Townsend

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

Case No. 1:25-cv-22930-LFL

GLEN TOWNSEND,

Plaintiff,

v.

BOARD OF VETERANS APPEALS, et al.,

Defendants.

____________________________________/

REPORT AND RECOMMENDATION

THIS CAUSE is before the Court on Plaintiff’s Application to Proceed in forma pauperis,

(ECF No. 11). This matter was assigned to the undersigned United States Magistrate Judge

Pursuant to Administrative Order 2025-11. However, because I find that dismissal of this case is

warranted and because I do not presently have authority to issue a dispositive order, I am issuing

a Report and Recommendation. I have separately entered an Order directing the Clerk to randomly

reassign this case to a District Judge of this Court. For the following reasons, I respectfully

RECOMMEND that Plaintiff’s Motion for Leave to Proceed in forma pauperis be DENIED, and

that Plaintiff’s Amended Complaint is DISMISSED, with prejudice.

I. BACKGROUND

Plaintiff, a Vietnam War veteran, developed a throat condition while serving in the United

States military in the 1970s. (ECF No. 15 at 2). He has undergone multiple medical examinations

and surgeries since. (ECF No. 15 at 2). He was subsequently diagnosed with rhinitis. (ECF No. 15

at 2). In his initial complaint, Plaintiff alleged that he had filed a claim for disability benefits, which

the VA “refused to pay.” (ECF No. 1 at 4). He also alleges that VA employee D.L. Smith “failed

to perform all responsibilities of his job” and “refused to pay disability claims.” (ECF No. 1 at 5).

He named other VA employees who, he alleged, refused to pay disability benefits. (ECF No. 1 at

6). He alleged, generally, that the VA had become dysfunctional and had begun misclassifying

claims. (ECF No. 1 at 6).

Plaintiff filed an administrative tort claim with the Department of Veterans Affairs (the

“VA”) by submitting a Standard Form 95 seeking payment of disability benefits he believed were

owed in light of his condition and the medical treatment it necessitated. (ECF No. 15 at 2). He

noted that the claim for relief stated in this administrative tort claim was negligence. (ECF No. 1

at 6). The VA General Counsel denied Plaintiff’s claim via written letters in December 2024 and

again in February 2025. (ECF No. 15 at 2). Those letters advised Plaintiff that, if dissatisfied with

the VA’s decision, he could “file directly under the FTCA, 28 U.S.C. § 1346(b) and §§ 2671–

2680.” (ECF No. 15 at 2). Thereafter, Plaintiff filed the instant action against the Board of

Veterans’ Appeals (“BVA”), which seeks compensation under the Federal Tort Claims Act

(“FTCA”).

I held a hearing on Plaintiff’s Motion for Leave to Proceed in forma pauperis, (ECF No.

11), and Motion for Referral to Volunteer Attorney Program, (ECF No. 12), on January 12, 2026.

At the hearing I denied the Motion for Referral to Volunteer Attorney Program, (ECF No. 12) and

explained that claims for disability benefits compensation are not redressable in Federal Court.

(ECF No. 15 at 4). I further advised that Plaintiff would have another chance to explain the factual

bases for his claims, and that upon review of such amended complaint I would determine whether

he stated any claim that could be raised in Federal Court (as opposed to another forum).

In his Amended Complaint, Mr. Townsend complains that the VA has failed to make a

favorable determination of his disability. (ECF No. 20 at 1). He reports that he intentionally missed

the examination appointments scheduled by the VA and that “any remaining communication with

Board of VA have been cut.” (Id. at 1). Plaintiff attached a letter from the VA explaining that his

diagnosis was not accompanied by symptoms sufficient “to warrant a compensable rating under

DC 6522.” (Id. at 6). He further alleged that having polyps as a symptom of his rhinitis “is not a

requirement to pursue a claim.” (Id. at 2). He also stated that he “did not notice any inaccuracies

in diagnosis,” instead suggesting that the issue stems from a disagreement as to his medical history.

(Id.).

