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Peavey v. Holder

September 28, 2009


The opinion of the court was delivered by: Richard W. Roberts United States District Judge


Pro se plaintiff Morris J. Peavey, Jr., an African-American, Orthodox Muslim Army veteran, brings this action against the United States Attorney General, the Secretary of Veterans Affairs, the Archivist of the United States, the Director of the National Personnel Records Center ("NPRC"), the Secretary of the Treasury, and the Secretary of the Army in their official capacities, and against the Equal Employment Opportunity Commission ("EEOC") and the United States Postal Service ("USPS"), challenging several decisions by the Department of Veteran's Affairs ("VA") regarding his entitlement to benefits since his 1967 discharge from the Army, seeking to compel the release of records under the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552, and asserting a variety of claims based on the other named defendants' alleged harassment of Peavey since his Army service.*fn1 The defendants have moved to dismiss the complaint or, in the alternative, for summary judgment. Because there is no material factual dispute and the defendants are entitled to judgment as a matter of law on Peavey's FOIA claims, the defendants' motion, treated as a motion for summary judgment with respect to the FOIA claims only, will be granted. Because Peavey has failed to state any other claim entitling him to relief over which the district court has jurisdiction, the remainder of the complaint will be dismissed.


The complaint in this action consists of more than one hundred single-spaced paragraphs and more than 100 pages of attached exhibits. Portions of Peavey's allegations, which cover a timespan of more than forty years, beginning with the circumstances leading up to Peavey's discharge from the Army in 1967, are difficult to understand and are not clear enough to be illuminating. Peavey alleges that he bring claims against the defendants under the First, Fifth, Ninth, and Fourteenth Amendments; the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552; Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-5; 42 U.S.C. §§ 1981, 1983, 1985; 18 U.S.C. §§ 1001, 1503, 1505, 1512, 1519; and other unspecified common law tort theories. (Compl. at 2.)

Peavey appears to be challenging several VA decisions determining his entitlement to certain veterans benefits at various times since his discharge. The complaint provides a detailed description of his medical and benefits history since his discharge from the Army in 1967, and alleges that the VA incorrectly determined his disability rating on several occasions and improperly discontinued his benefits for a period of several months in 2001 and in May and June of 2003. Peavey states that he sought appeals to the Board of Veterans Appeals regarding certain benefits decisions in 1971, 1994, 2003, and 2004. (See Id. at 17.) He alleges that the VA's decisions not to provide him certain benefits were made with a discriminatory purpose, violated his rights to due process and equal protection under the law, and constituted an unconstitutional taking. (Id. at 15-16.) In addition, Peavey challenges the constitutionality of 38 U.S.C. § 511(a),*fn2 the statute limiting judicial review of decisions made by the VA Secretary. He contends that § 511(a) "conflicts with the constructs" of the First, Fifth, Ninth and Fourteenth Amendments and abridges his "rights and privileges which he would otherwise enjoy under the constitutional laws." (Id. at 3.)

Peavey brings FOIA claims against the NPRC and the VA, alleging that the NPRC, the VA, and the VA Hospital in Brooklyn, New York failed to fully respond to his FOIA requests for records regarding his military service and medical history. (Id. at 13-14, 23.) In addition, he contends, based upon the NPRC's and VA's failure to produce certain records related to his military service and medical treatment that he believes they possess, that the NPRC, the VA, and the Army have deliberately concealed, altered, or destroyed portions of his military and medical records in violation of FOIA and several criminal obstruction of justice statutes.*fn3 (Id. at 13, 17.) Peavey further claims that he filed a complaint with the Department of Justice ("DOJ") alleging that the VA and its agents altered, suppressed, or destroyed federal documents. (Id. at 20-21.) He contends that the DOJ did not properly investigate and bring charges based upon his complaint. (Id. at 21.)

In addition, Peavey alleges that the "IRS and EEOC [have] practiced harassment against [him] since 1983." (Id. at 11.) Specifically, Peavey contends that the IRS harassed him from 1983 to 2001 by filing at least one claim against him for back taxes, placing liens on his assets, "revoking licenses, taking assets, placing liens on assets" of his employers, and by subjecting his business clients to unwarranted audits because they were his business clients. (See Id. at 11-12.) He alleges that the EEOC violated his rights under Title VII, and his right to equal protection under the law by improperly handling a discrimination claim he filed in 1983. (Id.) Moreover, Peavey alleges that the USPS "acted to harass" him by interrupting his mail service for periods of time in 1983 to 1984 and 1990 to 1993, and on other occasions, by delaying delivery of or failing to deliver pieces of mail. (Aff. in Supp. of Compl. at 24.) Finally, Peavey seeks review of an Army Board for Corrections of Military Records ("ABCMR") decision on his May 9, 1968 application to correct his military records, alleging that the ABCMR failed to properly investigate his application for correction. (Compl. at 15.) Peavey requests $15,000,000 in damages for injuries caused by the defendants' actions, and other declaratory and injunctive relief, including an order declaring his right to certain benefits, compelling the Secretary of the Army and the Army Board of Corrections to amend his military records, and compelling the defendants to provide records which he requested from the NPRC and the VA. (Id. at 23-24.)

