The opinion
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[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 21-14032
Non-Argument Calendar
____________________
LARRY D. PINSON,
LENNELLE O. PINSON,
LARRY PINSON, JR.,
LAWRENCE PINSON,
LAMAR PINSON,
LANCE PINSON,
LAWRSON PINSON,
LAWRON PINSON,
Plaintiffs-Appellants,
versus
UNITED STATES OF AMERICA,
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2 Opinion of the Court 21-14032
Defendant-Appellee.
____________________
Appeal from the United States District Court
for the Northern District of Georgia
D.C. Docket No. 3:21-cv-00089-TCB
____________________
Before LAGOA, ANDERSON, and HULL, Circuit Judges.
PER CURIAM:
Larry D. Pinson, his wife, and his six sons, proceeding pro
se, appeal the district court’s dismissal of their 15 claims under the
Federal Torts Claim Act (“FTCA”). On appeal, the Pinsons argue
that the district court erred by finding that (1) the Veterans’ Judicial
Review Act (“VJRA”) divested the district court of subject matter
jurisdiction over their claims for veterans’ benefits, (2) they did not
exhaust their administrative remedies as to any FTCA claims,
(3) the intentional tort exception to the FTCA’s waiver of
sovereign immunity applied, and (4) their FTCA claims were
time-barred. After review, we affirm the district court’s dismissal
of the Pinsons’ claims.
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21-14032 Opinion of the Court 3
I. BACKGROUND
A. Facts
We recount the factual allegations primarily from the
Pinsons’ complaint. In addition, we consider various documentary
exhibits attached to the government’s motion to dismiss. A court
may consider a document attached to a motion to dismiss without
converting the motion into one for summary judgment if the
document is (1) central to the plaintiff’s claim and (2) undisputed—
i.e., its authenticity is not challenged. Horsley v. Feldt, 304 F.3d
1125, 1134 (11th Cir. 2002). Because the documents are central to
the Pinsons’ claims and not in dispute, we, as the district court did,
consider them.
Pinson, an uninsured, fully disabled veteran, contacted the
Department of Veterans Affairs (“VA”) several times to request
three surgeries: rotator cuff surgery, hip surgery, and surgery to
remove a tumor in his spinal column. The VA neglected to
respond. Because his health was deteriorating quickly, Pinson
obtained the three surgeries at other medical facilities in 2007, 2008,
and 2009.
In 2014, Pinson sought reimbursement by mailing over 700
pages of medical records to two VA facilities. His records were not
returned. Pinson sent multiple letters and spoke to various
personnel at the VA, inquiring about the location of his records.
Pinson never received an answer about the whereabouts of his
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records. Between 2014 and 2018, Pinson continued to seek
reimbursement from the VA, but to no avail.
On April 25, 2018, the VA informed Pinson that he must file
a Standard Form 95 (“SF-95”) because his letter had alleged that the
VA negligently destroyed faxed documents relating to his
reimbursement requests.
In December 2018, Pinson submitted an SF-95. He
complained about the VA’s failure to administer medical care and
denial of reimbursement for his treatment at the other medical
facilities. He listed the date of injury as 2004 to 2015 and requested
$500,000 for medical reimbursement. Pinson was the only
claimant and person to sign the form.
On August 27, 2019, the VA sent Pinson a letter denying his
claim because (1) “[a]ccording to the description outlined in
[Pinson’s] claims,” his requested reimbursement for non-VA care
involved the administration of VA benefits, rather than a state-law
tort claim; and (2) his claim was time-barred under 28 U.S.C.
§ 2401(b) because it was filed over two years after the claim
accrued. The VA construed Pinson’s claim as a denial of benefits
and reimbursement. The VA’s denial letter stated that Pinson
“fail[ed] to allege a claim cognizable under the FTCA and
therefore, there [was] no jurisdiction to consider [his] claim under
the FTCA.” The VA explained that the exclusive avenue for Pinson
to pursue his claim was through the U.S. Court of Appeals for
Veterans Claims and then the U.S. Court of Appeals for the Federal
Circuit.
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In February 2020, Pinson asked for reconsideration. On
December 1, 2020, the VA restated the two grounds for denying
his claims and added that “[f]urther action on this matter may be
instituted in accordance with the FTCA.”
B. Procedural History
On June 1, 2021, the Pinsons, proceeding pro se, sued the
government alleging these 15 counts: (1) “Intentional Infliction of
Emotional Distress” 1; (2) “Intentional Denial and Rejection of
Veteran Claim”; (3) “Privacy Violations”; (4) “Los[s] of Medical
Records”; (5) “Allege No Records”; (6) “Office of Community Care
Denver Co.”; (7) “Medical Records should have been coded into
system”; (8) “Medical Records Negligently destroyed”;
(9) “Muskogee Business Office (VA)”; (10) “File Record in Cabinet,
Storm Damage Roof Record Disappeared”; (11) “Veteran
requested date of storm. According to [the] VA in Washington
D.C. the allege[d] storm occurred on July 14, 2016”;
(12) “Destruction of Records & Privacy Violation (Jackson M[S])”;
(13) “VISN-16 Privacy Specialist Confirms Privacy Violation”;
(14) “VHA Never Received Veteran Records”; and (15) “Court
Decision 2016 VA Has Short Change [sic] Veteran Since 2009.”
