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USDC : VETERANS | CIVIL PROCEEDURE - no jurisdiction over claims regarding veterans benefits per Veterans Judicial Review Act

Kent Mehrkens,
Civ. No. 05-1384 (RHK/JSM)
Art Blank, M.D., Gilbert Westreich, M.D.,
Harry K. Russell, M.D., John Does I and
Jane Roes I, C.A. Foye, Ronald J. Henke,
John Does II and Jane Roes II, and Charles
Edward A. Zimmerman, The Business Lawyers, Burnsville, Minnesota, for Plaintiff.
Gregory G. Brooker, Assistant United States Attorney, Minneapolis, Minnesota, for
Plaintiff Kent Mehrkens (Mehrkens) is a Vietnam Veteran. In 1989, he went to
the Minneapolis VA Medical Center for diagnosis and treatment of an unknown medical
condition, which had caused him to experience a loss of consciousness. Mehrkens
alleges that doctors at the VA had diagnosed him with Post Traumatic Stress Disorder
(PTSD), but intentionally withheld this information from him. He then filed a benefits
claim with the Department of Veterans Affairs (VA) for military service-connected
PTSD, but the VA consistently denied his claim. In April 2004, the VA reversed its prior
decisions and granted benefits to Mehrkens for PTSD, retroactive to 1992. Mehrkens
alleges that Defendants failed to treat him for PTSD and lied to him and others about this
condition, which deprived him of his rights to medical care and veterans benefits.
Defendants now seek summary judgment, arguing that this Court lacks jurisdiction over
Mehrkenss claims. For the reasons set forth below, the Court will grant Defendants
I. The Parties
Mehrkens is a veteran of the Vietnam War. (Am. Compl. III.) Defendants Art
Blank, M.D., Gilbert Westreich, M.D., and Harry K. Russell, M.D., are doctors employed
by the VA. ( Id. IV.) Mehrkens sought diagnosis and treatment from these doctors at
the Minneapolis VA Medical Center. ( Id.) Defendant C.A. Foye was the administrator
in charge of adjudication of veterans claims for benefits and was the individual who
acted on Mehrkenss claims during the relevant periods. Defendant Ronald J. Henke was
the Regional Director for the Minnesota region of the VA and defendant Charles
Milbrandt directed the Minneapolis VA Medical Center.1
1 Defendants John Does I and Jane Roes I are health care professionals, not yet identified, who
allegedly had access to, or involvement with, Mehrkenss diagnosis, treatment, and/or medical
records at the VA. Defendants John Does II and Jane Roes II are employees of or associated
with the VA, not yet identified, who allegedly had access to, or involvement with, the processing
of Mehrkenss diagnosis and treatment and/or claims for benefits. (Am. Compl. VI.)
II. Procedural History
On February 25, 1992, Mehrkens filed a claim for military service-connected
PTSD with the VA. (Anderson Aff. 2.) On August 28, 1992, the VA denied the claim
because (1) the diagnosis of PTSD was not supported by the details of any serviceconnected
stressor and (2) the medical evidence in the record did not show symptoms of
PTSD, such as nightmares, flashbacks, intrusive memories, hypervigilance, or startled
response. (Id. 3.)
On December 6, 1993, Mehrkens re-opened his claim for VA benefits for serviceconnected
PTSD. ( Id. 4.) On April 21, 1994, the VA again denied his claim on the
grounds that there was no diagnosis of PTSD and the evidence in the record did not show
symptoms of PTSD. (Id. 5.)
On July 14, 1999, the Disabled American Veterans group filed a claim on behalf
of Mehrkens asserting that the VA had erred in denying his claim for service-connected
PTSD. ( Id. 6.) On July 21, 1999, the VA denied the claim, finding that the diagnosis
of PTSD was not supported by any symptoms and also finding that there was no evidence
of a specific combat stressor. (Id. 7.)
On May 10, 2001, Mehrkens moved to reopen his claim for VA benefits. (Id. 8.)
On June 18, 2003, the VA ruled that there was no new and material evidence to justify
reopening his case. ( Id. 9.) On July 14, 2003, Mehrkens appealed that decision. (Id.
