Rodgers v. United States Government

          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 ...