UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF INDIANA

FORT WAYNE DIVISION

MICHAEL J. OLSON,

PLAINTIFF,

VS.

UNITED STATES OF AMERICA,

ATTORNEY GENERAL E. HOLDER,

DEFENDANTS.

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CAUSE NO. 1:12-CV-34-RLM-RBC

OPINION and ORDER

This matter is before the court on a motion to dismiss pursuant to

Federal Rule of Civil Procedure 12(b)(1) for lack of subject matter jurisdiction,

Rule 12(b)(5) for insufficient service of process, and Rule 12(b)(6) for failure to

state a claim upon which relief may be granted, filed by the United States of

America and Attorney General Eric Holder (collectively United States). The

United States alternatively requests summary judgment. Plaintiff Michael J.

Olson didn’t respond to the United States’ motion, and the time period for a

response has expired. 

I. BACKGROUND

Mr. Olson is a disabled veteran who has received a monthly disability

benefit from the Department of Veterans Affairs since 1992. He was deemed

financially incompetent in 1998, and his mother was initially appointed as his

payee. In 2004, his mother requested that she be removed as payee, and Mr.

Olson’s wife replaced her until March 2010 when the VA conducted an
investigation and removed Mrs. Olson as her husband’s payee. Mr. Olson says

his wife’s removal was inappropriate. Greenfield Bank was appointed Mr.

Olson’s payee until July 2010 when the VA decided Mr. Olson was financially

competent. Mr. Olson claims his accounts were mismanaged and many of his

bills became delinquent during the period of time when Greenfield Bank was

his payee. 

Mr. Olson’s claims can be summarized as follows: (1) the VA violated his

Fifth Amendment due process rights because the agency didn’t have an appeal

process for negligent and discretionary decisions regarding competence, (2) the

VA’s actions from 2008 to 2010 weren’t needed because Mr. Olson had no

financial difficulty during those years and the restrictions imposed amounted

to a violation of his property rights under the Fourth Amendment, (3) the VA

discriminated against him based on his disability, which was a violation of his

Twelfth Amendment right to fair and equal consideration, and (4) the VA’s

decisions about Mr. Olson’s financial competence were negligent under 28

U.S.C. § 2672. 

Mr. Olson seeks damages of $1 million. Because he is representing

himself, the court construes his complaint liberally, and his failure to request

equitable relief doesn’t prevent the court from construing his complaint as

seeking both monetary and equitable relief. Czerkies v. U.S. Dep’t of Labor, 73

F.3d 1435, 1438 (7th Cir. 1996). Equitable relief wouldn’t be helpful because

more than a year before Mr. Olson filed his complaint, the VA reversed its

finding on his financial competence, consequently removing the paid fiduciary

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and restoring to Mr. Olson the power to control his own financial affairs.

Equitable relief, such as a new hearing regarding his competency or the

appropriate fiduciary appointment, wouldn’t benefit Mr. Olson, so the court will

construe his complaint to seek only monetary damages. 

II. STANDARD

The court must first address the Rule 12(b)(1) motion to dismiss for lack

of subject matter jurisdiction. Winslow v. Walters, 815 F.2d 1114, 1116 (7th

Cir. 1987). To evaluate jurisdiction, the court takes all facts alleged in the

complaint as true and draws all reasonable inferences in the plaintiff’s favor.

Ezekiel v. Michel, 66 F.3d 894, 897 (7th Cir. 1995) (citing Rueth v. U.S.

Environmental Protection Agency, 13 F.3d 227, 229 (7th Cir. 1993)). If

necessary, the court “may properly look beyond the jurisdictional allegations of

the complaint and view whatever evidence has been submitted on the issue to

determine whether in fact subject matter jurisdiction exists.” Id. (quoting

Capitol Leasing Co. v. F.D.I.C., 999 F.2d 188, 191 (7th Cir. 1993) (per curiam)).

