                                                         [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT            FILED
                      ________________________ U.S. COURT OF APPEALS
                                                          ELEVENTH CIRCUIT
                             No. 05-12372                    APRIL 10, 2006
                         Non-Argument Calendar             THOMAS K. KAHN
                                                                CLERK
                       ________________________

                   D. C. Docket No. 04-01216-CV-B-S

MARLON B. SLATER,

                                                      Plaintiff-Appellant,

                                  versus

UNITED STATES OF AMERICA,

                                                     Defendant-Appellee.


                       ________________________

                Appeal from the United States District Court
                   for the Northern District of Alabama
                      _________________________

                            (April 10, 2006)


Before TJOFLAT, MARCUS and FAY, Circuit Judges.

PER CURIAM:
       Marlon Brando Slater appeals pro se the district court’s grant of the

government’s motion to dismiss as time-barred his medical malpractice claims

under the Federal Tort Claims Act, 28 U.S.C. § 1346. For the reasons set forth

more fully below, we affirm.

       Slater, a former soldier in the United States Army, filed a pro se complaint

against the United States under the FTCA alleging that, in October 1997, he was

informed that his thyroid gland had been destroyed by the medication lithium

carbonate, which had been prescribed and administered as treatment for Slater’s bi-

polar disorder by Veterans Administration (VA) doctors from 1988 to 1997. As a

result of the VA’s alleged negligence, Slater stated that he suffered from bilateral

carpal tunnel syndrome (CTS), hypothyroidism, and other disabilities. On

September 22, 1999, Slater submitted to the VA a claim requesting “service

connection” on grounds that his CTS was caused by the continued administering of

lithium carbonate, which was apparently granted by the Board of Veterans Appeals

after the claim previously had been denied.1

       In February 2004, Slater obtained a copy of his CTS claims form, and

discovered that certain information had been deleted or changed, which he alleged

was evidence of an attempt to obscure vital information in the claim as well as


       1
        As discussed later in this opinion, the “service connection” claim was a claim for
individual disability benefits, not an administrative tort claim.

                                                2
fraud. While reviewing his medical records that same month, Slater discovered

that his doctor, who had prescribed the medication zyprexa for him in March 2000,

noted in the records that zyprexa can initiate the onset of diabetes mellitus. On

April 30, 2000, Slater was admitted to a VA medical center for an onset of diabetes

mellitus that landed him in a coma for two days.

      On April 30, 2001, Slater submitted to the VA an administrative claim form

seeking compensation for alleged acts of negligence and malpractice. Specifically,

Slater alleged that his VA doctor had prescribed him the drug carbamazepine, and

when Slater asked his doctor if carbamazepine could cause diabetes, the doctor

informed him that it could.. The claim was denied. However, based on the

notation in his medical record regarding zyprexa, Slater alleges that VA personnel

and the medical expert employed to review his claim “had to discover” that his VA

doctor “had noted that studies had revealed that zyprexa can elicit the onset of

diabetes mellitus,” and further alleged that zyprexa should not have been

prescribed for him because of literature indicating that it should not be prescribed

to patients with a predisposition to diabetes such as Slater, whose mother is a

documented diabetic. As relief, Slater sought $200,000,000 in damages, as well as

the liberty to seek medical care anywhere in the world, with all expenses, including

travel, room, and board, to be paid by the United States.



                                          3
      The government responded by filing a motion to dismiss, or in the

alternative, a motion for summary judgment, arguing that Slater’s claim was barred

by the administrative claim requirements of the FTCA found at 28 U.S.C.

§ 2401(b). Specifically, the government stated that, on April 30, 2001, Slater had

filed a claim with the VA alleging that he had developed diabetes based on the

negligent prescription of drugs by VA doctors in 2000. That claim was denied on

November 7, 2001, and, therefore, Slater failed to file suit within six months of

receiving the letter denying his claim as required. The government further argued

that Slater previously had filed a complaint in federal district court, alleging

malpractice by VA doctors between 1987 and 1997, which was dismissed as time-

barred. The government noted that many of the allegations contained in the

present complaint were identical to the allegations raised in the previously

dismissed complaint.

      Included with the motion to dismiss was the sworn declaration of Mary E.