The government moved to dismiss. The government
argued that the district court should dismiss the Pinsons’ complaint
1 The basis of the intentional infliction of emotional distress claim is that the
VA’s “negligen[t] actions cause[d] [Pinson] and [his] family members
unnecessary and undue emotional distress.”
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for four reasons: (1) lack of subject matter jurisdiction under the
VJRA, (2) lack of subject matter jurisdiction because the Pinsons
failed to exhaust their administrative remedies, (3) lack of subject
matter jurisdiction pursuant to the FTCA’s intentional tort
exception, and (4) the Pinsons’ claims were time-barred. On
October 15, 2021, the district court granted the government’s
motion to dismiss on those four grounds.
II. STANDARD OF REVIEW
We review de novo the dismissal of a complaint for lack of
subject matter jurisdiction. Motta ex rel. A.M. v. United States, 717
F.3d 840, 843 (11th Cir. 2013).
III. DISCUSSION
On appeal, the Pinsons argue that the district court erred in
dismissing their claims because (1) the VJRA does not divest the
district court of subject matter jurisdiction, (2) they did not fail to
exhaust their administrative remedies as to the FTCA claims,
(3) the FTCA’s intentional tort exception does not apply, and
(4) their FTCA claims are not time-barred. We discuss each ground
in turn.
A. VJRA
In 1988, Congress enacted the VJRA, Pub. L. No. 100–687,
102 Stat. 4105 (1988), which sets forth the framework for the
adjudication of claims for veterans’ benefits. The process begins
when a claimant files for benefits with a regional office of the
Department of Veterans Affairs. Decisions from the Department
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of Veterans Affairs may be appealed to the Board of Veterans’
Appeals (“Board”), whose ruling becomes the final decision of the
Secretary. 38 U.S.C. § 7104(a). Decisions of the Board may then
be reviewed exclusively by the U.S. Court of Appeals for Veterans
Claims, an Article I court established by the VJRA. Id. §§ 7251,
7252(a), 7266(a).
In turn, decisions of the Court of Appeals for Veterans
Claims are appealable only to the U.S. Court of Appeals for the
Federal Circuit. Id. § 7292(a), (c). The Federal Circuit’s judgment
is then subject to certiorari review by the Supreme Court. Id.
§ 7292(c). In short, Congress gave the aforementioned courts
exclusive jurisdiction over claims affecting veterans’ benefits. See
Hall v. U.S. Dep’t of Veterans’ Affs., 85 F.3d 532, 534 (11th Cir.
1996) (“[J]udicial review of a particular application of the law made
by the Secretary with respect to a veteran’s entitlement to benefits
may be had only by appealing to the Board, then to the Court of
Veterans Appeals, the Federal Circuit Court of Appeals[,] and the
Supreme Court.”).
Specifically, the VJRA provides that the VA Secretary’s
decision as to any “questions of law and fact necessary to a decision
by the Secretary under a law that affects the provision of
benefits . . . shall be final and conclusive and may not be reviewed
by any other official or by any court.” 38 U.S.C. § 511(a) (emphases
added). The term “benefit” means “any payment, service,
commodity, function, or status, entitlement to which is
determined under laws administered by the Department of
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Veterans Affairs pertaining to veterans and their dependents and
survivors.” 38 C.F.R. § 20.3(e). This Court has explained that the
VJRA precludes judicial review of not only any substantive benefits
decision by the Secretary, but also any decision made by the
Secretary “in the course of” making a benefits determination.
Smith v. United States, 7 F.4th 963, 985 (11th Cir. 2021).
The district court held the VJRA precluded it from
reviewing the Pinsons’ claims. The district court explained that
“[e]ach count is based on benefits and reimbursement to which
Pinson contends he is entitled” and “[t]he crux of [the Pinsons’]
claims is to recover benefits that were wrongfully denied, and
damages arising therefrom.” Therefore, the Pinsons needed to
appeal to the Board, which had exclusive jurisdiction over these
types of claims.
The district court did not err in finding it lacked subject
matter jurisdiction under the VJRA. Each count in the complaint
is based on benefits and reimbursement to which Pinson contends
he was entitled. Even though the Pinsons allege tort claims, such
as intentional infliction of emotional distress and privacy
violations, these claims arise from the VA denying Pinson’s
benefits. Accordingly, the Pinsons’ claims can be reviewed only by
the federal courts that possess exclusive jurisdiction over claims
affecting veterans’ benefits.
