United States District Court, N.D. Alabama, Southern Division
MEMORANDUM OPINION 
H. ENGLAND, III UNITED STATES MAGISTRATE JUDGE
October 5, 2016, Plaintiff Danny O'Neal Jelks
(“Jelks” or “Plaintiff”) initiated
this action, alleging violations of his civil rights pursuant
to 42 U.S.C. § 1983 by Defendants Robert McDonald (then
Secretary of Veterans Affairs) and Phyllis Curtis, Michal
Kilcoyne, Dexter Carbonell, Allyn Mamalakis, Melissa Kindley,
Edna McDonald, Cory Hawthorne, and Michael Duesenberg, all of
whom are employees of the Department of Veterans Affairs
(“VA”). (Doc. 1). Defendants responded with a
motion to dismiss or, in the alternative, for summary
judgment, alleging this Court lacks subject matter
jurisdiction to consider Jelks' claims and,
alternatively, they are entitled to judgment as a matter of
law. (Doc. 8). Jelks filed a response in opposition, (doc.
11), and Defendants filed a reply brief, (doc. 14). After
Defendants' reply, Jelks filed a document entitled
“Plaintiffs Objection to the Defendant's Motion to
Dismiss, or in the Alternative, for Summary Judgment, ”
(doc. 15), which the Court construes as a sur-reply. Jelks
has also moved for a hearing on Defendants' motion. (Doc.
16). For the reasons stated more fully below, the motion for
a hearing is DENIED and the motion to
dismiss is GRANTED.
Standard of Review
courts are courts of limited jurisdiction, with the power to
hear only cases authorized by the Constitution or by
statute. Kokkonen v. Guardian Life Ins. Co. of Am.,
511 U.S. 375, 377 (1994). Under Federal Rule of Civil
Procedure 12(b)(1), a party may move the court to dismiss a
case if the court lacks jurisdiction over the subject matter
of the case. Even when a party does not assert a
jurisdictional challenge, “a federal court is obligated
to inquire into subject matter jurisdiction sua
sponte whenever it may be lacking.” Bochese v.
Town of Ponce Inlet, 405 F.3d 964, 975 (11th Cir.2005).
Simply put, a federal court is powerless to act beyond its
constitutional or statutory grant of subject-matter
jurisdiction. Smith v. GTE Corp., 236 F.3d 1292,
1299 (11th Cir.2001). Regardless of how the issue came before
the court, a plaintiff, as the party invoking jurisdiction,
bears the burden of establishing the court's
subject-matter jurisdiction. Taylor v. Appleton, 30
F.3d 1365, 1367 (11th Cir.1994).
challenge to a court's subject-matter jurisdiction may
come by way of a facial attack or a factual attack:
Facial attacks on the complaint require the court merely to
look and see if the plaintiff has sufficiently alleged a
basis of subject matter jurisdiction, and the allegations in
his complaint are taken as true for the purposes of the
motion. Factual attacks, on the other hand, challenge the
existence of subject matter jurisdiction in fact,
irrespective of the pleadings, and matters outside the
pleadings, such as testimony and affidavits, are considered.
Garcia v. Copenhaver, Bell & Assocs., M.D.s, 104
F.3d 1256, 1261 (11th Cir.1997) (citations omitted). Because
Defendants rely on documents which are outside of the
pleadings, (see doc. 8 at 14-19), their challenge to
the court's subject-matter jurisdiction is, at least in
part, a factual attack. Under such an attack, “no
presumptive truthfulness attaches to plaintiff's
allegations, and the existence of disputed material facts
will not preclude the trial court from evaluating for itself
the merits of jurisdictional claims.” Lawrence v.
Dunbar, 919 F.2d 1525, 1529 (11th Cir.1990) (per curiam)
(citation omitted). Indeed, “[i]n 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.2002); Motta v. United States, 717 F.3d 840, 844
a court may only find that it lacks subject-matter
jurisdiction “if the facts necessary to sustain
jurisdiction do not implicate the merits of plaintiff's
cause of action.” Morrison v. Amway Corp., 323
F.3d 920, 925 (11th Cir.2003) (citations omitted). When a
jurisdictional challenge implicates the merits of the
plaintiff's claim, the court must “find that
jurisdiction exists and deal with the objection as a direct
attack on the merits of the plaintiff's case.”
