                   UNITED STATES DISTRICT COURT
                   FOR THE DISTRICT OF COLUMBIA
___________________________________
                                    )
PAMELA MELVIN,                      )
                                    )
               Plaintiff,           )
                                    )
v.                                  ) Civil No. 12-1501 (EGS)
                                    )
U.S. DEPARTMENT OF                  )
VETERANS AFFAIRS et al.,            )
                                    )
               Defendants.          )
___________________________________)


                        MEMORANDUM OPINION


     Pro se plaintiff and veteran Pamela Melvin has filed

Privacy Act and constitutional claims against the U.S.

Department of Veterans Affairs (VA).1 Am. Compl. (ECF No. 70).

The VA moves to dismiss the Amended Complaint for lack of

subject matter jurisdiction and for failure to state a claim.

Def.’s Mot. to Dismiss (ECF No. 74); FED. R. CIV. P. 12(b)(1),

12(b)(6). Upon consideration of the motion, Plaintiff’s response

and the VA’s reply, the entire record, and the applicable law,

the Court GRANTS the VA’s motion for the reasons set forth

herein.
                                                            
1
  Plaintiff initially brought seven claims against a larger
number of defendants. See Compl. (ECF No. 1). The Court granted
her leave to file an amended complaint pursuant to FED. R. CIV. P.
15(a)(2) after the VA filed a motion to dismiss. See Jan. 7,
2014 Minute Order; VA’s Mot. to Dismiss (Renewed) (ECF No. 57).
In her Amended Complaint, Plaintiff maintains her amended claims
only against the VA. See generally Am. Compl. 
                                1
    I.        BACKGROUND

              Pamela Melvin served in the United States Army in the

1970s. Am. Compl. ¶ 50. The allegations in her 76-page Amended

Complaint are somewhat unclear, but the thrust of her lawsuit

focuses on the treatment of her claims for VA benefits.

              A.             The Amended Complaint

              The Amended Complaint primarily describes Plaintiff’s

attempts to claim benefits for post-traumatic stress disorder

(PTSD) by filing for service-connected benefits, and her

attempts to claim benefits for the treatment of her rheumatoid

arthritis by filing a claim under 38 U.S.C. § 1151.2 Further, the

Amended Complaint describes several other grievances the Court

must address.

                             1.             The Claims.

              Plaintiff lists eight causes of action in her Amended

Complaint. As described as follows, each cause of action (COA)

is labeled as a violation of the Privacy Act and claims willful

and intentional violation of the Act. Moreover, most of the

claims also allege constitutional violations, including denial

of Plaintiff’s access to the courts in violation of the First

and Fifth Amendments:
                                                            
2
 Generally speaking, 38 U.S.C. § 1151 authorizes compensation for
a disability caused by hospital care or treatment administered
by a VA employee, when the proximate cause was negligence, the
event was not reasonably foreseeable, or the disability was
proximately caused by rehabilitation treatment. 
                                                               2
•   COA I: Privacy Act and constitutional violations for the VA’s
    failure to respond to Plaintiff’s July 2009 request to amend
    her PTSD claims, id. ¶ 239, and for failure to respond to her
    January 2011 requests for the Board’s January 6, 2010
    decision, id. ¶¶ 239, 243, 250, 261.
•   COA II: Privacy   Act and constitutional violations for the
    VA’s failure to   respond to Plaintiff’s letters of 2011 and
    2012 requesting   records related to her § 1151 claim. Id. ¶¶
    275–76, 281–84,   286, 287.
•   COA III: Privacy Act and constitutional violations for the
    VA’s failure to provide primary care clinic information to
    Plaintiff after she sent the 2011 and 2012 letters requesting
    the records relating to her PTSD and § 1151 claims. Id. ¶¶
    292–99, 307. Plaintiff maintains the failures to respond to
    her requests for records left her without a means to
    challenge the failure to assign her a primary care clinic,
    thereby precluding her from appealing the VA’s decision. Id.
    ¶¶ 301–08.
•   COA IV: Privacy Act and constitutional violations for failure
    to respond to Plaintiff’s July 2009 request to amend her PTSD
    claims and for failure to maintain her record to include the
    request. Id. ¶¶ 313–18, 320–22.
•   COA V: Privacy Act and constitutional violations for the VA’s
    intentional inclusion in her benefits record of the allegedly
    fraudulent July 2008 appeal of Plaintiff’s § 1151 claim
    decided that same month, which she did not file, as well as
    the March 2009 decision regarding that appeal. Id. ¶¶ 331,
    333, 336–39.
•   COA VI: Privacy Act and constitutional violations for the
    VA’s intentional exclusion from her benefits record of
    Plaintiff’s July 2009 appeal of her § 1151 claim. Id. ¶¶ 343–
    45, 348–350.
•   COA VII: Privacy Act violation for the VA’s failure to assign
    Plaintiff a primary care clinic in 2010. Id. ¶¶ 353–362.
•   COA VIII: Privacy Act violation for the VA’s failure to
    provide to Plaintiff the audio tape of her August 2005 Board
    of Veterans’ Appeals hearing, as well as the destruction of
    that tape. Id. ¶¶ 364–367.




