In the United States Court of Federal Claims

No. 19-108C

Filed: December 16, 2019

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Subject Matter Jurisdiction; Motion to 

Dismiss; Veterans’ Benefits. 

ZAMANTHA TAPIA,

MARA DUNN,

JENNIFER WILMOT,

JENNIFER CRISOSTOMO,

KIMBERLY COLON,

MELISSA LARSON,

 Plaintiffs,

 v.

UNITED STATES,

 Defendant.

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Jason E. Perry, Law Office of Jason Perry LLC, Wellington, Florida, for plaintiffs.

With him was Luke D. Miller, Military Disability Lawyer LLC, Salem, Oregon. 

Shari A. Rose, Senior Trial Counsel, Commercial Litigation Branch, Civil Division, 

Department of Justice, Washington, D.C., for defendant. With her were Alexis J. Echols, 

Trial Attorney, Commercial Litigation Branch, Martin F. Hockey, Jr., Deputy Director, 

Commercial Litigation Branch, Robert E. Kirschman, Jr., Director, Commercial Litigation 

Branch, and Joseph H. Hunt, Assistant Attorney General, Civil Division.

O P I N I O N

HORN, J.

The above-captioned case was filed by the six named plaintiffs on behalf of 

themselves and other proposed class members as the “primary family caregivers” of 

injured veterans. Plaintiffs’ complaint seeks compensation for alleged wrongful 

determinations under the “Program of comprehensive assistance for family caregivers”

(hereinafter, the Family Caregivers Program), which is administered by the Veterans

Health Administration (VHA) of the United States Department of Veterans Affairs (VA)

pursuant to 38 U.S.C. § 1720G (2012). Plaintiffs’ complaint also seeks class certification 

to include other primary family caregivers who have been affected by alleged wrongful 

determinations by the VA under the Family Caregivers Program. Plaintiffs allege that they 

and other proposed class members were wrongfully denied the appropriate caregiver 

assistance for “family caregivers of eligible veterans.” Defendant responds by arguing that 
2

the United States Court of Federal Claims lacks subject matter jurisdiction to hear this

case.

FINDINGS OF FACT

The Family Caregivers Program was initially established in 2010 under section 101 

of Title I of the Caregivers and Veterans Omnibus Health Services Act of 2010, Pub. L. 

No. 111-163, 124 Stat. 1130 (May 5, 2010) (the Caregivers Act). The preamble to that 

Act states that it is “[a]n Act To amend title 38, United States Code, to provide assistance 

to caregivers of veterans, to improve the provision of health care to veterans, and for 

other purposes.” Id. (capitalization in original). Section 101 of the Caregivers Act is broken 

into subsections. The Family Caregivers Program, which is the subject of the abovecaptioned case, is established under subsection (a). The “Program of General Caregiver 

Support” is established under subsection (b) and is not at issue in this case. Subsections 

(c) and (d) are titled “Construction” and “Definitions,” respectively, and apply to both 

Programs. A fifth subsection, subsection (e), which included appropriation authorization, 

was originally enacted by the Caregivers Act, but was subsequently repealed in 2018. All 

of section 101 of the Caregivers Act is codified at 38 U.S.C. § 1720G, titled “Assistance 

and support services for caregivers.” The Family Caregivers Program is codified in

subsection (a) of 38 U.S.C. § 1720G. 

The statute at 38 U.S.C. § 1720G(a)(1)(A) authorizes the Family Caregivers 

Program, stating that “[t]he Secretary shall establish a program of comprehensive 

assistance for family caregivers of eligible veterans.” Id. The statute at 38 U.S.C. 

§ 1720G(a)(1)(B) provides, however, that “[t]he Secretary shall only provide support 

under the program required by subparagraph (A) to a family caregiver of an eligible 

veteran if the Secretary determines it is in the best interest of the eligible veteran to do 

so.” Id. (emphasis added).

The statute at 38 U.S.C. § 1720G(a)(2) establishes the requirements to be 

considered an “eligible veteran” for purposes of the Family Caregivers Program. An 

“eligible veteran” is “any individual who . . . is a veteran or member of the Armed Forces 

undergoing medical discharge from the Armed Forces” and who “has a serious injury 

(including traumatic brain injury, psychological trauma, or other mental disorder) incurred 

or aggravated in the line of duty in the active military, naval, or air service.” Id.

§ 1720G(a)(2)(B). The Family Caregivers Program also requires that the eligible veteran 

is 

in need of personal care services because of--

(i) an inability to perform one or more activities of daily 

living;

(ii) a need for supervision or protection based on 

symptoms or residuals of neurological or other 

impairment or injury;
3

(iii) a need for regular or extensive instruction or 

supervision without which the ability of the veteran to 

function in daily life would be seriously impaired; or

(iv) such other matters as the Secretary [of Veterans

Affairs] considers appropriate. 

Id. § 1720G(a)(2)(C).

The statute at 38 U.S.C. § 1720G(a)(3) discusses the type of “assistance” that is 

to be provided to an approved “family member” who is a “provider of personal care 

services for an eligible veteran” (hereinafter, family caregiver). See id. § 1720G(d)(2), 

(a)(3)(A)(i). The Family Caregivers Program provides additional assistance to the family 

caregiver who is deemed the “primary provider of personal care services for an eligible 

veteran” (hereinafter, primary family caregiver). Id. § 1720G(a)(3)(A)(ii). A “family 

member” can include the veteran’s parent, spouse, child, step-family member, extended 

family member, as well as an individual who “lives with the veteran but is not a member 

of the family of the veteran.” Id. § 1720G(d). 

The statute at 38 U.S.C. § 1720G(a)(4) describes the application process for the 

assistance available under the Family Caregivers Program, stating that “[a]n eligible 

veteran and a family member of the eligible veteran seeking to participate in the program 

required by paragraph (1) [the Family Caregivers Program] shall jointly submit to the 

Secretary an application therefor in such form and in such manner as the Secretary 

considers appropriate.” Id.

The statute at 38 U.S.C. § 1720G(a)(5) discusses the evaluations that the 

Secretary conducts of the eligible veteran and the family member upon their joint 

application, and states:

(5) For each application submitted jointly by an eligible veteran and family 

member, the Secretary shall evaluate (in collaboration with the primary care 

team for the eligible veteran to the maximum extent practicable)--

(A) the eligible veteran--

(i) to identify the personal care services required 

by the eligible veteran; and

(ii) to determine whether such requirements 

could be significantly or substantially satisfied 

through the provision of personal care services 

from a family member; and
4

(B) the family member to determine the amount of instruction, 

preparation, and training, if any, the family member requires 

to provide the personal care services required by the eligible 

veteran--

(i) as a provider of personal care services for the 

eligible veteran; and

(ii) as the primary provider of personal care 

services for the eligible veteran.

Id.; see also id. § 1720G(a)(7) (discussing primary family caregivers) (discussed below). 

The statute at 38 U.S.C. § 1720G(a)(6)(A) states that the “Secretary shall provide 

each family member of an eligible veteran who makes a joint application under paragraph 

(4) the instruction, preparation, and training determined to be required by such family 

member under paragraph (5)(B).” Id. The statute at 38 U.S.C. § 1720G(a)(6)(B) states 

that “[u]pon the successful completion by a family member of an eligible veteran of 

instruction, preparation, and training under subparagraph (A), the Secretary shall approve 

the family member as a provider of personal care services for the eligible veteran.” Id. 

The statute at 38 U.S.C. § 1720G(a)(7)(A) states that “[f]or each eligible veteran 

with at least one family member who is described by subparagraph (B), the Secretary 

shall designate one family member of such eligible veteran as the primary provider of 

personal care services for such eligible veteran.” Id. The statute at 38 U.S.C. 

