as a rhetorical cover to attack VA benefits determinations.” Sugrue,

26 F.3d at 11-12 (holding that plaintiff’s “challenge [to] the VA’s [decision] den[ying him]

section 511(a) prevents this Court from exercising jurisdiction over Hale’s claims, and

one jurisdictional bar suffices.

. . . a certain level of benefits . . . based upon a disputed disability rating” was barred

notwithstanding his attempt to style it as a challenge under Fifth Amendment, Privacy

Act, and Freedom of Information Act); see Hassan, 137 F. App’x at 420 (holding that

section 511(a) “prohibited the district court from considering [the plaintiff’s] constitutional

and statutory challenges to the defendants’ decision to expel him from a VA facility”).

The FTCA is no exception: “[I]t is well[ ]settled that the United States has established

the VJRA, and not the FTCA, as the exclusive statutory scheme under which to seek

judicial review of claims involving veterans’ benefits.” Schwingle v. United States, 2022

WL 9462632, at *5 (W.D.N.Y. Oct. 14, 2022).

Courts in the Second Circuit have employed a “test [developed by the D.C.

Circuit in Price v. United States, 228 F.3d 420, 422 (D.C. Cir. 2000)] to determine

whether . . . [an] FTCA [claim] constitutes a disguised collateral attack on a benefits

determination.”7 Conyers, 2018 WL 1157754, at *7 & n.1; Schwingle, 2022 WL

9462632, at *6; Philippeaux v. United States, 2011 WL 4472064, at *4 (S.D.N.Y. Sep.

27, 2011). Under Price, “judicial review is foreclosed” when a claim “would require the

district court to determine first whether the VA acted properly in handling [a plaintiff’s]

request for reimbursement [or a benefits determination].” 228 F.2d at 422; Conyers,

2018 WL 1157754, at *7.

Here, Hale asserts claims against the United States under the FTCA, alleging

that the VA was “gross[ly] negl[igent]” and “fail[ed]” in its “duty of care[,] resulting in

7 While the Second Circuit itself “has not explicitly [employed] th[e Price]

framework,” district courts within it have, and that framework is consistent—if not

required by—the Second Circuit’s decision in Sugrue. See Conyers, 2018 WL

1157754, at *7 n.1 (citing Sugrue, 26 F.3d at 11).

harm to [his] left ankle and foot.” Docket Item 1 at 1. And he says that the

department—specifically, the VA Office of Community Care—“failed to monitor [his]

medical file during [his] recovery period[] post-surgery.” Id. at 4. As the government

points out, although Hale “attempts to cast this case as a tort action,” he does not allege

that anyone involved in this case was negligent in the provision of medical care itself.

See Docket Item 9-7 at 5. In fact, his administrative claim states that he “ha[s] the

utmost confidence” in the doctor who performed his surgery. Docket Item 9-2 at 3. And

Hale also does not allege that the VA applied an unconstitutional statute—or indeed,

that the VA violated his constitutional rights in any way. See Docket Item 1. Nor do his

claims fall within any of section 511(b)’s exceptions to the jurisdictional bar. See 38

U.S.C. § 511(b); see also Docket Items 1 and 9-2.

Instead, Hale says that the VA failed to pay for his medical care following

surgery. Docket Item 1 at 1, 3-4; Docket Item 9-2 at 3-4. That is, his complaint is that

he suffered negative health effects because the VA Office of Community Care denied

him certain medical benefits. Docket Item 1 at 1, 3-4; Docket Item 9-2 at 3-4. Thus, his

claims boil down to “whether the VA acted properly in handling [his] request for

reimbursement.” See Price, 228 F.2d at 422; Conyers, 2018 WL 1157754, at *7. And

those are precisely the sorts of claim that section 511(a) bars in courts like this one.

In Conyers, the court addressed the same issue in a context quite similar to the

one here. There, a veteran sued the United States “under the FTCA for negligence,

malpractice[,] and negligent hiring” based on the denial of “his [v]ocational

[r]ehabilitation and [e]mployment . . . benefits.” 2018 WL 1157754, at *1. The court

found that “[t]he gravamen of [the plaintiff’s] claims [we]re that [the d]efendant acted

negligently in assessing his fitness for [a] program, which caused him to suffer assorted

personal injuries when he was denied access to self-employment assistance benefits.”

Id. at *8. Accordingly, “judicial review. . . [wa]s foreclosed by [s]ection 511(a).” Id.

Likewise, in Brown, a veteran asserted FTCA claims based on the fact that his

“veteran’s benefits were terminated” after “he had begun to have some dental work

performed.” 2011 WL 4439314, at *1. The court noted that the plaintiff “d[id] not allege

any negligence with respect to the dental work.” Id. “Instead, [his] claim [wa]s based

upon the assertion that his veteran’s benefits were wrongfully terminated before the

entire dental procedure could be completed,” requiring him to “attempt to obtain his own

medical insurance to pay for the completion of the dental work” and leading him to

“suffer[] pain during the . . . period in which the dental work was incomplete.” Id. The

court found that section 511(a) barred it from exercising jurisdiction. Id. at *2.

What was true in Conyers and Brown is true here. Hale attempts to cloak a

collateral attack on a veterans’ benefits determination in the guise of a tort claim, see

Docket Item 1, precisely the kind of challenge that section 511(a) says that this Court

cannot hear. So while this Court has sympathy for Hale’s struggle to pay for his medical

care, it has no “power to disregard [the] limits as have been imposed by . . . Congress.”

Dupont, 565 F.3d at 62. It therefore dismisses Hale’s complaint without prejudice for

lack of subject matter jurisdiction.8 And because “better pleading w[ould] not cure” that

defect, the complaint is dismissed without leave to amend. See Cuoco v. Moritsugu,

222 F.3d 99, 112 (2d Cir. 2000).

8 Hale nonetheless may be able to appeal the denial of his medical benefits

through the VA’s clinical appeals process. See note 6, supra.

CONCLUSION

For the reasons explained above, the United States’ motion to dismiss for lack of

subject matter jurisdiction is GRANTED. The Clerk of the Court shall close this case.

This Court hereby certifies, under 28 U.S.C. § 1915(a)(3), that any appeal from

this order would not be taken in good faith, and leave to appeal to the Court of Appeals

in forma pauperis is denied. Coppedge v. United States, 369 U.S. 438 (1962). Further

requests to proceed on appeal in forma pauperis should be directed, on motion, to the

United States Court of Appeals for the Second Circuit, in accordance with Rule 24 of the

Federal Rules of Appellate Procedure

SO ORDERED.

Dated: December 26, 2024

Buffalo, New York

/s/ Lawrence J. Vilardo

LAWRENCE J. VILARDO

UNITED STATES DISTRICT JUDGE