Barrett, Regional Counsel for the Department of Veterans Affairs covering

Alabama, who stated that, on April 30, 2001, Slater filed a claim alleging that he

had developed diabetes as the result of VA doctors negligently prescribing him

drugs in 2000. The claim was denied in a letter dated November 7, 2001, and no

other claims had been filed by Slater alleging that his diabetes was caused by the



                                           4
negligent prescription of drugs in 2000. Also included was a June 11, 2001, claim

alleging that VA doctors negligently failed to take him off of lithium carbonate

between February 1988 and September 1997, causing hypothyroidism. This claim

was denied as time-barred in a June 28, 2001, letter. On August 1, 2001, Slater

filed a complaint in the Northern District of Alabama requesting that the court find

that his claims were not time-barred, and the district court dismissed the complaint

as time-barred on October 28, 2002.

      On the basis of the foregoing evidence, the government argued that the

district court should grant its motion to dismiss/motion for summary judgment

because Slater had two years after his claim accrued to present his claim, or six

months after his claim was initially denied, and because Slater was aware of his

diabetes and its alleged connection to drug prescriptions in 2000, his present claim

was untimely. Furthermore, it argued that the VA had denied his claim on

November 7, 2001, and Slater failed to file suit within six months of that denial,

making his lawsuit untimely.

      In response, Slater filed objections to the government’s motion for summary

judgment. He contested the facts, and stated that he only became aware that

zyprexa could cause diabetes in February 2004, and, therefore, the statute of

limitations should not have started running until he discovered the notes of his



                                          5
physician informing him of the possible effects of zyprexa. However, Slater also

stated that his VA doctor, on May 23, 2000, had noted in Slater’s medical records

that zyprexa could initiate the onset of diabetes mellitus. As to his CTS, he

requested that the statute of limitations begin running on June 3, 2003, the date that

the Board of Veterans Appeals granted him “service connection” for bilateral CTS.

      Slater also filed a reply, arguing that he first became aware of the drug

carbamazepine as a doctoral student at the University of Auburn, when a graduate

advisor asked him if he had ever been prescribed it. Slater, after researching the

drug, discovered that it was prescribed for patients with medical disabilities similar

to his own. In May 2000, when Slater was diagnosed with adult onset diabetes

mellitus, he asked his VA physician if carbamazepine could have caused his

diabetes, and his doctor confirmed that it could. Based on that information, Slater

eventually filed a claim on April 30, 2001, which was later denied, and, upon

further inquiry with the Food and Drugs Administration, Slater discovered that

there was no evidence that carbamazepine could initiate the onset of diabetes

mellitus. However, Slater did not see the notes regarding zyprexa and diabetes

contained in his medical record until February 2004, and, therefore, argued that he

did not possess the essential facts of his injury and its cause until that date. Slater

subsequently requested and was denied an appointment of counsel.



                                            6
      Based on the parties’ filings, the district court concluded that it lacked

jurisdiction to entertain Slater’s claims because the statute of limitations barred

them. The court found that, despite Slater’s assertion that he only learned of

zyprexa and its ability to cause diabetes mellitus in February 2004, he was aware

of his diabetes and its alleged connection to possible negligence of VA doctors in

2000, as evidenced by his filing of an administrative claim in April 2001. It further

found that the fact that Slater now claimed a different drug caused his diabetes than

originally claimed in 2000 did not save his case because Slater was aware all along

of both the harm and its cause. Finally, it found that Slater had not alleged, nor

could he, that, had he exercised “reasonable diligence” in 2001, he could not have

learned of the alleged connection between zyprexa and his diabetes. Thus, Slater’s

complaint was dismissed with prejudice.

      On appeal, Slater argues, pro se, that the district court failed to address two

of his allegations, namely the allegation that negligence caused his CTS and the

allegation that the VA had fraudulently changed information in an appeal in an

effort to weaken his claim. Next, Slater argues that the district court erred by

dismissing his claim regarding zyprexa and diabetes mellitus because, although he

was aware of the drugs prescribed to him in 2000, VA doctors did not make him

aware of the side effects, and, therefore, he did not become aware of the zyprexa



                                           7
and its ability to cause diabetes mellitus until 2004 when he began preparing a

different tort claim. He further argues that the VA committed fraud by actively

concealing something from him in the November 7, 2001, letter denying his claim,

although it is unclear exactly what Slater believes was concealed from him.

