Cpl JamesR.AndersonUSMC11022885DAV 22001L12944COVA 03-0639: February 2009

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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.

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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.

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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

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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

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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.

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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).

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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.

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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.

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Saturday, February 28, 2009

Betrayal US Constitution_Oath of Office

Wednesday, February 25, 2009

VA Judicial Review Act of 1988

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