Because the court concludes that it doesn’t have jurisdiction to consider

Mr. Olson’s claims, the court needn’t address the United States’ request for

dismissal under Rule 12(b)(5) for insufficient service of process and Rule

12(b)(6) for failure to state a claim upon which relief may be granted or

alternatively for summary judgment. See Cook v. Winfrey, 141 F.3d 322, 325

(7th Cir. 1998) (“It is axiomatic that a federal court must assure itself that it

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possesses jurisdiction over the subject matter of an action before it can proceed

to take any action respecting the merits of the action.”). 

III. CONSTITUTIONAL CLAIMS

A. Fifth Amendment

Mr. Olson claims the lack of an appeal process for the VA’s decisions

about his financial competence violated his Fifth Amendment due process

rights. Mr. Olson references the VA’s discretionary decisions in general, but

doesn’t specify the decisions he believes violated his due process rights. The

court will address the two VA decisions that are central to Mr. Olson’s

complaint: the VA’s determination that he was incompetent and the VA’s

decision to remove his wife as his payee and appoint a paid fiduciary as her

replacement. 

The VA’s Decisions

One interpretation of Mr. Olson’s claim is that the decisions at issue

denied him due process of law, but this court doesn’t have jurisdiction to

determine whether a veteran is financially competent to handle his or her

affairs or whether a fiduciary should be appointed or removed. Sovereign

immunity – the principle that the government can’t be sued – bars an

individual’s right to sue the United States unless Congress has provided a

specific right to sue under the circumstances. Michigan v. U.S. Army Corps Of

Engineers, 667 F.3d 765, 774 (7th Cir. 2011) (citing FDIC v. Meyer, 510 U.S.

471, 475 (1994)). If the government hasn’t waived its immunity, a district court

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doesn’t have authority or power to decide a case brought against the United

States. Id. Mr. Olson hasn’t alleged or argued that the government waived its

immunity with respect to veteran benefit claims. 

Congress created a specific procedure for judicial review for veteran’s

claims disputing a VA benefits decision. Under 38 U.S.C. § 511, the Secretary

of Veterans Affairs has exclusive jurisdiction over decisions regarding a

veteran’s benefits, subject to a review process outlined in 38 U.S.C. §§ 7251-

7299. First, within one year of the benefits decision, the veteran may appeal to

the Board of Veterans’ Appeals (38 U.S.C. §§ 7104-7105). The veteran can then

appeal the Board’s decision to the Court of Appeals for Veterans Claims (38

U.S.C. § 7252), followed by an appeal to the Court of Appeals for the Federal

Circuit (38 U.S.C. § 7292). See Ramnarain v. U.S. Veterans Admin., No. 11 Civ.

4988, 2012 WL 1041664, at *1 (E.D.N.Y. Mar. 28, 2012).

This court agrees with the courts that have found the question of

whether a veteran is financially competent to be a benefits decision under 38

U.S.C. § 511(a), so judicial review is limited to the procedures outlined in the

statute. See Id.; Judkins v. Veterans Admin., 415 F. Supp. 2d 613 (E.D.N.C.

2005); Carney v. G.I. Jane, No. Civ.A. B-03-173, 2005 WL 2277490 (S.D. Tex.

Sept. 16, 2005). This court therefore doesn’t have jurisdiction over the

determination of Mr. Olson’s financial competence or to review the VA’s

determination of his financial competence. 

In Freeman v. Shinseki, the Court of Appeals for Veterans Claims

decided that the VA’s decision to appoint a fiduciary for financially incompetent

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veterans is a benefits decision under 38 U.S.C. § 511(a) and so is subject to the

review process outlined in the statute. 24 Vet. App. 404, 417 (Vet. App. 2011).

This court doesn’t have jurisdiction to review the VA’s decision to remove Mr.

Olson’s wife as his payee or the decision to appoint a paid fiduciary. 