Finally, Slater argues that the government failed to respond to his request for

treatment outside of the VA medical centers. It is noted that Slater attached a

number of exhibits with his appellate brief; however, we granted the government’s

motion to strike exhibits A through E and G and they will not be considered.

      We review de novo the dismissal of an action for lack of subject matter

jurisdiction, as well as the district court’s interpretation and application of statutory

provisions. Ochran v. United States, 117 F.3d 495, 499 (11th Cir. 1997). “In the

face of a factual challenge to subject matter jurisdiction, the burden is on the

plaintiff to prove that jurisdiction exists.” OSI, Inc. v. United States, 285 F.3d

947, 951 (11th Cir. 2000). It is noted that pro se pleadings are to be afforded a

liberal construction. Walker v. Dugger, 860 F.2d 1010, 1011 (11th Cir. 1988).

However, we may affirm “on any ground that appears in the record, whether or not

that ground was relied upon or even considered by the court below.” Rowell v.

BellSouth Corp., 433 F.3d 794, 797-98 (11th Cir. 2005).

      “It is well established that the FTCA is a specific waiver of the sovereign



                                            8
immunity of the United States and must be strictly construed.” Phillips v. United

States, 260 F.3d 1316, 1318 (11th Cir. 2001). “By enacting the FTCA time

limitation period, 28 U.S.C. [§] 2401(b), the United States has placed a condition

on that waiver. [L]imitations and conditions upon which the Government consents

to be sued must be strictly observed and exceptions thereto are not to be implied.”

Id. Moreover, “[t]he Federal Tort Claims Act (FTCA) provides that an ‘action

shall not be instituted upon a claim against the United States for money damages’

unless the claimant has first exhausted his administrative remedies.” McNeil v.

United States, 508 U.S. 106, 107, 113 S.Ct. 1980, 1981, 124 L.Ed.2d 21 (1993).

      Pursuant to 28 U.S.C. § 2675(a) of the FTCA:

      An action shall not be instituted upon a claim against the United
      States for money damages for injury or loss of property or personal
      injury or death caused by the negligent or wrongful act or omission of
      any employee of the Government while acting within the scope of his
      office or employment, unless the claimant shall have first presented
      the claim to the appropriate Federal agency and his claim shall have
      been finally denied by the agency in writing and sent by certified or
      registered mail. The failure of an agency to make final disposition of a
      claim within six months after it is filed shall, at the option of the
      claimant any time thereafter, be deemed a final denial of the claim for
      purposes of this section.

28 U.S.C. § 2675(a).

      Furthermore, the FTCA explicitly provides that a tort claim against the

United States will be “forever barred” unless (1) presented to the appropriate



                                          9
agency within two years after the claim accrues or (2) action is commenced within

six months after the final denial of the claim by the agency to which it was

presented. See 28 U.S.C. § 2401(b). “The general rule is that a claim under the

FTCA accrues at the time of injury.” Diaz v. United States, 165 F.3d 1337, 1339

(11th Cir. 1999). However, “[t]he rule for medical malpractice claims is that they

accrue when the plaintiff knows of both the injury and its cause.” Id. Thus, “a

medical malpractice claim under the FTCA accrues when the plaintiff is, or in the

exercise of reasonable diligence should be, aware of both [his] injury and its

connection with some act of the defendant.” Id.

      Finally, the FTCA sets forth exceptions to the United States’ waiver of

sovereign immunity, and among those exceptions, a person cannot file suit under

28 U.S.C. § 1346(b) if that claim arises out of “assault, battery, false

imprisonment, false arrest, malicious prosecution, abuse of process, libel, slander,

misrepresentation, deceit, or interference with contract rights.” 28 U.S.C. §

2680(h); see also Boda v. United States, 698 F.2d 1174, 1176 (11th Cir. 1983)

(holding that § 2680(h) is a jurisdictional bar to a plaintiff’s FTCA claim that she

was defrauded).

