Sharons Video Bar

Loading...

Wednesday, February 25, 2009

VA Judicial Review Act of 1988



LATEST SUMMARIES


ADMINISTRATIVE LAW, GOVERNMENT BENEFITS, MILITARY LAW
Mehrkens v. Blank, No. 07-3303
In suit arising out of dispute over VA benefits, the district court's grant of defendant's motion for summary judgment for lack of subject matter jurisdiction is affirmed where the Veterans' Judicial Review Act of 1988 created an exclusive review procedure for claims related to the denial or delay of benefits.
Read more...


http://caselaw.lp.findlaw.com/data2/circs/8th/073303p.pdfUnited States Court of Appeals


FOR THE EIGHTH CIRCUIT


___________


No. 07-3303


___________


Kent Mehrkens, *


*


Appellant, *


* Appeal from the United States


v. * District Court for the


* District of Minnesota.


Art Blank, M.D.; Gilbert Westreich, *


M.D.; Harry K. Russell, M.D.; *


John Does I; Jane Roes I; C.A. Foye; *


Ronald J. Henke; Charles Milbrandt; *


John Does II; Jane Roes II, *


*


Appellees. *


___________


Submitted: October 17, 2008


Filed: February 25, 2009


___________


Before LOKEN, Chief Judge, BYE, and SMITH, Circuit Judges.


___________


SMITH, Circuit Judge.


Kent Mehrkens commenced this action in Minnesota state court, and the United


States removed the case to federal district court. Mehrkens filed this action against


doctors and employees of the Department of Veterans Affairs ("VA officials") seeking


damages under 42 U.S.C. §§ 1983 and 1985 and under the principles of Bivens v. Six


Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971).


1Specifically, Mehrkens filed suit against Art Blank, M.D., Gilbert Westreich,


M.D., Harry K. Russell, M.D., John Does I and Jane Roes I, C.A. Foye, Ronald J.


Henke, John Does II and Jane Roes II, and Charles Milbrandt.


2The Honorable Richard H. Kyle, United States District Judge for the District


of Minnesota.


-2-


Mehrkens alleged that it was beyond the scope of the VA officials'1 employment to


lie to him and others about his Post-Traumatic Stress Disorder (PTSD) and to


withhold treatment from him. According to Mehrkens, these VA officials "interfered


with and deprived" him "of his rights to medical care and other veterans' benefits." He


also alleged that they "knowingly and intentionally conspired . . . to misrepresent the


facts and diagnoses from him and deny him his equal rights and privileges to medical


care and veterans' benefits" and "induced others" to "withhold from [Mehrkens] his


rights to treatment and veterans' benefits." Finally, Mehrkens alleged that the VA


officials violated his due-process rights by withholding information from him about


his diagnosis of PTSD and preventing him from obtaining proper treatment for that


condition. The district court2 concluded that it lacked subject matter jurisdiction,


granted the VA officials' motion for summary judgment, and dismissed Mehrkens's


claims without prejudice. Because we agree that the district court lacked subject


matter jurisdiction, we affirm.


I. Background


A. Facts


Kent Mehrkens, a Vietnam War veteran, sought treatment from the Minneapolis


VA Medical Center after experiencing "a loss of conscious control of his actions."


Mehrkens alleges that physicians at the VA had diagnosed him with PTSD, but


intentionally withheld this information from him and failed to provide treatment for


this condition.


-3-


In 1992, Mehrkens filed a claim for military service-connected PTSD with the


VA Regional Office. Later that year, the VA denied his PTSD claim because "the


diagnosis of PTSD was not supported by the details of any service-connected stressor"


and the medical evidence did not show symptoms of PTSD. In 1993, he reopened his


claim, but the VA denied his claim in 1994, citing no diagnosis of PTSD and stating


that the evidence in the record did not show symptoms of PTSD. The Disabled


American Veterans organization filed a claim on Mehrkens's behalf in 1999. The VA


denied this claim as well because the diagnosis of PTSD was not supported by any


symptoms and also finding that there was no evidence of a specific combat stressor.


In 2001, Mehrkens moved to reopen his claim, but the VA later ruled that there was


no new and material evidence to justify reopening his case. In 2003, Mehrkens filed


a Notice of Disagreement with the decision. Upon review, the VA reversed its prior


decisions and granted VA benefits to Mehrkens for PTSD, retroactive to 1992. That


same year Mehrkens was issued two payments for retroactive benefits totaling


$216,246. Mehrkens currently receives $2,610 monthly in benefits payments.


