United States District Court, E.D. Michigan, Northern Division
ORDER GRANTING DEFENDANT'S MOTION TO
L. LUDINGTON, United States District Judge
February 22, 2017, Plaintiff Brian Krueger filed a complaint
against Defendant United States of America under the
American's with Disabilities Act (ADA), 42 U.S.C. §
12131 and the Federal Tort Claims Act (FTCA), 28 U.S.C.
§§ 1346, 2671 et seq. Compl. ECF No. 1. The parties
stipulated to extend Defendants answer deadline, and
Plaintiff filed an amended complaint prior to Defendant
filing its Motion to Dismiss. See ECF Nos. 8, 9.
Defendant has not objected to the filing of the amended
complaint and has asked that the Motion to Dismiss be treated
as a response to the amended complaint. Reply at 1, ECF No.
14. Accordingly, the Amended Complaint will be construed as
the operative complaint.
amended complaint retains the FTCA claim, asserting one count
of negligence by the Department of Veterans Affairs (VA) for
improperly designating Plaintiff as a behavioral threat and
interfering with his ability to receive healthcare at the VA.
Am. Compl. at 14, ECF No. 8. Plaintiff's amended
complaint omits the ADA claims and adds a claim under §
504 of the Rehabilitation Act of 1973, codified at 29 U.S.C.
§ 794, alleging that he was denied benefits to which he
was entitled, was harassed and interfered with when he
attempted to utilize other benefits, was retaliated against
for continuing to seek access to benefits he was rightfully
due, and was discriminated against on the basis of his
disabilities. Am. Compl. at 13.
adjudicating a motion to dismiss for failure to state a claim
under rule 12(b)(6), the Court construe's the complaint
in the non-movant's favor and accepts all of
Plaintiff's factual allegations as true. See Lambert
v. Hartman, 517 F.3d 433, 439 (6th Cir.
2008). The facts set forth herein are derived from the
allegations in Plaintiff's amended complaint.
is a distinguished, honorably discharged veteran of the
United States military who specialized in the safekeeping and
protection of generals, dignitaries, and other high level
military VIPs in the Middle East. Am. Compl. at 2; Resp. at
1. As a result of his service Plaintiff suffers from severe
Post-Traumatic Stress Disorder (PTSD) and Bi-Polar Disorder
stemming from a head injury, as well as anxiety. Am. Compl.
at 2. This case arises from a series of unfortunate, often
hostile interactions between Plaintiff and the staff at the
VA where he receives treatment for mental health, among other
things. Id. at 3.
fifteen years ago Plaintiff was homeless and enrolled in the
HUD-VASH housing program, a collaborative program between HUD
and VA which combines HUD housing vouchers with VA supportive
services to help homeless veterans and their families find
permanent housing. Through the HUD-VASH program Plaintiff was
placed in a house in Saginaw. Id. His utilities were
supposed to be paid on his behalf by the HUDVASH program.
Id. After three months, no payments were
forthcoming, his landlord allowed the utility payments to
lapse, his power was shutoff during the winter, his pipes
froze, and he lost all his food. Id. Despite
repeatedly contacting the VA, the situation was never
rectified. Id. The property was eventually
demolished and Plaintiff was forced to vacate. Id.
at 6. He was never relocated under the HUDVASH program to a
new home. Id.
repeated attempts to secure the benefits to which he was
entitled under the HUDVASH program resulted in him being
cited for malicious use of a telephone. Id. at 4-5.
The VA also placed him on a behavioral “flag, ”
designating him as a dangerous individual requiring
supervision on VA premises, asked him to sign a
“behavioral agreement.” Id. at 6, 11;
Resp. at 2-3. As a result, Plaintiff was required to be
escorted by guards every time he visited the VA to receive
treatment. The relationship between Plaintiff and the VA
further deteriorated when he attempted to visit the VA
Director, he was forced to sit on the ground by the guards,
aggravating his back injury, and was ordered to leave the
premises. Id. at 7. His phone calls to the VA
resulted in the police showing up at his home, arresting him,
and jailing him for three days. Id. at 7. He was
cited again for malicious use of a telephone and placed on
probation. Id. Continued attempts to contact the VA
regarding his concerns about his benefits resulted in his
probation being revoked and him being jailed for two weeks.
