United States District Court, D. Colorado
TIMOTHY PHILIP RODGERS, on behalf of himself and all military veterans with historical and open claims older than 365 days at the VA, Plaintiff,
v.
UNITED STATES GOVERNMENT, JEFF SESSIONS, U.S. Attorney General, and BOB TROYER, U.S. Attorney, District of Colorado, Defendants.
ORDER
Kristen L. Mix, United States Magistrate Judge
This
matter is before the Court on Defendants' Motion
to Dismiss [#7][1] (the
“Motion”).[2] Plaintiff, who proceeds as a pro se
litigant, [3] filed a Response [#9] in opposition to the
Motion, [4] and Defendants filed a Reply [#12]. The
Court has reviewed the Motion, the Response, the Reply, the
entire case file, and the applicable law, and is sufficiently
advised in the premises. Based on the following, the Motion
[#7] is GRANTED.
I.
Background
Plaintiff
alleges the following facts as the basis for his
claims.[5] He is a veteran of the United States Army,
having served from June 30, 2004, until his honorable
discharge on September 17, 2004, for failure to meet medical
fitness requirements. Ex. B to Compl. [#1-2] at 2;
Ex. C to Compl. [#1-3] at 5. After his discharge,
the Department of Veterans Affairs (the “VA”)
granted Plaintiff partial benefits in 2005 for “severe
pes planus, ” commonly known as flat feet, which the VA
determined had at least a partial connection to his time in
service. Ex. B to Compl. [#1-2] at 2. Throughout the
following years, Plaintiff filed additional claims with the
VA to obtain benefits for various psychiatric conditions,
which mostly have been denied. See generally Ex. B to
Compl. [#1-2]; Ex. C to Compl. [#1-3].
Plaintiff
concedes in the Complaint that he “suffer[s] from a
severe mental health condition and struggle[s] to properly
communicate sometimes.” Compl. [#1] at 3. As
of the time of the filing of the Complaint [#1], Plaintiff
continues to pursue his administrative remedies in connection
with his attempt to obtain a monthly benefit for
schizophrenia, that was allegedly either caused or aggravated
by his time in the United States Army. See Ex. C to
Compl. [#1-3] at 7-16. In September 2012, the VA
Regional Office first denied this claim. See Id. at
8. Plaintiff appealed the denial to the Board of
Veterans' Appeals (“BVA”), which over the
years has remanded the claim back to the VA Regional Office
three separate times, once in June 2015, once in July 2016,
and once in October 2017. Id. at 7, 8, 16. In the
most recent remand order, the BVA decided that additional
factual development was required and remanded the claim with
orders to the VA Regional Office regarding how it should
proceed and what evidence, specifically, it should consider
in evaluating Plaintiff's contentions. Id. at
8-15. The BVA noted that “[t]his remand is in the
nature of a preliminary order and does not constitute a
decision of the Board on the merits of your appeal.”
Id. at 16. To the best of the Court's knowledge,
Plaintiff's administrative requests for that benefit are
still pending.
The
latest remand from BVA to the VA Regional Office occurred on
October 27, 2017. Id. at 7. Disgusted by the passage
of more than four years while his claim has bounced back and
forth between the BVA and the VA Regional Office, with no end
in sight, Plaintiff filed the present lawsuit on December 8,
2017. See Compl. [#1] at 3-4. Although the precise
legal basis for each claim is unclear, Plaintiff cites the
Federal Tort Claims Act (“FTCA”), the Fifth,
Sixth, Seventh, Eighth, and Tenth Amendments to the United
States Constitution, the Americans with Disabilities Act
(“ADA”), and a criminal statute, i.e., 18 U.S.C.
§ 242. See Id. at 2-4, 8.
Plaintiff
asserts that he filed this lawsuit on behalf of himself and
all veterans with open claims older than one year.
Id. at 1. Plaintiff seeks the following relief: (1)
an order requiring the VA to amend its review process so that
it must disprove a veteran's claim for benefits (rather
than the burden being on the veteran to prove his claim)
within one year of the claim being filed; (2) $15 million in
damages; and (3) an order requiring the Department of Justice
to investigate an individual named Jose Cardenas
(“Cardenas”) for “abuses of the color of
law, ” although it is unclear precisely who Mr.
Cardenas is and how he is related to the other claims in this
litigation, if at all. Id. at 7-10.
II.
Standards
A.
