United States District Court, District of Columbia
ROBERT G. THORNTON, Plaintiff,
UNITED STATES OF AMERICA, et al., Defendants.
CHRISTOPHER R. COOPER, United States District Judge
Plaintiff Robert Thornton, a Vietnam War veteran, challenges
the Department of Veterans Affairs' (“VA”)
handling of his benefits claim. Thornton receives monthly
compensation payments from the VA for post-traumatic stress
dis and hearing loss. Over the last several years, he has
attempted to receive additional benefits. Though his
complaint is difficult to parse, Thornton appears to allege
that VA officials violated his Fifth Amendment due process
rights by conspiring to “defraud” him out of the
opportunity to have his claim for additional benefits
adjudicated. Complaint ¶ 19. Because the Court lacks
subject matter jurisdiction to decide Thornton's claim,
it will dismiss the case.
distributes benefits to veterans of the United States Armed
Forces based on a rating system that determines a
veteran's level of impairment due to an injury suffered
during active duty. 38 U.S.C. §§ 301(b), 1110; 38
C.F.R. § 4.1. Veterans seeking these benefits may first
file an “informal claim, ” followed by a
“formal claim.” 38 C.F.R. § 3.155(b), (d).
If the veteran disagrees with the VA's benefits
determination, he can file a Notice of Disagreement. In
response to the Notice of Disagreement, the VA can either
grant the requested benefit or issue a “Statement of
the Case, ” which explains its reasons for denying the
benefit. 38 U.S.C. § 7105(d)(1). The veteran then has 60
days to file a Substantive Appeal to the Board of Veterans
Appeals. Id. § 7105(d)(3). If a veteran
disagrees with the outcome of the administrative process, he
can appeal to the Court of Appeals for Veterans Claims
(“Veterans Court”) within 120 days of the
Board's decision. Id. § 7266(a). Veterans
Court decisions can be appealed to the United States Court of
Appeals for the Federal Circuit. Id. § 7292.
benefit claims have a complicated procedural history. He
filed an informal claim for veterans' benefits with the
VA in 2007. Later that year, he brought a formal claim
seeking benefits for hearing loss, tinnitus (ringing in the
ears), and Post Traumatic Stress Disorder
(“PTSD”). Thornton v. McDonald, 597 F.
App'x 641, 642 (Fed. Cir. 2015). The formal claim
resulted in a benefits determination that awarded Thornton
some PTSD benefits while denying his claims related to
hearing loss and tinnitus. Id. Between 2008 and
2012, Thornton disputed the VA's determination twice,
seeking increased disability ratings. These disputes
ultimately resulted in a 2012 decision that granted Thornton
a 100 percent PTSD rating while still denying his hearing
loss and tinnitus claims. Id. In 2013, Thornton
filed another Notice of Disagreement disputing the decision
on his hearing loss and seeking an earlier effective date for
his PTSD. Id.
months later, having not received a response from the VA,
Thornton filed a petition for a writ of mandamus with the
Veterans Court. Id. While that petition was pending,
the VA issued two decisions: 1) a decision granting Thornton
benefits for his hearing loss and an effective date for his
PTSD, hearing loss, and tinnitus of March 1, 2007, the date
that he had initially requested in his informal claim; and 2)
a Statement of the Case denying him an effective date for
PTSD earlier than March 1, 2007. Complaint Ex. E. Meanwhile,
the Veterans Court denied Thornton's mandamus claim,
which he then appealed to the United States Court of Appeals
for the Federal Circuit. The Federal Circuit affirmed the
Veterans Court's decision. Thornton, 597 F.
App'x at 643-44.
point, Thornton attempted to appeal the VA's Statement of
the Case denying him an earlier effective PTSD date to the
Board of Veterans Appeals. Thornton v. McDonald, 626
F. App'x 1007 (Fed. Cir. 2015). However, that appeal was
not accepted because it was filed after the 60-day deadline.
Id. So Thornton filed another writ of mandamus with
the Veterans Court seeking an order that would force the
Board of Veterans Appeals to hear his appeal. The Veterans
Court denied that petition, Thornton v. McDonald,
2015 WL 4591675 (Vet. App. July 30, 2015), and the Federal
Circuit affirmed. Thornton then filed another motion in the
Veterans Court to reopen the case, which the Court denied and
the Federal Circuit again affirmed. Thornton v.
McDonald, 626 F. App'x at 1007. Finally, Thornton
filed suit in this Court, accusing the VA of fraudulently
preventing him from appealing his claim to the Board of
Veterans Appeals in violation of his Fifth Amendment rights.
Complaint ¶¶ 14, 17.
Standard of Review
motion to dismiss pursuant to Federal Rule of Civil Procedure
12(b)(1), the plaintiff bears the burden of establishing the
Court's subject matter jurisdiction. Kokkonen v.
Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994).
The Court must accept the plaintiff's factual allegations
as true. United States v. Gaubert, 499 U.S. 315, 327
(1991). And pro se complaints, “however inartfully
pleaded, must be held to less stringent standards than formal
pleadings drafted by lawyers.” Erickson v.
Pardus, 551 U.S. 89, 94 (2007) (internal citation
This Court Does Not Have Subject Matter Jurisdiction over
Veterans' Benefit Act of 1957, as amended by the Veterans
Judicial Review Act, precludes this Court from reviewing VA
decisions “affecting the provision of veterans'
benefits.” Price v. United States, 228 F.3d
420, 421 (D.C. Cir. 2000). Specifically, 38 U.S.C. § 511
states that the VA's decisions about “. . . all
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.” The exclusive
avenue for appeal of a VA benefits determination is through
the Court of Veterans Appeals, and from there to the United
States Court of Appeals for the Federal Circuit.
Price, 228 F.3d at 421.
III courts can, however, review some actions of the VA. The
key is that the challenged actions cannot raise questions of
law or fact “necessary to a decision by the Secretary
under a law that affects the provision of benefits.”
Thomas v. Principi, 394 F.3d 970, 974 (D.C. Cir.
2005). Under this formulation, district courts can hear suits
alleging certain torts committed by the VA where the suit
does not require first determining whether the VA
“acted properly” with respect to a benefits
request. See id. at 974-75 (allowing Article III
court to hear a tort claim based on the VA's withholding
of a schizophrenia diagnosis because no benefits
determination “underlies” that allegation).
Additionally, some circuits have allowed Article III courts
to review certain facial constitutional challenges to the
VA's general claim-review procedures because a
“consideration of the constitutionality of the
procedures in place . . . is different than a consideration
of the decisions that emanate through the course of the
presentation of those claims.” See, e.g.,
Veterans for Common Sense v. Shinseki, 678 F.3d
1013, 1034 (9th Cir. 2012). In other words, the power of an
Article III court to review an action of the VA turns on
whether the reviewing court would have to evaluate the
propriety of an individual veteran's benefits
determination. This distinction turns on the
“substance” of a plaintiff's claim rather
than the labels he assigns it. Thomas, 394 F.3d at
Thornton alleges that fraud committed by the VA prevented him
from appealing his benefits claim to the Board of Veterans
Appeals in violation of his constitutional rights. Complaint
¶ 15. Specifically, Thornton alleges that the VA
misconstrued his 2015 Substantive Appeal as a Notice of
Disagreement in order to manufacture a timeliness issue with
his appeal to the Board. Id. ¶¶ 25-26. He
also alleges that the VA destroyed evidence relevant to his
claim. Id. ¶ 27 (allegation that the VA
“orchestrated the concealment of missing medical