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King v. United States Department of Veterans Affairs

United States Court of Appeals, Fifth Circuit

August 23, 2013

PHILLIP M. KING, Plaintiff - Appellant,
v.
UNITED STATES DEPARTMENT OF VETERANS AFFAIRS; ERIC K. SHINSEKI, in his official capacity as Secretary of the United States Department of Veterans Affairs; UNITED STATES DEPARTMENT OF LABOR; HILDA L. SOLIS, in her official capacity as Secretary of the United States Department of Labor; JOHN DOES 1-10; UNITED STATES OF AMERICA, Defendants-Appellees.

Appeal from the United States District Court for the Southern District of Mississippi

Before ELROD and HIGGINSON, Circuit Judges, and MARTINEZ, District Judge. [*]

JENNIFER WALKER ELROD, Circuit Judge:

This is an action under the Federal Tort Claims Act ("FTCA"), 28 U.S.C. §§ 1346(b)(1), 2671–80 (2006), in which Philip M. King ("King") seeks compensatory damages for loss of property and personal injuries allegedly caused by the negligence and malice of the United States Department of Veterans Affairs and others (collectively, "the VA"). The VA moved to dismiss King's claims, contending that the Veterans Judicial Review Act ("VJRA"), 38 U.S.C. § 511 (2006), and alternatively the United States' sovereign immunity, barred the district court from exercising jurisdiction over King's claims. The district court granted the VA's motion to dismiss. We AFFIRM.

I.

King suffered injury in Iraq while serving in the United States Armed Forces. Based on his diagnosis of ruptured discs in his neck and back, radiculopathy, and nerve entrapment in his arms and legs, King applied for veterans' benefits. In January 2006, the VA awarded him benefits based on an 80% service-connected disability rating. King disagreed with his rating, believing it should be increased to 100%; accordingly, he submitted additional information in support of an increase, including his status as a recipient of workers' compensation benefits through his private insurance company. In July 2007, rather than increasing King's disability rating, the VA terminated his benefits based on an apparent misunderstanding regarding his ability to receive simultaneously VA benefits and workers' compensation benefits under the Defense Base Act, 42 U.S.C. § 1651 (2006).

In seeking reinstatement of his benefits, King submitted to the VA letters of support from both the Department of Labor and his private insurer. The VA did not change its decision, however. To the contrary, it attempted to recover from King the benefits it previously paid to him. King continued his attempts to resolve the situation with phone calls, letters, e-mails, and additional documentation. King also submitted a Freedom of Information Act (FOIA) request related to his benefits. Eventually, King spoke on the telephone with an attorney for the VA who took action to reinstate King's benefits.[1] In March 2008, eight months after it terminated King's benefits, the VA retroactively awarded King a 100% disability rating and reinstated his benefits based on that rating. King alleges that the VA sent him a letter admitting that it had "erroneously terminated [his] benefits, " but he concedes that the VA eventually paid him all of the correct back payments and interest.

King filed an administrative claim in 2010. He alleged that the VA acted unlawfully and that he sustained damages based on the loss of his benefits for eight months. After hearing nothing in response to his administrative claim, King sued the VA in May 2011, asserting state-law tort claims.[2] The VA moved to dismiss King's claims for lack of subject-matter jurisdiction under Rule 12(b)(1). It contended that King's exclusive avenue for redress was by appeal to the United States Court of Appeals for Veterans Claims, and that sovereign immunity barred King's state-law tort claims. The district court agreed. It granted the VA's motion to dismiss, concluding that (1) the VJRA foreclosed it from exercising jurisdiction over King's claims, and (2) alternatively, the United States' sovereign immunity barred King's claims because they fell within an exception to the FTCA's waiver of immunity. King timely appealed.

II.

We review de novo the district court's dismissal for lack of subject-matter jurisdiction under Rule 12(b)(1). Ballew v. Cont'l Airlines, Inc., 668 F.3d 777, 781 (5th Cir. 2012) (citations omitted). As the party asserting jurisdiction, King "bears the burden of proof for a 12(b)(1) motion to dismiss." See id. (citation omitted). To meet that burden, King "must prove by a preponderance of the evidence that the court has jurisdiction based on the complaint and evidence." See id. (citation omitted). We may determine that subject-matter jurisdiction is lacking based on "(1) the complaint alone; (2) the complaint supplemented by undisputed facts evidenced in the record; or (3) the complaint supplemented by undisputed facts plus the court's resolution of disputed facts." Ramming v. United States, 281 F.3d 158, 161 (5th Cir. 2001) (citing Barrera-Montenegro v. United States, 74 F.3d 657, 659 (5th Cir. 1996)). Ultimately, we may affirm the district court's dismissal on any ground the record supports. Moncrief Oil Int'l Inc. v. OAO Gazprom, 481 F.3d 309, 311 (5th Cir. 2007).

III.

King's arguments fall into two categories relevant to our decision: First, King contends that the district court erred in holding that it lacked subject-matter jurisdiction based on the VJRA. Second and alternatively, King asserts that the Administrative Procedure Act ("APA") provides a basis for the district court to assert jurisdiction over his claims. For the reasons below, we conclude that the district court correctly rejected these arguments and dismissed King's claims.[3]

A.

The VJRA cabins judicial review of veterans' benefits determinations. Specifically, ...


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