United States District Court, E.D. New York
April 12, 2004.
JOHN P. BARNES, Plaintiff,
U.S., DEPARTMENT OF VETERANS AFFAIRS, TOGO D. WEST, JR., BROOKLYN VETERANS AFFAIRS MEDICAL CENTER, Defendant.
The opinion of the court was delivered by: SANDRA J. FEUERSTEIN, District Judge
OPINION & ORDER
Pro se plaintiff John P. Barnes ("plaintiff" or "Barnes")
claims the United States of America ("United States") and the
Brooklyn Veterans Affairs Medical Center ("BVAMC") committed
medical malpractice and that the Department of Veterans Affairs
("DVA") wrongfully denied his claims for compensation for
military service-connected disabilities. Defendants United
States, the DVA, Togo G. West, Jr., and the BVAMC (collectively,
"defendants") have moved to dismiss the complaint. For the
reasons set forth below, the motion is GRANTED.
Plaintiff served in the United States Army from 1975 through
1979. (DiTeodoro Decl. para. 4). On August 25, 1992, plaintiff
filed his first application for service-connected disability
compensation based upon a diagnosis of testicular and lymph node
cancer. (Id. exh. A). Plaintiff later amended his claim to include his cancer treatment and two
cancer-related operations in 1992. (Id. exh. B). On May 18,
1994, the DVA denied plaintiff's service-connected compensation
claims based upon testicular cancer, probable mononucleosis,
alcohol abuse, and peptic ulcer cancer.*fn1 (Id. exh. C).
Plaintiff requested a hearing but failed to appear for two
scheduled hearings. (Id. exh. D).
On or about March 3, 1999, plaintiff filed a Standard Form 95,
Claim for Damage, Injury, or Death with the DVA's Office of
Regional Counsel. (Id. exh. H). In his administrative claim,
plaintiff alleged that his service in the United States Army
caused him to suffer from testicular and lymphatic cancer,
tinnitus, duodenal ulcers, Raynaud's phenomenon, scoliosis,
mononucleosis, tuberculosis, chronic pain, drug addiction, and
mental illness. (Id.). Plaintiff further alleged that the DVA
improperly prescribed psychiatric medication and negligently
discharged him from the hospital in April 1997, resulting in his
subsequent criminal conduct for which he is currently
In April 1999, plaintiff filed again for service-connected
compensation, claiming testicular and lymphatic cancer, tinnitus,
duodenal ulcers, Raynaud's phenomenon, scoliosis, chronic pain in
the spine, back, neck and stomach, mononucleosis, tuberculosis,
and mental illness. (Id. exh. E). On November 15, 1999, the DVA
denied plaintiff's claims relating to the cancer, duodenal
ulcers, and mononucleosis because these claims were previously
denied by the DVA in 1994 and plaintiff's right to appeal had
expired. (Id. exh. F). Plaintiff then amended his application
several more times to include compensation claims for malignant
tumors, non-Hodgkins lymphoma, subliminal hepatoxic effects, osteoarthritis,
gastroenteritis, gastritis, and the loss of his right testicle.
(Id. exh. G).
On January 28, 2000, the DVA denied plaintiff's administrative
claim, and noted that an investigation "into the facts and
circumstances surrounding this case has failed to reveal any
negligence on the part of the VA." (Id. exh. I). Plaintiff
filed an amended administrative claim in February 2000, (Id.
exh. J), and the DVA advised plaintiff that the amendments could
not be accepted since his underlying claims were previously
denied. (Id. exh. K).
On June 15, 2000, plaintiff commenced this action against
defendants. (Compl.). The complaint alleges medical malpractice,
that the "willful misconduct" classifications in 38 U.S.C. § 105
(2004) and 38 C.F.R. § 3.301 (2004) are unconstitutional, and
that the DVA wrongfully denied plaintiff's claim for
service-connected compensation. (Id.).