                                  3
     Plaintiff seeks damages of $2–3 million per cause of

action, attorney’s fees, and any other relief the Court deems

adequate and just. Id. at 75–76.

          2.   The PTSD Claim.

     Ms. Melvin filed an application for service-connected

compensation with the VA in 2001 claiming mental and emotional

distress for sexual trauma during her military service; in 2005,

the VA identified her claim as one for PTSD. Am. Compl. ¶¶ 50,

235. Her claim appears to have been considered and appealed to

the Board of Veterans’ Appeals. Id. ¶¶ 50–73. The ALJ heard the

appeal on August 1, 2005 and remanded to the Winston-Salem

Regional Office (“RO”) for, among other things, a medical

evaluation for psychotic disorder. Id. ¶¶ 70–73. The medical

evaluation took place in February 2007. Id. ¶¶ 111–142, 237.

Sometime after this August 2005 hearing, Ms. Melvin supplemented

her PTSD claim to include allegations about two distinct sets of

sexual trauma incidents. Id. ¶¶ 75, 146.

     Because Plaintiff included additional information for

consideration of her PTSD claim after her August 2005 hearing,

she sent a letter requesting another hearing before the Board of

Veterans’ Appeals. Id. ¶ 146. In response, Ms. Melvin alleges

the Board of Veterans’ Appeals sent her a document by which she

could request a hearing, which she completed and returned. Id. ¶



                                 4
147. Plaintiff claims she never received an additional hearing.

Id. ¶ 148.

     In October 2009, Ms. Melvin inquired about the status of

her PTSD claim by calling the VA’s toll-free hotline. Id. ¶¶

179–180. She alleges the representative on the call informed her

that the PTSD appeal was still pending. Id. The Appeals

Management Center allegedly denied her appeal in September 2009,

and the Board of Veterans’ Appeals issued a final decision

denying her PTSD claim on January 6, 2010. Id. ¶¶ 197, 148.

     Ms. Melvin did not learn of this outcome in 2010, and only

learned of the decision when she called the VA’s toll-free

hotline in January 2011 for an update on her benefits claims.

Id. ¶¶ 181–182, 240, 241. Ms. Melvin made several calls to the

VA during January 2011. Id. ¶¶ 181, 196. During these calls

Plaintiff requested, among other things, a copy of the January

2010 decision. Id. ¶ 202. Each representative responding to her

calls indicated there was no written record of the decision. Id.

¶ 208. Ms. Melvin also promptly sent several letters to

different VA officials and offices requesting records related to

her PTSD claim. Id. ¶¶ 186–190, 203–07. She sent additional

letters requesting her PTSD claim records in April 2011, id. ¶¶

211–16, 270–71, and again in January and February 2012, id. ¶¶

217–220, 272–73.



                               5
     Aware of the 120-day appeal window, Plaintiff believed her

opportunity to challenge the decision had closed even though she

had not timely received the January 2010 decision. Id. ¶¶ 244–

48, 251. Nevertheless, in one of her January 2011 letters

requesting a copy of the decision, she attempted to notify the

VA that she wanted to appeal the January 2010 decision. Id. Ex.

G. Plaintiff alleges she received the January 6, 2010 decision

for the first time in March 2012. Id. ¶¶ 221, 223, 244.

          3.   The 38 U.S.C. §1151 Claim.

     In addition to the PTSD claim Ms. Melvin filed in 2001, the

Amended Complaint also describes a benefits claim filed in May

2007 with the Winston-Salem RO. In that claim, Plaintiff

requested compensation under 38 U.S.C. § 1151 for the rheumatoid

arthritis treatment she had received at VA hospitals. Am. Compl.

¶¶ 149, 325. In July 2008, the RO denied the § 1151 claim. Id.

¶¶ 150, 326. In July 2009, Plaintiff timely appealed. Id. ¶¶

151, 153, 327, 328. With her appeal, she also enclosed a letter

seeking to amend her records pertaining to the PTSD claim to

include additional facts and to challenge the inclusion of

allegedly false statements from the doctor who performed her

February 2007 medical evaluation. Id. ¶¶ 154–56, 238, 313.

     Plaintiff did not receive a response from the VA regarding

her July 2009 request to amend her records. Id. ¶¶ 239, 314. She

contends this failure to act or to amend her record was

                               6
intentional or willful. Id. ¶ 315. Ms. Melvin alleges the VA

instead sent her a letter scheduling a medical reevaluation for

her service-connected claim. Id. ¶¶ 159–160. She did not attend

the scheduled medical examination, however, because she

allegedly feared her medical records would be falsified as they

allegedly were during her February 2007 evaluation. Id. ¶ 161.

