                    United States Court of Appeals
                          FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 07-3303
                                   ___________

Kent Mehrkens,                         *
                                       *
            Appellant,                 *
                                       * Appeal from the United States
      v.                               * District Court for the
                                       * District of Minnesota.
Art Blank, M.D.; Gilbert Westreich,    *
M.D.; Harry K. Russell, M.D.;          *
John Does I; Jane Roes I; C.A. Foye;   *
Ronald J. Henke; Charles Milbrandt;    *
John Does II; Jane Roes II,            *
                                       *
            Appellees.                 *
                                  ___________

                             Submitted: October 17, 2008
                                Filed: February 25, 2009
                                 ___________

Before LOKEN, Chief Judge, BYE, and SMITH, Circuit Judges.
                              ___________

SMITH, Circuit Judge.

       Kent Mehrkens commenced this action in Minnesota state court, and the United
States removed the case to federal district court. Mehrkens filed this action against
doctors and employees of the Department of Veterans Affairs ("VA officials") seeking
damages under 42 U.S.C. §§ 1983 and 1985 and under the principles of Bivens v. Six
Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971).
Mehrkens alleged that it was beyond the scope of the VA officials'1 employment to
lie to him and others about his Post-Traumatic Stress Disorder (PTSD) and to
withhold treatment from him. According to Mehrkens, these VA officials "interfered
with and deprived" him "of his rights to medical care and other veterans' benefits." He
also alleged that they "knowingly and intentionally conspired . . . to misrepresent the
facts and diagnoses from him and deny him his equal rights and privileges to medical
care and veterans' benefits" and "induced others" to "withhold from [Mehrkens] his
rights to treatment and veterans' benefits." Finally, Mehrkens alleged that the VA
officials 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. The district court2 concluded that it lacked subject matter jurisdiction,
granted the VA officials' motion for summary judgment, and dismissed Mehrkens's
claims without prejudice. Because we agree that the district court lacked subject
matter jurisdiction, we affirm.

                                   I. Background
                                       A. Facts
       Kent Mehrkens, a Vietnam War veteran, sought treatment from the Minneapolis
VA Medical Center after experiencing "a loss of conscious control of his actions."
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 condition.




      1
      Specifically, Mehrkens filed suit against 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 Milbrandt.
      2
      The Honorable Richard H. Kyle, United States District Judge for the District
of Minnesota.

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       In 1992, Mehrkens filed a claim for military service-connected PTSD with the
VA Regional Office. Later that year, the VA denied his PTSD claim because "the
diagnosis of PTSD was not supported by the details of any service-connected stressor"
and the medical evidence did not show symptoms of PTSD. In 1993, he reopened his
claim, but the VA denied his claim in 1994, citing no diagnosis of PTSD and stating
that the evidence in the record did not show symptoms of PTSD. The Disabled
American Veterans organization filed a claim on Mehrkens's behalf in 1999. The VA
denied this claim as well because the diagnosis of PTSD was not supported by any
symptoms and also finding that there was no evidence of a specific combat stressor.
In 2001, Mehrkens moved to reopen his claim, but the VA later ruled that there was
no new and material evidence to justify reopening his case. In 2003, Mehrkens filed
a Notice of Disagreement with the decision. Upon review, the VA reversed its prior
decisions and granted VA benefits to Mehrkens for PTSD, retroactive to 1992. That
same year Mehrkens was issued two payments for retroactive benefits totaling
$216,246. Mehrkens currently receives $2,610 monthly in benefits payments.

                                B. Procedural History
       In 2004, after being granted his retroactive payments, Mehrkens filed a claim
with the VA under the Federal Tort Claims Act for medical malpractice and
negligence. In 2005, he filed the current action in Minnesota state court, but the
United States removed the case to federal court. Mehrkens alleged that because the
VA doctors lied to him about his diagnosis and withheld treatment from him, they
"deprived him of his rights to medical care and other veterans' benefits." Mehrkens
sought damages under 42 U.S.C. § 1983 and under the principles of Bivens. He also
sought damages under 42 U.S.C. § 1985, alleging that the VA officials "knowingly
and intentionally conspired" to misrepresent his treatment and "withheld treatment and
benefits." Finally, he alleged that VA officials violated his due-process rights by
withholding information about his diagnosis and preventing him from obtaining
proper treatment. He asserts that this violation "deprived him of his rights to medical
care and other veterans' benefits." Mehrkens insists that he is not attempting to

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relitigate his benefits case. According to Mehrkens, he seeks damages only for the VA
officials' alleged misrepresentations about his PTSD and the alleged conspiracy to
withhold information from him about his condition. Their acts, he contends, prevented
him from obtaining proper medical treatment outside the VA.