Plaintiff's remaining claims for service-connected benefits
were denied on July 5, 2002. (Letter from Kenneth A. Stahl,
Assistant U.S. Attorney, April 7, 2004, exh. A). His April 7,
2003 request for reconsideration is currently pending. (Id.,
A. Federal Tort Claims Act
1. Proper Defendants
The Federal Tort Claims Act ("FTCA") authorizes suits only
against the United States, 28 U.S.C. § 2680(a) (2000); Sprecher
v. Granber, 716 F.2d 968, 973 (2d Cir. 1983), and not against
federal agencies and federal officials acting in their official
capacities. 28 U.S.C. § 2679(a), (b)(1); Rivera v. United
States, 928 F.2d 592, 608 (2d Cir. 1991). Hence, the FTCA claims against the DVA and BVAMC are dismissed.
Plaintiff failed to specify the capacity in which Togo G. West,
Jr. ("West, Jr.") was sued. However, the totality of the
complaint and the course of proceedings show that plaintiff
intended to sue West, Jr. only in his official capacity. See
Yorktown Med. Lab., Inc. v. Perales, 948 F.2d 84, 88-89 (2d
Cir. 1991) (holding that courts "must look to the totality of the
complaint as well as the course of proceedings to determine
whether the defendants were provided with sufficient notice of
potential exposure to personal liability"). First, the cover page
to plaintiff's complaint lists the second defendant as
"Department of Veterans Affairs Togo D. West[,] Jr.[,] Sec."
(Compl.). Second, with the exception of the case caption and the
cover page, plaintiff does not mention West, Jr. anywhere else in
the complaint. Third, the Court's docket sheet indicates that
summonses were issued for the DVA and "Secretary Togo D. West,
Jr." While there is a process receipt and return form for the
DVA, the docket sheet does not reflect a corresponding process
receipt and return form for West, Jr. individually. For these
reasons, I find that plaintiff has sued West, Jr. only in his
official capacity. Since federal officials acting in their
official capacities are not amenable to suit under the FTCA, the
claims against West, Jr. are dismissed.
2. Statute of Limitations
A tort claim against the United States is untimely unless made
in writing to the appropriate federal agency within two (2) years
after the claim accrues. 28 U.S.C. § 2401(b) (2000).*fn2
"The burden is on the plaintiff to both plead and prove
compliance with the statutory requirements. In the absence of such compliance, a district court
has no subject matter jurisdiction over the claim." Id.; see
also Solomon v. United States, 566 F. Supp. 1033, 1035
(E.D.N.Y. 1982) ("Compliance with the statute of limitations
under the FTCA is a jurisdictional prerequisite and noncompliance
results in the claims being forever barred.").
A medical malpractice claim under the FTCA accrues "when a
plaintiff has discovered or, in the exercise of reasonable
diligence, should have discovered, the existence, permanence and
physical cause of the injury, regardless of whether he believes
that he has an actionable claim." Rispoli v. United States,
576 F. Supp. 1398, 1402 (E.D.N.Y. 1983), aff'd, 779 F.2d 35 (2d
Cir. 1985); see also United States v. Kubrick,
444 U.S. 111, 117-18, 100 S.Ct. 352, 62 L.Ed.2d 259 (1979). "In other
words, a claim accrues when a claimant is `armed with the facts'
of both the existence of his injury and its causation sufficient
to alert him that a basis for investigating the possibility of
malpractice exists." Rispoli, 576 F. Supp. at 402 (citing
Kubrick, 444 U.S. at 123-24).