Id. at 8.
these incidents, Plaintiff began making great strides in his
treatment under the direction of Dr. Elaine Carroll. Dr.
Carroll wrote a scathing letter to Saginaw County District
Court Judge A.T. Frank who was presiding over a drinking
related charge against the Plaintiff, in which Dr. Carroll
criticized the VA and the negative impact they had on
Plaintiff's condition. Id. at 8. This caused
retaliation by the VA against Plaintiff. Id.
Plaintiff remained on the behavioral flag at the VA, and had
additional restrictions placed on him. Id. at 9. He
was no longer permitted to call the VA staff directly, but
had to relay his requests directly to an answering machine.
Id. The VA staff, including his guards and a
therapist, also began to hassle Plaintiff about bringing his
service dog, Kola, into the VA. Id. at 8. The
therapist suggested that the dog was a crutch and needed to
be taken away. Id. at 9. Security staff told
Plaintiff that Kola could not be inside, and “Kola was
eventually prohibited by VA personnel from performing his
tasks and from being allowed to sit next to the Plaintiff
inside the VA.” Id.
situation reached a point of conflict when Plaintiff went to
the VA Urgent-Care Center after he experienced chest pains.
Id. at 10. There were no on-duty officers to escort
Plaintiff, and he was thus unable to go into the emergency
room through the main entrance. Id. at 10. Plaintiff
honked his horn at the ambulance bay but received no
response. Id. He called 911 and, at the direction of
911 operators, drove his truck into the ambulance bay to gain
access to the emergency room. Id. Three officers
then ran out and accosted Plaintiff demanding that he exit
the vehicle but keep his dog inside the vehicle. Id.
In order to perform his service function, Kola is at all
times tethered to Plaintiff. Id. Thus, Plaintiff was
unable to comply with the officers' instructions, which
he tried to explain to them. Id. The confrontation
triggered Plaintiff's PTSD, which caused “Kola to
place himself between Plaintiff and the VA officers, pulling,
nipping, and herding the Plaintiff away from the source of
stress as he was trained to do.” Id. The
officers then demanded that Plaintiff “get off the
fucking property or he would go to jail” and that his
dog was “unruly and dangerous.” Id.
situation eventually de-escalated, the officers allowed him
entry into the ER, but he was issued two citations while in
his hospital bed, one for disturbing the peace on federal
property and another for disorderly conduct. Id. at
11. Plaintiff was assigned a new social worker who challenged
his behavioral flag, which was ultimately removed.
Id. However, the officers' treatment of
Plaintiff did not improve, he became fearful of receiving
treatment at the VA, and wished to continue his treatment in
a non-hostile environment. Id. Plaintiff sought to
obtain care outside of the VA while retaining access to VA
benefits through the Veteran's Choice Program.
Id. at 12. Plaintiff had to seek permission from the
local VA to take advantage of the program, but they did not
allow him to apply. Id.
recently, in 2017, Plaintiff attempted to look into physical
therapy treatment options at the VA, but wanted his concerns
about retaliation and harassment addressed first.
Id. at 12. His social worker contacted VA
administration, who indicated that they would not discuss any
concerns, and that they would only accept a written claim
through their legal department. Id. at 12. Plaintiff
now refuses to return to the VA unless it is unavoidable due
to continuing obstructionism and harassment by the VA staff.
Id. at 13.
alleges that the VA violated § 504 of the Rehabilitation
Act. Id. He alleges they denied him access to the
benefits to which he is entitled, such as the HUDVASH and
Veterans Choice Programs. Id. He alleges the VA
denied him these benefits on the basis of his disabilities
and their associated accommodations, and in retaliation for
his criticism of the VA and requests to secure the benefits
to which he was entitled. Id. He also alleges that
the VA interfered with his utilization of services he was
receiving by imposing unreasonable and unwarranted
restrictions on his ability to access the VA, creating a
hostile environment, inhibiting his ability to seek emergency
care, and inhibiting his use of this service dog.
Id. at 13.
also alleges negligence by the VA under the FTCA.