The VA’s Procedure

Another interpretation of Mr. Olson’s claim is that he was denied due

process by the VA’s proceedings regarding his financial competence and the

appointment and/or removal of a fiduciary. A district court has jurisdiction

over challenges under the Due Process Clause of the Fifth Amendment to the

procedures used by the VA in making such decisions. Marozsan v. United

States, 852 F.2d 1469, 1473-1474 (7th Cir. 1988) (citing Johnson v. Robison,

415 U.S. 361 (1974)). “When the issue is ‘not whether the Administrator’s

decision granting or denying benefits in a particular case was right or wrong,

but rather whether the Administrator had acted consistently with his grant of

authority or had exceeded his authority and acted in violation of veterans’

rights guaranteed by the fifth amendment,’ [§ 511(a)] does not apply.”

Marozsan v. United States, 852 F.2d at 1472 (quoting Arnolds v. Veterans’

Admin., 507 F. Supp. 128, 130-131 (N.D. Ill. 1981)). 

This argument would be appropriate if Mr. Olson were seeking equitable

relief, such as a new hearing regarding his financial competence or the removal

or appointment of a fiduciary. See Czerkies v. U.S. Dep’t of Labor, 73 F.3d

1435, 1439 (7th Cir. 1996) (door closing statutes do not bar constitutional

claims if the claimant only requests “a new hearing or other process rather

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than a direct award of money”); Marozsan v. United States, 852 F.2d at 1472

(emphasizing that the claimant demanded equitable, not monetary, relief). Mr.

Olson only seeks monetary relief, and because the VA has decided he is

financially competent and removed the paid fiduciary, Mr. Olson wouldn’t

benefit from equitable relief. See Czerkies v. U.S. Dep’t of Labor, 73 F.3d at

1442 (“[A] conclusion that the claimant had been denied due process of law . . .

would entitle him only to a fair procedure for adjudicating his claim to

benefits.”). 

Mr. Olson had the chance to challenge the VA’s decision that he was

financially incompetent through the review process outlined in the statute. See

Mosher v. Shinseki, No. 09-0133, 2010 WL 764075, at *2 (Vet. App. Mar. 8,

2010) (“A finding of incompetency by the Board is reviewed by the Court [of

Appeals for Veterans Claims] under the ‘clearly erroneous’ standard of

review.”). Mr. Olson’s disagreement with the VA’s decisions about his financial

competence is more appropriately classified as a challenge to a VA benefits

decision than to the VA’s procedures and due process concerns, leaving this

court without jurisdiction to consider the claim. Czerkies v. U.S. Dep’t of Labor,

73 F.3d at 1439 (“[C]ourts do not acquire jurisdiction to hear challenges to

benefits determinations merely because those challenges are cloaked in

constitutional terms.”) (quoting Sugrue v. Derwinski, 26 F.3d 8, 11 (2d Cir.

1994)). 

Mr. Olson’s objection to the lack of an appeal process for the VA’s

decisions regarding fiduciaries seems to be well founded. In 2011, the Court of

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Appeals for Veterans Claims determined that VA decisions to appoint a

fiduciary for financially incompetent veterans are benefits decisions under 38

U.S.C. § 511(a) and accordingly are subject to review by the Board of Veterans’

Appeals. Freeman v. Shinseki, 24 Vet. App. at 417. The veteran may then

appeal to the Court of Appeals for Veterans Claims, which has exclusive

jurisdiction to review Board decisions. Id. at 414. Although the Court of

Appeals for Veterans Claims downplayed case law that seemed to eliminate

judicial review of VA decisions regarding the appointment of fiduciaries, Id. at

411-412, Freeman essentially opened up these decisions to judicial review for

the first time, absent extraordinary circumstances. See Browder v. Nicholson,

23 Vet. App. 334, 2007 WL 956934 (Vet. App. Feb. 23, 2007) (Veteran’s petition

for extraordinary relief in the nature of a writ of mandamus contesting the

appointment of his fiduciaries was denied because the court did not have

jurisdiction to review decisions that were within the sole discretion of the VA.). 

