United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued November 12, 2004 Decided January 14, 2005
Reissued March 7, 2005
No. 03-5182
OSCAR L. THOMAS,
APPELLANT
V.
ANTHONY J. PRINCIPI, SECRETARY, DEPARTMENT OF
VETERANS AFFAIRS, ET AL.,
APPELLEES
Appeal from the United States District Court
for the District of Columbia
(No. 02cv01743)
Matthew T. Reinhard, appointed by the court, argued the
cause as amicus curiae in support of appellant. With him on the
briefs was Alan I. Horowitz.
Oscar L. Thomas, pro se, filed briefs for appellant.
Pamela D. Huff, Assistant U.S. Attorney, argued the cause
for appellees. With her on the brief were Kenneth L. Wainstein,
U.S. Attorney, and Michael J. Ryan, Assistant U.S. Attorney.
Opinion for the Court filed by Circuit Judge TATEL.
2
Before: GINSBURG, Chief Judge, and TATEL and ROBERTS,
Circuit Judges.
TATEL, Circuit Judge: The Veterans’ Judicial Review Act
not only provides that the Secretary of Veterans Affairs “shall
decide all questions of law and fact necessary to a decision . . .
under a law that affects the provision of benefits,” but also bars
district courts from reviewing such decisions. In this case, we
must decide whether this provision deprives the district court of
jurisdiction over an action brought pursuant to the Federal Tort
Claims Act by a veteran asserting (among other things) that the
VA failed to inform him that a VA doctor had diagnosed him
with schizophrenia. Because adjudicating this claim would not
require the district court to review a question “necessary to a
decision . . . under a law that affects the provision of benefits,”
we reverse the district court’s dismissal of the complaint and
remand for further proceedings consistent with this opinion.
I.
Reviewing the district court’s dismissal of the complaint for
lack of subject matter jurisdiction and failure to state a claim,
see Fed. R. Civ. P. 12(b)(1), (6), “we construe the complaint
liberally, granting plaintiff the benefit of all inferences that can
be derived from the facts alleged.” Barr v. Clinton, 370 F.3d
1196, 1199 (D.C. Cir. 2004) (internal quotation marks omitted).
Viewed through that lens, the record reveals the following.
Appellant Oscar L. Thomas, following his honorable
discharge from the United States Army, filed for mental and
physical disability benefits with the Department of Veterans
Affairs in 1989. Two years later, a VA doctor concluded that
Thomas had “persistent auditory hallucinosis which is troubling,
so a diagnosis of schizophrenia is the most likely correct
diagnosis. Some of the other adjunct symptoms are not present,
however, but this will be the working diagnosis for him. He has
3
slight social and industrial disability resulting from this.” The
VA nevertheless denied Thomas’s claim, stating in a letter to
him that a “final diagnosis was not made.” Neither the rating
decision nor the doctor’s report was mentioned in the letter or
attached to it. See Thomas v. Principi, 265 F. Supp. 2d 35, 37
(D.D.C. 2003); see also Appellee’s Br. at 4.
Thomas pursued a variety of appeals and claims for
benefits. Not until 1999, however, some eight years after the
VA doctor saw him, did the VA reveal to Thomas that the doctor
had diagnosed him with schizophrenia. Alleging that the VA
had wrongfully withheld notice of his diagnosis, thereby
severely limiting his ability to pursue his livelihood, Thomas
appealed to the Board of Veterans’ Appeals. That appeal
remains pending.
In 2001, Thomas filed an administrative tort claim—a
prerequisite to bringing suit under the Federal Tort Claims Act
(“FTCA”), 28 U.S.C. § 2675(a). Like Thomas’s appeal to the
Board, this claim asserted that the VA’s failure to disclose the
schizophrenia diagnosis and to treat him resulted in greater
medical problems, denial of state and federal benefits, and loss
of income, including earning capacity. Although the
administrative tort claim also remains pending, the VA is
deemed to have finally denied the claim because it failed to
“make a final disposition of [the] claim within six months after
it [was] filed.” See id.; see also Thomas, 265 F. Supp. 2d at 38.