§ 1720G(a)(7)(B) further states:

(B) A primary provider of personal care services designated for an eligible 

veteran under subparagraph (A) shall be selected from among family 

members of the eligible veteran who--

(i) are approved under paragraph (6) as a provider of personal 

care services for the eligible veteran;

(ii) elect to provide the personal care services to the eligible 

veteran that the Secretary determines the eligible veteran 

requires under paragraph (5)(A)(i);

(iii) have the consent of the eligible veteran to be the primary 

provider of personal care services for the eligible veteran; and

(iv) are considered by the Secretary as competent to the 

primary provider of personal care services for the eligible 

veteran.
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Id. The statute at 38 U.S.C. § 1720G(a)(7)(C) and (D) discusses revocation procedures

of designated primary family caregivers, giving the veteran and the Secretary such 

responsibility. The statute at 38 U.S.C. § 1720G(a)(7)(C) states:

(C) An eligible veteran receiving personal care services from a family 

member designated as the primary provider of personal care services for 

the eligible veteran under subparagraph (A) may, in accordance with 

procedures the Secretary shall establish for such purposes, revoke consent 

with respect to such family member under subparagraph (B)(iii). 

Id. The statute at 38 U.S.C. § 1720G(a)(7)(D) states:

(D) If a family member designated as the primary provider of personal care 

services for an eligible veteran under subparagraph (A) subsequently fails 

to meet any requirements set forth in subparagraph (B), the Secretary--

(i) shall immediately revoke the family member’s designation 

under subparagraph (A); and

(ii) may designate, in consultation with the eligible veteran, a 

new primary provider of personal care services for the eligible 

veteran under such subparagraph.

Id.

The assistance provided to family caregivers and primary family caregivers under 

the Family Caregivers Program is described in 38 U.S.C. § 1720G(a)(3)(A)(i) and (ii), 

which states:

(3)(A) As part of the program required by paragraph (1) [the Family 

Caregivers Program], the Secretary shall provide to family caregivers of 

eligible veterans the following assistance:

(i) To each family caregiver who is approved as a provider of 

personal care services for an eligible veteran under paragraph 

(6)--

(I) such instruction, preparation, and training as 

the Secretary considers appropriate for the 

family caregiver to provide personal care 

services to the eligible veteran;

(II) ongoing technical support consisting of 

information and assistance to address, in a 

timely manner, the routine, emergency, and 

specialized caregiving needs of the family 
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caregiver in providing personal care services to 

the eligible veteran;

(III) counseling; and

(IV) lodging and subsistence under section 

111(e) of this title.

(ii) To each family caregiver who is designated as the primary 

provider of personal care services for an eligible veteran 

under paragraph (7)--

(I) the assistance described in clause (i);

(II) such mental health services as the Secretary 

determines appropriate;

(III) respite care of not less than 30 days 

annually, including 24-hour per day care of the 

veteran commensurate with the care provided 

by the family caregiver to permit extended 

respite;

(IV) medical care under section 1781 of this title;

(V) a monthly personal caregiver stipend; and

(VI) through the use of contracts with, or the 

provision of grants to, public or private entities--

(aa) financial planning services 

relating to the needs of injured 

veterans and their caregivers; and

(bb) legal services, including legal 

advice and consultation, relating 

to the needs of injured veterans 

and their caregivers.

Id.

Regarding the monthly stipend for primary family caregivers, the statute at 38 

U.S.C. § 1720G(a)(3)(C)(i) states that “[t]he amount of the monthly personal caregiver 

stipend provided under subparagraph (A)(ii)(V) shall be determined in accordance with a 

schedule established by the Secretary that specifies stipends based upon the amount 

and degree of personal care services provided.” Id. The implementing regulation at 38 
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C.F.R. § 71.40(c)(4) (2019) directs the VA to set stipend amounts by “determin[ing] the 

eligible veteran's level of dependency based on the degree to which the eligible veteran 

is unable to perform one or more activities of daily living (ADLs), or the degree to which 

the eligible veteran is in need of supervision or protection based on symptoms or residuals 

of neurological or other impairment or injury.” Id.

The statute at 38 U.S.C § 1720G(c), titled “Construction,” states:

(1) A decision by the Secretary under this section affecting the furnishing of 

assistance or support shall be considered a medical determination.

(2) Nothing in this section shall be construed to create--

(A) an employment relationship between the Secretary

and an individual in receipt of assistance or support 

under this section; or 

(B) any entitlement to any assistance or support 

provided under this section.

Id.

The complaint currently before the court asserts that, for each named plaintiff, 

“[t]he DVA [Department of Veterans Affairs], acting through the VHA [Veterans’ Health 

Administration], did not follow the laws, regulations, and directives applicable to the 

determination of the award of proper entitlements and Tier level, the reduction in Tier 

level, and/or the revocation of Family Caregiver Program status.”1 Specifically, plaintiffs

assert violations of 38 U.S.C. § 1720G, as well as regulations and directives promulgated 

pursuant to 38 U.S.C. § 1720G, including 38 C.F.R. § 71.20 (2019), 38 C.F.R. 

§ 71.40, 38 C.F.R. § 71.45 (2019), VHA Directive 1152(1): Caregiver Support Program,2

and VHA Directive 1041: Appeal of VHA Clinical Decisions.3

Plaintiffs allege that between May 5, 2011 and September 30, 2018, the VA 

received more than 100,000 applications for the Family Caregivers Program, and that, 

similar to the named plaintiffs, thousands of applicants “were wrongfully determined 

ineligible for the program, terminated from the program, erroneously assigned low Tier 

levels, or reduced in Tier level by the DVA [Department of Veterans Affairs].” Plaintiffs 

indicate in their complaint that the proposed class members should include:

 1 For the purposes of the motion to dismiss, the court does not address the individual 

claims of each named plaintiff, but only considers the statutory framework.

2 https://www.va.gov/vhapublications/ViewPublication.asp?pub_ID=5423 (amended Oct. 

4, 2018) (last visited Dec. 16, 2019) (hereinafter, VHA Directive 1152(1))

3 https://www.va.gov/vhapublications/ViewPublication.asp?pub_ID=3285 (last visited 

Dec. 16, 2019) (hereinafter, VHA Directive 1041).
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[A]ll previous, current, or denied caregivers of veterans who:

a. Are veterans of the United States Air Force, Army, Coast 

Guard, Marine Corps, and Navy; 

b. Served in the United States military on or after September 

11, 2001; 

c. Were found to have a service connected medical condition;

d. Applied for the DVA’s Primary Family Caregiver Program;

e. Were denied Primary Family Caregiver Program eligibility, 

were revoked from the Primary Family Caregiver Program or 

were erroneously assigned to or reduced in Tier level; and

f. Were not provided with the correct allowances and pay, 

services, and a monthly stipend that they were due under law 

and regulation. 

In their complaint, the named plaintiffs seek:

[E]xpenses incurred by the plaintiffs and the proposed class members, 

based on their actual payments made out of pocket after they were denied 

the assistance of statutorily and regulatory mandated family caregiver 

support, in order to provide medical care, respite care, counseling, travel, 

and lodging, and subsistence that they were wrongfully denied. 

Plaintiffs assert the following prayers for relief:

a. Certify this action as a class action on behalf of the 

proposed Class;

b. Designate Ms. Tapia, Mrs. Dunn, Mrs. Wilmot, Mrs. 

Crisostomo, Mrs. Colon, and Ms. Larson as representatives 

of the Class;

c. Designate plaintiffs’ counsel of record as Class Counsel;

d. Enjoin the DVA from continuing its unlawful practices 

described in this complaint; 

e. Award the plaintiffs monetary benefits that formulaic in 

nature in amount to be determined at trial;
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f. Award plaintiffs their costs and attorney’s fees; and 

g. Grant such other relief as this Court deems just and proper. 

Plaintiffs allege that class certification is appropriate because “[t]he named 

plaintiffs’ claims are typical of the class” and “[t]he actions of the United States and the 

DVA have generally affected the entire class, thus making final relief appropriate with 

respect to the class as a whole.” 