The events that form the basis of Mr. Olson’s complaint all occurred in

2010, before the Freeman decision, leaving Mr. Olson unable to seek Board of

Veterans’ Appeals or judicial review of the VA’s decision to remove his wife as

his payee and to appoint a paid fiduciary to manage his financial affairs. The

court sympathizes with Mr. Olson’s frustration, but the court would only be

able to grant Mr. Olson equitable relief, such as a new hearing, on his due

process claim. Because Mr. Olson wouldn’t benefit from equitable relief at this

point and he seeks only monetary damages, the court doesn’t have jurisdiction

to consider his claim.

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Mr. Olson’s complaint mentions several examples of what he believed to

be the mismanagement of his accounts by the paid fiduciary. To the extent Mr.

Olson intended to include these facts in his arguments, the court doesn’t have

jurisdiction to consider such claims. Complaints about VA-appointed paid

fiduciary fraud, misconduct, or misuse of funds must be submitted to the VA

Office of Inspector General. Garcia v. Shinseki, No. 11-1924, 2011 WL

4448186, at *4 (Vet. App. Sept. 27, 2011). If the Office of Inspector General

determines the complaint is valid, the United States Attorney’s Office may

prosecute the claim. Id. (citing Inspector General Act of 1978, 5 U.S.C. app. 3

§§ 2, 4). 

The form complaint Mr. Olson filed is titled “42 U.S.C. § 1983,” but that

statute isn’t mentioned elsewhere in the document. Section 1983 applies to the

deprivation of federal rights by a person acting under the color of state law.

Case v. Milewski, 327 F.3d 564, 566 (7th Cir. 2003) (citing West v. Atkins, 487

U.S. 42, 48 (1988)). Mr. Olson names as defendants the United States and

United States Attorney General E. Holder. A section 1983 claim might be

appropriate against federal actors if they acted under the color of state law.

Case v. Milewski, 327 F.3d at 567. The actions central to the complaint -- VA

agency decisions -- were taken by a federal, not state, agency and were based

on federal, not state, law, so Mr. Olson’s claims don’t establish a basis for relief

under 42 U.S.C. § 1983. 

B. Fourth Amendment & Twelfth Amendment

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Mr. Olson alleges that the VA violated his Fourth Amendment property

rights and his Twelfth Amendment right to fair and equal consideration. The

Fourth Amendment protects “[t]he right of the people to be secure in their

persons, houses, papers, and effects, against unreasonable searches and

seizures” and describes the constitutional requirements for a valid warrant.

U.S. CONST. amend. IV. The Twelfth Amendment outlines the process used to

elect the president and vice-president of the United States. U.S. CONST. amend.

XII. The facts in the complaint provide no basis for a claim under either

amendment. 

I. NEGLIGENCE CLAIM

Mr. Olson alleges that the VA’s decisions about his financial competence

were negligent and claims 28 U.S.C. § 2672 provides relief for injuries caused

by the government’s negligent use of discretionary power. Section 2672 permits

federal agencies to “consider, ascertain, adjust, determine, compromise, and

settle” claims brought under the Federal Tort Claims Act (FTCA). The VA denied

Mr. Olson’s federal tort claim and the time for section 2672 to apply to his

claim has passed. The court reads Mr. Olson’s complaint as asserting a federal

tort claim for negligence against the United States under the FTCA. 28 U.S.C. §

1346. 

Mr. Olson didn’t attach any exhibits to his complaint, but copies of three

documents filed by the United States with their motion establish that Mr.

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Olson exhausted his administrative remedies in a timely manner, which is a

1

requirement under the FTCA before filing suit in district court. See 28 U.S.C.

§§ 2675, 2401. The court can review evidence submitted with the motion to

dismiss when evaluating whether it has subject matter jurisdiction. Ezekiel v.

Michel, 66 F.3d 894, 897 (7th Cir. 1995). 

Even though Mr. Olson exhausted his administrative remedies within the

statutory time period to bring an FTCA claim, this court nevertheless lacks

subject matter jurisdiction to consider his negligence claim. Under the FTCA:

District courts 

shall have exclusive jurisdiction of civil actions on claims against

the United States, for money damages, . . . for injury or loss of

property, or personal injury or death caused by the negligent or

wrongful act or omission of any employee of the Government while

acting within the scope of his office or employment, under

circumstances where the United States, if a private person, would

be liable to the claimant in accordance with the law of the place

where the act or omission occurred.

