[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 20-10849

Non-Argument Calendar

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D.C. Docket No. 1:18-cv-01533-JPB

BERTHA ANDREWS,

 Plaintiff,

DENORRIS ANDREWS, 

JAMES ANDREWS, 

c/o Clarence Andrews, Ward, 

 Plaintiffs – Appellants,

versus

SECRETARY, DEPARTMENT OF 

VETERANS AFFAIRS, 

GOVERNOR FOR THE STATE OF 

GEORGIA, 

on Behalf of the Georgia General 

Assembly, 

KAREN C. GAINEY, ESQ.,

individually, 

 Defendants - Appellees,

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PROBATE JUDGE,

on behalf of the Probate Court of 

Fulton County, 

 Defendant.

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Appeal from the United States District Court

for the Northern District of Georgia

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(February 11, 2021)

Before WILSON, MARTIN, and GRANT, Circuit Judges.

PER CURIAM: 

Plaintiffs DeNorris Andrews and James Andrews appeal the district court’s 

dismissal of their complaint based on sovereign immunity and lack of subject 

matter jurisdiction. Plaintiffs’ claims stem from alleged overpayments that the 

Department of Veterans Affairs (VA) authorized to a fiduciary responsible for 

distributing VA benefits. Because Congress has broadly precluded judicial review 

of decisions necessary to VA benefits determinations, the district court lacked

subject matter jurisdiction to decide Plaintiffs’ claims. Therefore, we affirm.

BACKGROUND

Plaintiffs were the legal guardians of their brother, Clarence Andrews, an 

incapacitated Vietnam War veteran.1

 Defendant Karen Gainey was appointed as 

1 Plaintiffs filed a motion on November 20, 2019, notifying the district court that Clarence 

Andrews is now deceased. The motion also stated that Bertha Andrews, Clarence’s mother and a 

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the fiduciary in charge of Andrews’s VA benefits. For her services, Gainey 

collected a commission amounting to five percent of Andrews’s benefits, which is 

permissible under Georgia law. See O.C.G.A. § 29-7-15. However, Plaintiffs 

allege that Gainey’s commission was one percent higher than what the Secretary of 

Veterans Affairs can authorize because federal law limits commissions to four

percent. See 38 U.S.C. § 5502(a)(2).

Plaintiffs sued three defendants: (1) Secretary Robert Wilkie (2) Gainey, and 

(3) Governor Brian Kemp. The district court first dismissed Plaintiffs’ claim 

against Secretary Wilkie, finding that it was barred by sovereign immunity. In a 

subsequent order, the district court dismissed Plaintiffs’ claims against Gainey and 

Governor Kemp for lack of subject matter jurisdiction. This appeal followed.

STANDARD OF REVIEW

We review de novo a district court’s dismissal for lack of subject matter 

jurisdiction. Zelaya v. United States, 781 F.3d 1315, 1321 (11th Cir. 2015).

DISCUSSION

Federal courts are courts of limited jurisdiction. Univ. of S. Alabama v. Am.

Tobacco Co., 168 F.3d 405, 409 (11th Cir. 1999). “They are empowered to hear 

only those cases within the judicial power of the United States as defined by 

named plaintiff, is now deceased. Plaintiffs’ motion asked the court to allow Denorris Andrews 

and James Andrews to continue this action as administrators of Clarence’s estate. 

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Article III of the Constitution, and which have been entrusted to them by a 

jurisdictional grant authorized by Congress.” Id. (internal quotation marks 

omitted). When interpreting statutes establishing jurisdiction, “federal courts

should proceed with caution.” Id. (internal quotation marks omitted). The 

presumption is that a claim lies outside a federal court’s jurisdiction, “and the 

burden of establishing the contrary rests upon the party asserting jurisdiction.” 

Bishop v. Reno, 210 F.3d 1295, 1298 (11th Cir. 2000).

Through the Veterans’ Judicial Review Act (VJRA), Congress created an 

exclusive scheme for the review of claims affecting veterans’ benefits. Under the 

VJRA, “the Secretary shall decide all questions of law and fact necessary to a 

decision by the Secretary under a law that affects the provision of benefits by the 

Secretary to veterans or the dependents or survivors of veterans.” 38 U.S.C. § 

511(a). Determinations by the Secretary may be appealed exclusively to the Board 

of Veterans’ Appeals. Id. § 7104(a). The Board’s decisions may be appealed to 

the Court of Appeals for Veterans Claims, an Article I tribunal created by the 

VJRA. Id. §§ 7251, 7252(a). And decisions of the Court of Appeals for Veterans 

Claims are appealable solely to the Federal Circuit. Id. § 7292(c). The Federal 

Circuit has “exclusive jurisdiction to review and decide any challenge to the 

validity of any statute or regulation or any interpretation thereof brought under this 

section, and to interpret constitutional and statutory provisions, to the extent 

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presented and necessary to a decision.” Id. Because the VJRA establishes an 

exclusive regime, district courts are divested of jurisdiction where the VJRA 

applies.