B. Procedural History


In 2004, after being granted his retroactive payments, Mehrkens filed a claim


with the VA under the Federal Tort Claims Act for medical malpractice and


negligence. In 2005, he filed the current action in Minnesota state court, but the


United States removed the case to federal court. Mehrkens alleged that because the


VA doctors lied to him about his diagnosis and withheld treatment from him, they


"deprived him of his rights to medical care and other veterans' benefits." Mehrkens


sought damages under 42 U.S.C. § 1983 and under the principles of Bivens. He also


sought damages under 42 U.S.C. § 1985, alleging that the VA officials "knowingly


and intentionally conspired" to misrepresent his treatment and "withheld treatment and


benefits." Finally, he alleged that VA officials violated his due-process rights by


withholding information about his diagnosis and preventing him from obtaining


proper treatment. He asserts that this violation "deprived him of his rights to medical


care and other veterans' benefits." Mehrkens insists that he is not attempting to


-4-


relitigate his benefits case. According to Mehrkens, he seeks damages only for the VA


officials' alleged misrepresentations about his PTSD and the alleged conspiracy to


withhold information from him about his condition. Their acts, he contends, prevented


him from obtaining proper medical treatment outside the VA.


The district court found that because the Veterans' Judicial Review Act of 1988


(VJRA), 38 U.S.C. § 511(a), created an exclusive review procedure for veterans to


resolve their disputes, it lacked jurisdiction over Mehrkens's claims, despite


Mehrkens's contention that they sounded in constitutional and tort law. The district


court found that because Mehrkens was essentially challenging a decision affecting


his benefits by bringing a constitutional claim, the district court's jurisdiction was


preempted by the VJRA. See generally Hicks v. Veterans Admin., 961 F.2d 1367,


1369 (8th Cir. 1992) (holding that a First Amendment challenge to a denial of benefits


was beyond the reach of federal court jurisdiction). The district court found that


because Mehrkens sought review of the VA's actions taken in connection with his


claim for benefits, this effectively amounted to a challenge to the underlying benefits


decision. Weaver v. United States, 98 F.3d 518, 519–20 (10th Cir. 1996) (holding that


claims for veteran disability benefits are unreviewable in federal courts).


The district court also denied Mehrkens's Bivens claim, finding that because


Congress had set up an elaborate remedial scheme regarding VA benefits, the Bivens


action could not lie. Bush v. Lucas, 462 U.S. 367, 388–89 (1983) (holding that an


elaborate remedial system prevented a NASA employee from bringing a Bivens action


based on a First Amendment violation against a NASA director); see also Schweiker


v. Chilicky, 487 U.S. 412, 428–29 (1988) (holding that Social Security recipients did


not have a private right of action against federal administrators because Congress set


up other remedies). In short, because Congress provided an exclusive review


procedure, it has indicated that the federal courts should not exercise jurisdiction over


VJRA claims. Sugrue v. Derwinski, 26 F.3d 8, 12 (2d Cir. 1994) (declining to imply


-5-


a Bivens remedy against VA employees arising from denial of benefits); accord


Zuspann v. Brown, 60 F.3d 1156, 1161 (5th Cir. 1995).


Based on these principles of law, the district court concluded that it lacked


subject matter jurisdiction, granted the VA officials' motion for summary judgment,


and dismissed Mehrkens's case without prejudice.


II. Discussion


On appeal, Mehrkens asks this court to reverse the lower court's summary


judgment disposition, arguing that VA officials interfered with his constitutional right


to seek medical treatment and that the district court has jurisdiction to hear this


constitutional claim. Moreover, he argues that the district court did not properly


address his §§ 1983 and 1985 claims. We affirm.


A. Standard of Review


We review a grant of summary judgment de novo, applying the same standard


as the district court. Henerey v. City of St. Charles, Sch. Dist., 200 F.3d 1128, 1131


(8th Cir. 1999). Summary judgment should be granted if the evidence, viewed in the


light most favorable to the nonmoving party, indicates that no genuine issue of


material fact exists and that the moving party is entitled to judgment as a matter of


law. Id.; Fed. R. Civ. P. 56(c). A party opposing summary judgment may not rest upon


mere allegations or denials contained in the pleadings, but must, by sworn affidavits


and other evidence, set forth specific facts showing that there is a genuine issue for


trial. Fed. R. Civ. P. 56(e).


B. Subject Matter Jurisdiction


Mehrkens alleges that the VA officials interfered with his right to get private


medical care by misrepresenting his condition. Mehrkens argues that he should be


allowed to seek redress in federal court because the VA officials' misrepresentations


violated his federal constitutional rights. Mehrkens further contends that if the VJRA


3The VJRA can be found in various sections of Title 38 of the United States


Code.


-6-


is his exclusive remedy then he is left without a remedy because the VJRA does not


give the VA jurisdiction to grant damages for withholding of treatment. We hold that


the VJRA is Mehrkens's exclusive remedy and affirm.


1. VJRA


In 1988, Congress enacted the VJRA3 to establish a framework for the


adjudication of veterans' benefits claims. The process begins with the veteran filing


a claim for benefits with a regional office of the Department of Veterans Affairs and


includes several levels of appeal. The regional office decides all questions of law and


fact as they relate to the claim. 38 U.S.C. § 511(a). If aggrieved, the claimant may then


appeal to the Board of Veterans' Appeals (BVA). 38 U.S.C. § 7104. BVA decisions


may be appealed to the Court of Appeals for Veterans Claims, to which Congress


vested exclusive jurisdiction to review BVA decisions. 38 U.S.C. § 7252(a).