3. Plaintiff's FTCA Claims
a. Failure to Diagnose Cancer in 1992
Plaintiff's complaint alleges that defendants negligently
failed to perform tests, such as CAT scans or MRIs, in order to
diagnose the extent of his cancer prior to his first surgery at
the BVAMC on July 6, 1992. (Compl. at 2 para. 2A). Plaintiff was
"armed with the facts" at the latest in 1994, the year of his
third surgery, (DiTeodoro Decl. exhs. G, H), but failed to file
an administrative complaint by 1996, two years after the latest
conceivable accrual of this claim. Thus, his claim for failure to
diagnose cancer is time-barred. See 28 U.S.C. § 2401(b). b. Failure to Timely and Properly Perform Second Surgery
Plaintiff asserts that a bilateral retroperitoneal lymph node
dissection, as part of his second surgery, was originally
scheduled for July 15, 1992. (Compl. at 2 para. 2D). However, the
second surgery was not performed until February 19, 1993, "by
which time there was such extensive vascular and lymphatic
invasion of [p]laintiff's cancer, due to the delay, that a . . .
third surgery was required at Memorial Sloan Kettering Cancer
Center." (Id.). Additionally, plaintiff contends that the
failure to remove "a fourth tumor/mass that was detected during
the second surgical procedure . . . necessitated the third
surgery. . . ." (Id. para. 2E). Lastly, plaintiff claims that
defendants failed to perform appropriate pre- and post-operative
tests in 1992. (Id. para. 2F). Plaintiff's administrative
complaint filed on March 3, 1999 did not raise these allegations,
(DiTeodoro Decl. exh. H), which accrued at the latest in 1994,
the date of the third surgery. Thus, plaintiff's failure to file
an administrative complaint by 1996 renders these claims
untimely. See 28 U.S.C. § 2401(b).
c. Failure to Remove Lymph Nodes in 1992
Plaintiff's complaint alleges that defendants "neglected to
remove . . . [his] lymph nodes during the surgery on July 6,
1992, which . . . necessitated further surgery. . . ." (Compl. at
2 para. 2C). However, plaintiff's administrative complaint also
failed to allege this claim. (DiTeodoro Decl. exh. H). Since the
statute of limitations accrued at the latest, on the date of the
second surgery, February 19, 1993, when the nodes were removed,
and since plaintiff failed to file an administrative complaint
until March 3, 1999 rather than by February 19, 1995 alleging
failure to remove his lymph nodes, this claim is also barred by
the statute of limitations. See 28 U.S.C. § 2401(b). d. Failure to Preserve Plaintiff's Sperm
Plaintiff claims that:
[O]n 2/17/93, [d]efendants advised plaintiff of the
necessity of a vasectomy as part of the surgical
procedure on 2/19/93, and asked if he wanted to
preserve his [s]perm, at which time he expressed his
desire to do so. When informed that it would cost
about $300.00, he stated that he did not have the
funds at the time. Defendants made no attempts to try
to arrange this, showed no concern and blatantly
disregarded [p]laintiff[']s express wishes, thereby
effectively denying him the ability to ever
reproduce. . . .
(Compl. at 2 para. 3). Plaintiff never raised this claim in his
administrative complaint, (DiTeodoro Decl. exh. H), and since the
statute of limitations on this claim accrued at latest on
February 19, 1993, the date of the vasectomy, his claim for the
failure to preserve his sperm is time-barred. See
28 U.S.C. § 2401(b).
e. Failure to Properly Administer Chemotherapy
Plaintiff asserts that defendants negligently administered his
chemotherapy treatment. (Compl. at 3 para. 4). However, his
administrative complaint does not mention the improper or
negligent administration of chemotherapy. (DiTeodoro Decl. exh.
H). Since plaintiff failed to file an administrative claim
regarding the alleged failure to properly administer his
chemotherapy, the claim is dismissed. See 28 U.S.C. § 2401(b)
f. Negligent Discharge
Plaintiff claims that he was negligently discharged from the
BVAMC on October 11, 1992, February 11, 1993, June 15, 1993,
March 13, 1997, and April 4, 1997 while he was mentally ill.