II. LEGAL STANDARD

Under Section 1915(e), a court is required to dismiss a case at any time if the court

determines that the complaint fails to state a claim on which relief may be granted. 28 U.S.C. §

1915(e)(2)(B); see also Mehmood v. Guerra, 783 F. App’x 938, 940 (11th Cir. 2019) (emphasis

added) (“[U]nder § 1915(e), district courts have the power to screen complaints filed by all IFP

litigants[.]”); Wright v. Miranda, 740 F. App’x 692, 694 (11th Cir. 2018) (“Under §

1915(e)(2)(B)(ii), a district court must dismiss a case in which the plaintiff is proceeding in forma

pauperis if the court determines that the complaint fails to state a claim on which relief may be

granted.”).

Pro se complaints are held to “less stringent standards than formal pleadings drafted by

lawyers and can only be dismissed for failure to state a claim if it appears beyond doubt that the

plaintiff can prove no set of facts in support of his claim which would entitle him to relief.” Estelle

v. Gambel, 429 U.S. 97, 106 (1979) (internal citations omitted). In determining whether to dismiss

a pro se plaintiff’s complaint, the allegations are taken as true and are construed in the light most

favorable to the plaintiff. Pielage v. McConnell, 516 F.3d 1282, 1284 (11th Cir. 2008). Although

a plaintiff is not held to a high standard in a motion to dismiss for failure to state a claim, the

Federal Rules require “a short and plain statement” of the claim that will give the defendant fair

notice of the plaintiff’s claim and the grounds it rests upon. See Fed. R. Civ. P. 8(a); Roe v. Aware

Woman Ctr. for Choice, Inc., 253 F.3d 678, 683 (11th Cir. 2018). Although district courts must

liberally construe pro se pleadings, courts do not have license to rewrite complaints to create a

viable cause of action where one does not otherwise exist. GJR Invs. v. Cnty. of Escambia, 132

F.3d 1359, 1369 (11th Cir. 1998) (citation omitted).

III. DISCUSSION

This Court lacks subject matter jurisdiction over the claims in Plaintiff’s Amended

Complaint. Federal courts are courts of limited jurisdiction. Univ. of S. Ala. v. Am. Tobacco Co.,

168 F.3d 405, 409 (11th Cir. 1999). “They are empowered to hear only those cases within the

judicial power of the United States as defined by Article III of the Constitution, and which have

been entrusted to them by a jurisdictional grant authorized by Congress.” Id. (internal quotation

marks omitted). The presumption is that a claim lies outside a federal court’s jurisdiction, “and the

burden of establishing the contrary rests upon the party asserting jurisdiction.” Bishop v. Reno,

210 F.3d 1295, 1298 (11th Cir. 2000). A court must dismiss an action if it determines, at any point,

that it lacks subject matter jurisdiction. Fed. R. Civ. P. 12(h)(3).

The Veterans’ Judicial Review Act (“VJRA”), grants the Secretary of Veterans Affairs

authority to decide all questions of law and fact necessary to a decision affecting the provision of

benefits, and expressly provides that those decisions “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). Congress thereby created an exclusive appellate review scheme:

initial benefits determinations may be appealed to the Board of Veterans’ Appeals, whose final

decisions are then reviewable exclusively by the United States Court of Appeals for Veterans

Claims (“the CAVC”), an Article I court; decisions of the CAVC are reviewable exclusively by

the United States Court of Appeals for the Federal Circuit; and Federal Circuit judgments are in

turn subject to certiorari in the Supreme Court. See 38 U.S.C. §§ 7104, 7251, 7252(a), 7292(a),

(c); Hall v. U.S. Dep’t of Veterans’ Affs., 85 F.3d 532, 534 (11th Cir. 1996). Federal district courts,

like this one, are excluded from that scheme. Smith v. United States, 7 F.4th 963, 985 (11th Cir.

2021).