Id. (citations omitted). This ensures “a
greater level of protection for the plaintiff who in truth is
facing a challenge to the validity of his claim: the
defendant is forced to proceed under Rule 12(b)(6) . . . or
Rule 56 . . . both of which place great restrictions on the
district court's discretion.” Id.
(citations omitted) (alterations in original). “To
survive a motion to dismiss [under Rule 12(b)(6)], a
complaint must contain sufficient factual matter, accepted as
true, to state a claim to relief that is plausible on its
face.” Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009) (citations and internal quotation marks omitted). A
complaint states a facially plausible claim for relief
“when the plaintiff pleads factual content that allows
the court to draw the reasonable inference that the defendant
is liable for the misconduct alleged.” Id.
is a veteran of the United States armed forces. At some
point, Jelks qualified for the Veterans Retraining Assistance
Program (“VRAP”) and intended to attend Lawson
State Community College in Birmingham, Alabama. (Doc. 1 at
5). However, Jelks experienced problems with Lawson
State's admissions process and chose instead to attend
Birmingham Easonian Baptist Bible College
(“BEBBC”), also in Birmingham. (Id.).
Jelks was accepted to BEBBC on January 23, 2013.
(Id.). Jelks was enrolled on the understanding he
would resubmit his VRAP paperwork, but VA Education Officer
Phyllis Curtis denied his request to use his benefits at
BEBBC. (Id.). Jelks appealed to the Board of
Veterans Appeals, but Board of Veterans Appeals Judge Michael
E. Kilcoyne upheld the denial of benefits. (Id.).
Jelks alleges other veterans were permitted to attend BEBBC
using their VRAP benefits over the last twenty-three years
and that denying him the ability to do so is discrimination.
Jelks claims the VA Regional Office in Nashville, Tennessee,
has retaliated against him by denying every disability claim
he has filed with it since he filed a wrongful termination
suit against the VA in 2007. (Id.). Jelks alleges
these claims-for earlier pay dates for service-connected
injuries, depression, PTSC, “poly substance abuse,
” and penis surgery-have all been denied without a
hearing or considering the evidence, in violation of VA
rules, regulations, and policies. (Id. at 5-6).
Jelks claims his medical records were altered by a clerk at a
VA clinic in Murfreesboro, Tennessee, which affected his
disability compensation, and that some of his military
records have been destroyed or hidden by the Nashville,
Tennessee, and Montgomery, Alabama VA offices. (Id.
at 6). Jelks alleges he has been denied compensation for neck
surgery and spinal cord injuries and that the VA refuses to
surgically repair his lumbar region. (Id.). Finally,
he states that the VA has refused to provide him his clothing
allowance since 2012, forcing him to have to appeal these
denials. (Id.). Jelks, as a general
matter, alleges the issues with his benefits are “how
the VA system has treated [him] and so many other Black
Veterans” and that his lawsuit is brought “to
ensure that every American Soldier, regardless of his skin
color, is treated EQUALLY[.]” (Id. at 8).
argue this Court has no subject-matter jurisdiction in part
because Jelks has failed to exhaust his administrative
remedies under the FTCA and under Title VII. (Doc. 8 at 5-8).
Defendants also contend the Veterans Judicial Review Act
(“VJRA”) bars Jelks's claims for VA benefits
and that his civil rights claims against them under 42 U.S.C.
§ 1983 are barred by sovereign immunity. (Id.
at 8-10). Additionally, although they do not develop these
arguments beyond assertion, Defendants argue the complaint
should be dismissed for insufficient process and insufficient
service of process under Rule 12(b)(4) and (5), for improper
venue under Rule 12(b)(3), and for lack of personal
jurisdiction under Rule 12(b)(2). (Id. at 10-11). In
his response, Jelks contests the issue of improper service
and explains his retaliation claim; he does not address any
of the issues Defendants raise as to subject-matter
jurisdiction. (See doc. 11 at 2). Jelks's sur-
reply again does not offer a counterargument, but instead
discusses justice as a general matter and requests a hearing.
(See doc 15).
Judicial Review of ...