Acting pro se, Thomas filed suit in the United States
District Court for the District of Columbia, alleging that the VA
had committed medical malpractice and caused him intentional
emotional distress by failing to inform him of the working
diagnosis of schizophrenia. In addition to these FTCA claims,
the forty-four-page complaint alleges Privacy Act violations,
constitutional violations by the VA and several VA employees,
defamation, fraud, loss of consortium, and estoppel. In his
prayer for relief, Thomas requested compensatory and punitive
4
damages of over one billion dollars from both the government
and individual VA employees.
The VA moved to dismiss, or alternatively for summary
judgment. Among other things, the VA argued that Thomas’s
FTCA claim was jurisdictionally barred by 38 U.S.C. § 511,
which prohibits district courts from reviewing “all questions of
law and fact necessary to a decision by the Secretary [for
Veterans Affairs] under a law that affects the provision of
benefits by the Secretary to veterans.”
The district court agreed with the VA, granting its motion
to dismiss the FTCA claims for lack of subject matter
jurisdiction. 265 F. Supp. 2d at 41. Reasoning that “the
gravamen of plaintiff’s claim is that [the VA] . . . failed to treat
[him] . . . for schizophrenia . . . and other medical conditions,”
the district court found that judicial review “would require the
Court to second-guess medical judgments made by DVA.” Id.
at 39. Thus, “[a] favorable decision as to plaintiff’s claims
would entail a finding that defendants should have provided a
particular quantum of medical treatment to plaintiff that they did
not in fact provide . . . . [S]uch a finding is flatly forbidden by §
511.” Id. at 39.
Via the same analysis, the district court dismissed Thomas’s
Privacy Act and constitutional claims for lack of subject matter
jurisdiction. Id. at 39-40. Finding that Thomas’s defamation
and fraud claims, though perhaps permissible under section 511,
were excluded from the FTCA’s sovereign immunity waiver, the
district court dismissed these claims as well. Id. at 40. Finally,
the court denied Thomas’s request for leave to amend his
complaint to add (1) a Privacy Act claim against the Assistant
United States Attorney for discussing Thomas’s medical records
in the VA’s motion to dismiss, (2) another tort claim against the
VA for failure to “diagnose, inform, warn, or treat,” and (3) a
legal malpractice claim against Thomas’s former legal
representatives for failing to give him documents sent to them
5
by the VA. Id. at 40 n.5.
Following Thomas’s timely appeal, we appointed amicus
curiae, who has ably briefed and argued Thomas’s FTCA
claims. We consider those claims in Part II and Thomas’s other
claims in Part III.
II.
The VA argues that the “District court properly granted
summary judgment in favor of the government [because]
Thomas did not provide any evidence that the VA’s action were
[sic] wrongful.” Appellee’s Br. at 9. This argument suffers
from two defects. First, it rests on an incorrect premise. The
district court did not grant summary judgment for the
government. Instead, it dismissed Thomas’s complaint pursuant
to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). The
government did file a motion for summary judgment as an
alternative to its motion to dismiss, but the district court granted
only the latter. Second, Thomas’s failure to “provide any
evidence” is hardly surprising given that the district court’s
ruling preceded discovery, mooting Thomas’s motion to
commence discovery.
Both in its brief and at oral argument, the VA also
suggested that Thomas may not in fact suffer from
schizophrenia. The VA, however, does not deny that for eight
years it failed to advise Thomas of the working diagnosis of
schizophrenia, and whether or not Thomas actually suffers from
schizophrenia is a question the district court will have to resolve
if it has jurisdiction over Thomas’s FTCA claim. We now turn
to that jurisdictional issue.
Section 511 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
6
or the dependents or survivors of veterans. . . . [T]he
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. Other provisions of the Act demarcate the path
to appellate review of secretarial benefits decisions: claimants
may first appeal to the Board of Veterans’ Appeals, id. §
7104(a), then to the Court of Appeals for Veterans’ Claims, id.
