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Edward E. Brown v. United States of America
September 23, 2011
EDWARD E. BROWN, PLAINTIFF,
UNITED STATES OF AMERICA, DEFENDANTS
The opinion of the court was delivered by: Hon. Hugh B. Scott
Before the Court is the defendant's motion to dismiss based upon a lack of jurisdiction (Docket No. 34).
The plaintiff, Edward E. Brown ("Brown"), commenced this action against the United States*fn1 under the Federal Tort Claims Act ("FTCA"). Brown's claim revolves around the allegation that his veteran's benefits were terminated between February 1, 2008 and November 24, 2009. (Docket No. 4 at pages 11-12). Brown asserts that prior to the termination of his benefits he had begun to have some dental work performed. The complaint does not allege any negligence with respect to the dental work which was performed. The complaint does not expressly state that the dental work was performed at a Veteran's Administration medical facility. Instead, the plaintiff's claim is based upon the assertion that his veteran's benefits were wrongfully terminated before the entire dental procedure could be completed, and thus, he had to attempt to obtain his own medical insurance to pay for the completion of the dental work. (Docket No. 4 at pages 9, 11-13). Brown asserts that he suffered pain during the time period in which the dental work was incomplete. (Docket No. 4 at pages 11-13).
The defendant has moved to dismiss claiming that the Court lacks jurisdiction concerning determinations relating to the grant or denial of veteran's benefits. (Docket No. 34).
Pursuant to 38 U.S.C. §511(a), the "Secretary [of Veteran's Affairs] 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 or the dependents or survivors of veterans. Subject to [exceptions that do not apply here]*fn2 , 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." It is well-settled in the Second Circuit that §511 precludes the District Court from reviewing claims based upon the determination of benefits by the Secretary of Veteran's Affairs. Hassan v. U.S. Dept. of Veterans Affairs, 137 Fed.Appx. 418 (2d. Cir. 2005)(the district court is barred from reviewing the defendants' benefits determination, [inasmuch as] the decision of the Secretary of Veterans Affairs 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).
The fact that the plaintiff brings the action under the FTCA does not
provide the Court with jurisdiction over a benefits claim.*fn3
The Second Circuit has similarly held that the bar of
district court review of the determination of benefits is not
circumvented because the plaintiff brings the claim under the cover of
a constitutional or statutory claim. Sugrue v. Derwinski, 26
F.3d 8, 11 (2d Cir.1994)(Section 511(a) likewise prohibited the
district court from considering constitutional and statutory
challenges to the defendants' decision to expel him from a VA
facility, as "the courts do not acquire jurisdiction to hear
challenges to benefits determinations merely because those challenges
are cloaked in constitutional terms," or when statutes are "used as a
rhetorical cover to attack VA benefits determinations."). See also
McMillan v. Togus Regional Office, Dept. of Veterans Affairs, 120
Fed.Appx. 849 (2d. Cir. 2005)(same); Di Silvestro v. United States,
181 F.Supp. 860 (E.D.N.Y. 1960)(Although the plaintiff asserts that
his claims are based on the Federal Tort Claims Act, and are
ostensibly for damages, this is, in reality, another attempt to obtain
a review of the decision of the Veterans' Administration which
forfeited his pension and disability benefits. ... [T]his court has no
jurisdiction to grant the
plaintiff such a review ... in the guise of an action brought under
the Federal Tort Claims Act.)*fn4
Based on the above, the Court lacks jurisdiction over the claims asserted in the complaint in this case. The motion to dismiss should be granted.*fn5
It is recommended that the motion to dismiss be granted.
Pursuant to 28 U.S.C. §636(b)(1), it is hereby ordered that this Report & Recommendation be filed with the Clerk of the Court and that the Clerk shall send a copy of the Report & Recommendation to all parties.
ANY OBJECTIONS to this Report & Recommendation must be filed with the Clerk of this Court within fourteen(14) days after receipt of a copy of this Report & Recommendation in accordance with 28 U.S.C. §636(b)(1), Rules 6(a), 6(e) and 72(b) of the Federal ...
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