Claimants may appeal unsatisfactory decisions of the Court of Appeals for Veterans


Claims to the Federal Circuit, which has exclusive appellate jurisdiction over such


matters. 38 U.S.C. § 7292. Finally, a claimant may appeal to the Supreme Court. 38


U.S.C. § 7291.


2. Bivens and its Progeny


In Bivens, the Supreme Court established a right of individuals to sue individual


federal agents for damages for unconstitutional conduct in violation of the Fourth


Amendment. Bivens, 403 U.S. at 389. The Court later extended this holding to


encompass violations of the Fifth Amendment, Davis v. Passman, 442 U.S. 228,


248–49 (1979), and the Eighth Amendment, Carlson v. Green, 446 U.S. 14, 32–33


(1980).


-7-


Later, in Bush v. Lucas, the Supreme Court held that a Bivens claim could not


lie for a First Amendment violation by a Civil Service Commission supervisor. 462


U.S. 367, 368 (1983). The Bush Court assumed that a federal right had, in fact, been


violated and that the petitioner did not have an adequate remedy apart from a Bivens


action. Id. at 373. But the Court noted that constitutional challenges are fully


cognizable under Congress's elaborate Civil Service Commission scheme. Id. at 386.


The Court stressed that the fact that the wrong would otherwise go unredressed was


irrelevant. Id. at 388. The real question was whether Congress had set up a plan after


careful attention to conflicting policy considerations. Id. If Congress had set up such


an elaborate scheme in a particular area, then courts should not augment that scheme


by creating a Bivens remedy. Id. Because Congress could better evaluate the impact


of a Bivens remedy, the Court declined to exercise jurisdiction. Id. at 389–90. That


same year, in Chappell v. Wallace, the Court declined to extend Bivens to military


personnel seeking damages for constitutional violations. 462 U.S. 296, 297 (1983).


Because Congress had plenary control over the military and had not provided for


damages remedies in this context, the Court would not encroach upon Congress's


authority and judicially create a new remedy. Id. at 301, 307. Finally, in Schweiker v.


Chilicky, the Supreme Court refused to judicially create a due-process violation


remedy for the denial of Social Security disability benefits because Congress had set


up a complex remedial scheme in the Social Security area but had not created a Bivens


remedy. 487 U.S. 412, 414 (1988); see also United States v. Stanley, 483 U.S. 669,


684 (1987) (refusing to create a Bivens remedy for a due-process violation by a


military superior for fear that liability would be increased by a judicially-created


remedy).


In the instant case, Mehrkens attempts to bring a Bivens action against VA


officials for alleged constitutional violations committed while handling his benefits


claim. We note the Supreme Court has applied Bivens sparingly outside of the Fourth


Amendment context and never in the context of a complex statutory remedial scheme.


We decline to create a Bivens remedy in this case. See Bush, 462 U.S. at 389–90.


-8-


Congress has preempted the field for veterans' benefits and set up an elaborate


remedial scheme and, therefore, that body is better suited to augment that scheme with


new remedies. See Schweiker, 487 U.S. at 414. Considering Congress's careful


structuring of the VJRA, we will not assume that Congress inadvertently failed to


provide Bivens-type relief. See supra Part II.B.1.


Furthermore, Mehrkens is bringing a claim only for a delay of benefits. Had he


been granted benefits in 1992 instead of 2004, he would not have brought the current


action. In this case, there is no meaningful legal difference between a delay of benefits


and an outright denial of benefits. In either case, Congress has charged the VJRA with


exclusive jurisdiction. See 38 U.S.C. §§ 511(a)–7292. This holding aligns us with our


sister circuits who have addressed similar issues. See Beamon v. Brown, 125 F.3d 965,


966 (6th Cir. 1997) (refusing constitutional challenge for delays in veterans claims in


federal court system); Weaver v. United States, 98 F.3d 518, 519–20 (10th Cir. 1996)


(refusing jurisdiction where claimant brought a conspiracy and fraud challenge


because VA employees allegedly concealed his medical records); Hicks v. Small, 69


F.3d 967, 969–70 (9th Cir. 1995) (refusing to allow a Bivens action due to the VJRA's


comprehensive, remedial structure); Zuspann v. Brown, 60 F.3d 1156, 1159–60 (5th


Cir. 1995) (refusing to grant a Bivens remedy for constitutional violations because


Congress had set up an elaborate remedial structure through the VJRA and because


appellant was merely "complaining about a denial of benefits"); Sugrue v. Derwinski,


26 F.3d 8, 10 (2d Cir. 1994) (refusing to recognize a Bivens action for alleged dueprocess


violations for failure of VA doctors to maintain medical records with accuracy


and completeness). Because we lack subject matter jurisdiction, Mehrkens's claim is


denied.


C. Sections 1983 and 1985 Claims


Mehrkens also argues that his case should be remanded so the district court may


expressly rule on his §§ 1983 and 1985 claims. Because these claims are without


merit, we decline to remand.


-9-