       The district court found that because the Veterans' Judicial Review Act of 1988
(VJRA), 38 U.S.C. § 511(a), created an exclusive review procedure for veterans to
resolve their disputes, it lacked jurisdiction over Mehrkens's claims, despite
Mehrkens's contention that they sounded in constitutional and tort law. The district
court found that because Mehrkens was essentially challenging a decision affecting
his benefits by bringing a constitutional claim, the district court's jurisdiction was
preempted by the VJRA. See generally Hicks v. Veterans Admin., 961 F.2d 1367,
1369 (8th Cir. 1992) (holding that a First Amendment challenge to a denial of benefits
was beyond the reach of federal court jurisdiction). The district court found that
because Mehrkens sought review of the VA's actions taken in connection with his
claim for benefits, this effectively amounted to a challenge to the underlying benefits
decision. Weaver v. United States, 98 F.3d 518, 519–20 (10th Cir. 1996) (holding that
claims for veteran disability benefits are unreviewable in federal courts).

       The district court also denied Mehrkens's Bivens claim, finding that because
Congress had set up an elaborate remedial scheme regarding VA benefits, the Bivens
action could not lie. Bush v. Lucas, 462 U.S. 367, 388–89 (1983) (holding that an
elaborate remedial system prevented a NASA employee from bringing a Bivens action
based on a First Amendment violation against a NASA director); see also Schweiker
v. Chilicky, 487 U.S. 412, 428–29 (1988) (holding that Social Security recipients did
not have a private right of action against federal administrators because Congress set
up other remedies). In short, because Congress provided an exclusive review
procedure, it has indicated that the federal courts should not exercise jurisdiction over
VJRA claims. Sugrue v. Derwinski, 26 F.3d 8, 12 (2d Cir. 1994) (declining to imply



                                          -4-
a Bivens remedy against VA employees arising from denial of benefits); accord
Zuspann v. Brown, 60 F.3d 1156, 1161 (5th Cir. 1995).

      Based on these principles of law, the district court concluded that it lacked
subject matter jurisdiction, granted the VA officials' motion for summary judgment,
and dismissed Mehrkens's case without prejudice.

                                   II. Discussion
       On appeal, Mehrkens asks this court to reverse the lower court's summary
judgment disposition, arguing that VA officials interfered with his constitutional right
to seek medical treatment and that the district court has jurisdiction to hear this
constitutional claim. Moreover, he argues that the district court did not properly
address his §§ 1983 and 1985 claims. We affirm.

                                  A. Standard of Review
        We review a grant of summary judgment de novo, applying the same standard
as the district court. Henerey v. City of St. Charles, Sch. Dist., 200 F.3d 1128, 1131
(8th Cir. 1999). Summary judgment should be granted if the evidence, viewed in the
light most favorable to the nonmoving party, indicates that no genuine issue of
material fact exists and that the moving party is entitled to judgment as a matter of
law. Id.; Fed. R. Civ. P. 56(c). A party opposing summary judgment may not rest upon
mere allegations or denials contained in the pleadings, but must, by sworn affidavits
and other evidence, set forth specific facts showing that there is a genuine issue for
trial. Fed. R. Civ. P. 56(e).

                            B. Subject Matter Jurisdiction
       Mehrkens alleges that the VA officials interfered with his right to get private
medical care by misrepresenting his condition. Mehrkens argues that he should be
allowed to seek redress in federal court because the VA officials' misrepresentations
violated his federal constitutional rights. Mehrkens further contends that if the VJRA

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is his exclusive remedy then he is left without a remedy because the VJRA does not
give the VA jurisdiction to grant damages for withholding of treatment. We hold that
the VJRA is Mehrkens's exclusive remedy and affirm.

                                         1. VJRA
       In 1988, Congress enacted the VJRA3 to establish a framework for the
adjudication of veterans' benefits claims. The process begins with the veteran filing
a claim for benefits with a regional office of the Department of Veterans Affairs and
includes several levels of appeal. The regional office decides all questions of law and
fact as they relate to the claim. 38 U.S.C. § 511(a). If aggrieved, the claimant may then
appeal to the Board of Veterans' Appeals (BVA). 38 U.S.C. § 7104. BVA decisions
may be appealed to the Court of Appeals for Veterans Claims, to which Congress
vested exclusive jurisdiction to review BVA decisions. 38 U.S.C. § 7252(a).
Claimants may appeal unsatisfactory decisions of the Court of Appeals for Veterans
Claims to the Federal Circuit, which has exclusive appellate jurisdiction over such
matters. 38 U.S.C. § 7292. Finally, a claimant may appeal to the Supreme Court. 38
U.S.C. § 7291.

                            2. Bivens and its Progeny
      In Bivens, the Supreme Court established a right of individuals to sue individual
federal agents for damages for unconstitutional conduct in violation of the Fourth
Amendment. Bivens, 403 U.S. at 389. The Court later extended this holding to
encompass violations of the Fifth Amendment, Davis v. Passman, 442 U.S. 228,
248–49 (1979), and the Eighth Amendment, Carlson v. Green, 446 U.S. 14, 32–33
(1980).