     During her January 2011 calls to the VA’s toll-free

hotline, Plaintiff also inquired about her § 1151 claim and

learned her file contained an appeal, dated on or around July

2008, of the VA’s decision on that § 1151 claim. Id. ¶¶ 196–97,

329. Plaintiff contends she did not file this July 2008 appeal.

Id. ¶¶ 200, 230. She maintains the VA intentionally included in

her file the July 2008 appeal she did not file. Id. ¶¶ 336–37.

The VA denied this July 2008 appeal in March 2009. Id. ¶ 197.

Plaintiff’s § 1151 claim was allegedly closed after she did not

appeal the March 2009 decision. Id. ¶ 278.

     Plaintiff further contends the VA hotline representatives

each informed her that there was no record of her July 2009

appeal of the § 1151 claim or a request to amend her records.

Id. ¶ 201.

     One of Ms. Melvin’s January 2011 letters to VA officials,

referenced above, requested a copy of the March 2009 decision.

Id. ¶¶ 203–06, 330. The VA did not respond to her request. Id. ¶

207. Ms. Melvin’s letters of April 2011, January 2012, and

                               7
February 2012 repeated her request for records relating to her §

1151 claim. Id. ¶¶ 211–220, 270–72. She sent yet another letter

requesting these records in June 2012. Id. ¶¶ 224–25. In March

2011, Plaintiff alleges she ultimately received a copy of the

March 2009 decision. Id. ¶¶ 209, 330.

          4.   Other Grievances.

     Plaintiff’s Amended Complaint raises two other issues.

First, she alleges she has been denied assignment to a primary

care clinic. Plaintiff registered for enrollment for on-going

medical treatment at the Fayetteville, North Carolina VA

hospital in July 2010. Id. ¶ 163. After twice attempting to

receive emergency care for treatment of her arthritis in August

2010, VA employees informed Plaintiff she would receive an

appointment for care within several weeks. Id. ¶¶ 164–65. When

she had not received an appointment by November 2010, Ms. Melvin

called the hospital and learned she had not been assigned a

primary care clinic. Id. ¶¶ 166–69. Further, the VA apparently

had mailed Plaintiff an appointment notice in September 2010,

but because she had missed her appointment, she had been placed

on a lengthy waitlist for treatment. Id. ¶¶ 170–71. Plaintiff

submits she has been unable to receive medical treatment because

she has not been assigned a primary care clinic. Id. ¶ 357.

     The second other grievance Plaintiff alleges in her Amended

Complaint relates to an audio tape of the August 1, 2005 hearing

                               8
before the Board of Veterans’ Appeals. Ms. Melvin allegedly

submitted several requests for the audio tape of the August 2005

hearing. The Amended Complaint describes four such requests in

October 2005, April 2011, January 2012, and February 2012. Id.

¶¶ 232, 214–220, 224–25. Plaintiff claims she has not received

the tape, and believes it has been destroyed. Id. ¶¶ 233, 366.

                B.           VA’s Motion to Dismiss

              The VA has moved to dismiss the Amended Complaint for lack

of subject matter jurisdiction and for failure to state a claim.3

The VA argues all of Plaintiff’s claims are based upon

substantive decisions by the VA and are therefore barred from

review by this Court by 38 U.S.C. § 511(a). Def.’s Mot. to

Dismiss at 5. As discussed in detail, the VA argues the Veterans

Judicial Review Act (VJRA) provides the appropriate forum for

Plaintiff to challenge the substance of her veterans benefits

determinations, including the statutory and constitutional

claims before the Court. Id. at 6–8. Further, the VA argues the

fourth and eight causes of action of the Amended Complaint are

barred by the two-year limitation for bringing Privacy Act

claims. Id. at 8–9. Finally, to the extent Plaintiff alleges

tort claims, the VA contends her claims have not been

                                                            
3
     The VA also moves to amend the case caption to reflect that the
VA is the only named defendant in the case. Def.’s Mot. to
Dismiss at 1. Ms. Melvin did not address this portion of the
motion, so the Court GRANTS AS CONCEDED the VA’s request. 
                                                               9
administratively exhausted and are, in any event, time-barred.

Id. at 10–11.

        Plaintiff opposes the VA’s motion to dismiss, generally

arguing this Court has jurisdiction to hear her properly pleaded

claims. Pl.’s Opp’n to Def.’s Mot. to Dismiss (ECF No. 86) at 1.

She maintains the VA’s Privacy Act violations and the VA’s

statute of limitations challenges to her pending appeals in the

Court of Appeals for Veterans Claims have deprived her of an

opportunity to present her case regarding her record with, and

benefits from, the VA. Id. at 4–5. Thus, she argues she was

effectively denied access to the courts in violation of the

First and Fifth Amendments to the Constitution. Id. at 2.