(Compl. at 3 para. 5, 4 para. 7B). However, the October 1992,
February 1993, and June 1993 discharge claims are barred by the
two year statute of limitations, and hence dismissed. See
28 U.S.C. § 2401(b). The March 1997 discharge claim was not raised
in the administrative complaint, and therefore is also dismissed. See
Plaintiff contends that his discharge from the BVAMC on April
4, 1997 was negligent because the side effects of his psychiatric
medication rendered him mentally and emotionally unstable,
(Compl. at 4 para. 7B), resulting in his perpetration of a crime
and current incarceration. (Id.). This claim was timely raised
in the March 3, 1999 administrative complaint. However,
plaintiff's claim does not state a cognizable cause of action
under New York law. See Flemming v. Velardi, No. 02-4113,
2003 U.S. Dist. LEXIS 13078, at *11 (S.D.N.Y. July 30, 2003)
(setting forth the elements a plaintiff must allege to state a
claim for medical malpractice); see also Milano v. Freed,
64 F.3d 91, 95 (2d Cir. 1995) (discussing the elements needed to
establish a claim of medical malpractice at trial). Therefore,
plaintiff's claim regarding his April 1997 discharge from the
BVAMC is dismissed.
g. Failure to Diagnose Raynaud's Phenomenon
Although plaintiff allegedly complained of various symptoms of
Raynaud's phenomenon, including pain, numbness, and
discoloration, as early as January 1993, he was not diagnosed
with the illness until March 29, 1995. (Compl. at 5 para. 8).
This claim accrued on March 29, 1995, the day plaintiff was
diagnosed with the illness. Since plaintiff failed to file an
administrative complaint by March 29, 1997, the claim is
dismissed as untimely. See 28 U.S.C. § 2401(b).
h. Failure to Admit Plaintiff to the MICA Program
Plaintiff claims that he was negligently denied admission to
the Mentally Ill Chemically Addicted (MICA) program on March 12,
1997. (Compl. at 3 para. 5D, 4 para. 7). This allegation was not
included in plaintiff's March 1999 administrative complaint and
is therefore dismissed. See 28 U.S.C. § 2401(b). i. Negligent Prescription of Psychiatric Medication
Plaintiff alleges that defendants inappropriately "prescribed
narcotic drugs while being aware of plaintiff[']s
alcoholism/addictive personality . . ." causing "plaintiff to
become addicted" and suffer from side effects. (Compl. at 4 para.
6). Since it appears from the record that plaintiff was
continually taking medication, the claim did not accrue until the
day plaintiff was discharged from the BVAMC on April 4, 1997.
Under the continuous treatment doctrine, the statute of
limitations is tolled if the plaintiff is under the continuous
care of the same doctor or hospital during the course of
treatment. Camire v. United States, 535 F.2d 749, 750 (2d Cir.
1976); Schunk v. United States, 783 F. Supp. 72, 82 (E.D.N.Y.
1992). Thus, while the claim for negligent prescription of
psychiatric medication claim is timely, it must be dismissed
since plaintiff failed to allege that defendants' actions
deviated or departed from accepted medical practice. See
Cattaneo v. United States, 956 F. Supp. 312, 313 (E.D.N.Y.
B. Veterans Benefits Claims
Plaintiff's complaint also seeks review of the DVA's denials of
service-connected compensation. However, a plaintiff wishing to
challenge a DVA determination must appeal to the Board of
Veterans Appeals within one year of receipt of the DVA's decision
letter. 38 U.S.C. § 7104-05 (2004). Board decisions may be
appealed to the United States Court of Appeals for Veterans
Claims, Veterans Programs Enhancement Act of 1998, Pub.L. No.
105-368, §§ 511(a), 513, 112 Stat. 3341, 3342;
38 U.S.C. § 7252(a), whose determinations may be reviewed by the Court of
Appeals for the Federal Circuit. 38 U.S.C. § 7292(c). Hence, this
Court lacks subject matter jurisdiction over plaintiff's DVA
benefit determinations. See McMillan v. Togus Regional Office,
Dep't of Veterans Affairs, No. 03-1074, 2003 WL 23185665, at *1 (E.D.N.Y. Nov. 18, 2003); Fahie v. Dep't of
Veterans Affairs, 39 F. Supp.2d 332, 334 (S.D.N.Y. 1999).