The VJRA is broad. See Anestis v. United States, 749 F.3d 520, 525 (6th 

Cir. 2014). Indeed, “courts have consistently held” that its scope extends to 

constitutional or tort claims “whose resolution would require the court to intrude 

upon the VA’s exclusive jurisdiction.” Price v. United States, 228 F.3d 420, 422 

(D.C. Cir. 2000) (per curiam); see also Hicks v. Small, 69 F.3d 967, 970 (9th Cir. 

1995) (holding that district courts lack jurisdiction to hear challenges to benefits 

determinations, even if those challenges are framed as tort law claims); Sugrue v. 

Derwinski, 26 F.3d 8, 11 (2d Cir. 1994) (holding that “the courts do not acquire 

jurisdiction to hear challenges to benefits determinations merely because those 

challenges are cloaked in constitutional terms”). The VJRA’s applicability—and 

conversely a district court’s jurisdiction—depends on the gravamen of the claim, 

rather than its label. The question, then, is whether the gravamen of Plaintiffs’ 

claims places them within the scope of the VJRA. If so, the district court lacked

jurisdiction. We take Plaintiffs’ claims against each defendant in turn.

First, as to Secretary Wilkie, Plaintiffs seek damages, costs, and attorney’s 

fees under the Federal Tort Claims Act (FTCA). The FTCA allows plaintiffs to 

sue the United States Government in tort for injuries “caused by the negligent or 

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wrongful act or omission of any employee of the Government while acting within 

the scope of his office or employment.” 28 U.S.C. § 1346(b)(1). Plaintiffs allege 

that the VA breached its duty under two VA regulations: 38 C.F.R. §§ 13.1 and

13.3. Specifically, Plaintiffs allege that the VA failed “to communicate with 

Georgia officials and to monitor and oversee Georgia legislation.” The result, 

Plaintiffs argue, is that Andrews did not receive the full benefits he was entitled to 

because the Secretary negligently allowed Andrews’s fiduciary to collect a five

percent payment under Georgia law, rather than a four percent payment—the 

maximum allowed under 38 U.S.C. § 5502(a)(2). 

Section 5502, which governs payments to and supervision of fiduciaries, is a 

law affecting the provision of veterans’ benefits. Id. § 5502; see Evans v. 

Greenfield Banking Co., 774 F.3d 1117, 1121, 1124 (7th Cir. 2014). It gives the

Secretary the power to appoint a fiduciary, and—if it is in the best interest of the 

beneficiary—to authorize the fiduciary to receive a commission of up to four 

percent of the veteran’s benefits. 38 U.S.C. § 5502(a)(2). The Secretary cannot 

authorize a fee under Section 5502 if the fiduciary receives “any other form of 

remuneration or payment in connection with rendering fiduciary services for 

benefits . . . on behalf of the beneficiary.” Id. And importantly, the Secretary has 

discretion to supervise the fiduciary. Id. § 5502(b). “Whenever it appears that any 

fiduciary, in the opinion of the Secretary, . . . has collected or paid . . . fees, 

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commissions, or allowances that are inequitable or in excess of those allowed by 

law for the duties performed or expenses incurred,” the Secretary may suspend 

payments to the fiduciary or take other appropriate action. Id.

Here, Plaintiffs style their claim against Secretary Wilkie as an FTCA claim. 

But when Plaintiffs argue that the Secretary negligently allowed Gainey to receive 

excess payments, they raise a question “necessary” to the Secretary’s 

determination under Section 5502. 38 U.S.C. § 511(a). In other words, Plaintiffs’ 

claim requires us to review VA decisions that affect the provision of benefits. Id. 

Therefore, under the VJRA, the proper avenue to challenge the Secretary’s 

decision is through the Board of Veterans’ Appeals. Consequently, the district 

court was without jurisdiction to decide Plaintiffs’ FTCA claim.