    II. STANDARD OF REVIEW

        A.   Rule 12(b)(1)

        The VA challenges the Court’s jurisdiction to hear

Plaintiff’s claims under Rule 12(b)(1). The plaintiff bears the

burden of establishing the court has subject matter jurisdiction

on a motion to dismiss for lack of subject matter jurisdiction

pursuant to Rule 12(b)(1). See McNutt v. Gen. Motors Acceptance

Corp. of Ind., 298 U.S. 178, 182–83 (1936). Federal district

courts are courts of limited jurisdiction and “possess only that

power conferred by [the] Constitution and [by] statute.” Logan

v. Dep’t of Veterans Affairs, 357 F. Supp. 2d 149, 152 (D.D.C.

2004) (quoting Kokkonen v. Guardian Life Ins. Co. of Am., 511

                                  10
U.S. 375, 377 (1994)) (alteration in original). “There is a

presumption against federal court jurisdiction and the burden is

on the party asserting the jurisdiction, the plaintiff in this

case, to establish that the Court has subject matter

jurisdiction over the action.” Id. at 153 (citing McNutt, 298

U.S. at 182–83); see also Lujan v. Defenders of Wildlife, 504

U.S. 555, 561 (1992).

     Because subject matter jurisdiction focuses on a court’s

power to hear a claim, the court must give a plaintiff’s factual

allegations closer scrutiny when resolving a Rule 12(b)(1)

motion than would be required for a Rule 12(b)(6) motion for

failure to state a claim. Macharia v. United States, 334 F.3d

61, 64, 67 (D.C. Cir. 2003). Thus, to determine whether it has

jurisdiction over a claim, the court may consider materials

outside the pleadings where necessary to resolve disputed

jurisdictional facts. Herbert v. Nat’l Acad. of Scis., 974 F.2d

192, 197 (D.C. Cir. 1992).

     B.   Rule 12(b)(6)

     The VA also argues the Amended Complaint should be

dismissed for failure to state a claim. Def.’s Mot. to Dismiss

at 2; FED. R. CIV. P. 12(b)(6). A motion to dismiss under Rule

12(b)(6) tests the legal sufficiency of the complaint. Browning

v. Clinton, 292 F.3d 235, 242 (D.C. Cir. 2002). To be viable, a

complaint must contain “a short and plain statement of the claim

                                11
showing that the pleader is entitled to relief, in order to give

the defendant fair notice of what the . . . claim is and the

grounds upon which it rests.” Bell Atl. Corp. v. Twombly, 550

U.S. 544, 555 (2007) (citation and quotation marks omitted). The

plaintiff need not plead all of the elements of a prima facie

case in the complaint, Swierkiewicz v. Sorema N.A., 534 U.S.

506, 511–14 (2002), nor must the plaintiff plead facts or law

that match every element of a legal theory. Krieger v. Fadely,

211 F.3d 134, 136 (D.C. Cir. 2000). Despite this liberal

standard, a complaint still “must contain sufficient factual

matter, accepted as true, to state a claim for relief that is

plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678

(2009) (quoting Twombly, 550 U.S. at 570) (quotation marks

omitted).

     When ruling on a defendant’s motion to dismiss, the court

must give the plaintiff “the benefit of all inferences that can

be derived from the facts alleged.” Kowal v. MCI Commc’ns Corp.,

16 F.3d 1271, 1276 (D.C. Cir. 1994) (citation omitted). Pro se

plaintiffs’ complaints filed “without the assistance of counsel

are held ‘to less stringent standards than formal pleadings

drafted by lawyers.’” Brown v. Dep’t of Veterans Affairs, No.

94-1119, 1996 WL 263636, at *1 (D.D.C. May 15, 1996) (quoting

Haines v. Kerner, 404 U.S. 519, 520 (1972)). Nevertheless, a

court “need not accept inferences drawn by plaintiff[] if such

                               12
inferences are unsupported by the facts set out in the

complaint.” Kowal, 16 F.3d at 1276. Further, “[t]hreadbare

recitals of elements of a cause of action, supported by mere

conclusory statements” are not sufficient to state a claim.

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Twombly, 550

U.S. at 555).

III. ANALYSIS

     A.   Privacy Act Claims

     The Privacy Act of 1974, 5 U.S.C. § 552a, governs the

collection and dissemination of information and maintenance of

records by the government. The Privacy Act requires an agency to

“maintain all records which are used by the agency in making any

determination about any individual with such accuracy,

relevance, timeliness, and completeness as is reasonably

necessary to assure fairness to the individual in the

determination.” 5 U.S.C. § 552a(e)(5). An individual may access

an agency’s records pertaining to her, and she may request

amendment of such records. See 5 U.S.C. § 552a(d). That

individual may file a civil action against an agency that “makes

a determination . . . not to amend an individual’s record in

accordance with his request.” 5 U.S.C. § 552a(g)(1)(A). In

addition, an individual may bring suit against an agency under

subsection (g)(1)(C) if the agency



                               13
     fails to maintain any record concerning any individual
     with   such   accuracy,   relevance,  timeliness,   and
     completeness as is necessary to assure fairness in any
     determination    relating    to   the   qualifications,
     character, rights, or opportunities of, or benefits to
     the individual that may be made on the basis of such
     record, and consequently a determination is made which
     is adverse to the individual.