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B. Exhaustion of Administrative Remedies
“The FTCA bars claimants from bringing suit in federal
court until they have exhausted their administrative remedies.”
McNeil v. United States, 508 U.S. 106, 113 (1993). A plaintiff has
exhausted his administrative remedies when he has “first presented
the claim to the appropriate Federal agency and his claim [has]
been finally denied by the agency in writing and sent by certified or
registered mail.” 28 U.S.C. § 2675(a).
“[A] claim shall be deemed to have been presented when a
Federal agency receives from a claimant . . . an executed Standard
Form 95 or other written notification of an incident . . . .” 28 C.F.R.
§ 14.2(a). The FTCA requires that each claim and each claimant
meet this prerequisite. See Turner ex rel. Turner v. United States,
514 F.3d 1194, 1200 (11th Cir. 2008).
The district court held that the Pinsons failed to exhaust
their administrative remedies because only Pinson submitted an
SF-95 to the VA, the SF-95 did not name his family members as
claimants, and Pinson failed to appeal the denial of his
administrative claim to the Board.
The district court did not err in finding that the Pinsons
failed to exhaust their administrative remedies under the FTCA.
Pinson’s SF-95 relates only to the denial of medical care and
benefits, which is “a classic veteran’s benefits claim . . . over which
the district court clearly lacked subject matter jurisdiction under
the VJRA.” Smith, 7 F.4th at 978–79. Consequently, each of
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Pinson’s claims either is subject to the VJRA or was not
administratively exhausted by filing a SF-95 under the FTCA. In
other words, each of Pinson’s claims either (1) is intertwined with
the VA’s alleged denial of medical care and benefits to Pinson (in
which case it is subject to the VJRA and subject matter jurisdiction
is lacking for that reason) or (2) was not administratively exhausted
because his SF-95 only covers denial of medical care and benefits.
Further, Pinson’s wife and six sons failed to present any
administrative claim to the VA because they did not submit an
SF-95 or “other written notification of an incident,” and Pinson did
not include them as claimants on his SF-95. 28 C.F.R. § 14.2(a).
Because Pinson’s wife and six sons failed to “individually satisfy the
jurisdictional prerequisite of filing a proper claim,” Dalrymple v.
United States, 460 F.3d 1318, 1325 (11th Cir. 2006) (quotation
marks omitted), the district court properly found it lacked subject
matter jurisdiction over their claims.
C. Statute of Limitations
A claimant must present his or her claim to the appropriate
agency within two years of the date on which the action accrues,
or it is “forever barred.” 28 U.S.C. § 2401(b). A cause of action
accrues, and the statute of limitations clock begins to run, when
“the facts which would support a cause of action are apparent or
should be apparent” to a reasonably prudent person. Rozar v.
Mullis, 85 F.3d 556, 561–62 (11th Cir. 1996) (quotation marks
omitted). “This rule requires a court first to identify the alleged
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injuries, and then to determine when plaintiffs could have sued for
them.” Id. at 562.
The district court held that the Pinsons’ claims were
time-barred. The court explained that Pinson submitted his SF-95
in December 2018, and he listed the date of his injuries as 2004 to
2015. Based on those dates, the district court said 2015 was the
latest his claims could have accrued, and therefore, the latest
Pinson could have filed his SF-95 was 2017.
The district court did not err in finding that the Pinsons’
claims were time-barred under the FTCA’s two-year statute of
limitations. In his SF-95, Pinson listed the date of his injuries as
2004 to 2015. Even if we assume arguendo Pinson had some
brand-new injuries in 2015, the statute of limitations began running
no later than 2015. Pinson thus exceeded the two-year statute of
limitations when he filed his SF-95 in December 2018. 2
2 In their brief, the Pinsons suggest equitable tolling may be appropriate here.
“Equitable tolling is appropriate when a movant untimely files because of
extraordinary circumstances that are both beyond [his] control and
unavoidable even with diligence.” Stamper v. Duval Cnty. Sch. Bd., 863 F.3d
1336, 1342 (11th Cir. 2017) (quotation marks omitted). The Pinsons bear the
burden of demonstrating equitable tolling of the limitations period is
appropriate. Dotson v. United States, 30 F.4th 1259, 1268 (11th Cir. 2022).
The Pinsons’ brief has simply included only law related to equitable tolling but
with no factual explanation of circumstances beyond their control or
unavoidable with due diligence.
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D. FTCA’s Intentional Tort Exception
As noted above, the Pinsons also appeal the district court’s
finding that the FTCA’s intentional tort exception does not apply
to their claims. Because we affirm the dismissal of the Pinsons’
FTCA claims based on failure-to-exhaust and statute-of-limitations
grounds, we need not reach this issue.
IV. CONCLUSION
For those reasons, we affirm the district court’s dismissal of
the Pinsons’ claims.
AFFIRMED.