In plaintiffs’ complaint, the plaintiffs assert that jurisdiction in this court is proper 

because the Family Caregivers Program statutes and regulations are money-mandating 

and because the “complaint alleges money damages in excess of $10,000.” Plaintiffs’ 

complaint also asserts that jurisdiction is not prohibited because “plaintiffs, and those they 

seek to represent, are not necessarily veterans in order to qualify for the entitlements they 

claim, and they are not seeking a benefit or service that falls within the purview of 38 

U.S.C. § 511(a).” The statute at 38 U.S.C. § 511(a) (2012), discussed in more detail 

below, states:

(a) The Secretary [of Veterans Affairs] 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. Subject to subsection (b), the decision of the 

Secretary as to any such question shall be final and conclusive and may not 

be reviewed by any other official or by any court, whether by an action in 

the nature of mandamus or otherwise. 

Id.

Plaintiffs nonetheless argue that jurisdiction is proper in this court because 

plaintiffs “have no appellate rights to review of the decisions in their cases by either the 

BVA [Board of Veterans Appeals] or CAVC [Court of Appeals for Veterans’ Claims],” 

which, as discussed below, is the standard review path for an adverse decision by the 

Secretary for the majority of VA claims, such as VA disability and VA education benefits. 

According to plaintiffs, they “have no right to seek review at the Board of Veterans Appeals 

(‘BVA’) because this is a VHA program and is not a Veterans Benefits Administration 

(‘VBA’) program.” 

In defendant’s motion to dismiss plaintiffs’ complaint for lack of subject matter 

jurisdiction, defendant agrees that plaintiffs’ claims are precluded from the standard 

review path. This is because, pursuant to 38 U.S.C. § 1720G(c)(1), a determination by 

the Secretary under the Family Caregivers Program “shall be considered a medical 

determination.” Furthermore, according to the VA regulation at 38 C.F.R. § 20.104(b)

(2019), titled “Jurisdiction of the Board [of Veterans’ Appeals]”:

(b) Appellate jurisdiction of determinations of the Veterans Health 

Administration. The Board’s appellate jurisdiction extends to questions of 
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eligibility for hospitalization, outpatient treatment, and nursing home and 

domiciliary care; for devices such as prostheses, canes, wheelchairs, back 

braces orthopedic shoes, and similar appliances; and for other benefits 

administered by the Veterans Health Administration. Medical 

determinations, such as determinations of the need for and appropriateness 

of specific types of medical care and treatment for an individual, are not 

adjudicative matters and are beyond the Board’s jurisdiction. Typical 

examples of these issues are whether a particular drug should be 

prescribed, whether a specific type of physiotherapy should be ordered, and 

similar judgmental treatment decisions with which an attending physician 

may be faced.

Id. (emphasis added). Defendant also cites to the preamble to the regulations in the 

Federal Register for the Family Caregivers Program, where the VA states its position that

“all determinations that affect the furnishing of assistance or support through the 

programs under 38 U.S.C. [§] 1720G [the Family Caregivers Program] are medical 

determinations as a matter of law, and as such may not be adjudicated in the standard 

manner as claims associated with veterans’ benefits.” Caregivers Program, 80 Fed. Reg. 

1357, 1366 (Jan. 9, 2015) (codified at 38 C.F.R. pts. 17, 71). 

Defendant also argues that the language of 38 U.S.C. § 511(a), discussed above,

“broadly divests all federal district courts and this Court [the United States Court of 

Federal Claims] of jurisdiction to review questions of law and fact necessary to VA 

benefits determinations.” Moreover, defendant asserts that the Veterans’ Judicial Review 

Act, Pub. L. No. 100-687, 102 Stat. 4105 (Nov. 18, 1988), “provides that the exclusive 

judicial remedy for the denial of VA benefits is to appeal to the Court of Appeals for 

Veterans Claims.” In response to plaintiffs’ argument that family caregivers are “not 

necessarily veterans in order to qualify for the entitlements they claim,” and thus that 38 

U.S.C. § 511(a) should not apply, defendant asserts that “[t]he statue [sic] providing for 

the Family Caregiver Program falls under chapter 17 of title 38, entitled ‘Veterans’ 

Benefits.’” Defendant does not appear to dispute that the Family Caregivers Program is 

money-mandating, but argues summarily that “[t]here is no express waiver of sovereign 

immunity permitting this Court’s review of the claims brought by plaintiffs here.” 

In plaintiffs’ response to defendant’s motion to dismiss, plaintiffs reassert that 

plaintiffs have properly invoked the court’s subject matter jurisdiction. Plaintiffs try to

argue a general principle that defendant “has not overcome the strong presumption that 

judicial review of agency action is available to aggrieved parties.” Plaintiffs also assert 

that “defendant’s argument is contradicted by its citation to 80 Fed. Reg. 1366,” the 

preamble to the final Rule for the Family Caregivers Program, which, according to 

plaintiffs, “demonstrates that the VA’s actual position is that there is neither BVA nor 

CAVC jurisdiction to hear plaintiffs’ claims.” While plaintiffs “agree that the medical 

determinations are not reviewable under the standard manner,” plaintiffs argue that “the 

non-standard review is still available, administratively through the VHA appeals process 

and judicially before this Court when money claims against the United States in excess 

of $10,000 are involved.” (emphasis in original). Plaintiffs then cite to the portion of the
11

preamble of the final Rule to the Family Caregivers Program that discusses the VHA

clinical appeals process, which states, in pertinent part:

Under the VHA appeals process, patients or their representatives have 

access to a fair and impartial review of disputes regarding clinical 

determinations or services that are not resolved at the facility level. This 

process is intended to resolve conflicts about whether an appropriate 

clinical decision has been made, and the process certainly can resolve 

whether the adverse decision was based, for example, on a misreading of 

a date in a military record. Other issues that are being resolved through the 

VHA clinical appeals process include basic eligibility, determination of 

“illness” or “injury,” and the tier level assigned for stipend payment. This 

appeals process does not defy the statutory restriction at 38 U.S.C. 

[§] 1720G(c)(1) against appeals to the Board of Veterans' Appeals because 

it is specifically designed to resolve conflicts based upon medical 

determinations.

Caregivers Program, 80 Fed. Reg. at 1366. 

In defendant’s reply in support of its motion to dismiss, defendant reiterates its 

argument that plaintiffs “failed to meet their burden of establishing subject matter 

jurisdiction.” Defendant argues that, although “plaintiffs point to 38 U.S.C. § 1720G and 

38 C.F.R. § 71.40(c), which provide for monetary and other benefits,” “this Court has 

previously found that a statute providing compensation for VA benefits does not provide 

the Court ‘with separate and independent money-mandating jurisdiction.’” (quoting Kalick 

v. United States, 109 Fed. Cl. 551, 557-59 (2013), aff’d, 541 F. App’x 1000 (Fed. Cir. 

2013)). Defendant also contends that, regardless of whether or not plaintiffs are appealing 

“medical determinations,” plaintiffs are still seeking review of veterans’ benefits 

determinations, which courts are barred from reviewing by 38 U.S.C. § 511(a). In arguing 

that plaintiffs are bringing claims that benefit veterans, and thus fall within the purview of 

38 U.S.C. § 511(a), defendant asserts that “[t]he assistance and support services VA 

provides to caregivers on account of and for the benefit of veterans under the Program 

involves both payments and services, eligibility for which is determined under 38 U.S.C. 

§ 1720G, a law administered by VA and pertaining to veterans.”

At the oral argument on defendant’s motion to dismiss, the court asked each of the 

parties to file a supplemental brief further addressing the VHA clinical appeals process. 