The VJRA’s preclusive effect is not limited to claims styled as direct benefits challenges;

it extends to “any and all determinations by the Secretary as to eligibility, entitlement, or the scope

of benefits” and to “any decision made by the Secretary in the course of making a benefits

determination.” Smith, 7 F.4th at 985. Accordingly, it is the substance of the claim, not the label

placed on it, that determines whether a court has jurisdiction. Bracken v. United States, No. 3:19-

cv-982, 2020 WL 3610810, at *4 (M.D. Fla. July 2, 2020) (quoting Cheves v. Dep’t of Veterans

Affs., 227 F. Supp. 2d 1237, 1246 (M.D. Fla. 2002)). The Amended Complaint does not name Mr.

Townsend’s claim at all, but asks in the first numbered paragraph of his pleading why the benefits

claim has never been paid. He explains that he has submitted himself to a number of exams but

has not received payment. He also denies inaccuracy in his treating doctor’s diagnosis, but alleges

that there’s some disagreement about the medical history. At heart, it appears—again—that Mr.

Townsend seeks judicial review of the VA’s decision. This he must do in the United States Court

of Appeals for Veterans Claims.

I have examined the Amended Complaint and considered whether it raises some claim that

may be redressable in this federal court. The initial complaint explicitly asserted a claim of

negligence, and Mr. Townsend explained his intention to invoke the FTCA. District courts have

subject matter jurisdiction under the FTCA over claims arising from “the negligent or wrongful

act or omission of any employee of the Government while acting within the scope of his office or

employment, under circumstances where the United States, if a private person, would be liable to

the claimant in accordance with the law of the place where the act or omission occurred.” 28 U.S.C.

§ 1346(b)(1). Included among these are claims of medical malpractice against government

agencies such as the VA. See Smith v. United States, 7 F.4th 963, 986 (11th Cir. 2021) (holding

that the court had subject matter jurisdiction over plaintiff’s claim of medical malpractice against

VA medical professionals where (a) adjudicating this claim did not require the court to review

adverse benefits decisions, and (b) the plaintiff alleged that the VA medical professionals breached

the duty of care owed to plaintiff when they failed to timely treat and diagnose his cancer). Such a

claim, however, may not disguise what in fact constitutes a claim for review of a VA decision

relating to benefits. Id. Claims that can be construed as administrative negligence, such as failure

to timely approve a claim and authorize payments, failure to follow VA policies, and failure to

schedule medical visits, require review of VA decisions relating to benefits. Id. The FTCA does

not, therefore, grant district courts subject matter jurisdiction to adjudicate these claims.

Plaintiff alleges that the VA misclassified his condition as zero percent compensable and

that the VA applied an incorrect standard when requiring “polyps” as a symptom of his condition.

(ECF No. 20 at 2). Both claims, construed as claims of administrative negligence, would require

this Court to review decisions by the VA regarding Plaintiff’s entitlement to benefits. As noted

above, the FTCA does not grant this Court subject matter jurisdiction over such claims. See Smith,

7 F.4th at 986.

In its January 12 Order, the Court explained to Plaintiff that it could not “conclude from

the allegations of the Complaint whether the core of Plaintiff’s negligence claim falls within the

Court’s jurisdiction under the FTCA.” (ECF No. 15 at 4). Indeed, the Court understood Plaintiff’s

claim as one seeking “the payment of unpaid disability benefits, which may not be redressable in

this court.” (Id.). The Court instructed Plaintiff to “identify the circumstances giving rise to the

harm he claims to have suffered, as well as the legal authority under which he intends to assert his

claim.” (Id.). Plaintiff’s Amended Complaint does not cite additional legal authority supportive of

his claims. See (ECF No. 20). Instead, it reiterates the primary circumstances stated in his initial

complaint: denial of disability benefits, lack of payment of disability benefits to which he contends

he is entitled, and misclassification of his condition. The underlying circumstances remaining the

same following amendment, the Court again cannot find in Plaintiff’s Amended Complaint a cause

of action under the FTCA that is redressable in this Court.