On April 29, 2004, the VA reversed its prior decisions and granted VA benefits to
Mehrkens for PTSD, retroactive to 1992.2 (Id. 11.) The VA assigned Mehrkens a 70%
disability rating, effective February 25, 1992, and an individual unemployability rating
effective February 16, 1999. (Id.) The VAs decision constituted a full grant of all of
Mehrkenss claims for VA benefits. (Id.) On May 19, 2004, Mehrkens received a
retroactive benefit payment from the VA for 2,172.00 and another retroactive benefit
payment for ,074.00 on July 26, 2004. (Id. 12.) Mehrkens continues to receive
monthly VA benefit payments in the amount of ,610.00. (Id. 13.)
On July 26, 2004, Mehrkens filed an administrative claim with the VA under the
Federal Torts Claims Act, seeking damages for medical malpractice and negligence.
(Hiivala Aff. 3, 4; Pl.s Mem. at 17.) On June 1, 2005, he commenced this action in
Minnesota state court, and on July 12, 2005, the United States removed the case to this
III. Summary of Mehrkenss Factual Allegations
Mehrkens alleges that he was referred to the Minneapolis VA Medical Center in
1989 for diagnosis and treatment of an unknown medical condition which caused him to
experience a loss of conscious control of his actions. (Am. Compl. VIII.) Thereafter,
Mehrkens alleges that physicians at the VA had diagnosed him with PTSD, but
intentionally withheld this information from him and failed to provide treatment for this
2 The Government provides no explanation as to why the VA reversed its prior decisions.
In July 2003, after several unsuccessful attempts, Mehrkens obtained his complete
medical records from the VA to assist in his claim for disability compensation,
evaluation, and treatment. (Id. XXXIX.) Mehrkens alleges that these records showed
that the VA had diagnosed him with PTSD as early as January 1992 and that the VA
withheld such information from him and others while denying him compensation and
treatment for PTSD. ( Id.)
IV. Mehrkenss Claims
Mehrkens alleges that it was beyond the scope of Defendants employment to lie
to him and others about his condition and to withhold treatment from him. (Am. Compl.
XLIX.) Mehrkens asserts that these actions interfered with and deprived him of his
rights to medical care and other veterans benefits. (Id. XLVII (emphasis added).)
Thus, Mehrkens seeks damages under the provisions of 42 U.S.C. 1983 and the
principles of Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics,
403 U.S. 388 (1971). (Id. L.)
Mehrkens also alleges that Defendants knowingly and intentionally conspired to
misrepresent his condition of PTSD and withheld treatment and benefits. (Id. LII, LIII
(emphasis added).) Thus, Mehrkens seeks damages under the provisions of 42 U.S.C.
1985 and the principles of Bivens. (Id. LIV.)
Finally, Mehrkens alleges that Defendants violated his due-process rights by
withholding information from him about his diagnosis of PTSD and preventing him from
obtaining proper treatment for that condition. (Id. LVI.) Mehrkens asserts that this
deprived him of his rights to medical care and other veterans benefits. (Id. (emphasis
added).) In addition, he claims that Defendants misrepresented his diagnosis and
condition to others who made inquiry to help him secure his benefits and proper medical
care. (Id.) Thus, Mehrkens seeks damages under 42 U.S.C. 1983 and the principles of
Bivens. (Id. LVII.)
Summary judgment is proper if, drawing all reasonable inferences in favor of the
nonmoving party, there is no genuine issue as to any material fact and the moving party is
entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c); Celotex Corp. v. Catrett,
477 U.S. 317, 322-23 (1986). The moving party bears the burden of showing that the
material facts in the case are undisputed. Celotex, 477 U.S. at 322; Mems v. City of St.
Paul, Dept of Fire & Safety Servs., 224 F.3d 735, 738 (8th Cir. 2000). The Court must
view the evidence, and the inferences that may be reasonably drawn from it, in the light
most favorable to the nonmoving party. Graves v. Ark. Dept of Fin. & Admin., 229
F.3d 721, 723 (8th Cir. 2000); Calvit v. Minneapolis Pub. Schs., 122 F.3d 1112, 1116
(8th Cir. 1997). The nonmoving party may not rest on mere allegations or denials, but
must show through the presentation of admissible evidence that specific facts exist
creating a genuine issue for trial. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256
(1986); Krenik v. County of Le Sueur, 47 F.3d 953, 957 (8th Cir. 1995).
