                              UNITED STATES DISTRICT COURT
                              FOR THE DISTRICT OF COLUMBIA

 ROBERT G. THORNTON,

                        Plaintiff,

                        v.                          Case No. 17-cv-623 (CRC)

 UNITED STATES OF AMERICA, et al.,

                        Defendants.

                                     MEMORANDUM OPINION

       Pro se Plaintiff Robert Thornton, a Vietnam War veteran, challenges the Department of

Veterans Affairs’ (“VA”) handling of his benefits claim. Thornton receives monthly

compensation payments from the VA for post-traumatic stress disorder and hearing loss. Over

the last several years, he has attempted to receive additional benefits. Though his complaint is

difficult to parse, Thornton appears to allege that VA officials violated his Fifth Amendment due

process rights by conspiring to “defraud” him out of the opportunity to have his claim for

additional benefits adjudicated. Complaint ¶ 19. Because the Court lacks subject matter

jurisdiction to decide Thornton’s claim, it will dismiss the case.

 I.    Background

       The VA distributes benefits to veterans of the United States Armed Forces based on a

rating system that determines a veteran’s level of impairment due to an injury suffered during

active duty. 38 U.S.C. §§ 301(b), 1110; 38 C.F.R. § 4.1. Veterans seeking these benefits may

first file an “informal claim,” followed by a “formal claim.” 38 C.F.R. § 3.155(b), (d). If the

veteran disagrees with the VA’s benefits determination, he can file a Notice of Disagreement. In

response to the Notice of Disagreement, the VA can either grant the requested benefit or issue a

“Statement of the Case,” which explains its reasons for denying the benefit. 38 U.S.C. §
7105(d)(1). The veteran then has 60 days to file a Substantive Appeal to the Board of Veterans

Appeals. Id. § 7105(d)(3). If a veteran disagrees with the outcome of the administrative process,

he can appeal to the Court of Appeals for Veterans Claims (“Veterans Court”) within 120 days of

the Board’s decision. Id. § 7266(a). Veterans Court decisions can be appealed to the United

States Court of Appeals for the Federal Circuit. Id. § 7292.

       Thornton’s benefit claims have a complicated procedural history. He filed an informal

claim for veterans’ benefits with the VA in 2007. Later that year, he brought a formal claim

seeking benefits for hearing loss, tinnitus (ringing in the ears), and Post Traumatic Stress

Disorder (“PTSD”). Thornton v. McDonald, 597 F. App’x 641, 642 (Fed. Cir. 2015). The

formal claim resulted in a benefits determination that awarded Thornton some PTSD benefits

while denying his claims related to hearing loss and tinnitus. Id. Between 2008 and 2012,

Thornton disputed the VA’s determination twice, seeking increased disability ratings. These

disputes ultimately resulted in a 2012 decision that granted Thornton a 100 percent PTSD rating

while still denying his hearing loss and tinnitus claims. Id. In 2013, Thornton filed another

Notice of Disagreement disputing the decision on his hearing loss and seeking an earlier

effective date for his PTSD. Id.

       A few months later, having not received a response from the VA, Thornton filed a

petition for a writ of mandamus with the Veterans Court. Id. While that petition was pending,

the VA issued two decisions: 1) a decision granting Thornton benefits for his hearing loss and an

effective date for his PTSD, hearing loss, and tinnitus of March 1, 2007, the date that he had

initially requested in his informal claim; and 2) a Statement of the Case denying him an effective

date for PTSD earlier than March 1, 2007. Complaint Ex. E. Meanwhile, the Veterans Court

denied Thornton’s mandamus claim, which he then appealed to the United States Court of


                                                 2
Appeals for the Federal Circuit. The Federal Circuit affirmed the Veterans Court’s decision.

Thornton, 597 F. App’x at 643–44.

       At that point, Thornton attempted to appeal the VA’s Statement of the Case denying him

an earlier effective PTSD date to the Board of Veterans Appeals. Thornton v. McDonald, 626 F.