Defendant’s supplemental brief outlines the VHA clinical appeals process contained in 

VHA Directive 1041: Appeal of VHA Clinical Decisions. Defendant explains that 

applicants or beneficiaries who receive unfavorable decisions in the Family Caregivers 

Program can initiate the appeals process by filing an appeal with the local VA Medical 

Center that issued the unfavorable decision. See id. at 1. At the VA Medical Center, a 

clinical team first adjudicates the appeal and attempts to reach a resolution with the 

applicant or beneficiary. See id. at 3. If the clinical team cannot resolve the conflict, the 

clinical team then sends the appeal to the VA Medical Center’s Chief of Staff, who reviews 

the appeal and provides a final determination. See id. After the VA Medical Center issues 
12

its decision, the applicant or beneficiary may then appeal to their respective Veterans 

Integrated Service Network (VISN) Director. See id. Based on the submitted materials, 

the VISN Director then issues a decision on the appeal or may request review by a VISN 

clinical panel to review the materials and issue a recommendation on the appeal. See id.

at 2. Alternatively, the VISN Director may request an external review to issue a 

recommendation on how to resolve the appeal. See id. The VISN Director’s decision on 

the appeal, however, is the end of the VHA clinical appeals process, with no further review 

available. See id. at 2-3.

In plaintiffs’ supplemental brief, plaintiffs again allege that jurisdiction is proper in 

this court. Although plaintiffs’ own complaint discusses the VHA’s clinical appeals process 

outlined by VHA Directive 1041, plaintiffs now argue that “[m]any of plaintiffs’ claims 

predate VHAD [VHA Directive] 1041,” which was issued in 2016, and “[t]herefore, VHAD 

1041’s clinical appeal process is not applicable to all of plaintiffs’ claims and does not limit 

plaintiffs’ rights to seek redress from this Court.” In the appendix to plaintiffs’ supplemental 

brief, however, plaintiffs refer to VHA Directive 2006-057: VHA Clinical Appeals (Oct. 16, 

2006) (hereinafter, VHA Directive 2006-057), rescinded and replaced with VHA Directive 

1041: Appeal of VHA Clinical Decisions (Oct. 24, 2016), which was issued in 2006 and 

outlines the availability of a VHA clinical appeals process prior to the establishment of the 

Family Caregivers Program in 2010. VHA Directive 2006-057 states, in relevant part: 

In 1991, VHA issued a Directive mandating that all medical centers operate 

a Patient Advocate Program to address patient inquiries and complaints. In 

Fiscal Year (FY) 1999, in response to Eligibility Reform and the 

implementation of an enrollment system with the provision of a fixed 

benefits package, VHA initiated a review of how clinical disputes were being 

handled throughout the system. As an outgrowth of that review, in FY 2000, 

VHA instituted an External Appeal system, which allows Veterans 

Integrated Service Networks (VISNs) to request prompt, impartial reviews 

of clinical determination decisions by a professional board external to the 

agency. As an additional development, this Directive addresses the 

handling of clinical appeals internal to the agency, with the goal of creating 

a more efficient and consistent system that incorporates VISN-based 

management into the reviews and associated veteran customer service 

improvement activities.

Id. at 1 (emphasis in original).

4

DISCUSSION

As indicated above, defendant has moved to dismiss plaintiffs’ complaint for lack 

of subject matter jurisdiction. “Subject-matter jurisdiction may be challenged at any time 

by the parties or by the court sua sponte.” Folden v. United States, 379 F.3d 1344, 1354 

 4 VHA Directive 2006-057 was rescinded and replaced on October 24, 2016 with VHA 

Directive 1041. VHA Directive 1041 left unchanged the ultimate appeal with the VISN 

Director.
13

(Fed. Cir. 2004) (citing Fanning, Phillips & Molnar v. West, 160 F.3d 717, 720 (Fed. Cir. 

1998)), reh’g and reh’g en banc denied (Fed. Cir. 2004), cert. denied, 545 U.S. 1127 

(2005); see also Int’l Elec. Tech. Corp. v. Hughes Aircraft Co., 476 F.3d 1329, 1330 (Fed. 

Cir. 2007). The Tucker Act, 28 U.S.C. § 1491 (2012), grants jurisdiction to this court as 

follows:

The United States Court of Federal Claims shall have jurisdiction to render 

judgment upon any claim against the United States founded either upon the 

Constitution, or any Act of Congress or any regulation of an executive 

department, or upon any express or implied contract with the United States, 

or for liquidated or unliquidated damages in cases not sounding in tort.

28 U.S.C. § 1491(a)(1). As interpreted by the United States Supreme Court, the Tucker 

Act waives sovereign immunity to allow jurisdiction over claims against the United States 

(1) founded on an express or implied contract with the United States, (2) seeking a refund 

from a prior payment made to the government, or (3) based on federal constitutional, 

statutory, or regulatory law mandating compensation by the federal government for 

damages sustained. See United States v. Navajo Nation, 556 U.S. 287, 289-90 (2009); 

see also United States v. Mitchell, 463 U.S. 206, 216 (1983); Alvarado Hosp., LLC v. 

Price, 868 F.3d 983, 991 (Fed. Cir. 2017); Greenlee Cnty., Ariz. v. United States, 487 

F.3d 871, 875 (Fed. Cir.), reh’g and reh’g en banc denied (Fed. Cir. 2007), cert. denied, 

552 U.S. 1142 (2008); Palmer v. United States, 168 F.3d 1310, 1314 (Fed. Cir. 1999). 

“Not every claim invoking the Constitution, a federal statute, or a regulation is cognizable 

under the Tucker Act. The claim must be one for money damages against the United 

States . . . .” United States v. Mitchell, 463 U.S. at 216; see also United States v. White 

Mountain Apache Tribe, 537 U.S. 465, 472 (2003); N.Y. & Presbyterian Hosp. v. United 

States, 881 F.3d 877, 881 (Fed. Cir. 2018); Smith v. United States, 709 F.3d 1114, 1116 

(Fed. Cir.), cert. denied, 571 U.S. 945 (2013); RadioShack Corp. v. United States, 566 

F.3d 1358, 1360 (Fed. Cir. 2009); Rick’s Mushroom Serv., Inc. v. United States, 521 F.3d 

1338, 1343 (Fed. Cir. 2008) (“[P]laintiff must . . . identify a substantive source of law that 

creates the right to recovery of money damages against the United States.”); Golden v. 

United States, 118 Fed. Cl. 764, 768 (2014). In Ontario Power Generation, Inc. v. United 

States, the United States Court of Appeals for the Federal Circuit identified three types of 

monetary claims for which jurisdiction is lodged in the United States Court of Federal 

Claims. The Ontario Power Generation, Inc. court wrote:

The underlying monetary claims are of three types. . . . First, claims alleging 

the existence of a contract between the plaintiff and the government fall 

within the Tucker Act’s waiver. . . . Second, the Tucker Act’s waiver 

encompasses claims where “the plaintiff has paid money over to the 

Government, directly or in effect, and seeks return of all or part of that sum.” 

Eastport S.S. [Corp. v. United States, 178 Ct. Cl. 599, 605-06,] 372 F.2d 

[1002,] 1007-08 [(1967)] (describing illegal exaction claims as claims “in 

which ‘the Government has the citizen’s money in its pocket’” (quoting 

Clapp v. United States, 127 Ct. Cl. 505, 117 F. Supp. 576, 580 (1954)) . . . . 

Third, the Court of Federal Claims has jurisdiction over those claims where 
14

“money has not been paid but the plaintiff asserts that he is nevertheless 

entitled to a payment from the treasury.” Eastport S.S., 372 F.2d at 1007. 

Claims in this third category, where no payment has been made to the 

government, either directly or in effect, require that the “particular provision 

of law relied upon grants the claimant, expressly or by implication, a right to 

be paid a certain sum.” Id.; see also [United States v. ]Testan, 424 U.S. 

[392,] 401-02 [(1976)] (“Where the United States is the defendant and the 

plaintiff is not suing for money improperly exacted or retained, the basis of 

the federal claim-whether it be the Constitution, a statute, or a regulationdoes not create a cause of action for money damages unless, as the Court 

of Claims has stated, that basis ‘in itself . . . can fairly be interpreted as 

mandating compensation by the Federal Government for the damage 

sustained.’” (quoting Eastport S.S., 372 F.2d at 1009)). This category is 

commonly referred to as claims brought under a “money-mandating” 

statute.