At the outset, the Court must determine whether it has jurisdiction over the subject
matter of Mehrkenss claims. Mehrkens maintains that the Courts jurisdiction is based
on a federal question under 28 U.S.C. 1331 and deprivation of his civil rights under 28
U.S.C. 1343. Congress, however, has provided through 38 U.S.C. 511, that a federal
courts jurisdiction to hear disputes involving veterans benefits is limited.
I. Veterans Judicial Review Act
The Veterans Judicial Review Act of 1988, 38 U.S.C. 511 (VJRA),
establishes a specific appellate-review structure for disputes involving veterans and the
VA.3 The process begins when the Secretary of the VA issues a decision on a veterans
claim for relief. If the veteran disagrees with the Secretarys decision, he may appeal by
filing a notice of disagreement with the Board of Veterans Appeals. 38 U.S.C. 7105.
The Boards decision is the final decision of the Secretary. 38 U.S.C. 7104. A veteran
may appeal the Secretarys final decision to the Court of Appeals for Veterans Claims.
38 U.S.C. 7266(a). That court has exclusive jurisdiction to review the decisions of
the Board of Veterans Appeals. 38 U.S.C. 7252(a). Finally, a veteran may appeal the
decision of the Court of Appeals for Veterans Claims to the United States Court of
Appeals for the Federal Circuit. 38 U.S.C. 7292. The Federal Circuit Court of Appeals
has exclusive jurisdiction to review all relevant questions of law, including
interpreting constitutional and statutory provisions. 38 U.S.C. 7292 (c)-(d)(1). The
3 The VJRA provides in pertinent part:
(a) The Secretary of [the VA] 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 . . . . Subject to [the exceptions in] subsection (b), 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 action in
the nature of mandamus or otherwise.
38 U.S.C. 511(a). The Court notes that none of the exceptions listed in 511(b) apply in this
case. As explained below, the Court finds that 511(a) bars this Court from exercising subjectmatter
jurisdiction over Mehrkenss claims against the VA officials in this case.
decision of the Federal Circuit Court of Appeals shall be final subject to review by the
Supreme Court upon certiorari. 38 U.S.C. 7292(c). Thus, [t]hese provisions amply
evince Congresss intent to include all issues, even constitutional ones, necessary to a
decision which affects benefits in this exclusive appellate review scheme. Hicks v.
Veterans Admin., 961 F.2d 1367, 1370 (8th Cir. 1992).
Mehrkens, however, characterizes his claims as falling outside of the ambit of this
review structure. He asks this Court to construe any allegations that appear to seek
compensation or attack the adjudicative process of the VA as merely background for the
Defendants allegedly wrongful actions and not as claims for relief. (Pl.s Mem. at 10-
14.) As such, Mehrkens argues that his claims are limited to damages for Defendants
alleged misrepresentations about his PTSD condition and the alleged conspiracy to
withhold information from him about this condition, the effect of which prevented him
from obtaining proper treatment outside the VA. ( Id.)
But, the VJRA created an exclusive review procedure by which veterans may
resolve their disagreements with the VA. Hicks, 961 F.2d at 1369. Mehrkens cannot
avoid the jurisdictional bar of the VJRA by couching his claims in terms of constitutional
or tort law claims. The VJRA applies to all questions of law and fact as long as the
claim is necessary to a decision by the Secretary under a law that affects the provision of
benefits by the Secretary to veterans. 38 U.S.C. 511(a) (emphasis added).
Here, Mehrkens is not alleging a facial attack on the constitutionality of the VJRA.