5 U.S.C. § 552a(g)(1)(C).

     Though the Privacy Act vests broad discretion in a district

court to “order the agency to amend the individual’s record in

accordance with his request or in such other way as the court

may direct,” the remedy generally is limited to the correction

of inaccurate or incomplete documents. 5 U.S.C. § 552a(g)(2)(A).

The Privacy Act thus cannot be used as a vehicle to “correct” a

substantive decision unfavorable to an individual’s interest.

See Byrnes v. Merit Sys. Prot. Bd., No. 04-742, 2005 WL 486156,

at *2 (D.D.C. Mar. 2, 2005); Douglas v. Agric. Stabilization and

Conservation Serv., 33 F.3d 784, 785 (7th Cir. 1994) (“We join

many other circuits in holding that the Privacy Act does not

authorize relitigation of the substance of agency decisions.”).

That is, the Privacy Act provisions for amending records “are

not designed to permit collateral attack upon that which has

already been the subject of a judicial or quasi-judicial

action.”   Kennedy v. Andrus, 459 F. Supp. 240, 242 (D.D.C.

1978). In cases of willful or intentional Privacy Act




                                14
violations, as pleaded here, the Court may award actual damages.

5 U.S.C. § 552a(g)(4).

     The Privacy Act is not “‘a vehicle for amending the

judgments of federal officials or   . . . other[s] . . . as those

judgments are reflected in records maintained by federal

agencies.’” Kleiman v. Dep’t of Energy, 956 F.2d 335, 337–38

(D.C. Cir. 1992) (quoting Rogers v. U.S. Dep't of Labor, 607 F.

Supp. 697, 699 (N.D. Cal. 1985)) (alteration in original);

accord Baker v. Winter, 210 F. App’x 16, 18 (D.C. Cir. 2006)

(“The Privacy Act requires modification only of factual errors,

not of errors in opinion[.]”) (citation omitted); see also

Levant v. Roche, 384 F. Supp. 2d 262, 270 (D.D.C. 2005) (noting

a complaint “not about the accuracy of [ ] records, but about

the underlying decision they reflect” is not cognizable under

the Privacy Act); McCready v. Principi, 297 F. Supp. 2d 178, 190

(D.D.C. 2003) (“The [Privacy Act] allows for correction of facts

but not correction of opinions or judgments, no matter how

erroneous such opinions or judgments may be.”) (citations

omitted), rev’d in part on other grounds sub nom. McCready v.

Nicholson, 465 F.3d 1 (D.C. Cir. 2006).

     In the context of the VA, 38 U.S.C. § 511(a) further limits

the scope of the Privacy Act so that it cannot be used to

challenge the VA’s benefits decisions. “[A]ll questions of law

and fact necessary to a decision by the Secretary under a law

                               15
that affects the provision of benefits by the Secretary to

veterans” must be decided by the Secretary. 38 U.S.C. § 511.

Instead, such challenges should be brought in the system of

courts established by the VJRA. See Price v. United States, 228

F.3d 420, 421 (D.C. Cir. 2000) (per curiam) (“As amended by the

Veterans Judicial Review Act, the Veterans’ Benefits Act of 1957

precludes judicial review in Article III courts of VA decisions

affecting the provision of veterans’ benefits . . . .”), cert.

denied, 534 U.S. 903 (2001) (internal citations omitted).

     The law is settled that this Court may not hear claims

attempting to challenge impermissibly the underlying VA benefits

decisions; to allow such Privacy Act claims would require this

Court to intrude impermissibly on the province of the Secretary

of Veterans Affairs. See Thomas v. Principi, 394 F.3d 970, 975

(D.C. Cir. 2005) (affirming dismissal pursuant to § 511 of

Privacy Act claims that “allege only that the VA’s failure to

maintain accurate and complete records adversely affected

[plaintiff]’s benefits determinations”).

          1.   The First Seven Causes of Action.

     The VA argues the Privacy Act violations alleged in all

eight causes of action should be dismissed for lack of subject

matter jurisdiction. The VA argues Plaintiff’s causes of action

essentially amount to attacks on the VA’s benefits decisions on

her claims. Def.’s Mot. to Dismiss at 3. Thus, the VA argues the

                               16
Court lacks subject matter jurisdiction to hear Plaintiff’s

claims because 38 U.S.C. § 511 bars courts from considering

“questions of law or fact necessary to a decision . . . under a

law that affects the provision of benefits . . . .” Def.’s Mot.

to Dismiss at 5–6; 38 U.S.C. §511(a).4 Plaintiff opposes, and

seems to argue a VA benefits decision cannot strip her of an

accurate VA benefits record under the Privacy Act. Pl.’s Opp’n

at 5.