Ont. Power Generation, Inc. v. United States, 369 F.3d 1298, 1301 (Fed. Cir. 2004); see

also Samish Indian Nation v. United States, 419 F.3d 1355, 1364 (Fed. Cir. 2005); Twp. 

of Saddle Brook v. United States, 104 Fed. Cl. 101, 106 (2012).

To prove that a statute or regulation is money-mandating, a plaintiff must 

demonstrate that an independent source of substantive law relied upon “‘can fairly be 

interpreted as mandating compensation by the Federal Government.’” United States v. 

Navajo Nation, 556 U.S. at 290 (quoting United States v. Testan, 424 U.S. at 400); see

also United States v. White Mountain Apache Tribe, 537 U.S. at 472; United States v. 

Mitchell, 463 U.S. at 217; Blueport Co., LLC v. United States, 533 F.3d 1374, 1383 (Fed. 

Cir. 2008), cert. denied, 555 U.S. 1153 (2009). The source of law granting monetary relief 

must be distinct from the Tucker Act itself. See United States v. Navajo Nation, 556 U.S. 

at 290 (The Tucker Act does not create “substantive rights; [it is simply a] jurisdictional 

provision[] that operate[s] to waive sovereign immunity for claims premised on other 

sources of law (e.g., statutes or contracts).”). “‘If the statute is not money-mandating, the 

Court of Federal Claims lacks jurisdiction, and the dismissal should be for lack of subject 

matter jurisdiction.’” Jan’s Helicopter Serv., Inc. v. Fed. Aviation Admin., 525 F.3d 1299, 

1308 (Fed. Cir. 2008) (quoting Greenlee Cnty., Ariz. v. United States, 487 F.3d at 876); 

see also N.Y. & Presbyterian Hosp. v. United States, 881 F.3d at 881; Fisher v. United 

States, 402 F.3d 1167, 1173 (Fed. Cir. 2005) (noting that the absence of a moneymandating source is “fatal to the court’s jurisdiction under the Tucker Act”); Price v. United 

States, 133 Fed. Cl. 128, 130 (2017); Peoples v. United States, 87 Fed. Cl. 553, 565-66 

(2009).

Furthermore, just as Congress can confer subject matter jurisdiction upon this 

court, Congress can also subsequently limit that jurisdiction, such that this court may not 

entertain a particular claim even though the claim might otherwise qualify for Tucker Act 

jurisdiction. See Palmore v. United States, 411 U.S. 389, 401 (1973) (explaining that 

Congress is empowered to establish lower federal courts and to grant and withhold 

jurisdiction from those courts as it deems appropriate (citing Cary v. Curtis, 44 U.S. (3 
15

How.) 236, 245 (1845) (footnote omitted))). “When such a ‘specific and comprehensive 

scheme for administrative and judicial review’ is provided by Congress, the Court of 

Federal Claims’ Tucker Act jurisdiction over the subject matter covered by the scheme is 

preempted.” Verada, Ltda. v. United States, 271 F.3d 1367, 1375 (Fed. Cir. 2001) 

(quoting St. Vincent’s Med. Ctr. v. United States, 32 F.3d 548, 549-50 (Fed. Cir. 1994); 

see also Appalachian Reg’l Healthcare, Inc. v. United States, 999 F.2d 1537, 1577 (Fed. 

Cir. 1993).

When deciding a case based on a lack of subject matter jurisdiction or for failure 

to state a claim, this court must assume that all undisputed facts alleged in the complaint 

are true and must draw all reasonable inferences in the non-movant’s favor. See Erickson 

v. Pardus, 551 U.S. 87, 94 (2007) (“[W]hen ruling on a defendant’s motion to dismiss, a 

judge must accept as true all of the factual allegations contained in the complaint.” (citing 

Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555-56 (2007) (citing Swierkiewicz v. Sorema 

N. A., 534 U.S. 506, 508 n.1 (2002)))); see also Frankel v. United States, 842 F.3d 1246, 

1249 (Fed. Cir. 2016) (“In deciding a motion to dismiss, a court is required to accept as 

true all factual allegations pleaded.” (citing Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009))); 

Fid. & Guar. Ins. Underwriters, Inc. v. United States, 805 F.3d 1082, 1084 (Fed. Cir. 

2015); Trusted Integration, Inc. v. United States, 659 F.3d 1159, 1163 (Fed. Cir. 2011).

“Determination of jurisdiction starts with the complaint, which must be well-pleaded 

in that it must state the necessary elements of the plaintiff’s claim, independent of any 

defense that may be interposed.” Holley v. United States, 124 F.3d 1462, 1465 (Fed. Cir.) 

(citing Franchise Tax Bd. v. Constr. Laborers Vacation Trust, 463 U.S. 1, 9-10 (1983)), 

reh’g denied (Fed. Cir. 1997); see also Gonzalez-McCaulley Inv. Grp., Inc. v. United 

States, 93 Fed. Cl. 710, 713 (2010). A plaintiff need only state in the complaint “a short 

and plain statement of the grounds for the court’s jurisdiction,” and “a short and plain 

statement of the claim showing that the pleader is entitled to relief.” RCFC 8(a)(1), (2) 

(2019); Fed. R. Civ. P. 8(a)(1), (2) (2019); see also Ashcroft v. Iqbal, 556 U.S. at 677-78 

(citing Bell Atl. Corp. v. Twombly, 550 U.S. at 555-57, 570). To properly state a claim for 

relief, “[c]onclusory allegations of law and unwarranted inferences of fact do not suffice to 

support a claim.” Bradley v. Chiron Corp., 136 F.3d 1317, 1322 (Fed. Cir. 1998); see also

McZeal v. Sprint Nextel Corp., 501 F.3d 1354, 1363 n.9 (Fed. Cir. 2007) (Dyk, J., 

concurring in part, dissenting in part) (quoting C. WRIGHT AND A. MILLER, FEDERAL

PRACTICE AND PROCEDURE § 1286 (3d ed. 2004)); Briscoe v. LaHue, 663 F.2d 713, 723 

(7th Cir. 1981) (“[C]onclusory allegations unsupported by any factual assertions will not 

withstand a motion to dismiss.”), aff’d, 460 U.S. 325 (1983). “A plaintiff’s factual 

allegations must ‘raise a right to relief above the speculative level’ and cross ‘the line from

conceivable to plausible.’” Three S Consulting v. United States, 104 Fed. Cl. 510, 523 

(2012) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. at 555), aff’d, 562 F. App’x 964 (Fed. 

Cir.), reh’g denied (Fed. Cir. 2014). As stated in Ashcroft v. Iqbal, “[a] pleading that offers 

‘labels and conclusions’ or ‘a formulaic recitation of the elements of a cause of action will 

not do.’ 550 U.S. at 555. Nor does a complaint suffice if it tenders ‘naked assertion[s]’ 

devoid of ‘further factual enhancement.’” Ashcroft v. Iqbal, 556 U.S. at 678 (quoting Bell 

Atl. Corp. v. Twombly, 550 U.S. at 555).
16

In a statutory construction analysis, the first step is “to determine whether the 

language at issue has a plain and unambiguous meaning with regard to the particular 

dispute in the case.” Barnhart v. Sigmon Coal Co., 534 U.S. 438, 450 (2002) (quoting 

Robinson v. Shell Oil Co., 519 U.S. 337, 340 (1997)); see also Caraco Pharm. Labs., Ltd. 

v. Novo Nordisk A/S, 132 S. Ct. 1670, 1680 (2012) (“We begin ‘where all such inquiries 

must begin: with the language of the statute itself.’” (quoting United States v. Ron Pair 

Enters., Inc., 489 U.S. 235, 241 (1989))); Jimenez v. Quarterman, 555 U.S. 113, 118 

(2009) (“As with any question of statutory interpretation, our analysis begins with the plain 

language of the statute.”); Click-To-Call Techs., LP v. Ingenio, Inc., YellowPages.com, 

LLC, 899 F.3d 1321, 1329 (Fed. Cir. 2018) (“The first step ‘is to determine whether the 

language at issue has a plain and unambiguous meaning . . . .’” (quoting Barnhart v. 