Federal Rule fo Civil Procedure 12(b)(1)
The
purpose of a motion to dismiss pursuant to Rule 12(b)(1) is
to test whether the Court has jurisdiction to properly hear
the case before it. Because “federal courts are courts
of limited jurisdiction, ” the Court must have a
statutory basis to exercise its jurisdiction. Montoya v.
Chao, 296 F.3d 952, 955 (10th Cir. 2002); Fed.R.Civ.P.
12(b)(1). Statutes conferring subject-matter jurisdiction on
federal courts are to be strictly construed. F & S
Const. Co. v. Jensen, 337 F.2d 160, 161 (10th Cir.
1964). “The burden of establishing subject-matter
jurisdiction is on the party asserting jurisdiction.”
Id. (citing Kokkonen v. Guardian Life Ins. Co.
of Am., 511 U.S. 375, 377 (1994)).
A
motion to dismiss pursuant to Rule 12(b)(1) may take two
forms: facial attack or factual attack. Holt v. United
States, 46 F.3d 1000, 1002 (10th Cir. 1995). When
reviewing a facial attack on a complaint, the Court accepts
the allegations of the complaint as true. Id. By
contrast, when reviewing a factual attack on a complaint, the
Court “may not presume the truthfulness of the
complaint's factual allegations.” Id. at
1003. With a factual attack, the moving party challenges the
facts upon which subject-matter jurisdiction depends.
Id. The Court therefore must make its own findings
of fact. Id. In order to make its findings regarding
disputed jurisdictional facts, the Court “has wide
ranging discretion to allow affidavits, other documents, and
a limited evidentiary hearing.” Id. (citing
Ohio Nat'l Life Ins. Co. v. United States, 922
F.2d 320, 325 (6th Cir. 1990); Wheeler v. Hurdman,
825 F.2d 257, 259 n.5 (10th Cir. 1987)). The Court's
reliance on “evidence outside the pleadings” to
make findings concerning purely jurisdictional facts does not
convert a motion to dismiss pursuant to Rule 12(b)(1) into a
motion for summary judgment pursuant to Rule 56. Id.
B.
Federal Rule of Civil Procedure 12(b)(6)
The
purpose of a motion to dismiss pursuant to Rule 12(b)(6) is
to test “the sufficiency of the allegations within the
four corners of the complaint after taking those allegations
as true.” Mobley v. McCormick, 40 F.3d 337,
340 (10th Cir. 1994); Fed.R.Civ.P. 12(b)(6) (stating that a
complaint may be dismissed for “failure to state a
claim upon which relief can be granted”). “The
court's function on a Rule 12(b)(6) motion is not to
weigh potential evidence that the parties might present at
trial, but to assess whether the plaintiff's complaint
alone is legally sufficient to state a claim for which relief
may be granted.” Sutton v. Utah State Sch. for the
Deaf & Blind, 173 F.3d 1226, 1236 (10th Cir. 1999)
(citation omitted). To withstand a motion to dismiss pursuant
to Rule 12(b)(6), “a complaint must contain enough
allegations of fact to state a claim for relief that is
plausible on its face.” Robbins v. Oklahoma,
519 F.3d 1242, 1247 (10th Cir. 2008) (quoting Bell
Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007));
see also Shero v. City of Grove, Okla., 510 F.3d
1196, 1200 (10th Cir. 2007) (“The complaint must plead
sufficient facts, taken as true, to provide ‘plausible
grounds' that discovery will reveal evidence to support
the plaintiff's allegations.” (quoting
Twombly, 550 U.S. at 570)).
“A
claim has facial plausibility when the plaintiff pleads
factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct
alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009). “A pleading that offers labels and conclusions
or a formulaic recitation of the elements of a cause of
action will not do. Nor does a complaint suffice if it
tenders naked assertion[s] devoid of further factual
enhancement.” Id. (brackets in original;
internal quotation marks omitted).
To
survive a motion to dismiss pursuant to Rule 12(b)(6), the
factual allegations in the complaint “must be enough to
raise a right to relief above the speculative level.”
Christy Sports, LLC v. Deer Valley Resort Co., 555
F.3d 1188, 1191 (10th Cir. 2009). “[W]here the
well-pleaded facts do not permit the court to infer more than
the mere possibility of misconduct, ” a factual
allegation has been stated, “but it has not show[n] [ ]
that the pleader is entitled to relief, ” as required
by Fed.R.Civ.P. 8(a). Iqbal, 556 U.S. at 679 (second
brackets added; citation and internal quotation marks
omitted).
III.
Analysis
A.
Claims Regarding ...