              While the first seven causes of action allege Privacy Act

violations of the statutory access to and maintenance of Ms.

Melvin’s benefits record, the purpose or effect of these seven

claims is to challenge the underlying benefits determinations as

a consequence of the alleged Privacy Act violations. Am. Compl.

at 53–74. Specifically, the first and fourth causes of action

allege the VA failed to respond to Ms. Melvin’s request to amend

her PTSD claims. Id. ¶¶ 156, 234–68, 312–323. Plaintiff’s second

cause of action challenges the VA’s accurate maintenance of, and

her access to, her benefits record, claiming she was harmed by

the VA’s failure to respond to her requests for copies of the

January 6, 2010 decision in 2011 and 2012. Id. ¶¶ 269–290. The

third cause of action alleges Ms. Melvin’s requests for the

records about her pending claims should have triggered the VA to
                                                            
4
 There are statutory exceptions to the framework, but none of
these exceptions apply here. See 38 U.S.C. § 511(b); Def.’s Mot.
to Dismiss at 6–7 (citing statute). 
                                                               17
assign her a primary care clinic, or put in writing its refusal

to do so. Id. ¶¶ 291–311. Similarly, Plaintiff’s seventh cause

of action claims the VA violated the Privacy Act by failing to

assign her to a primary care clinic. Id. ¶¶ 352–362. The fifth

and sixth causes of action challenge not only the maintenance of

Ms. Melvin’s record regarding her § 1151 appeal, but the

treatment of those appeals. Id. ¶¶ 324–351. These requests

venture beyond the Privacy Act’s requirement that the VA

maintain accurate records and into the substantive decisions of

the VA, which should be challenged within the court system

established by the VJRA.

     Plaintiff does not simply seek to amend her records.

Rather, the Amended Complaint seeks damages for harm to Ms.

Melvin’s pending benefits claims resulting from the alleged

Privacy Act violations. Id. at 75–76. Plaintiff’s claims are

based on her allegations that the VA’s willful failure to

maintain accurate and complete records adversely affected her

benefits determinations or access to services. See id. ¶¶ 321,

338, 349, 360.

     The Court agrees the VJRA, rather than the Privacy Act,

provides the exclusive forum for bringing the challenges

Plaintiff raises here. The Veterans Judicial Review Act of 1988

establishes the process by which veterans may appeal the

substance of VA decisions: after a Regional Office makes a

                               18
determination on the claim, a veteran may appeal, within one

year, to the Board of Veterans’ Appeals. 38 U.S.C. §§ 7104,

7105; see generally Veterans Judicial Rev. Act of 1988, Pub. L.

100-687, 102 Stat. 4105 (1988). The Board of Veterans’ Appeals

may either remand back to the RO or issue a final VA decision.

38 U.S.C. §§ 7103, 7104. From there a veteran may appeal, within

120 days, to the Court of Appeals for Veterans claims, an

Article I court. 38 U.S.C. §§ 7251, 7252, 7266. Finally, a

veteran may appeal, within 60 days, to the Court of Appeals for

the Federal Circuit any legal issue, such as the validity or

interpretation of a statue, regulation, or rule of law. 38

U.S.C. § 7292; FED. R. APP. P. 4(a)(1)(B). To the extent Plaintiff

wanted to argue the VA’s alleged Privacy Act violations affected

her substantive benefits decisions, she was free to raise them

within the confines of judicial review described in Title 38.

See 38 U.S.C. §§ 511, 7104, 7252, 7292; see also supra at 17–18.

     In view of the statutory scheme to address Plaintiff’s

statutory and constitutional claims, this Court lacks subject

matter jurisdiction to hear them. Indeed, “[t]he courts have

consistently held that a federal district court may not

entertain constitutional or statutory claims whose resolution

would require the court to intrude upon the VA’s exclusive

jurisdiction.” Price, 228 F.3d at 422 (citation omitted); see

also Rosen v. Walters, 719 F.2d 1422, 1424 (9th Cir. 1983)

                                19
(affirming dismissal of Privacy Act claim based on destruction

of medical records pertinent to claim for veterans’ disability

benefits). Rather, “[t]he exclusive avenue for redress of

veterans’ benefits determinations is appeal to the Court of

Veterans Appeals [renamed Court of Appeals for Veterans Claims]

and from there to the United States Court of Appeals for the

Federal Circuit.” Price, 228 F.3d at 421 (citing 38 U.S.C. §§

511, 7252, 7292) (other citations omitted). Consequently, the

Court dismisses the first seven Privacy Act claims pursuant to

Rule 12(b)(1). See Hunt v. Dep’t of Veterans Affairs, 739 F.3d

706, 707 (D.C. Cir. 2014) (affirming summary judgment because

district court lacked subject matter jurisdiction over

plaintiff’s Privacy Act claims for damages).

