United States District Court, D. New Jersey
MCNULTY, UNITED STATES DISTRICT JUDGE.
plaintiff, Mr. Ibrahim, served our country in the U.S. Navy
from 1980-82. In 2012, he submitted a service-related claim
to the United States Department of Veterans' Affairs (the
"VA") based on a laceration and smashed
phalanx. The VA found that 0% of the injury was
service-related and denied benefits.
1, 2018, Mr. Ibrahim filed this action against the VA and
several of its employees. He seeks the benefits that were
denied, alleges that he was denied due process, and asserts
claims under the Federal Tort Claims Act ("FTCA"),
28 U.S.C. § 1346(b), and the Administrative Procedure
Act ("APA"), 5 U.S.C § 500 et seq.
This matter comes before the court upon the motion of die
plaintiff for a default judgment (DE 21) and the motion of
the defendants to dismiss the complaint for lack of
subject-matter jurisdiction (DE 16).
Plaintiffs Motion for Default Judgment
plaintiffs motion for entry of a default judgment must be
denied. To begin with, there has been no clerk's entry of
default, which is a prerequisite for such a motion.
See Fed. R. Civ. P. 55(a). Given the plaintiffs
pro se status, however, I look past that defect and
consider whether there has been a default.
complaint was served on the United States Attorney's
Office on October 25, 2018. (DE 20 p.2; acknowledgement of
service by receptionist).Because the action is one filed against
the United States, die deadline to answer was "60 days
after service ... on die United States Attorney . . . ."
Fed.R.Civ.P. l2(a)(2). The defense of lack of jurisdiction
may be asserted in an answer, but at the defendant's
option it may instead be asserted by a motion "made
before pleading if a responsive pleading is allowed."
Fed.R.Civ.P. 12(b). Here, the United States has exercised the
option to proceed by motion. On December 19, 2018, within the
60-day deadline to answer, die defendants filed a motion to
dismiss the complaint for lack of subject-matter jurisdiction
under Fed.R.Civ.P. 12(b)(1).
United States has not defaulted, but has timely responded to
the complaint via a Rule 12(b) motion. Neither entry
of default nor a default judgment is warranted. See
Fed. R. Civ. P. 55. The plaintiffs motion for a default
judgment is therefore denied.
Defendants' Motion to Dismiss for Lack of
consider the motion of the United States and the otiier
defendants to dismiss the complaint for lack of jurisdiction.
(DE 16) The jurisdiction of this Court must be assessed
against the background of die principle that the United
States can be sued only to die extent it has waived its
sovereign immunity. See FDIC v. Meyer, 510 U.S. 471,
484, 114 S.Ct. 996 (1994).
United States persuasively argues that, by statutory decree,
this Court lacks jurisdiction over claims relating to VA
benefits. That is not to say that there is no remedy for a
veteran who is denied benefits. It is just to say that Mr.
Ibrahim is in the wrong court.
government points out, Mr. Ibrahim's claim for benefits
based on his injuries is governed by a specialized statutory
scheme under the Veterans' Judicial Review Act
("VJRA"). Under the VJRA, the VA's decisions as
to questions of law and fact in relation to benefits
determinations are final and unreviewable. 38 U.S.C §
Dambach v. United States, 211 Fed.Appx. 105, 108 (3d
Cir. 2006). An adverse benefits decision, like the one here,
is not reviewable "by any court, whether by an action in
the nature of mandamus or otherwise." 38 U.S.C. §
511(a). The courts have therefore dismissed attempts to
obtain district court review, whether by means of a claim
under the Federal Tort Claims Act, the APA, or otherwise.
See Dambach, supra (VJRA bars FTCA claim that,
through negligence, a veteran's claims were wrongfully
denied for many years until finally granted); Veterans
for Common Sense v. Shinseki, 678 F.3d 1013 (9th Cir.
2012) (VJRA bars claim under APA that delays in processing
claims were unreasonable); Blue Water Navy Vietnam
Veterans Ass'n, Inc. v. McDonald, 830 F.3d 570 (D.C.
Cir. 2016) (VJRA bars challenge under APA to VA policy of
denying presumption of Agent Orange exposure to blue-water
Ibrahim is not without recourse, however. A veteran denied
benefits may obtain review via a three-part,
statutorily-defined review process, which I will refer to as
the "VJRA Appeal Procedure." First, the veteran
must file a notice of disagreement with the Board of Veterans
Appeals. See 38 U.S.C. § 7104(a). Second, as to
appeals from decisions of the Board, the Court of Appeals for
Veterans Claims has exclusive jurisdiction. See 38
U.S.C. §§ 7252(a), 7266(a). Third, any appeal from
that court may be heard by the U.S. Court of Appeals for the
Federal Circuit. See 38 U.S.C. § 7292(a).
See generally Jayme v. United States, Civ.
No. 10-3248, 2011 WL 4412431, at *2 (D.N.J. Sept. 21, 2011)
(overview of procedure). That VJRA Appeal Procedure is the
sole and exclusive means of review of an adverse benefits
the plaintiff does not really disagree. He seems to draw a
distinction, however, between his claim for benefits, which
should be heard via the VJRA Appeal Procedure, and
his claim that he was deprived of due process, which he says
should be heard in this Court. [See PI. Responding
Brf. 3, DE 18. ("I am objecting to the defense dismissal
of this case, and I can be partial to a part of this matter
to be referred to the United States Court of Appeal for
Veteran Claims and move forward on the Deprivation of Rights
by employees and agents of the Department of Veteran
therefore consider whether the plaintiffs claim of denial of
due process sets forth a distinct claim that is not within
the scope of the VJRA's bar to this court's
jurisdiction. As to that issue, I am aided by the analysis of
Veterans forCommon Sense v. Shinseki, 678
F.3d 1013 (9th Cir. 2012) (en banc). Veteransfor Common Sense emphasizes that the scope of the
VJRA's exclusion is ...