      A.     Slater’s Hypothyroidism

      Slater’s complaint references his hypothyroidism, which he believes was



                                           10
caused by the negligence of VA doctors who continued treating him with lithium

chloride, and, apparently, by failing to recognize through blood tests that his

thyroid gland was being destroyed. It is somewhat unclear whether Slater is

attempting to seek damages in this case for the hypothyroidism, or is referencing it

only because the hypothyroidism, allegedly caused by VA doctors’ negligence, is a

partial cause of his CTS, which he more clearly is seeking to redress.

      To the extent that Slater, given a liberal construction of his pro se pleading,

is attempting to seek damages for the hypothyroidism itself, the record reveals that

this claim previously was filed in a district court and dismissed as time-barred.

Thus, to the extent that the dismissal was with prejudice and merit-based, Slater’s

claim is barred by res judicata. See Davila v. Delta Air Lines, Inc., 326 F.3d 1183,

1187 (11th Cir. 2003) (holding that “[t]he doctrine of res judicata, or claim

preclusion, will bar a subsequent action if: (1) the prior decision was rendered by a

court of competent jurisdiction; (2) there was a final judgment on the merits; (3)

the parties were identical in both suits; and (4) the prior and present causes of

action are the same.”).

      However, even if it were not, Slater, in his complaint, states that he learned

that his thyroid gland had been destroyed in October 1997 by complications

regarding the use of lithium carbonate. The record further reflects that, although



                                          11
Slater filed for service-connected benefits in July 1998, he did not file an

administrative tort claim until June 11, 2001, more than two years after he was

aware that the claim had accrued.2 Accordingly, any claim for hypothyroidism was

time-barred, and the claim properly dismissed.

       B.      Carpal Tunnel Syndrome

       In his complaint, Slater “alleges that the bilateral CTS is directly due to and

is the result of his already service-connected hypothyroidism,” and notes that a VA

examiner noted in March 1999 that Slater was suffering from CTS, most likely

because of “lithium side effects of hypothyroidism.” However, the only

administrative claim that Slater appears to have made was regarding service-related

benefits, not an administrative tort claim, as required under the FTCA. As noted

supra, note 2, a claim for service-related benefits is not a tort claim, and, in any



       2
          We have no jurisdiction over any decision of law or fact necessary to the provision of
benefits by the Secretary to veterans or the dependents or survivors of benefits. See 38 U.S.C.
§ 511(a); Anderson v. Veterans Administration, 559 F.2d 935, 936-37 (5th Cir. 1977) (holding
that 38 U.S.C. § 211(a), repealed by Pub. L. 102-83, § 2(a), and renumbered § 511(a), prevented
the Court from exercising jurisdiction over a veterans claim because it did not seek to challenge
the constitutionality of the statutes underlying the benefits program). In fact, the exclusive
avenue for redress of veterans’ benefits determinations is an appeal to the Court of Veterans
Appeals and from there to the United States Court of Appeals for the Federal Circuit. See Price
v. United States, 228 F.3d 420, 421 (D.C. Cir. 2000).
         Furthermore, a claim for service-related benefits is not a tort claim brought under the
FTCA. Cf. Littlejohn v. United States, 321 F.3d 915, 920-21 (9th Cir. 2003) (noting that the VA
disability process is ex parte and non-adversarial, that the VA is prevented from raising evidence
to challenge the claimant, and that an adverse ruling in an FTCA case would not have any effect
on the claimant’s entitlement to benefits, and, therefore, holding that the district court was
correct not to give preclusive effect to the VA’s rating decision).

                                                12
event, the BVA appears, according to Slater’s complaint, to have found in his favor

regarding his service-related disability.

      Notwithstanding that the BVA’s determination might be evidence in support

of Slater’s present tort claim, there does not appear, anywhere in the record,

evidence that Slater filed an administrative tort claim with the VA claiming

negligence that resulted in his CTS. Slater himself makes this clear when, in his

reply brief, he asserts to the Court that the administrative tort claim that he filed on

June 11, 2001, was not a claim for CTS, but for hypothyroidism, and that the

mention of the VA’s finding of a service connection for the CTS was not a request

that the district court review a disability claim.