        3
         The VJRA can be found in various sections of Title 38 of the United States
Code.

                                          -6-
        Later, in Bush v. Lucas, the Supreme Court held that a Bivens claim could not
lie for a First Amendment violation by a Civil Service Commission supervisor. 462
U.S. 367, 368 (1983). The Bush Court assumed that a federal right had, in fact, been
violated and that the petitioner did not have an adequate remedy apart from a Bivens
action. Id. at 373. But the Court noted that constitutional challenges are fully
cognizable under Congress's elaborate Civil Service Commission scheme. Id. at 386.
The Court stressed that the fact that the wrong would otherwise go unredressed was
irrelevant. Id. at 388. The real question was whether Congress had set up a plan after
careful attention to conflicting policy considerations. Id. If Congress had set up such
an elaborate scheme in a particular area, then courts should not augment that scheme
by creating a Bivens remedy. Id. Because Congress could better evaluate the impact
of a Bivens remedy, the Court declined to exercise jurisdiction. Id. at 389–90. That
same year, in Chappell v. Wallace, the Court declined to extend Bivens to military
personnel seeking damages for constitutional violations. 462 U.S. 296, 297 (1983).
Because Congress had plenary control over the military and had not provided for
damages remedies in this context, the Court would not encroach upon Congress's
authority and judicially create a new remedy. Id. at 301, 307. Finally, in Schweiker v.
Chilicky, the Supreme Court refused to judicially create a due-process violation
remedy for the denial of Social Security disability benefits because Congress had set
up a complex remedial scheme in the Social Security area but had not created a Bivens
remedy. 487 U.S. 412, 414 (1988); see also United States v. Stanley, 483 U.S. 669,
684 (1987) (refusing to create a Bivens remedy for a due-process violation by a
military superior for fear that liability would be increased by a judicially-created
remedy).

       In the instant case, Mehrkens attempts to bring a Bivens action against VA
officials for alleged constitutional violations committed while handling his benefits
claim. We note the Supreme Court has applied Bivens sparingly outside of the Fourth
Amendment context and never in the context of a complex statutory remedial scheme.
We decline to create a Bivens remedy in this case. See Bush, 462 U.S. at 389–90.

                                         -7-
Congress has preempted the field for veterans' benefits and set up an elaborate
remedial scheme and, therefore, that body is better suited to augment that scheme with
new remedies. See Schweiker, 487 U.S. at 414. Considering Congress's careful
structuring of the VJRA, we will not assume that Congress inadvertently failed to
provide Bivens-type relief. See supra Part II.B.1.

        Furthermore, Mehrkens is bringing a claim only for a delay of benefits. Had he
been granted benefits in 1992 instead of 2004, he would not have brought the current
action. In this case, there is no meaningful legal difference between a delay of benefits
and an outright denial of benefits. In either case, Congress has charged the VJRA with
exclusive jurisdiction. See 38 U.S.C. §§ 511(a)–7292. This holding aligns us with our
sister circuits who have addressed similar issues. See Beamon v. Brown, 125 F.3d 965,
966 (6th Cir. 1997) (refusing constitutional challenge for delays in veterans claims in
federal court system); Weaver v. United States, 98 F.3d 518, 519–20 (10th Cir. 1996)
(refusing jurisdiction where claimant brought a conspiracy and fraud challenge
because VA employees allegedly concealed his medical records); Hicks v. Small, 69
F.3d 967, 969–70 (9th Cir. 1995) (refusing to allow a Bivens action due to the VJRA's
comprehensive, remedial structure); Zuspann v. Brown, 60 F.3d 1156, 1159–60 (5th
Cir. 1995) (refusing to grant a Bivens remedy for constitutional violations because
Congress had set up an elaborate remedial structure through the VJRA and because
appellant was merely "complaining about a denial of benefits"); Sugrue v. Derwinski,
26 F.3d 8, 10 (2d Cir. 1994) (refusing to recognize a Bivens action for alleged due-
process violations for failure of VA doctors to maintain medical records with accuracy
and completeness). Because we lack subject matter jurisdiction, Mehrkens's claim is
denied.

                        C. Sections 1983 and 1985 Claims
       Mehrkens also argues that his case should be remanded so the district court may
expressly rule on his §§ 1983 and 1985 claims. Because these claims are without
merit, we decline to remand.

                                          -8-
       Sections 1983 and 1985 both regulate officials acting under color of any statute
of any "State or Territory." 42 U.S.C. §§ 1983 and 1985 (emphasis added). Because
the VJRA was enacted under federal law, §§ 1983 and 1985 do not apply. See supra
Part II.B.1. Therefore, a remand to the district court for an express finding in this
regard is unnecessary because it amounts to harmless error. See generally United
States v. Baker, 491 F.3d 421, 424 (8th Cir. 2007) (refusing remand for harmless error
committed by the district court).

                                 III. Conclusion
      Accordingly, we affirm the order of the district court.
                     ______________________________




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