Sigmon Coal Co., Inc., 534 U.S. at 450)); Starry Assocs., Inc. v. United States, 892 F.3d 

1372, 1377 (Fed. Cir. 2018); Bettcher Indus., Inc. v. Bunzl USA, Inc., 661 F.3d 629, 644 

(Fed. Cir.), reh’g and reh’g en banc denied (Fed. Cir. 2011); Strategic Hous. Fin. Corp. of 

Travis Cnty. v. United States, 608 F.3d 1317, 1323 (Fed. Cir.) (“When interpreting any 

statute, we look first to the statutory language.”), reh’g and reh’g en banc denied (Fed. 

Cir. 2010), cert. denied, 562 U.S. 1221 (2011). “The plainness or ambiguity of statutory 

language is determined by reference to the language itself, the specific context in which 

that language is used, and the broader context of the statute as a whole.” Robinson v. 

Shell Oil Co., 519 U.S. at 341 (citing Estate of Cowart v. Nicklos Drilling Co., 505 U.S. 

469, 477 (1992); McCarthy v. Bronson, 500 U.S. 136, 139 (1991)); see also King v. 

Burwell, 135 S. Ct. 2480, 2489 (2015) (“[W]hen deciding whether the language is plain, 

we must read the words ‘in their context and with a view to their place in the overall 

statutory scheme.’” (quoting FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 

133 (2000))). In construing a statute, courts “‘must begin with the language employed by 

Congress and the assumption that the ordinary meaning of that language accurately 

expresses the legislative purpose.’” Schindler Elevator Corp. v. United States, 563 U.S. 

401, 407 (2011) (2011) (quoting Gross v. FBL Fin. Servs., Inc., 557 U.S. 167, 175 (2009) 

(internal quotation marks omitted)). Even “‘[w]hen terms used in a statute are undefined, 

we give them their ordinary meaning.’” Schindler Elevator Corp. v. United States, 563 

U.S. at 407 (quoting Asgrow Seed Co. v. Winterboer, 513 U.S. 179, 187 (1995)). “‘Beyond 

the statute’s text, the traditional tools of statutory construction include the statute’s

structure, canons of statutory construction, and legislative history.’” Bartels Trust for the 

Benefit of Cornell Univ. ex rel. Bartels v. United States, 617 F.3d 1357, 1361 (Fed. Cir.) 

(quoting Bull v. United States, 479 F.3d 1365, 1376 (Fed. Cir. 2007)), reh’g en banc

denied (Fed. Cir. 2010); see also Caraco Pharm. Labs., Ltd. v. Novo Nordisk A/S, 132 S. 

Ct. at 1680 (“[W]e consider each question [of statutory interpretation] in the context of the 

entire statute.” (citing Robinson v. Shell Oil Co., 519 U.S. at 341)); Roberts v. Sea-Land 

Servs., Inc., 132 S. Ct. 1350, 1356 (2012); Bush v. United States, 655 F.3d 1323, 1329 

(Fed. Cir. 2011), cert. denied, 566 U.S. 1021 (2012).

The initial inquiry into the statutory text ceases “if the statutory language is 

unambiguous and ‘the statutory scheme is coherent and consistent.’” Barnhart v. Sigmon 

Coal Co., 534 U.S. at 450 (quoting Robinson v. Shell Oil Co., 519 U.S. at 340); see also

King v. Burwell, 135 S. Ct. at 2489 (“If the statutory language is plain, we must enforce it 

according to its terms.” (citing Hardt v. Reliance Standard Life Ins. Co., 560 U.S. 242, 251 
17

(2010)); Bettcher Indus., Inc. v. Bunzl USA, Inc., 661 F.3d at 644; Arko Foods Int’l, Inc. v. 

United States, 654 F.3d 1361, 1364 (Fed. Cir. 2011) (“‘[W]here Congress has clearly 

stated its intent in the language of a statute, a court should not inquire further into the 

meaning of the statute.’” (quoting Millenium Lumber Distrib., Ltd. v. United States, 558 

F.3d 1326, 1328 (Fed. Cir.), reh’g denied (Fed. Cir. 2009)); Am. Airlines, Inc. v. United 

States, 551 F.3d 1294, 1300 (Fed. Cir. 2008), reh’g granted, 319 F. App’x 914 (Fed. Cir. 

2009). Thus, when the “‘statute’s language is plain, “the sole function of the courts is to 

enforce it according to its terms.”’” Johnson v. United States, 529 U.S. 694, 723 (2000) 

(quoting United States v. Ron Pair Enters., Inc., 489 U.S. at 241 (quoting Caminetti v. 

United States, 242 U.S. 470, 485 (1917))); see also Jimenez v. Quarterman, 555 U.S. at 

118; Hartford Underwriters Ins. Co. v. Union Planters Bank, N.A., 530 U.S. 1, 6 (2000)); 

Bartels Trust for the Benefit of Cornell Univ. ex rel. Bartels v. United States, 617 F.3d at 

1361 (citing Sharp v. United States, 580 F.3d at 1237); Candle Corp. of Am. v. U.S. Int’l 

Trade Comm’n, 374 F.3d 1087, 1093 (Fed. Cir.), reh’g and reh’g denied (Fed. Cir. 2004).

In interpreting the plain meaning of the statute, it is the court’s duty, if possible, to 

give meaning to every clause and word of the statute. See Setser v. United States, 132 

S. Ct. 1463, 1470 (2012) (“Our decision today follows the interpretive rule they invoke, 

that we must ‘give effect . . . to every clause and word’ of the Act.” (omission in original) 

(quoting United States v. Menasche, 348 U.S. 528, 538–39 (1955))); see also Alaska 

Dep’t of Envtl. Conservation v. EPA, 540 U.S. 461, 489 n.13 (2004) (“It is, moreover, ‘“a 

cardinal principle of statutory construction” that “a statute ought, upon the whole, to be so 

construed that, if it can be prevented, no clause, sentence, or word shall be superfluous, 

void, or otherwise insignificant.”’” (quoting TRW Inc. v. Andrews, 534 U.S. 19, 31 (2001) 

(quoting Duncan v. Walker, 533 U.S. 167, 174 (2001)))); Williams v. Taylor, 529 U.S. 362, 

404 (2000) (describing as a “cardinal principle of statutory construction” the rule that every 

clause and word of a statute must be given effect if possible); Sharp v. United States, 580 

F.3d 1234, 1238 (Fed. Cir. 2009). Similarly, the court must avoid an interpretation of a 

clause or word which renders other provisions of the statute inconsistent, meaningless, 

or superfluous. See Duncan v. Walker, 533 U.S. at 174 (noting that courts should not 

treat statutory terms as “surplusage”). “[W]hen two statutes are capable of co-existence, 

it is the duty of the courts . . . to regard each as effective.” Radzanower v. Touche Ross 

& Co., 426 U.S. 148, 155 (1976); see also Xianli Zhang v. United States, 640 F.3d 1358, 

1368 (Fed. Cir.) (citing Cathedral Candle Co. v. U.S. Int’l Trade Comm’n, 400 F.3d 1352, 

1365 (Fed. Cir. 2005)), reh’g and reh’g en banc denied (Fed. Cir. 2011), cert. denied, 566 

U.S. 986 (2012); Hanlin v. United States, 214 F.3d 1319, 1321 (Fed. Cir.), reh’g denied

(Fed. Cir. 2000).

