United States District Court, District of Columbia
FREDERICK C. FERMIN, Plaintiff,
UNITED STATES OF AMERICA, et al., Defendants.
S. CHUTKAN UNITED STATES DISTRICT JUDGE.
matter is before the court on the United States' motion
to dismiss. (ECF No. 5). For the reasons discussed below, the
motion will be GRANTED.
Frederick Fermin, proceeding pro se, claims that he
suffered legal damages due to the perjury, fraud, and gross
negligence of the Department of Veterans Affairs
("VA") in deciding to deny his claim for disability
benefits related to brain damage resulting from care he
received in the 1940's. (See Attachment to
Compl. at 2). Fermin brings four "claims" against
the United States. First, he alleges that VA officials in the
Houston, Texas regional office "knowingly and
intentionally made concealment of the words chronic
disability" in denying his claim for disability
benefits, in violation of 18 U.S.C. § 1035. (Compl.
¶ 9). Second, Fermin alleges that "VA officials and
officers knowingly and intentionally committed conspiracy to
interfere with plaintiff Fermin's civil rights by
fraudulent concealment of [the] U.S. Army Hospital's
Certificate of Disability for Discharge." (Id.
¶ 10). Third, he claims that VA officials violated their
"duty to assist" him with his benefits claim.
(Id. ¶ 11) (citing 38 U.S.C. § 5103A).
Finally, Fermin accuses the VA disability ratings officers of
committing perjury. (Compl. ¶¶ 12-13) (citing 18
U.S.C. § 1001). He demands $2 million in damages.
(Id. ¶ 13).
United States moved to dismiss this action for lack of
subject matter jurisdiction pursuant to Federal Rule of Civil
Procedure 12(b)(1), and for improper venue pursuant to
Federal Rule 12(b)(3). (ECF No. 5 at 1). The court
subsequently entered an order requiring Fermin to respond to
Defendant's motion by January 23, 2017, and informed him
that the court might treat as conceded any arguments advanced
by the United States that he failed to address in his
opposition. (ECF No. 6). Fermin responded by filing four
separate documents, all consisting of responses to
Defendant's motion to dismiss. The first, titled
"Objection to Dismiss Plaintiffs Complaints Pursuant to
Title 28, U.S.C. Section 1361, as per Attached Exhibit A
& Response Via 28 F.R.C.P. Rule 12(f)(1), " cited
several statutes to establish the court's jurisdiction.
(ECF No. 7 at 1-2). Fermin also attached materials from an
action in the U.S. District Court for the Western District of
Texas concerning his real property. (ECF No. 7 at 5-13). In
the second, a motion to strike Defendant's motion to
dismiss the complaint, Plaintiff attached materials relating
to discrete settlements reached with the National Home Life
Assurance Company and State Farm Mutual Insurance. (ECF No.
8). The third filing was a "supplemental
memorandum" containing largely the same materials as the
motion to strike, but omitting the original second page. (ECF
No. 9). Fourth, Plaintiff filed "Plaintiffs Response to
Court Order Informing Plaintiff the Out[come] of the
Litigation, if Plaintiff Fails to File Response to Defendant,
" to which he attached Naporano Metal & Iron Co.
v. Secretary of Labor, 529 F.2d 537 (3d Cir. 1976). (ECF
to Federal Rule of Civil Procedure 12(b)(1), a defendant may
move to dismiss a complaint for lack of subject matter
jurisdiction. The party asserting jurisdiction has the burden
of demonstrating that the court has subject matter
jurisdiction, and "[t]here is a presumption against
federal court jurisdiction." Logan v. Dep 't of
Veterans Affairs, 357 F.Supp.2d 149, 153 (D.D.C. 2004)
(citing McNuttv. Gen. Motors Acceptance Corp.
oflnd., 298 U.S. 178, 182-83, (1936)). In evaluating a
motion to dismiss for lack of subject matter jurisdiction
under Rule 12(b)(1), a court must assume the truth of all
factual allegations and must review "the complaint
liberally, granting plaintiff the benefit of all inferences
that can be derived from the facts alleged." Am.
Nat'l Ins. Co. v. FDIC, 642 F.3d 1137, 1139 (D.C.