See Disabled Am. Veterans v. United States Dept of Veterans Affairs, 962 F.2d 136,
140-41 (2d Cir. 1992) (stating that federal district courts may review facial challenges to
legislation affecting veterans benefits). Instead, he is complaining about the
circumstances surrounding his claim for benefits and denial of proper treatment for his
condition. Such claims must be pursued under the review structure set forth under the
In Hicks, the Eighth Circuit found that the district court lacked jurisdiction to
consider a suit by a veteran who claimed that the VA reduced his VA benefits in
retaliation for his exercise of First Amendment rights. Hicks, 961 F.2d at 1370. It
concluded that the veterans claim was essentially a challenge to the reduction of
benefits on a constitutional basis. As a challenge to a decision affecting benefits, it is
encompassed by [the VJRA] and is not reviewable in any manner other than by the
review mechanism set forth by Chapter 72 of Title 38. Id.
Similarly, Mehrkenss claim that VA officials violated his constitutional rights by
conspiring to deny him VA benefits and treatment for PTSD is essentially a challenge
to the . . . benefits on a constitutional basis and a challenge to a decision affecting
benefits. Id.
Other decisions support the Eighth Circuits conclusion in Hicks. See Zuspann v.
Brown, 60 F.3d 1156, 1159 (5th Cir. 1995) (Since the enactment of the VJRA, federal
courts have refused to entertain constitutional claims if they are based on the VAs
actions in a particular case); Sugrue v. Derwinski, 26 F.3d 8, 11 (2d Cir. 1994) (federal
district courts do not acquire jurisdiction to hear challenges to benefits determinations
merely because those challenges are cloaked in constitutional terms); Larrabee by Jones
v. Derwinski, 968 F.2d 1497, 1501 (2d Cir. 1992) (VJRA barred veterans claim that VA
violated his constitutional due-process rights by failing to provide him with adequate
The Court also finds Weaver v. United States, 98 F.3d 518 (10th Cir. 1996),
instructive. In Weaver, a veteran alleged that certain VA employees had conspired to
conceal or lose his medical records, in an attempt to prevent him from receiving just
military-disability compensation. Id. at 519. The Tenth Circuit examined the substance
of these allegations, rather than the veterans labels, to determine their true nature. Id. at
520. The court found that the allegations seek review of actions taken in connection
with the denial of [the veterans] administrative claim for benefits. They are, in
substance, nothing more than a challenge to the underlying benefits decision. Id. The
Tenth Circuit concluded that the district court lacked subject matter jurisdiction over the
veterans action. Id.
Mehrkens acknowledges that the claims of the veteran in Weaver resemble his
claims here. (See Pl.s Mem at 18.) However, he argues that he is not suing for the loss
of disability compensation. Instead, Mehrkens asserts that he is suing because the
conspiracy, concealment, and lying about his diagnoses and condition deprived him of his
constitutional right to seek medical care from sources other than the VA. ( Id.) As such,
Mehrkens argues that his injury does not arise from or relate in any way to the claim for
VA benefits. The Court disagrees. As in Weaver, Mehrkens seeks a review of the VAs
actions taken in connection with his claim for benefits, which is essentially nothing more
than a challenge to the underlying benefits decision. Weaver, 98 F.3d at 520. Therefore,
this Court lacks jurisdiction to consider Mehrkenss action.
Mehrkens also tries to avoid the VJRA by suing individual VA employees under a
Bivens theory that attempts to cloak this case in constitutional language. In Bivens, the
Supreme Court held that a violation of a persons Fourth Amendment rights by federal
officers, acting under color of federal law, gives rise to a federal cause of action for the
unconstitutional conduct, despite the absence of any statute conferring such a right.
Bivens, 403 U.S. at 394. The Supreme Court has allowed Bivens actions in situations
where, as in Bivens itself, there were no special factors counselling hesitation in the
absence of affirmative action by Congress, no statutory prohibition against the relief
sought, and no exclusive statutory remedy. Zuspann, 60 F.3d at 1160 (internal
quotations and citations omitted).
Mehrkens seeks damages under a Bivens theory for Defendants conduct in
handling his claim for VA benefits. In Mehrkenss Amended Complaint, he states:
Defendants actions deprived [him] of his rights secured by the Fifth
Amendment to the United States Constitution and the laws of the United
States not to be deprived of his rights to life, liberty, or property without
due process of law by depriving [him] of his liberty interests and property
interests in his statutory rights to medical care and other veterans benefits
without due process of law[.]
(Am. Compl. LVI.)