Id. at 14. He alleges the VA breached their duty to
Plaintiff as a veteran and disabled individual by failing to
allow Plaintiff to access the benefits to which he was
entitled, and improperly imposing rules and requirements
restricting his access to other VA services he was receiving.
result of the alleged Rehabilitation Act and FTCA violations
Plaintiff alleges he “sustained financial hardship,
emotional distress, personal and professional growth
opportunities, access to the benefits and services of
programs to which he is entitled, and a loss of reputation in
the community.” Id. at 14.
motion raises four principal arguments, of which two are
jurisdictional arguments under 12(b)(1), one raises the
statute of limitations, and one asserts failure to state a
claim under 12(b)(6). Mot. at 1, ECF No. 9.
contends this Court lacks subject matter jurisdiction because
1) the Court of Veterans Appeals (CVA) has exclusive
jurisdiction over “claims regarding veterans benefits,
” and 2) Plaintiff only exhausted administrative
remedies with respect to one claim which was resolved in his
favor and is therefore moot. Mot. at 5, 9. Plaintiff responds
that the CVA does not have jurisdiction over his harassment,
interference, and retaliation claims, which are distinct from
denial of benefits claims. Resp. at 10. Plaintiff also argues
that he exhausted administrative remedies as his claim was
not resolved in his favor and is therefore not moot. Resp. at
asserts that Plaintiff's Rehabilitation Act claims are
barred by a three-year statute of limitations, and
Plaintiff's FTCA claim is barred by 28 U.S.C. §
2401(b), which requires Plaintiff to 1) file an
administrative claim within two years of accrual, and 2) file
an action within 6 months of final denial. Mot. at 19-20.
Plaintiff contends both claims are timely. With respect to
his Rehabilitation Act claims, Plaintiff concedes that some
relevant events occurred outside the limitations period.
Resp. at 16. However, Plaintiff contends that because he was
left on the behavioral flag for an unreasonable
amount of time, each time he visited the VA a new violation
occurred. Id. With respect to his FTCA claim,
Plaintiff responds that he filed an administrative tort claim
with the VA and filed a complaint in this Court within six
months of the final denial of that claim. Resp. at 20.
believes the amended complaint fails to state a claim under
the Rehabilitation Act, which requires that Plaintiff 1)
allege that his disabilities were considered by the VA in
formulating a discriminatory policy or 2) allege that the VA
could have reasonably accommodated his disability but refused
to do so. McPherson v. Michigan High Sch. Athletic
Ass'n, Inc., 119 F.3d 453, 459-60 (6th Cir. 1997);
Mot. at 16-17. Finally, Defendant argues that Plaintiff has
not pled any actionable torts under the FTCA. Plaintiff
believes the amended complaint states a claim under the
Rehabilitation Act by alleging that the VA placed him on a
behavioral flag because of his disability, and refused to
accommodate his service dog. Resp. at 18. Plaintiff believes
he pled a valid negligence cause of action under the FTCA by
alleging that the VA breached its duty to him as a veteran by
negligently placing him on a behavioral flag and keeping him
there, which resulted in significant emotional distress.
Id. at 23.
Rule of Civil Procedure 12(b)(1) provides for dismissal for
lack of subject matter jurisdiction. A 12(b)(1) motion can
challenge the claim of jurisdiction on the face of the
complaint if Plaintiff's allegations, accepted as true,
do not support jurisdiction (a facial challenge). DLX,
Inc. v. Kentucky, 381 F.3d 511, 516 (6th Cir. 2004). A
12(b)(1) motion can also challenge the factual basis for
jurisdiction asserted in the complaint (a factual challenge).
Id. In the case of a factual challenge, the Court
has broad discretion to consider evidence outside the
pleadings when determining the existence of subject matter
jurisdiction. Cartwright v. Garner, 751 F.3d 752,
759 (6th Cir. 2014). Plaintiff bears the burden of
establishing the facts giving rise to jurisdiction.
Id.; DLX, Inc., 381 F.3d at 511.
pleading fails to state a claim under Rule 12(b)(6) if it
does not contain allegations that support recovery under any
recognizable legal theory. Ashcroft v. Iqbal, 556
U.S. 662, 678, (2009). In considering a Rule 12(b)(6) motion,
the Court construes the pleading in the non-movant's
favor and accepts the allegations of facts therein as true.
