2009 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

10-9-2009

Steven Fleming v. Veterans Admn Med

Precedential or Non-Precedential: Non-Precedential

Docket No. 09-3143

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Recommended Citation

"Steven Fleming v. Veterans Admn Med" (2009). 2009 Decisions. Paper 459.

http://digitalcommons.law.villanova.edu/thirdcircuit_2009/459
BLD-327 NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

___________

No. 09-3143

___________

STEVEN PAUL FLEMING, ATP

Appellant

v.

UNITED STATES VETERANS ADMINISTRATION MEDICAL CENTERS

____________________________________

On Appeal from the United States District Court

for the Eastern District of Pennsylvania

(D.C. Civil No. 08-cv-05696)

District Judge: Honorable J. Curtis Joyner

____________________________________

Submitted for Possible Summary Action 

Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6

September 24, 2009

Before: MCKEE, FISHER AND CHAGARES, Circuit Judges

(Opinion filed October 9, 2009 )

_________

OPINION

_________

PER CURIAM

Steven Paul Fleming, proceeding pro se, appeals from the District Court’s

dismissal of his complaint. For the reasons that follow, we will summarily affirm the

judgment of the District Court.
 Local Civil Rule 7.1(c) provides, in relevant part: “any party opposing the motion 1

shall serve a brief in opposition, together with such answer or other response which may

be appropriate, within fourteen (14) days after service of the motion and supporting brief. 

In the absence of timely response, the motion may be granted as uncontested except that a

summary judgment motion, to which there has been no timely response, will be governed

by Fed. R. Civ. P. 56(c).”

2

Fleming filed a complaint in the United States District Court for the Eastern

District of Pennsylvania on December 8, 2008 in which he alleged that the Veterans’

Administration (“VA”) misdiagnosed him with paranoid schizophrenia. He alleged that, 

as a result of this diagnosis, his career as an airline pilot was ruined. He sought damages

for personal injury and lost wages. On May 28, 2009, the VA moved to dismiss. At no

time did Fleming file a response or any document that could be construed as a response in

the District Court. Accordingly, on June 24, 2009, the District Court granted the VA’s

motion to dismiss as unopposed pursuant to Local Civil Rule 7.1(c). 

1

We have jurisdiction over this appeal pursuant to 28 U.S.C. § 1291. We agree that

the District Court acted within its authority to dismiss the complaint as unopposed

pursuant to the Local Civil Rules. Additionally, we note that the District Court lacked

subject matter jurisdiction over Fleming’s appeal. Through this action, Fleming seeks to

challenge the VA’s diagnosis. The Veterans Judicial Review Act sets out a limited

procedure for judicial review of decisions made by the Department of Veterans’ Affairs. 

See 38 U.S.C. § 511(a). First, the veteran must seek review within the agency by filing a

notice of disagreement with the Board of Veterans Appeals. See 38 U.S.C. § 7105(a). 
3

An appeal from the decision of the Board can only be taken to the Court of Appeals for

Veterans Claims, which has exclusive jurisdiction over appeals from decisions of the

Board of Veterans’ Appeals. See 38 U.S.C. § 7252(a). Thus, to the extent Fleming

sought review of his diagnosis by the VA, the District Court could not have exercised

subject matter jurisdiction over his claim. See Zuspann v. Brown, 60 F.3d 1156, 1159

(5th Cir. 1995); Sugrue v. Derwinski, 26 F.3d 8, 11 (2d Cir. 1994).

Because this appeal presents no “substantial question,” we will summarily affirm

the judgment of the District Court. See 3d Cir. LAR 27.4 & I.O.P. 10.6.