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VERNER v. UNITED STATES GOVT.

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA


October 26, 1992

ROBERT J. VERNER, Plaintiff,
v.
UNITED STATES GOVERNMENT, Defendant.

The opinion of the court was delivered by: STANLEY S. HARRIS

MEMORANDUM ORDER

 Before the Court is plaintiff's motion for a preliminary injunction, defendant's motion to dismiss and opposition to plaintiff's motion for a preliminary injunction, plaintiff's opposition thereto, and defendant's reply. Upon careful consideration of the entire record, the Court dismisses most of the case for lack of subject matter jurisdiction and, due to lack of venue in the District of Columbia, transfers the case to the United States District Court for the Western District of Texas. See Fed. R. Civ. P. 12(b)(1), (3). "Findings of fact and conclusions of law are unnecessary on decisions of motions under Rule 12 or 56." Fed. R. Civ. P. 52(a). Nevertheless, for the benefit of the parties, the Court sets forth briefly its reasoning.

 Background

 Plaintiff's fifty-two page complaint sets forth in detail his medical history and

 centers primarily on activities of the old Veterans Administration and the new Veterans Affairs, . . . which is now controlled by the President (Executive Department), via his cabinet Secretary of Veteran Affairs, who ruled over the Bureau of Veteran Affairs . . ., who preside over Veteran Affairs Regional Offices . . .; who in turn preside over some 127 Veteran Affair Hospitals . . . .

 Complaint at 2-3.

 Plaintiff's first eleven "claims" (hereinafter referred to as counts) allege "negligent omissions" and rely on the Federal Tort Claims Act (FTCA) for relief. See Complaint at 7-42. Plaintiff's next four counts allege violations of his rights under the Constitution, see Complaint at 43-49, although his opposition appears to maintain that these counts are also brought pursuant to the FTCA, see Plaintiff's Opposition, at 4. *fn1" In addition to this suit, plaintiff has appealed his most recent disability rating to the Board of Veterans Appeals. That appeal has been remanded to the VA Regional Office (VARO) in Waco, Texas, and is apparently still pending. See Defendant's Motion, Exh. B.

 Defendant moves to dismiss based on lack of subject matter jurisdiction, improper venue, and failure to state a claim upon which relief can be granted. In the alternative, defendant requests that the action be transferred to the United States District Court for the Western District of Texas.

 Discussion

 Although the Court concludes that the case should be transferred, it first addresses its subject matter jurisdiction.

 The FTCA Counts

 Under the FTCA, prior to filing suit, a claimant must make a presentment of his claims to an agency setting forth "(1) a written statement sufficiently describing the injury to enable the agency to begin its investigation, and (2) a sum-certain damages claim." GAF Corp. v. United States, 260 U.S. App. D.C. 252, 818 F.2d 901, 919 (D.C. Cir. 1987). In addition, such presentment must be made within two years of the alleged negligent act; and, if the claim is denied by the agency, the claimant must file suit within six months of the notice of final denial. See 28 U.S.C. § 2401(b); Liles v. United States, 638 F. Supp. 963, 966 (D.D.C. 1986) (citing Schuler v. United States, 202 U.S. App. D.C. 199, 628 F.2d 199, 201-02 (D.C. Cir. 1980) (en banc) (per curiam)) (other citations omitted).

 Here, plaintiff filed a claim, seeking $ 5,000,000, with the Department of Veterans affairs (VA) on July 8, 1991. See 28 C.F.R. § 14.2(a) ("For purposes of the provisions of 28 U.S.C. § 2401(b), . . . a claim shall be deemed to have been presented when a Federal agency receives from a claimant . . . written notification of an incident . . . ."); Defendant's Motion, Exh. E (showing plaintiff's claim received on July 8, 1991). Therefore, plaintiff's complaint is barred as to all claims which accrued prior to two years before that date. *fn2" See Liles, 638 F. Supp. at 966-67. Accordingly, the FTCA count one (alleging negligence by the Denver VA Hospital on September 8, 1983), count two (alleging negligence by the Denver VARO Hospital and the Denver VA Hospital in 1983-1984), count three (alleging lack of investigation by Congress in 1983 and 1987-1988), count four (alleging negligence by the VA in 1983-1984 and arguably through 1988 regarding lost files), count five (alleging negligence by the El Paso Clinic of the VA and the Waco VARO in 1988), and count eight (alleging negligent refusal to admit plaintiff by the VA and the Tucson VA hospital on July 4, 1989), are time-barred and must be dismissed for lack of subject matter jurisdiction.