Cir. 2011) (quoting Thomas v. Principi, 394 F.3d
970, 972 (D.C. Cir. 2005)). Nevertheless, "the court
need not accept factual inferences drawn by plaintiffs if
those inferences are not supported by facts alleged in the
complaint, nor must the [c]ourt accept plaintiffs legal
conclusions." Disner v. United States, 888
F.Supp.2d 83, 87 (D.D.C. 2012) (quoting Speelman v.
United States, 461 F.Supp.2d 71, 73 (D.D.C. 2006)).
Finally, "a court may consider such materials outside
the pleadings as it deems appropriate to resolve the question
[of] whether it has jurisdiction to hear the case."
Scolaro v. D.C. Bd. of Elections & Ethics, 104
F.Supp.2d 18, 22 (D.D.C. 2000).
well established that "[c]ourts must construe pro
se filings liberally." Richardson v. United
States, 193 F.3d 545, 548 (D.C. Cir. 1999); Haines
v. Kerner, 404 U.S. 519, 520 (1972) (pro se
pleadings should be held "to less stringent standards
than formal pleadings drafted by lawyers"). But the
plaintiff must nevertheless establish a clear basis for
jurisdiction. Bickford v. United States, 808
F.Supp.2d 175, 179 (D.D.C. 2011) ("Although apro
se complaint is held to a less stringent standard than
other complaints, even a pro se plaintiff bears the
burden of establishing that the [c]ourt has subject matter
jurisdiction.") (citations omitted) (internal quotations
United States argues that the court lacks subject matter
jurisdiction because, pursuant to 38 U.S.C. § 511(a),
federal district courts cannot review VA determinations of
veteran benefits. (ECF No. 5 at 5). Section 511 provides that
"the decision of the [VA] Secretary as to any [benefits
determination] 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). A district court "may not hear
claims attempting to challenge impermissibly the underlying
VA benefits decisions." Melvin v. U.S. Dep 't of
Veterans Affairs, 70 F.Supp.3d 350, 358 (D.D.C. 2014).
To find otherwise would allow a federal district court to
"intrude upon the VA's exclusive jurisdiction."
Price v. United States, 228 F.3d 420, 422 (D.C. Cir.
2000). Instead, "[t]he exclusive avenue for redress of
veterans' benefits determinations is appeal to the Court
of Veterans Appeals and from there to the United States Court
of Appeals for the Federal Circuit." Id. at
"while the Secretary is the sole arbiter of benefits
claims and issues of law and fact that arise during his
disposition of those claims, district courts have
jurisdiction to consider questions arising under laws that
affect the provision of benefits as long as the Secretary has
not actually decided them in the course of a benefits
proceeding." Broudy v. Mather, 460 F.3d 106,
114 (D.C. Cir. 2006).
511 identifies four exceptions where the district court may
review the Secretary's decision. These include review of
agency rules and regulations (which is limited to the Court
of Appeals for the Federal Circuit), review of matters
involving service members' life insurance pursuant to 38
U.S.C. § 1975 and § 1984, matters pertaining to
housing and small business loans, and review in the Court of
Appeals for Veterans Claims as outlined in 38 U.S.C. §
7261. See 38 U.S.C. § 511(b). Plaintiffs claims
do not fall under any of these exceptions.
does not appear to dispute that a denial of benefits
underlies his claim. Interpreting Plaintiffs filings
liberally, he instead appears to assert that the court has
jurisdiction pursuant to the following seven statutes: 5
U.S.C. § 702, 18 U.S.C. § 1035, 28 U.S.C. §
1346, 28 U.S.C. § 1361, 38 U.S.C. § 7265(a)(1)(2),
42 U.S.C. § 12101(a)(5) and 42 U.S.C. § 1985(3).
(Compl. ¶ 1; ECF No. 7 at 1-2). He previously cited 38
U.S.C. § 5103A in his Complaint. None of these statutes
supports Plaintiffs position that this court has jurisdiction
over his claims.
5 U.S.C. § 702 is a provision of the Administrative
Procedure Act which allows for claims against the United
States arising out of legal wrongs caused by agency action,
but the APA does not "affect other limitations on
judicial review;" in other words, where section 511 has
limited judicial review of benefits determinations, section
702 of the APA does not provide an exception to or a way
around section ...