App’x 1007 (Fed. Cir. 2015). However, that appeal was not accepted because it was filed after

the 60-day deadline. Id. So Thornton filed another writ of mandamus with the Veterans Court

seeking an order that would force the Board of Veterans Appeals to hear his appeal. The

Veterans Court denied that petition, Thornton v. McDonald, 2015 WL 4591675 (Vet. App. July

30, 2015), and the Federal Circuit affirmed. Thornton then filed another motion in the Veterans

Court to reopen the case, which the Court denied and the Federal Circuit again affirmed.

Thornton v. McDonald, 626 F. App’x at 1007. Finally, Thornton filed suit in this Court,

accusing the VA of fraudulently preventing him from appealing his claim to the Board of

Veterans Appeals in violation of his Fifth Amendment rights. Complaint ¶¶ 14, 17.

 II.   Standard of Review

       On a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(1), the plaintiff

bears the burden of establishing the Court’s subject matter jurisdiction. Kokkonen v. Guardian

Life Ins. Co. of Am., 511 U.S. 375, 377 (1994). The Court must accept the plaintiff’s factual

allegations as true. United States v. Gaubert, 499 U.S. 315, 327 (1991). And pro se complaints,

“however inartfully pleaded, must be held to less stringent standards than formal pleadings

drafted by lawyers.” Erickson v. Pardus, 551 U.S. 89, 94 (2007) (internal citation omitted).




                                                3
 III. Analysis

       A. This Court Does Not Have Subject Matter Jurisdiction over Plaintiff’s Claims

       The Veterans’ Benefit Act of 1957, as amended by the Veterans Judicial Review Act,

precludes this Court from reviewing VA decisions “affecting the provision of veterans’

benefits.” Price v. United States, 228 F.3d 420, 421 (D.C. Cir. 2000). Specifically, 38 U.S.C. §

511 states that the VA’s decisions about “. . . all questions of law and fact necessary to a

decision by the Secretary under a law that affects the provision of benefits . . . shall be final and

conclusive and may not be reviewed by any other official or by any court.” The exclusive

avenue for appeal of a VA benefits determination is through the Court of Veterans Appeals, and

from there to the United States Court of Appeals for the Federal Circuit. Price, 228 F.3d at 421.

       Article III courts can, however, review some actions of the VA. The key is that the

challenged actions cannot raise questions of law or fact “necessary to a decision by the Secretary

under a law that affects the provision of benefits.” Thomas v. Principi, 394 F.3d 970, 974 (D.C.

Cir. 2005). Under this formulation, district courts can hear suits alleging certain torts committed

by the VA where the suit does not require first determining whether the VA “acted properly”

with respect to a benefits request. See id. at 974–75 (allowing Article III court to hear a tort

claim based on the VA’s withholding of a schizophrenia diagnosis because no benefits

determination “underlies” that allegation). Additionally, some circuits have allowed Article III

courts to review certain facial constitutional challenges to the VA’s general claim-review

procedures because a “consideration of the constitutionality of the procedures in place . . . is

different than a consideration of the decisions that emanate through the course of the presentation

of those claims.” See, e.g., Veterans for Common Sense v. Shinseki, 678 F.3d 1013, 1034 (9th

Cir. 2012). In other words, the power of an Article III court to review an action of the VA turns


                                                  4
on whether the reviewing court would have to evaluate the propriety of an individual veteran’s

benefits determination. This distinction turns on the “substance” of a plaintiff’s claim rather than

the labels he assigns it. Thomas, 394 F.3d at 975.

       Here, Thornton alleges that fraud committed by the VA prevented him from appealing his

benefits claim to the Board of Veterans Appeals in violation of his constitutional rights.

Complaint ¶ 15. Specifically, Thornton alleges that the VA misconstrued his 2015 Substantive

Appeal as a Notice of Disagreement in order to manufacture a timeliness issue with his appeal to

the Board. Id. ¶¶ 25–26. He also alleges that the VA destroyed evidence relevant to his claim.

Id. ¶ 27 (allegation that the VA “orchestrated the concealment of missing medical records”).

Thornton seeks a declaratory judgment that these actions undertaken by the VA during the

adjudication of his benefits claim violated his due process rights.