The United States Supreme Court also has held that the specific terms of a statute 

supersede general terms within that statute or within another statute that might otherwise 

control. See Fourco Glass Co. v. Transmirra Prods. Corp., 353 U.S. 222, 228–29 (1957) 

(“Specific terms prevail over the general in the same or another statute which otherwise 

might be controlling.” (quoting D. Ginsberg & Sons v. Popkin, 285 U.S. 204, 208 (1932))); 

see also Bloate v. United States, 559 U.S. 196, 207 (2010); Bulova Watch Co. v. United 

States, 365 U.S. 753, 761 (1961). In addition, the Supreme Court has endorsed “the 

‘normal rule of statutory construction’ that ‘identical words used in different parts of the 
18

same act are intended to have the same meaning.’” Gustafson v. Alloyd Co., 513 U.S. 

561, 570 (1995) (quoting Dep’t of Revenue of Or. v. ACF Indus., Inc., 510 U.S. 332, 342 

(1994)); see also Kislev Partners, L.P. ex rel. Bahar v. United States, 84 Fed. Cl. 385, 

389, recons. denied, 84 Fed. Cl. 378 (2008).

If a statute is unequivocal on its face or the meaning of the statute is plain, there 

is usually no need to resort to the legislative history underlying the statute. See Whitfield 

v. United States, 543 U.S. 209, 215 (“Because the meaning of [the statute’s] text is plain

and unambiguous, we need not accept petitioners’ invitation to consider the legislative 

history . . . .”), reh’g denied sub nom. Hall v. United States, 544 U.S. 913 (2005). But see

Chamberlain Grp., Inc. v. Skylink Techs., Inc., 381 F.3d 1178, 1196 (Fed. Cir.) (“Though 

‘we do not resort to legislative history to cloud a statutory text that is clear,’ Ratzlaf v. 

United States, 510 U.S. 135, 147–48 (1994), we nevertheless recognize that ‘words are 

inexact tools at best, and hence it is essential that we place the words of a statute in their 

proper context by resort to the legislative history.’” (quoting Tidewater Oil Co. v. United 

States, 409 U.S. 151, 157 (1972))), reh’g and reh’g en banc denied (Fed. Cir. 2004), cert.

denied, 544 U.S. 923 (2005). In limited circumstances, legislative history may be helpful 

in certain instances “to shed light on what legislators understood an ambiguous statutory 

text to mean when they voted to enact it into law.” Bruesewitz v. Wyeth LLC, 131 S. Ct. 

1068, 1081–82 (2011) (citing Exxon Mobile Corp. v. Allapatah Servs., Inc., 545 U.S. 546, 

568 (2005); see also Xianli Zhang v. United States, 640 F.3d at 1373. Legislative history, 

however, does not “trump[] clear text.” Bartels Trust for the Benefit of Cornell Univ. ex 

rel. Bartels v. United States, 617 F.3d at 1361 (citing Sharp v. United States, 580 F.3d at 

1238; Glaxo Operations UK Ltd. v. Quigg, 894 F.2d 392, 396 (Fed. Cir. 1990)). The 

Supreme Court, however, has noted that when it appears that the plain language of a 

statute resolves the issue, a court is to “look to the legislative history to determine only 

whether there is [a] ‘clearly expressed legislative intention’ contrary to that language, 

which would require us to question the strong presumption that Congress expresses its 

intent through the language it chooses.” INS v. Cardoza-Fonseca, 480 U.S. 421, 432 n.12 

(1987) (citing United States v. James, 478 U.S. 597, 606 (1986), abrogated on other

grounds by Cent. Green Co. v. United States, 531 U.S. 425, 436 (2001); Consumer 

Product Safety Comm’n v. GTE Sylvania, Inc., 447 U.S. 102, 108 (1980)).

Plaintiffs set forth three main arguments for why they believe jurisdiction in this 

court is proper. First, plaintiffs argue that the statute and regulations of the Family 

Caregivers Program are money-mandating. Second, plaintiffs argue that, because 

determinations by the Secretary under the Family Caregivers Program are considered 

medical determinations, their claims are precluded from the standard review path enjoyed 

by other types of veterans’ benefits, and, therefore, jurisdiction should be available here,

in addition to the VHA’s clinical appeals process. Third, plaintiffs argue that the language 

of 38 U.S.C. § 511(a), which appears to categorically bar courts from reviewing decisions 

by the Secretary relating to benefits to veterans, does not apply to them because family 

caregivers do not need to be veterans in order to receive assistance under the Family 

Caregivers Program.
19

Although plaintiffs argue that the Family Caregivers Program is money-mandating 

because it uses the term “shall,” the statute for the Family Caregivers Program, 38 U.S.C. 

§ 1720G(a), read in full suggests that the eligibility for the support provided to family 

caregivers and primary family caregivers of eligible veterans is discretionary. The statute 

states that the Secretary “shall only provide support under the program . . . if the Secretary 

determines it is in the best interest of the eligible veteran to do so.” 38 U.S.C. 

§ 1720G(a)(1)(B) (emphasis added). Therefore, the Secretary would appear to have the 

discretion to provide assistance or not. Moreover, the provision at 38 U.S.C. 

§ 1720G(c)(2) states that “[n]othing” in section 1720G “shall be construed to create . . . 

any entitlement to any assistance or support provided” by the Family Caregivers Program. 

38 U.S.C. § 1720G(c)(2).

The discretionary nature of the assistance provided under the Family Caregivers 

Program is distinguishable from traditional veterans’ benefits, such as VA disability

compensation pursuant to 38 U.S.C. § 1110 (2012), titled “Basic entitlement,” which 

states that “the United States will pay to any veteran thus disabled” compensation for a 

service-connected injury. The statute at 38 U.S.C. § 1110 does not, however, condition

such compensation on the Secretary’s determination that it is in the best interest of the 

veteran to provide such compensation. See id. If a veteran meets the established criteria 

for a service-connected disability, an “entitlement” to receive the applicable benefit is 

triggered. See id. Under the Family Caregivers Program, however, the Secretary retains 

the right to determine eligibility, even if the caregiver has been given the requisite training, 

or in the case of the primary caregiver, even if the eligible veteran has given his or her 

consent. See 38 U.S.C. § 1720G(a)(7)(B). Indeed, the statute at 38 U.S.C. 

§ 1720G(a)(7)(D) authorizes the Secretary to revoke primary caregiver assistance, 

including the stipend, if the Secretary considers the family caregiver has failed to meet 

any of the requirements of 38 U.S.C. § 1720G(a)(7)(B). The discretionary language in the 

statute, which conditions the possible receipt of assistance under the Family Caregivers 

Program, is clear on its face, and therefore the statute should not be viewed as mandatory 

or money-mandating. 

Plaintiffs next argue that, because determinations by the Secretary under the 

Family Caregivers Program are considered medical determinations, thereby making the 

standard review path unavailable, jurisdiction should be available here. Although the 

language in the statute is clear on its face, the legislative history reinforces the court’s 

conclusions. As discussed below, prior to the enactment of the Veterans’ Judicial Review 

Act in 1988, which established for the first time an independent reviewing body in an

Article I court, the United States Court of Appeals for Veterans Claims (CAVC) (originally 

named the Court of Veterans Appeals), court review, including in this court and its 

predecessors, was to be generally prohibited. The history of court review preclusion for 

veterans’ benefits was discussed in the legislative history leading up to the enactment of

the Veterans’ Judicial Review Act: 

Beginning with the doctrine that a suit against the United States may not be 

heard unless the Constitution or an Act of Congress grants jurisdiction, the 

Congress, when it has spoken on the issue at all, has generally precluded 
20

judicial review of decisions in claims for veterans’ compensation and 

pension benefits. When Congress first enacted legislation allowing certain 

claims to be brought against the United States, it specifically exempted 

claims for veterans pensions, “which at the time comprised virtually the 

entire veterans’ program.” Van Dolsen, Judicial Review of VA Actions, at 

594 (1987). The first law expressly prohibiting review was enacted in 1924 

as section 5 of the World War Veterans Act, 43 Stat. 608, 609. The so-called 

“Economy Act of 1933”, 48 Stat. 8, 9, which gave the President wholesale 

authority to reduce or terminate veterans’ pensions, made more explicit the 

Congressional decision to preclude judicial review of all decisions of the 

Administrator “under the provisions of this title, or the regulations issued 

pursuant thereto.” See Hines v. United States ex rel. Marsh, 105 F. 2d 85 

(D.C. Cir. 1939). The Supreme Court construed the statute in Lynch v. 