28 U.S.C. § 1346. The statutory review process for veteran benefits decisions

trumps the FTCA’s grant of jurisdiction. 38 U.S.C. § 511 gives the Secretary of

Veterans Affairs exclusive jurisdiction over decisions regarding a veteran’s

benefits. The statute further outlines the appropriate appeal path for

disagreement with those decisions first to the Board of Veterans’ Appeals (38

1

The government’s evidence shows that Mr. Olson filed a Standard Form 95 Claim for

Damage, Injury, or Death with the VA’s Indianapolis Regional Counsel Office in May 2010. The

claim focused on VA Field Agent Nancy Grabman’s conduct regarding the removal of Mr. Olson’s

wife as payee and Mr. Olson’s attempts to establish his competence. The claim was denied on

September 20, 2010. Mr. Olson filed a request for reconsideration with the VA’s Washington D.C.

Office of General Counsel. The request was denied on September 30, 2011. Mr. Olson commenced

the present suit on February 2, 2012. Def.’s Mem. Exs. 2-4.

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U.S.C. § 7104-7105), then to the Court of Appeals for Veterans Claims (38

U.S.C. § 7252), followed by appeal to the Court of Appeals for the Federal

Circuit (38 U.S.C. § 7292). See Ramnarain v. U.S. Veterans Admin., 2012 WL

1041664, at *1. This specific review process applies to all claims disputing a

veteran’s benefits decision, regardless of the label or form of the claim. See

Weaver v. United States, 98 F.3d 518, 520 (10th Cir. 1996) (“We examine the

substance of these allegations, rather than the plaintiff's labels, to determine

their true nature. Without exception, they seek review of actions taken in

connection with the denial of [the veteran’s] administrative claim for benefits.

They are, in substance, nothing more than a challenge to the underlying

benefits decision.”) (citation omitted).

Mr. Olson’s negligence claim is at its heart a disagreement with a

benefits decision – the VA’s determination that he was financially incompetent.

Mr. Olson contends the Social Security Administration is a similar

administrative agency to the VA in that it distributes funds to beneficiaries and

has a duty to protect the assets it distributes. He points out that the Social

Security Administration didn’t assign a fiduciary to manage his funds. Mr.

Olson also emphasizes that the State of Indiana found him competent to adopt

a child during the time the VA classified him as financially incompetent. Mr.

Olson argues that in light of the fact that society found him competent, the

VA’s decision that he was financially incompetent was clearly negligent.

Much like a disagreement with a benefits decision cloaked in

constitutional terms, Czerkies v. U.S. Dep’t of Labor, 73 F.3d at 1439, Mr.

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Olson’s negligence claim is a disagreement with a benefits decision cloaked in

FTCA terms. This court lacks subject matter jurisdiction to review the VA’s

determination that Mr. Olson was financially incompetent. See Marozsan v.

United States, 852 F.2d at 1473 n.10 (“We unequivocally held in Winslow [v.

Walters, 815 F.2d 1114, 1117 (7th Cir. 1987)] that [§ 511(a)] ‘clearly deprives a

federal court of the power to alter determinations made by the V.A. regarding

disability ratings and entitlements to benefits.’”).

II. CONCLUSION

The court does not have jurisdiction to review Mr. Olson’s various claims

disputing the VA’s decisions regarding his financial competence, the removal of

his wife as his payee, and the appointment of a paid fiduciary. The court

GRANTS the United States’ motion to dismiss for lack of subject matter

jurisdiction under Federal Rule of Civil Procedure 12(b)(1) (Doc. No. 10) and so

need not address the merits of its motion to dismiss under Rule 12(b)(5) or

Rule 12(b)(6) or its alternative request for summary judgment. The clerk is

directed to enter judgment for the defendants. 

SO ORDERED.

ENTERED: November 6, 2012

 /s/ Robert L. Miller, Jr. 

Judge

United States District Court

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