       Thornton’s claim is, at bottom, a challenge to his benefits determination. In order to

adjudicate Thornton’s case, the Court would be forced to examine the propriety of the VA’s

actions in administering his benefits claim. Although Thornton attempts to avoid this outcome

by arguing that his claim is a challenge to the methods used by the VA in reaching its decision,

assessing those methods still implicates Thornton’s individual benefits determination. Pl.

Opposition at 11. Unlike a facial challenge to the constitutionality of the VA’s general

procedures, Thornton’s claim is a challenge to the VA’s adjudication of his particular benefits.

And unlike issues raised in a standard tort claim, the operative questions here—whether

Thornton timely filed his appeal and whether the VA destroyed relevant medical records—are

ones of “law and fact necessary to a [benefits] decision.” 38 U.S.C. § 511(a). Therefore, under

section 511, the Court does not have jurisdiction over Thornton’s claims. Id.




                                                 5
        B. Section 511(a) as Applied to Plaintiff’s Claims Is Constitutional

        Thornton also challenges the constitutionality of section 511(a) as applied to his case on

the ground that precluding review of his claim prevents this Court from adjudicating “instances

of actual fraud prior to veteran’s claim reaching the Board of Veterans’ Appeals.” Complaint ¶¶

16–18. Thornton is mistaken: Section 511(a) is constitutional both facially and as-applied to his

case.

        First, courts have repeatedly upheld the facial constitutionality of section 511. See, e.g.,

Peavey v. Holder, 657 F. Supp. 2d 180, 186 (D.D.C. 2009); Bradley v. Nicholson, 181 F. App’x

989, 994 (Fed. Cir. 2006). These decisions are supported by the broader principle that Congress

may direct judicial review through administrative processes and limit it to specific courts. See,

e.g., Thunder Basin Coal Co. v. Reich, 510 U.S. 200, 207 (1994).

        Second, section 511 is constitutional as applied to Thornton’s case. Even though this

Court cannot review Thornton’s claim, he has both administrative and judicial avenues through

which to challenge the VA’s actions, including the Federal Circuit. Specifically, Thornton’s

allegation that the VA committed fraud with respect to the timeliness of his appeal to the Board

of Veterans Affairs is an appealable issue that can be challenged through the administrative

process and, to the extent it states a constitutional claim, in the Federal Circuit.1 38 C.F.R. §




        1
          To be sure, the Federal Circuit in this case declined to review Thornton’s timeliness
claim because it concluded that the issue was “purely factual” rather than constitutional.
Thornton v. McDonald, 626 F. App’x at 1008. However, for non-constitutional questions,
Thornton’s administrative avenues for review are constitutionally adequate. See Lauf v. E.G.
Shinner & Co., 303 U.S. 323, 330 (1939) (“There can be no question of the power of Congress
thus to define and limit the jurisdiction of the inferior courts of the United States”); Webster v.
Doe, 108 S. Ct. 2047, 2053 (1988) (assuming validity of a provision withdrawing federal
jurisdiction over agency discharge determinations where statute allowed for review of
constitutional claims). Additionally, the VA specifically provided Thornton with “instructions

                                                  6
19.34. Consequently, this Court’s lack of subject matter jurisdiction over Thornton’s claim does

not pose constitutional concerns. See, e.g. Larrabee by Jones v. Derwinski, 968 F.2d 1497, 1501

(2d Cir. 1992) (“By providing judicial review in the Federal Circuit, Congress intended to

obviate the Supreme Court’s reluctance to construe the statute as barring judicial review of

substantial statutory and constitutional claims.”)

 IV. Conclusion

       For the foregoing reasons, the Court grants Defendants’ Motion to Dismiss for Lack of

Subject Matter Jurisdiction. A separate Order will accompany this Memorandum Opinion.




                                                     CHRISTOPHER R. COOPER
                                                     United States District Judge
Date: December 11, 2017




regarding how to appeal the untimeliness decision.” Thornton v. McDonald, 626 F. App’x at
1008.

                                                 7