          2.   The Eighth Cause of Action.

     The eighth cause of action is somewhat different than the

first seven. The eighth cause of action describes a Privacy Act

violation for the VA’s failure to provide to Ms. Melvin the

audio tape of the August 1, 2005 Board of Veterans’ Appeals

hearing, as well as the ultimate destruction of the tape. Am.

Comp. ¶¶ 363–67. Because the cause of action requests damages

related to the allegedly intentional denial of access to a

portion of Ms. Melvin’s benefits record, it cannot be construed

as a collateral attack on her benefits determinations. Section



                               20
511(a) therefore poses no jurisdictional bar to the Amended

Complaint’s eighth cause of action.

     The Court next considers whether the remaining eighth cause

of action survives the VA’s Rule 12(b)(6) challenge. The VA

argues the eighth claim of the Amended Complaint should be

dismissed pursuant to Rule 12(b)(6) as barred by the Privacy

Act’s two-year time limitation. Def.’s Mot. to Dismiss at 8–9.

The requirement that Privacy Act claims be brought within two

years is not jurisdictional, and these claims are therefore

reviewable under the rubric of Rule 12(b)(6). Kursar v. TSA, 751

F. Supp. 2d 154, 165 (D.D.C. 2010). The statute of limitation

begins to run when the plaintiff knows, or should have known, of

the alleged violation. Id. (quoting Tijerina v. Walters, 821

F.2d 789, 798 (D.C. Cir. 1987)).

     Plaintiff does not address specifically her eighth cause of

action in her opposition to the VA’s motion to dismiss, but she

notes the two-year limitation does not apply where “an agency

has materially and willfully misrepresented any information

required . . . to be disclosed . . . and the information so

misrepresented is material to establishment of the liability of

the agency . . . .” 5 U.S.C. § 552a(g)(5); Pl.’s Opp’n at 9. But

in the Amended Complaint, Plaintiff alleges she requested the

hearing tape at least as early as October 21, 2005. Am. Compl.

¶¶ 226, 232. Ms. Melvin does not explain why she waited almost

                               21
seven years to bring her Privacy Act claim regarding the August

1, 2005 hearing tape.5 Consequently, the Court dismisses the

Amended Complaint’s eighth cause of action pursuant to Rule

12(b)(6) as time-barred.6

              B.               Denial of Access to Courts Claims

              Though somewhat dispersed throughout the Privacy Act

claims, the Amended Complaint further describes constitutional

violations regarding Plaintiff’s access to courts to litigate

her VA claims. See Am. Compl. at 53–65, 67–72. In brief,

Plaintiff asserts she has been denied an opportunity to litigate

her VA benefits claims because her benefits record was

inaccurately maintained or amended. Id.

              “The Supreme Court has long recognized that citizens have a

right of access to the courts.” Broudy v. Mather, 460 F.3d 106,

117 (D.C. Cir. 2006) (citation omitted). A claim for denial of

access may be backward-looking or forward-looking. Id. at 117–

118. Backward-looking claims are those where claims that “cannot

now be tried . . . no matter what office action may be in the
                                                            
5
 In the initial motion to dismiss filed in this case, the
defendants argued Ms. Melvin did, in fact, receive a copy of the
August 1, 2005 hearing tape, and supported their claim with a
declaration. See Mem. in Supp. of Defs.’ Mot. to Dismiss (ECF
No. 17-1) at 15; Decl. of A. Wold (ECF No. 17-2) ¶ 3, Ex. 1. The
VA did not raise this argument in the pending motion.
 
6
     The Court also notes that Ms. Melvin admits receiving a
transcript of the hearing, and has not explained why she is
entitled to an audio tape, rather than a transcript of the
proceedings, at all. See Am. Compl. Ex. Q, at 8. 
                                                               22
future.” Id. (quoting Christopher v. Harbury, 536 U.S. 406, 413–

414 (2002)). Forward-looking claims deny “an opportunity to

litigate for a class of potential plaintiffs. The opportunity

has not been lost for all time, however, but only in the short

term . . . .” Harbury, 536 U.S. at 413.

     Regardless of whether Plaintiff brings forward- or

backward-looking constitutional claims, they fail in the same

fashion as the Privacy Act claims on which they rely.

Plaintiff’s constitutional challenges here are facial attacks on

VA benefits determinations, not allegations she was foreclosed

from challenging those determinations. “Although [plaintiff]’s

complaints invoke provisions of the Fifth Amendment and are

styled in part as constitutional actions, the courts do not

acquire jurisdiction to hear challenges to benefits

determinations merely because those challenges are cloaked in

constitutional terms.” Sugrue v. Derwinski, 26 F.3d 8, 11 (2d

Cir. 1994) (citing Pappanikoloaou v. Admin. of Veterans Admin.,

762 F.2d 8, 9 (2d Cir. 1985) (per curiam) (noting, “we agree

with those circuits that have held that one may not circumvent §

[5]11(a) by seeking damages on a constitutional claim arising

out of a denial of benefits,” and collecting cases), cert.

denied, 474 U.S. 851 (1985)).