Next, we consider the bevy of tort law claims Plaintiffs raise against Gainey: 

(1) constructive trust, (2) conversion, (3) bad faith, (4) willful misconduct, (5) 

removal of fiduciary, and (6) breach of fiduciary duty. The basis for these claims

is that Gainey collected a commission in excess of what federal law permits, 

thereby depriving Andrews of VA benefits he was entitled to. Gainey responds

that “the VA interpreted and applied Section 5502 to allow [her] collection of a 5% 

commission as authorized by the probate court—so long as her guardian 

commission was collected in lieu of, and not in addition to, any fees authorized by 

the Secretary under 5502(a)(2).” 

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Whether or not this was a correct interpretation of the statute, it is 

undisputed that the Secretary authorized Gainey’s five percent commission. So to 

resolve Plaintiffs’ contention that federal law prohibits that commission, the 

district court would have to review whether a decision of the Secretary that 

affected Andrews’s benefits violated federal law. The VJRA prevents district 

courts from doing that. 38 U.S.C. § 511(a). Therefore, the district court was 

without jurisdiction to decide the claims against Gainey. 

Finally, as to Governor Kemp, Plaintiffs bring a federal preemption claim 

against the State of Georgia. Plaintiffs assert that O.C.G.A. § 29-7-15, the Georgia 

law permitting VA guardians to earn commissions of five percent, is preempted by 

federal law. Plaintiffs also allege that the State of Georgia violated their due 

process rights and the Commerce Clause. Although “cloaked in constitutional 

terms,” Sugrue, 26 F.3d at 11, these claims are, in reality, yet another attempt to 

challenge the Secretary’s determination by pointing to “questions of law . . . 

necessary to [his] decision . . . under a law that affects benefits.” 38 U.S.C. § 

511(a). Therefore, the VJRA’s exclusive review mechanism applies, and the 

district court lacked jurisdiction to decide these claims. 

None of the cases cited by Plaintiffs are persuasive. Plaintiffs rely primarily 

on Mansfield v. Peake, 525 F.3d 1312 (Fed. Cir. 2008). There, the Federal Circuit 

affirmed the Veterans Court of Appeals’ decision that providing the VA with 

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notice of intent to file a medical malpractice claim did not constitute an informal 

claim for disability benefits. Id. at 1316. Mansfield did not address the question 

presented here: whether challenges that are framed as constitutional and tort law

claims—but are really challenges to the Secretary’s benefits decision—fall within 

the scope of the VJRA.

Plaintiffs also rely on Traynor v. Turnage, 485 U.S. 535 (1988). But 

Plaintiffs’ characterization of that case lacks important context. In Traynor, the 

Court narrowly construed the scope of 38 U.S.C. § 211(a), the precursor to § 

511(a), holding that it did not preclude the district court from deciding whether a 

VA regulation violated the Rehabilitation Act. Id. at 545. The Court reasoned that 

the VA lacked “any special expertise” in deciding the issue. Id. at 544. And, 

therefore, “[p]ermitting [such] cases to go forward [would] not undermine the 

purposes of § 211(a)” by “enmesh[ing] the courts in the technical and complex 

determinations and applications of Veterans’ Administration policy connected with 

veterans’ benefits decisions.” Id. (internal quotation marks omitted). The Court 

added the caveat that “if experience proves otherwise, the Veterans’

Administration is fully capable of seeking appropriate relief from Congress.” Id. at 

544–45.

Congress reacted within a matter of months. “In order to dissuade the 

judiciary from ignoring the explicit language that Congress used in isolating 

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decisions of the Administrator from judicial scrutiny, Congress overhauled both 

the internal review mechanism and § 211 in the VJRA.” Veterans for Common 

Sense v. Shinseki, 678 F.3d 1013, 1021 (9th Cir. 2012) (en banc) (internal citations 

omitted). To this end, Congress created the United States Court of Appeals for 

Veterans Claims and made that court’s decisions appealable only to the Federal 

Circuit. Id. Congress also “expanded the provision precluding judicial review” 

through its enactment of 38 U.S.C. § 511—the provision critical to our disposition 

of this appeal. Id. at 1022. Because Traynor was not decided under the current 

VJRA framework, we find Plaintiffs’ reliance on that decision unpersuasive. 

Under the current VJRA framework, each of Plaintiffs’ claims amounts to a 

challenge to “questions of law and fact necessary to a decision . . . under a law that 

affects the provision of benefits . . . to veterans.” 38 U.S.C. § 511(a). Because 

“the decision of the Secretary as to any such question shall be final and conclusive 

and may not be reviewed” outside of the framework the VJRA sets forth, the 

district court lacked jurisdiction to decide Plaintiffs’ claims. Id. 

AFFIRMED.

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