To an extent, Plaintiff’s allegations that the VA misclassified his rhinitis as zero percent

compensable and applied an improper standard in requiring symptoms such as “polyps” as a

condition of eligibility, (id. at 1), can be construed as asserting a procedural due process claim.

District courts retain a narrow category of jurisdiction over constitutional challenges that are

genuinely independent of any underlying benefits determination. A due process challenge to the

constitutionality of existing VA procedures themselves, rather than to the outcome of any

individual benefits proceeding, may survive § 511’s bar where adjudicating such challenge would

not require the court to review “decisions affecting the provision of benefits to any individual

claimants.” Veterans for Common Sense v. Shinseki (“VSC”), 687 F.3d 1013, 1033–34 (9th Cir.

2012). However, a veteran cannot circumvent § 511’s jurisdictional bar simply by framing an

otherwise precluded challenge to a benefits determination in constitutional terms. See Bluestein v.

U.S. Dep’t of Hous. & Urb. Dev., No. 12-cv-533, 2013 WL 6627965, at *3 (D.N.H. Dec. 16, 2013)

(“[F]ederal district courts may not entertain constitutional or statutory claims whose resolution

would require the court to intrude upon the VA’s exclusive jurisdiction.”) (quoting Price v. United

States, 228 F.3d 420, 422 (D.C. Cir. 2000)).

To the extent that Plaintiff’s allegations could be construed as due process claims against

the BVA, the VJRA’s exclusive scheme precludes this Court from exercising jurisdiction over

them because adjudicating these claims would require the Court to review VA decisions affecting

the provision of Plaintiff’s benefits. See VSC, 687 F.3d at 1033–34. Substantively, Plaintiff’s

claims simply ask this Court to remedy the denial of his disability benefits, which it does not have

the authority to do.

For the foregoing reasons, the Court lacks the authority to entertain this action. However,

as explained, alternative remedial schemes exist. Plaintiff may appeal the BVA’s decision through

the channels set out in the VJRA: a BVA’s final decision is reviewable by the CAVC; a CAVC

final decision is exclusively reviewable by the United States Court of Appeals for the Federal

Circuit; a Federal Circuit decision can be reviewable by the Supreme Court of the United States.

See 38 U.S.C. §§ 7104, 7251, 7252(a), 7292(a), (c).

Plaintiff’s Amended Complaint contains additional allegations, but it does not correct the

deficiencies identified at the January 12 hearing. Like in the original complaint, the allegations in

the Amended Complaint amount to a claim for review of the VA’s decisions regarding Plaintiff’s

claim. As noted above, this Court does not have subject matter jurisdiction over such a matter.

Additional amended complaints would be futile as they would suffer from the same deficiencies

described. See Cockrell v. Sparks, 510 F.3d 1307, 1310 (11th Cir. 2007) (“Leave to amend a

complaint is futile when the complaint as amended would still be properly dismissed or be

immediately subject to summary judgment for the defendant.”).

IV. RECOMMENDATIONS

For the foregoing reasons, the undersigned respectfully RECOMMENDS that Plaintiff's

Motion for Leave to Proceed in forma pauperis be DENIED, and that Plaintiff's Amended

Complaint be DISMISSED, with prejudice.

A party shall serve and file written objections, if any, to this Report and Recommendation

with the presiding United States District Court Judge for the Southern District of Florida, within

FOURTEEN (14) days of being served with a copy of this Report and Recommendation. Failure

to timely file objections will bar a de novo determination by the District Judge of anything in this

recommendation and shall constitute a waiver of party’s “right to challenge on appeal the district

court’s order based on unobjected-to factual and legal conclusions.” 11th Cir. R. 3-1 (2016); 28

U.S.C. § 636(b)(1)(C); see also Harrigan vy. Metro-Dade Police Dep't Station #4, 977 F.3d 1185,

1191-92 (11th Cir. 2020).

RESPECTFULLY SUBMITTED in Chambers at Miami, Florida this 17th day of June,

2026.

LAUREN F¢LOUIS

UNITED STATES MAGISTRATE JUDGE