     As with her Privacy Act claims, Plaintiff had the

opportunity to bring these claims before a court with

                                23
jurisdiction to hear them, such as the courts established by the

VJRA. Those courts have jurisdiction to hear statutory and

constitutional claims related to veterans benefits

determinations. The limitations of judicial review imposed by 38

U.S.C. § 511 thus do not restrict Ms. Melvin’s “First Amendment

right of free speech or abridge [her] right to seek redress of

[her] grievances. . . . [R]ather, § 511 directs [her] to the

proper judicial” forum. Peavey v. Holder, 657 F. Supp. 2d 180,

186 (D.D.C. 2009). Pursuant to Rule 12(b)(1), the Court

therefore dismisses for lack of subject matter the denial access

to courts constitutional claims of the Amended Complaint.

     C.   Federal Tort Claims Act

     While the Amended Complaint does not expressly allege any

tort actions against the VA, the Amended Complaint claims harm

from the VA’s treatment (or lack thereof) of Ms. Melvin’s

conditions. See Def.’s Mot. to Dismiss at 10. Arguably, then,

she may be asserting tort claims against the federal government.

Such claims are governed by the Federal Tort Claims Act (FTCA),

which waives sovereign immunity in limited circumstances,

permitting plaintiffs to sue the United States for torts “where

the United States, if a private person, would be liable to the

claimant in accordance with the law of the place where the act

or omission occurred.”   28 U.S.C. § 1346(b)(1); Sloan v. Dep’t

of Hous. & Urban Dev., 236 F.3d 756, 759 (D.C. Cir. 2001).

                               24
Before filing suit under the FTCA, a plaintiff must first

present her alleged claims “to the appropriate Federal agency.”

28 U.S.C. § 2675(a). Exhaustion of administrative remedies is a

mandatory, jurisdictional prerequisite to filing such a lawsuit

in federal court. See Jones v. U.S., 296 F. App’x 82, 83 (D.C.

Cir. 2008); Simpkins v. D.C. Gov’t, 108 F.3d 366, 370–71 (D.C.

Cir. 1997); GAF Corp. v. United States, 818 F.2d 901, 917–920

(D.C. Cir. 1987).

     To exhaust administrative remedies under the FTCA, a

plaintiff must have presented the agency with “(1) a written

statement sufficiently describing the injury to enable the

agency to begin its own investigation, and (2) a sum-certain

damages claim.” GAF Corp., 818 F.2d at 905.   Further, the agency

must have either denied the claim in writing or failed to

provide a final disposition within six months of the filing of

the claim. Id.; Thomas v. Nicholson, 539 F. Supp. 2d 205, 213

(D.D.C. 2008). The claimant must present the administrative

claim to the agency within two years of discovery of “both his

injury and its cause.” Sexton v. United States, 832 F.2d 629,

633 (D.C. Cir. 1987) (quoting U.S. v. Kubrick, 444 U.S. 111, 119

(1979)); see 28 U.S.C. §§ 2401(b), 2675(a).

     To the extent Plaintiff alleges tort claims against the VA

in her Amended Complaint, those claims must fail because she did

not exhaust her administrative remedies. The Amended Complaint

                               25
alleges instances of Ms. Melvin’s requesting assistance from the

VA in reviewing or amending her record. Am. Compl. ¶¶ 153–54,

185–190, 203–205, 211, 214, 217, 219, 223, 224, 226, 232, Exs.

C, D, G, H, J–M, O. The requests, however fail to identify at

least a “sum-certain damages claim” as required by the FTCA. 28

U.S.C. § 1346(b). Plaintiff has failed to allege that she has

identified a sum-certain damages claim in any of her

correspondence regarding her grievances with the VA. See

generally Am. Compl. Exs. A, C, D, G, H, J–M, O. Because

Plaintiff failed to invoke properly the FTCA’s limited waiver of

sovereign immunity, the Court does not have jurisdiction to hear

her claims. Pursuant to Rule 12(b)(1), the Court dismisses any

construable claims under the FTCA.

    IV. CONCLUSION

        For the foregoing reasons, the Court GRANTS the VA’s motion

to dismiss. Plaintiff’s Amended Complaint is dismissed in its

entirety. The Court GRANTS AS CONCEDED the VA’s motion to amend

the case caption. Finally, the Court DENIES AS MOOT Plaintiff’s

pending motion to issue subpoenas and motion for partial summary

judgment.

        An appropriate Order accompanies this Memorandum Opinion.

        SO ORDERED.

Signed:      Emmet G. Sullivan
             United States District Judge
             September 30, 2014

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