§ 7252(a), to the Federal Circuit, id. § 7292(c), and ultimately to
the Supreme Court, id.
According to the VA, “[f]ederal courts construing the
predecessors to section 511 have consistently recognized that the
statute barred district court consideration of individual claims
for veterans’ benefits.” Appellee’s Br. at 11. True enough, but
our task here is to determine whether Thomas has presented any
such claims.
We have addressed section 511’s scope only once. In Price
v . United States, we held that “the district court lacked
jurisdiction to consider [appellant’s] federal claim because
underlying the claim is an allegation that the VA unjustifiably
denied him a veterans’ benefit.” 228 F.3d 420, 421 (D.C. Cir.
2001) (per curiam). Assuming appellant’s damages claim was
cognizable under a Florida tort statute, we found that the Florida
cause of action depended on whether the insurer—in that case
the VA—had acted in bad faith. Id. at 422. Reasoning that a
“determination whether the VA acted in bad faith or with
negligence would require the district court to determine first
whether the VA acted properly in handling Price’s request for
reimbursement,” we concluded that section 511 foreclosed
judicial review. Id.
Applying Price to the facts of this case, we must determine
whether adjudicating Thomas’s claims would require the district
7
court “to determine first whether the VA acted properly in
handling” Thomas’s benefits request. Id. Given that we hold
pro se complaints “to less stringent standards than formal
pleadings drafted by lawyers,” Haines v. Kerner, 404 U.S. 519,
520 (1972), and giving Thomas the benefit of all inferences, as
we must at this stage of the litigation, we think he has alleged at
least some VA actions that the district court can adjudicate
without “determin[ing] first” whether Thomas was entitled to a
certain level of benefits.
For example, Count III, alleging intentional infliction of
emotional distress, states that “Defendants [sic] outrageous
conduct in covering up the presence of a diagnosis of
Schizophrenia with slight social and industrial disability because
of this, for more than 10 years, was intentionally and recklessly
directed at Plaintiff.” Compl. ¶ 31. Count V, labeled “Gross
Negligence, Medical Negligence, and Legal Misconduct,”
alleges that defendants negligently “failed to inform Plaintiff of
the diagnosis, and about the risk of an untoward outcome.”
Compl. ¶ 62. Similarly, Count X, entitled “Medical
Malpractice,” alleges that
[e]ach of these defendants failed to take responsibility by
not ensuring and taking time to communicate the risks and
choices that were available to Plaintiff, e.g., the right to
know, (1) you have been diagnosed with Schizophrenia
with slight social and industrial impairment because of this,
(2) you have the choices of receiving medical treatment
care from DVA, or to not receive treatment from DVA, and
we let you make these choices; or inform Plaintiff that . . .
‘your claims for Schizophrenia is [sic] denied.’
Compl. ¶ 95. Because none of these claims alleges that the VA
failed to pay for treatment (or even to provide for treatment),
they raise no “questions of law [or] fact necessary to a decision
by the Secretary under a law that affects the provision of
benefits.” 38 U.S.C. § 511. The raised “questions of law and
8
fact” relate to whether the alleged withholding of the diagnosis
states a tort claim, and resolution of those questions is not
“necessary” to the benefits determination. See id. Putting the
issue in Price’s terms, no denial of benefits “underl[ies]”
Thomas’s failure-to-inform allegations. See 228 F.3d at 421.
In reaching a different conclusion, the district court cited
the regulatory definition of “benefit,” which includes “any . . .
service, . . . entitlement to which is determined under laws
administered by the Department of Veterans Affairs pertaining
to veterans.” 38 C.F.R. § 20.3(e). But neither the district court
nor the VA maintains that “service” spans so broadly as to
encompass an alleged duty to inform. Indeed, when pressed at
oral argument, counsel for the VA agreed that if a VA doctor
left a sponge inside a patient during surgery, section 511 would
permit an FTCA malpractice suit in district court. Reiterating
our reliance on Price, we reject any implication that all action or
inaction by the VA represents a type of “service,” and therefore
automatically constitutes a “benefit.”