 Some of plaintiff's claims also fail to meet the presentment requirement, including, but not limited to, the FTCA counts six, nine, ten and eleven. *fn3" Plaintiff's notice to the agency was insufficient to allow the agency to investigate count nine, "negligent representation of [plaintiff] at VA hearings by negligent omissions and/or commissions." Complaint at 35. This count raises a general claim, with no specific dates alleged. The only statement in plaintiff's notice which could possibly be read to encompass this count are the following statements:

 Currently VA has set up mythical hearings in Waco, Texas with mythical File numbers failing to apprise this veteran of applicable Court of veteran Claims numbers or Bureau numbers. The purpose is to conceal facts from the veteran herein and cause him to miss Statutes of limitation despite the fact VA is charged with helping Veteran to present his claim per Congressional legislation.

 See Defendant's Motion, Exh. E, at 2-3.

 This is insufficient to meet the requirement of § 2675(a) as to the allegations raised in count nine. Accordingly, the FTCA count nine is dismissed for lack of subject matter jurisdiction for failure to exhaust administrative remedies.

 Likewise, plaintiff's notice to the agency failed to identify adequately the FTCA counts ten and eleven. In count ten he alleges that in April 1990, "Waco VARO deducted about $ 25.00 from that particular month's disability payment without any explanation; and since then have failed and refused to explain this unauthorized taking of [plaintiff's] property." Complaint at 41. In count eleven, he claims that the "VA without authority and against express instructions to the contrary, took this surplus [from plaintiff's last payment on a loan] and applied it to [another of plaintiff's loans] of 4% reducing the balance of said loan in said sum." Complaint at 42. The only reference to this in plaintiff's notice to the agency -- "the arbitrary confiscation of this Claimant's bank account by said VA for alleged overpayment never explained" -- is clearly insufficient to put the agency on notice of his claim or to allow the agency to investigate. Therefore, counts ten and eleven are dismissed for lack of subject matter jurisdiction.

 Only plaintiff's FTCA counts six and seven can survive this motion to dismiss. *fn4" However, although this Court has subject matter jurisdiction, it is not the appropriate venue. See 28 U.S.C. § 1402(b). *fn5" Accordingly, the remainder of the case will be transferred to the United States District Court for the Western District of Texas. *fn6"

 The Constitutional Counts

 As to constitutional count one, although worded as a fifth amendment takings claim, to the extent it states a claim at all, it is merely a challenge to an eligibility and benefits determination made by the VA. Similarly, constitutional count two challenges a VA determination of eligibility. Review by this Court is clearly barred by 38 U.S.C. § 511(a). See 38 U.S.C. § 511(a) ("The Secretary shall decide all questions of law and fact necessary to a decision . . . under a law that affects the provision of benefits . . . to veterans . . . . The decision . . . as to any such question shall be final and conclusive and may not be reviewed by any other official or by any court . . . ."). Therefore, constitutional counts one and two are dismissed for lack of subject matter jurisdiction.

 As to constitutional counts three and four, these counts merely re-allege in constitutional language claims raised elsewhere in the complaint. As in Deloria v. Veterans Administration, plaintiff "struggles to elevate a commonplace tort violation into a constitutional challenge." Deloria v. Veterans Admin., 927 F.2d 1009, 1013 (7th Cir. 1991). Plaintiff cannot circumvent either § 511(a) or the exhaustion requirement of the FTCA by making sweeping, unsubstantiated allegations of unconstitutionality. See id. Accordingly, counts three and four are also dismissed for lack of subject matter jurisdiction.

 Preliminary Injunction Request

 Plaintiff's preliminary injunction involves matters outside the scope of his complaint -- two incidents in 1992 when plaintiff experienced medical difficulties. He seeks an order mandating defendant to provide him with care at the private doctor of his choice and an injunction barring defendant from preventing plaintiff from receiving emergency treatment. The Court is clearly barred by § 511 (a) from issuing such an order. See 38 U.S.C. § 511(a). *fn7" Therefore, the motion is denied and the claims therein are dismissed for lack of subject matter jurisdiction.

 Conclusion

 Accordingly, for the reasons stated above, it hereby is

 ORDERED, that plaintiff's case is dismissed for lack of subject matter jurisdiction as to the FTCA counts one, two, three, four, five, eight, nine, ten, and eleven, and constitutional counts one, two, three, and four. It hereby further is

 ORDERED, that plaintiff's motion for a preliminary injunction is denied. It hereby further is

 ORDERED, that the claims raised in plaintiff's motion for a preliminary injunction are dismissed for lack of subject matter jurisdiction. It hereby further is

 ORDERED, that the case, which has only the FTCA counts six and seven remaining, is transferred to the Waco Division of the United States District Court for the Western District of Texas.

 SO ORDERED.

 Stanley S. Harris

 United States District Judge

 Date: OCT 26 1992


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