C. Constitutional Claims
1. Facial Challenges to Legislation
Plaintiff contends that the "willful misconduct
statutes/regulations (38 U.S.C. § 105/38 C.F.R. § 3.301) are
discriminatory, and violate rights/plaintiff[']s right to due
process and equal protection under the law, and are therefore
unconstitutional. . . ." (Compl. at 10-11 para. 12). Pursuant to
38 U.S.C. § 105:
an injury or disease incurred during active military
. . . service will be deemed to have been incurred in
line of duty and not the result of the veteran's own
misconduct when the person on whose account benefits
are claimed was, at the time the injury was suffered
or disease contracted, in active military . . .
service, . . . unless such injury or disease was a
result of the person's own willful misconduct or
abuse of alcohol. . . .
38 U.S.C. § 105(a) (2004). When determining eligibility for
service-connected benefits, the DVA distinguishes between
alcoholism that is the result of willful misconduct and that
which is the result of a psychiatric disorder.
The deliberate drinking of a known poisonous
substance or under conditions which would raise a
presumption to that effect will be considered willful
misconduct. If, in the drinking of a beverage to
enjoy its intoxicating effects, intoxication results
proximately and immediately in disability or death,
the disability or death will be considered the result
of the person's willful misconduct. Organic diseases
and disabilities which are a secondary result of the
chronic use of alcohol as a beverage, whether out of
compulsion or otherwise, will not be considered of
willful misconduct origin.
38 C.F.R. § 3.301(c)(2).
Plaintiff alleges that the United States and DVA enacted the
"willful misconduct laws" to avoid responsibility and liability
for the alcoholism that is prevalent among United States servicemen. (Compl. at 11 para. 12A). Plaintiff asks this Court
to declare that the statute and regulation are unconstitutional.
38 U.S.C. § 511(a) provides:
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. . . . Subject to [exceptions
set forth in] subsection (b), the decision of the
Secretary as to any such question 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). The Supreme Court has "distinguished between