The defendants have filed a motion to dismiss under Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6) for lack of subject-matter jurisdiction and failure to state a claim upon which relief can be granted, or in the alternative, for summary judgment.*fn4 Peavey has filed a motion for summary judgment, two motions for declaratory judgment that repeat the allegations and requests for relief contained in Peavey's complaint and summary judgment motion, and two motions for leave to file documents he contends show the defendants' acts of "abuse of process."*fn5


"'On a motion to dismiss for lack of subject-matter jurisdiction pursuant to Rule 12(b)(1), the plaintiff bears the burden of establishing that the court has subject-matter jurisdiction.'" Peter B. v. C.I.A., 620 F. Supp. 2d 58, 67 (D.D.C. 2009) (quoting Shuler v. United States, 448 F. Supp. 2d 13, 17 (D.D.C. 2006)) (citing Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992)). A court must accept as true all of the factual allegations contained in the complaint, see Lujan, 504 U.S. at 560, and may also consider "'undisputed facts evidenced in the record.'" Randolph v. ING Life Ins. and Annuity Co., 486 F. Supp. 2d 1, 3 n.3 (D.D.C. 2007) (quoting Coalition for Underground Expansion v. Mineta, 333 F.3d 193, 198 (D.C. Cir. 2003)). The "nonmoving party is entitled to all reasonable inferences that can be drawn in [its] favor." Artis v. Greenspan, 158 F.3d 1301, 1306 (D.C. Cir. 1998); see also Barr v. Clinton, 370 F.3d 1196, 1199 (D.C. Cir. 2004); Bernard v. U.S. Dep't of Defense, 362 F. Supp. 2d 272, 277 (D.D.C. 2005).

A complaint can be dismissed under Rule 12(b)(6) when a plaintiff fails to state a claim upon which relief can be granted. See Fed. R. Civ. P. 12(b)(6).

To survive a motion to dismiss, a complaint must contain sufficient factual matter, acceptable as true, to "state a claim to relief that is plausible on its face." 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, 129 S.Ct. 1937, 1949 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 556, 570 (2007)). "[A] court 'must treat the complaint's factual allegations as true . . . and must grant plaintiff the benefit of all inferences that can be derived from the facts alleged.'" Holy Land Found. for Relief & Dev. v. Ashcroft, 333 F.3d 156, 165 (D.C. Cir. 2003) (quoting Sparrow v. United Air Lines, Inc., 216 F.3d 1111, 1113 (D.C. Cir. 2000)). On the other hand, the court is "not bound to accept as true a legal conclusion couched as a factual allegation." Iqbal, 129 S.Ct. at 1950 (internal quotation marks omitted). If a plaintiff fails to allege sufficient facts to support a claim, the complaint must be dismissed. See Twombly, 550 U.S. at 555.


Peavey brings claims challenging various benefits decisions made by the VA since Peavey's 1967 discharge from the Army and challenging the constitutionality of 38 U.S.C. § 511, the statute limiting judicial review of the VA's benefits decisions. The defendants allege that Peavey's claims challenging the VA's benefits determinations, including his claims alleging that the VA's acts violated his constitutional rights, should be dismissed under Rule 12(b)(1) for lack of subject matter jurisdiction and that Peavey's facial challenge to § 511 should be dismissed under Rule 12(b)(6) for failure to state a claim.

Under 38 U.S.C. § 511(a), 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," and review of the Secretary's decisions "may not be reviewed by any other official or by any court," except for limited matters listed in § 511(b) that are excluded from § 511(a)'s limit on judicial review. 38 U.S.C. § 511. Section 511(a) "precludes judicial review in Article III courts of VA decisions affecting the provision of veterans' benefits[.]" Price v. United States, 228 F.3d 420, 421 (D.C. Cir. 2000). Instead, under the scheme created by the Veterans' Judicial Review Act, Pub. L. No. 100-687, 102 Stat. 4105 (1988), "[t]he ...

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