      Slater argues that he was not granted service connection for CTS until June

3, 2003, and, therefore, the Federal Tort Claim submitted on June 15, 2004, was

within the two-year statute of limitations. The first fatal flaw in Slater’s argument

is that his June 15, 2004, complaint was not an administrative tort claim with the

VA, and, therefore, even if the complaint was filed within the two-year statute of

limitations, the district court lacked subject matter jurisdiction because Slater failed

to exhaust his administrative remedies.

      The Supreme Court in McNeil held that the “FTCA bars claimants from

bringing suit in federal court until they have exhausted their administrative



                                            13
remedies,” and because the plaintiff there “failed to heed that clear statutory

command, the District Court properly dismissed his suit.” McNeil, 508 U.S. at

113, 113 S.Ct. at 1984. The Court further noted that, the fact that the plaintiff in

McNeil was pro se did not excuse mistakes in following procedural rules in

ordinary civil litigation. Id., 113 S.Ct at 1984.

      Here, like in McNeil, Slater “failed to heed that clear statutory command”

requiring that his administrative remedies be exhausted before bringing suit.

Moreover, while McNeil noted that pro se litigants are entitled to have their

pleadings liberally construed, procedural rules such as exhausting administrative

remedies before filing suit were specifically excluded from that rule. See McNeil,

508 U.S. at 113, 113 S.Ct. at 1984.

      The second fatal flaw in Slater’s argument is that he appears to assume that

his disability benefit claim with the VA sufficed to put it on notice of his tort

claim. “The FTCA establishes that as a prerequisite to maintaining a suit against

the United States, a plaintiff must present notice of the claim to the appropriate

federal agency.” Brown v. United States, 838 F.2d 1157, 1159 (11th Cir. 1988).

“The FTCA’s filing requirement is satisfied if the claimant (1) gives the agency

written notice of his or her claim sufficient to enable the agency to investigate and

(2) places a value on his or her claim.” Id. at 1160. “By requiring this notice,



                                           14
Congress sought to ensure that the agency is apprised of the circumstances

underlying the claim, so that the agency may conduct an investigation and respond

to the claimant by settlement or by defense.” Id.

      In the instant case, Slater did not file proper notice with the VA because,

while his claim for service-related disability put the VA on notice of the disability,

the VA disability process is ex parte and non-adversarial, and the VA is prevented

from raising evidence to challenge the claimant, unlike in an FTCA claim.

Littlejohn, 321 F.3d at 920-21. Thus, while the VA may have determined that

Slater’s CTS was service-related, and, therefore, he was entitled to disability

benefits, the VA was not placed on notice that it needed to investigate any possible

negligence on its part, as its role was to assist Slater in determining the facts

pertinent to his claim, not to present defenses. Id. at 920; 38 C.F.R. § 3.103.

Furthermore, while Slater claimed $200,000,000 in damages in his complaint, that

amount was not presented to the VA with any CTS-related claim. Accordingly,

Slater did not exhaust his remedies and the district court lacked jurisdiction to

entertain the claim.

      Lastly, Slater’s complaint indicates that he became aware of his CTS and its

possible relationship to lithium and hypothyroidism in March 1999. His tort claim

was not filed until June 15, 2004, more than two years after Slater became aware of



                                           15
his injury and the VA’s potential connection to it. Accordingly, we conclude that

his claim is time-barred and the district court lacked jurisdiction over Slater’s CTS

claim.

         C. Diabetes Mellitus

         Slater’s complaint also sought redress for the onset of diabetes mellitus,

which he alleged was caused by zyprexa, prescribed to him on March 31, 2000,

and that the prescribing doctor had indicated that zyprexa can initiate the onset of

diabetes mellitus. The record reveals that no administrative tort claim of

negligence relating to zyprexa causing diabetes was ever filed, and that the only

diabetes-related claim Slater filed was on April 30, 2001, alleging that the

negligent prescription of carbamazepine caused him to develop diabetes mellitus.

This claim was denied on November 7, 2001.

         Slater now claims that a different drug caused his diabetes than the one

alleged in his April 30, 2001, administrative claim. However, because Slater

never filed an administrative tort claim with the VA alleging that zyprexa caused

the onset of his diabetes, he failed to give the VA an opportunity to investigate his

claim, and, therefore, failed to exhaust his remedies as required before filing suit

under the FTCA. McNeil, 508 U.S. at 107, 113 S.Ct. at 1981; Brown, 838 F.2d at

1160.