suits challenging the constitutionality of the statutes
underlying the veterans' programs to which section 511(a) does
not apply (over which courts thus have jurisdiction), and actions
of the VA under those statutes in determining qualifications for
benefits, to which section 511(a) does not apply (over which
courts therefore lack jurisdiction)." Sugrue v. Derwinski,
26 F.3d 8
, 11 (2d Cir. 1994) (citing Johnson v. Robison,
415 U.S. 361
, 367-74, 94 S.Ct. 1160, 39 L.Ed.2d 389 (1974)). Therefore,
district courts have jurisdiction to hear facial constitutional
challenges to legislation affecting veterans' benefits. See
Johnson, 415 U.S. at 367-74; Larrabee v. Derwinski,
968 F.2d 1497
, 1500-01, (2d Cir. 1992); New York v. Eadarso,
964 F. Supp. 240, 242 (E.D.N.Y. 1996).
The standards applicable to the states under the Equal
Protection Clause of the Fourteenth Amendment to the Constitution
also apply to the federal government for a violation of due
process under the Fifth Amendment. Matthews v. De Castro,
429 U.S. 181, 182 n. 1, 97 S.Ct. 431, 50 L.Ed.2d 389 (1976);
Weinberger v. Salfi, 422 U.S. 749, 768-70, 95 S.Ct. 2457,
45 L.Ed.2d 522 (1975). Pursuant to the equal protection analysis
formulated by the Supreme Court, the type of classification
delineated by the legislature determines the degree of judicial
review. Clark v. Jeter, 486 U.S. 456, 461, 108 S.Ct. 1910,
100 L.Ed.2d 465 (1988). In this case, the rational basis test governs
review of the constitutionality of the DVA's alcoholic
classifications. See Disabled Am. Veterans v. U.S. Dep't of
Veterans Affairs, 962 F.2d 136, 141 (2d Cir. 1992) ("When
Congress legislates in the area of . . . social welfare, review
by the courts generally is limited to determining whether there
is a rational basis for the classifications drawn."). There is no
rational basis if "`the varying treatment of different groups or
persons is so unrelated to the achievement of any combination of
legitimate purposes that one can only conclude that the
legislature's actions were irrational.'" Id. at 142 (quoting
Vance v. Bradley, 440 U.S. 93, 97, 99 S.Ct. 939,
59 L.Ed.2d 171 (1979)). If the allocation of benefits has some "reasonable
basis," it does not offend the Constitution simply "because in
practice it results in some inequality." Id. (citing Lindsey
v. Natural Carbonic Gas Co., 220 U.S. 61, 78, 31 S.Ct. 337,
55 L.Ed. 369 (1911)).
The legislative history of 38 U.S.C. § 105(a) indicates that
Congress, in an effort to reduce the federal budget deficit,
chose to decrease the spending of the DVA. H.R. Rep. No. 101-964,
at 996-97 (1990), reprinted in 1990 U.S.C.C.A.N. 2701-02. The
Second Circuit has stated, "steps to control the budget deficit,
however modest in degree, nonetheless are legitimate, and perhaps
necessary, objectives of the Congress and the President."
Disabled Am. Veterans, 962 F.2d at 143. The statute and
regulation have also been held to have a rational basis in "order
to avoid the possibility of fraudulent claims. . . ." Traynor v.
Walters, 606 F. Supp. 391, 397 (S.D.N.Y. 1985), rev'd on other
grounds, 791 F.2d 226 (2d Cir. 1986), rev'd 485. U.S. 535,
108 S.Ct. 1372, 99 L.Ed.2d 618 (1988).
Since the classifications of alcoholics are rationally related
to legitimate government interests in reducing the federal budget deficit and decreasing
the possibility of fraudulent claims, plaintiff's constitutional
challenges to 38 U.S.C. § 105(a) and 38 C.F.R. § 3.301(c)(2)
survive scrutiny and must fail.
Plaintiff further questions the constitutionality of other
veteran-related statutes and regulations because they do not
provide coverage for his injuries allegedly associated with
chlorinated dioxins and radiation. (Compl. at 12 para. 14).
Specifically, plaintiff alleges that the failure to provide
service-connected benefits based on exposure to Agent Orange and
other dioxins to veterans who did not serve in Vietnam violates
the principle of equal protection. (Compl. at 12 para. 14A);
see also Agent Orange Act of 1991, Pub.L. No. 102-4, 105
Stat. 11 (codified as amended at 38 U.S.C. § 1116) (2004);
38 C.F.R. § 3.307(a)(6)(iii) (2003). Plaintiff also contends that
38 C.F.R. § 3.311(b) should provide coverage for exposure to all
forms of radiation, and not solely the types outlined in the
regulation. Since plaintiff fails to affirmatively state that he
was exposed to either Agent Orange or radiation, these claims are
2. Sovereign Immunity
Plaintiff's constitutional claims against the United States,
DVA, BVAMC, and Togo G. West, Jr. in his official capacity are
dismissed for lack of subject matter jurisdiction pursuant to
Rule 12(b)(1). The doctrine of sovereign immunity bars
plaintiff's constitutional claims for damages against the United
States. Moreover, since an action against a federal agency or
federal officers in their official capacities is essentially a
suit against the United States, the doctrine of sovereign
immunity applies and, therefore, the claims against DVA, BVAMC,
and Togo G. West, Jr. in his official capacity are similarly
dismissed. See Federal Deposit Ins. Corp. v. Meyer,
510 U.S. 471, 475-79, 114 S.Ct. 996, 127 L.Ed.2d 308 (1994); Robinson
v. Overseas Military Sales Corp., 21 F.3d 502, 510 (2d Cir. 1994); Higgins
v. United States, No. 02-499, 2003 WL 21693717, at *2 (E.D.N.Y.
May 27, 2003); Hightower v. United States, 205 F. Supp.2d 146,
154 (S.D.N.Y. 2002).
For the reasons set forth above, defendants' motion to dismiss
is GRANTED and this case is dismissed in its entirety. The Clerk
of Court is directed to close this case.
IT IS SO ORDERED.