However, in accordance with Bush v. Lucas, 462 U.S. 367 (1983), and Schweiker
v. Chilicky, 487 U.S. 412 (1988), the Court finds that Mehrkens does not have a Bivens
cause of action against the VA employees.
In Bush, an employee of the National Aeronautics and Space Administration filed
an action against the director of the George C. Marshall Space Center for alleged
violations of the employees First-Amendment rights. 462 U.S. at 369-71. The Supreme
Court concluded that the employee did not have a right to assert a Bivens action when
federal legislation had already set up an elaborate remedial system that ha[d] been
constructed step by step, with careful attention to conflicting policy considerations. Id.
at 388.
Similarly, in Chilicky, the Supreme Court declined to find that social security
recipients had a private right of action against the state and federal officials who
administered the benefits program. 487 U.S. at 425-29. The Supreme Court explained
Congress has failed to provide for complete relief: respondents have not
been given a remedy in damages for emotional distress or for other
hardships suffered because of delays in their receipt of Social Security
benefits. The creation of a Bivens remedy would obviously offer the
prospect of relief for injuries that must now go unredressed. Congress,
however, has not failed to provide meaningful safeguards or remedies for
the rights of persons situated as respondents were.
Id. at 425 (internal citation omitted).
Mehrkens relies on Carlson v. Green, 446 U.S. 14 (1980), and Davis v. Passman,
442 U.S. 228 (1979), to support his Bivens claims and the proposition that the VJRA
does not provide an adequate remedy. However, Bush was based on a careful analysis of
Bivens, Carlson, and Davis. See Bush, 462 U.S. at 376-78. Moreover, the VJRA
provides an exclusive review procedure by which veterans may resolve their disputes
with the VA. Thus, Congress has indicated that the Courts power should not be
exercised based on the VJRA.
Notably, in Sugrue, the Second Circuit Court of Appeals upheld the dismissal of a
Bivens action by a veteran who had alleged due-process violations relating to his claim
for VA benefits. 26 F.3d at 9. The court declined to imply a Bivens remedy in an action
against employees of the VA arising from the denial of benefits. Id. at 11. The court
As in Bush and Chilicky, the scheme of review for veterans benefit claims
provides meaningful remedies in a multitiered and carefully crafted
administrative process. Further, the fact that Congress has explicitly
foreclosed a remedy in Article III courts against the VA, see 511(a), and
the policies underlying that prohibition . . . suggest that Congress failure to
create a remedy against individual employees of the VA was not an
Sugrue, 26 F.3d at 12 (internal citation omitted).
Likewise, this Court determines that there is no Bivens remedy against the VA
officials arising from a decision affecting benefits.4 Thus, [t]his is a situation in which
Congress has set up an elaborate remedial structure; the administrative process created by
Congress provides for a comprehensive review of veterans benefits disputes. Zuspann,
60 F.3d at 1161. As such, Mehrkens will have to pursue his claims through each of the
various administrative levels before seeking Federal Circuit appellate review.
4 Other circuits addressing this issue have followed this analysis. See, e.g., Zuspann, 60 F.3d at
1160 (We agree with the Second Circuit Court of Appeals that the reasoning of Bush and
Chilicky applies in the context of veterans benefits, and that no Bivens remedy exists against
VA employees.); Hicks v. Small, 69 F.3d 967, 969 (9th Cir. 1995) (The district court correctly
held that a Bivens action was inappropriate in light of the comprehensive, remedial structure of
the VJRA.).
The circumstances surrounding Mehrkenss efforts to obtain a diagnosis and
treatment for his condition and how the VA handled this matter and his claim for benefits
are not the issues confronting the Court. The only issue is whether Mehrkens may bring
this case in federal district court. Congress has set up an exclusive review structure for
disputes involving veterans and the VA. Therefore, the Court concludes that it lacks
subject matter jurisdiction to hear Mehrkenss claims.
Based on the foregoing, and all the files, records, and proceedings herein, IT IS
ORDERED that Defendants Motion for Summary Judgment (Doc. No. 45) is
GRANTED, and this case is DISMISSED WITHOUT PREJUDICE for lack of subject
matter jurisdiction.
Date: August 2 , 2007
s/Richard H. Kyle
United States District Judge


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