                                            16
       The district court found that Slater had six months following the denial of

his administrative claim to file his suit in district court, and the fact that he now

claims a different drug caused the harm did not save Slater’s case because Slater

was aware that he had developed diabetes as a result of the actions of VA

physicians. If, as Slater contends, he only recently discovered that zyprexa, and

not carbamazepine, had been prescribed to him, application of the six-month time-

bar may have been inappropriate.

      However, assuming that Slater only just learned that the VA had prescribed

him zyprexa and that zyprexa could initiate the onset of diabetes mellitus, Slater

admitted that his own doctors had written in his medical records that, as of May 23,

2000, he was being prescribed zyprexa and zyprexa could initiate the onset of

diabetes mellitus. “The rule for medical malpractice claims is that they accrue

when the plaintiff knows of both the injury and its cause.” Diaz, 165 F.3d at 1339.

Thus, “a medical malpractice claim under the FTCA accrues when the plaintiff is,

or in the exercise of reasonable diligence should be, aware of both [his] injury and

its connection with some act of the defendant.” Id. Slater claims he only had

reason to become aware of the zyprexa and its potential effects in February 2004,

when he “first noticed” his doctor’s notes. However, Slater has failed to

demonstrate that he could not have, through reasonable diligence, looked at his



                                            17
own, personal medical records and seen this notation sooner.

      Therefore, even if Slater’s claim is not barred by the six-month limitation

period, as was found by the district court, we conclude that it is clearly barred by

the two-year statute of limitations, and, therefore, the district court correctly found

that it lacked jurisdiction. Moreover, to the extent that the original administrative

claim filed on April 30, 2001, did not apply to Slater’s new claim, Slater failed to

file a new administrative claim with the VA, and, therefore, failed to exhaust his

administrative remedies.

      D. Misrepresentation

      In his brief, Slater argues that the VA committed some sort of fraud,

misrepresentation, or concealment by suppressing evidence to the BVA, or, in the

alternative, by finding out about Slater’s prescription for zyprexa and concealing

that fact. Slater’s complaint vaguely references an alteration on a form and a claim

that VA doctors reviewing his April 30, 2001, claim “had to discover” that Slater

was being prescribed zyprexa. The district court did not address these claims, and

to the extent Slater meant to raise them and have them addressed, we conclude that

they are meritless.

      As noted above, the FTCA sets forth exceptions to the United States’ waiver

of sovereign immunity, and among those exceptions, a person cannot file suit



                                           18
under 28 U.S.C. § 1346(b) if that claim arises out of “assault, battery, false

imprisonment, false arrest, malicious prosecution, abuse of process, libel, slander,

misrepresentation, deceit, or interference with contract rights.” 28 U.S.C.

§ 2680(h); see also Boda, 698 F.2d at 1176 (holding that § 2680(h) is a

jurisdictional bar to a plaintiff’s FTCA claim that she was defrauded). This

exception was held by the Supreme Court to cover negligent, as well as deliberate,

misrepresentation. See United States v. Neustadt, 366 U.S. 696, 702, 81 S.Ct.

1294, 1298, 6 L.Ed.2d 614 (1961). Thus, the district court lacked jurisdiction over

any of Slater’s claims of deceit or misrepresentation.

      Based on the foregoing, the district court correctly stated that it lacked

jurisdiction to entertain Slater’s FTCA claim. Even given the most liberal

construction of Slater’s complaint, we conclude that his allegations of negligence

failed to comply with the FTCA’s administrative filing requirements, or, as in the

case of his fraud/misrepresentation allegation, were specifically excluded as a

cause of action against the United States. Therefore, while the district court may

not have addressed all of Slater’s claims because they were not clearly articulated,

and while it may have inappropriately applied the six-month limitation to bar

Slater’s diabetes mellitus claim-zyprexa claim, its ultimate conclusion that it

lacked jurisdiction over the claim was correct. We, therefore, affirm.



                                          19
AFFIRMED.




            20
