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Mehrkens v. Blank

February 25, 2009

KENT MEHRKENS, APPELLANT,
v.
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.



Appeal from the United States District Court for the District of Minnesota.

The opinion of the court was delivered by: Smith, Circuit Judge.

Submitted: October 17, 2008

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

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'*fn1 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 court*fn2 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.

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 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 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 ...


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