To be sure, as amicus acknowledges, not all of Thomas’s
tort allegations survive the standard articulated in Price. For
example, Count X alleges that the VA “failed to render the
appropriate medical care services that are delivered to alleviate
a harmful medical condition, which is calculated to prevent,
diagnose, correct, cure, alleviate, or prevent the worsening in the
Plaintiff.” Compl. ¶ 109. Likewise, Count III claims (among
other things) that the VA’s “continuous and persistent
deprivation and denial of known needed and necessary medical
care treatment . . . caused Plaintiff severe emotional distress.”
Compl. ¶ 29. Because adjudicating these allegations—failure to
“render appropriate medical services” and “denial of . . .
necessary medical care treatment”—would require the district
court “to determine first whether the VA acted properly” in
providing Thomas benefits, these claims are barred by section
511. See Price, 228 F.3d at 422. The district court’s lack of
9
jurisdiction over these claims, however, has no effect on its
ability to consider the non-benefits claims also raised in Counts
III, V, and X.
III.
Without benefit of amicus curiae, Thomas also challenges
the district court’s dismissal of his Privacy Act and Bivens
claims, as well as its denial of his motion for leave to amend.
These arguments require little discussion.
As to Thomas’s Privacy Act claims, the district court
correctly found them barred by section 511. Unlike the FTCA
claims, counts XI and XII allege only that the VA’s failure to
maintain accurate and complete records adversely affected
Thomas’s benefits determinations.
Thomas’s constitutional claims for money damages against
VA employees are also barred. Under Bivens, “special factors”
may counsel “hesitation in the absence of affirmative action by
Congress” establishing liability for the acts of individual
government employees. See Bivens v. Six Unknown Named
Agents of the Federal Bureau of Narcotics, 403 U.S. 388, 396
(1971). “Special factors” include “an elaborate remedial
system” constructed by Congress “with careful attention to
conflicting policy considerations.” Bush v. Lucas, 462 U.S. 367,
388 (1983). Here, “the administrative process created by
Congress provides for a comprehensive review of veterans’
benefits disputes. Further, Congress has explicitly precluded
judicial review of veterans’ benefits disputes, which suggests
that Congress’ failure to create a remedy against individual VA
employees was not an oversight.” Zuspann v. Brown, 60 F.3d
1156, 1161 (5th Cir. 1995) (internal quotation marks omitted);
accord Sugrue v. Derwinski, 26 F.3d 8, 12-13 (2d Cir. 1994).
Because we agree with the Fifth Circuit that this combination
forecloses a Bivens action against VA employees for
constitutional torts in the context of a dispute over veterans’
10
benefits, we will affirm the district court’s dismissal of these
claims.
Finally, reviewing for abuse of discretion, see Firestone v.
Firestone, 76 F.3d 1205, 1208 (D.C. Cir. 1996) (per curiam), we
will also affirm the district court’s denial of leave to amend the
complaint to add a legal malpractice claim against Thomas’s
former legal representatives and another Privacy Act claim. See
265 F. Supp. 2d at 40 n.5. As the district court noted, Thomas
“remains free to assert [these] claims in a new action against the
appropriate defendants.” Id. In light of our determination that
the district court has jurisdiction over Thomas’s FTCA claims,
however, we will remand his request to add a claim against the
VA for “failure to diagnose, inform, warn, or treat.” See id.
Once Thomas amends his complaint, the district court, applying
Price and this decision, will need to decide whether section 511
bars the additional allegation.
IV.
We reverse the dismissal of counts III, V, and X, as well as
the denial of Thomas’s request to amend his complaint to add
another tort claim, and remand for further proceedings
consistent with this opinion. In all other respects, we affirm.
So ordered.