See Lambert v. Hartman, 517 F.3d 433, 439
(6th Cir. 2008). The pleader need not have
provided “detailed factual allegations” to
survive dismissal, but the “obligation to provide the
‘grounds' of his ‘entitle[ment] to
relief' requires more than labels and conclusions, and a
formulaic recitation of the elements of a cause of action
will not do.” Bell Atlantic Corp. v. Twombly,
550 U.S. 544, 555 (2007). In essence, the pleading
“must contain sufficient factual matter, accepted as
true, to state a claim to relief that is plausible on its
face” and “the tenet that a court must accept as
true all of the allegations contained in a complaint is
inapplicable to legal conclusions.” Iqbal, 556
U.S. at 678-79 (quotations and citation omitted).
Veteran's Judicial Review Act of 1988 (VJRA) vests
exclusive jurisdiction over claims regarding veterans
benefits with the Court of Veterans Appeals (CVA), whose
decisions are reviewed by the Court of Appeals for the
Federal Circuit. 38 U.S.C. §§ 511, 7252, 7292;
Newsom v. Dep't of Veterans Affairs, 8 Fed.Appx.
470, 471 (6th Cir. 2001); Beamon v. Brown, 125 F.3d
965, 967 (6th Cir. 1997). This jurisdiction extends to
“all questions of law and fact . . . that affect the
provision of benefits . . . to veterans.” 38 U.S.C.
§§ 511, 7252, 7292; Beamon, 125 F.3d at
967. The VJRA thus “preclude[s] district court
jurisdiction over VA decisions relating to benefits claims,
including decisions of constitutional issues.”
Rodriguez v. United States, 2015 WL 4389635, at *1
(N.D. Ohio July 15, 2015) (citing Beamon, 125 F.3d
at 967). The exclusive jurisdiction of the CVA extends not
only to claims for denial of VA benefits, but constitutional
issues such as retaliation for exercise of first amendment
rights. Hicks v. Veterans Admin., 961 F.2d 1367 (8th
Rehabilitation Act prohibits discrimination against disabled
individuals by entities receiving federal funding, as well as
federal contractors and subcontractors. Although the 1973 Act
did not create an express private cause of action, courts
have recognized an implied private right of action under
§ 504. See, e.g., Smith v. U.S.
Postal Serv., 742 F.2d 257, 259 (6th Cir. 1984). The
Rehabilitation Act and the Americans with Disabilities Act
cover largely the same conduct, namely discrimination against
disabled individuals. The main distinction between the
Rehabilitation Act and the ADA is that the latter extends to
purely private entities whereas the Rehabilitation Act is
limited to entities receiving federal financial assistance.
McPherson v. Michigan High Sch. Athletic Ass'n,
Inc., 119 F.3d 453, 460 (6th Cir. 1997). The ADA also
does not provide a cause of action against the United States,
whereas the Rehabilitation Act does. See Jones v.
Potter, 488 F.3d 397, 403 (6th Cir. 2007). The
Rehabilitation Act provides, in relevant part, that:
“No otherwise qualified individual with a disability in
the United States . . . shall, solely by reason of her or his
disability, be excluded from the participation in, be denied
the benefits of, or be subjected to discrimination under any
program or activity receiving Federal financial
assistance.” 29 U.S.C.A. § 794.
Rehabilitation Act requires exhaustion of administrative
remedies as a prerequisite to a claim. Smith v. U.S.
Postal Serv., 742 F.2d 257, 258 (6th Cir. 1984).
Exhaustion of administrative remedies is a threshold
requirement to a reviewing Court's exercise of subject
matter jurisdiction. Howell by Howell v. Waterford Pub.
Sch., 731 F.Supp. 1314, 1315 (E.D. Mich. 1990).
Therefore, in response to a factual challenge to subject
matter jurisdiction, a court has discretion to consider
matters outside of the pleadings in determining whether
exhaustion has occurred, and the Plaintiff has the burden of
establishing exhaustion. Cartwright, 751 F.3d at
759; DLX, Inc., 381 F.3d at 511. Pursuant to §
504 of the Rehabilitation Act, the VA has promulgated
regulations setting forth the requirements for filing an
administrative claim. See 38 C.F.R. § 15.101
et seq. The regulations require that a written
complaint be submitted to the agency setting forth ...