United States, 292 U.S. 571 (1934) “to remove the possibility of judicial 

relief”. The 1940 revision purported to be merely a restatement of the law 

as it then existed, see Van Dolsen, Judicial Review of VA Actions 595, fn. 

99, as did the 1957 and 1958 recodifications.

H.R. Rep. No. 100–963, at 26 (1988), reprinted in 1988 U.S.C.A.A.N. 5782, 5799-5800; 

see also Bates v. Nicholson, 398 F.3d 1355, 1362-65 (Fed. Cir. 2005) (discussing the 

history of judicial review of veterans’ benefits). 

From 1958 until the recodification of title 38 in 1991 by the Department of Veterans’ 

Affairs Codification Act, Pub. L. No. 102–83, § 2, 105 Stat. 378, 388-89 (1991), similar 

preclusive language to what is today codified at 38 U.S.C. § 511(a) was found in what 

was then 38 U.S.C. § 211(a) (1958). See Bates v. Nicholson, 398 F.3d at 1364 n.7. In 

1958, 38 U.S.C. § 211(a) stated:

(a) Except as provided in sections 784, 1661, 1761 and as to matters arising 

under chapter 37 of this title, the decisions of the Administrator on any 

questions of law or fact concerning a claim for benefits or payments under 

any law administrated by the Veterans’ Administration shall be final and 

conclusive and no other official or any court of the United States shall have 

power or jurisdiction to review any such decision.

38 U.S.C. § 211(a) (1958).

Moreover, up until the passage of the Veterans’ Judicial Review Act in 1988, the 

BVA was the only means available to appeal adverse decisions by the Secretary (then, 

the Administrator) pertaining to veterans’ benefits. See 38 U.S.C. § 4004(a) (1988) (“All 

questions in a matter which under section 211(a) of this title is subject to decision by the 

Administrator shall be subject to one review on appeal to the Administrator. Final 

decisions on such appeals shall be made by the Board [of Veterans’ Appeals].”)

(recodified at 38 U.S.C. § 7104 (2012)). Prior to the establishment of the CAVC by the 

Veterans’ Judicial Review Act, however, cases in the United States Court of Claims, the 

predecessor court to this court and to the United States Court of Appeals for the Federal 
21

Circuit, relied on the preclusive language in 38 U.S.C. § 211(a) to find that decisions by 

the Secretary involving claims for veterans’ benefits were not reviewable. See Slotnick v. 

United States, 8 Cl. Ct. 784, 787-88 (1985) (finding that “[e]xcept for those challenges 

based on the constitutionality of the veterans’ benefit legislation . . . the result has 

uniformly been established that § 211(a) expressly restricts the jurisdiction of the federal 

courts by precluding review of VA benefit determinations,” and that “[t]he same result has 

likewise obtained in Court of Claims precedent, which is binding on this court”) (citing 

Armstrong v. United States, 230 Ct. Cl. 966 (1982), cert. denied, 459 U.S. 1102 (1983); 

Minimo v. United States, 230 Ct. Cl. 896 (1982); Baker v. United States, 225 Ct. Cl. 668 

(1980); Cunningham v. United States, 549 F.2d 753, 212 Ct. Cl. 451 (1977)).

As discussed above, in 1988, Congress passed the Veterans’ Judicial Review Act

creating the CAVC as codified under chapter 72 of title 38 of the United States Code. See

38 U.S.C. §§ 7251–7299 (2012). As explained by the United States Court of Appeals for 

the Ninth Circuit in Veterans for Common Sense v. Shinseki, “[a]s Congress explained, 

the creation of the Veterans Court [CAVC] was ‘intended to provide a more independent 

review by a body which is not bound by the Administrator [Secretary]’s view of the 

law . . . .’” Veterans for Common Sense v. Shinseki, 678 F.3d 1013, 1021 (9th Cir. 2012)

(quoting H.R. Rep. No. 100–963, at 26)). The United States Court of Appeals for the

Federal Circuit in Bates v. Nicholson described the impact of the Veterans’ Judicial 

Review Act as follows: 

One might have expected this reversal of congressional policy concerning 

judicial review to have brought about the repeal of section 211(a). It did not. 

Rather, section 211(a) continued to broadly bar judicial review of benefits 

decisions but an exception was created for judicial review of such decisions 

by the newly created Article I court. At the same time, Congress added new 

sections to Title 38, reflected in today’s versions of Chapters 71 and 72, 

reforming the existing internal mechanisms for the review of benefits 

decisions by the VA regional offices and by the Board; specifically providing 

for independent judicial review of the Board’s final decisions by a new Article 

I Court of Veterans Appeals (today known as the Court of Veterans Appeals 

for Veterans Claims); and providing the Federal Circuit with exclusive 

appellate jurisdiction over the decisions of the Court of Appeals for Veterans 

Claims. Veterans’ Judicial Review Act, § 301 (codified as amended at 38 

U.S.C. § 7251 et seq.).

Bates v. Nicholson, 398 F.3d at 1364-65 (footnote and citation omitted); see also 38 

U.S.C. § 7292 (2012) (providing exclusive jurisdiction of CAVC decisions to the United 

States Court of Appeals for the Federal Circuit). Indeed, the Veterans’ Judicial Review 

Act amended section 211 to read as follows:

(a)(1) The Administrator shall decide all questions of law and fact necessary 

to a decision by the Administrator under a law that affects the provision of 

benefits by the Administrator to veterans or the dependents or survivors of 

veterans. Subject to paragraph (2) of this subsection, the decision of the 
22

Administrator as to any such question shall be final and conclusive and may 

not be reviewed by any other official or by any court, whether by an action 

in the nature of mandamus or otherwise.

(2) The second sentence of paragraph (1) of this subsection does not apply 

to—

(A) matters subject to section 223 of this title;

(B) matters covered by sections 775 and 784 of this title;

(C) matters arising under chapter 37 of this title; and 

(D) matters covered by chapter 72 of this title.

Pub. L. 100–167, § 101, 102 Stat. 4105, 4106 (Nov. 18, 1988) (emphasis added)

(quotation marks omitted). Consistent with its purpose, therefore, the Veterans’ Judicial 

Review Act excluded matters to be heard by the CAVC from the general mandate of 

section 211 precluding courts from hearing claims for veterans’ benefits. The abovequoted language in section 211 is effectively equivalent to what can now be found in 38 

U.S.C. § 511 (2012),5 which states:

(a) 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. 

Subject to subsection (b), the decision of the Secretary as to any such 

question shall be final and conclusive and may not be reviewed by any other 

official or by any court, whether by an action in the nature of mandamus or 

otherwise.

(b) The second sentence of subsection (a) does not apply to—

(1) matters subject to section 502 of this title;

(2) matters covered by sections 1975 and 1984 of this title;

(3) matters arising under chapter 37 of this title; and 

(4) matters covered by chapter 72 of this title.

Id. § 511 (emphasis added). Moreover, although it is not explicitly stated in any provision 

of title 38, the United States Court of Appeals for the Federal Circuit has held that the 

jurisdiction of the CAVC is premised on a decision by the BVA. See In re Wick, 40 F.3d 

 5 The slight changes in language and placement in the United States Code both appear 

to have occurred as a result of the Department of Veterans Affairs Codification Act, Pub. 

L. 102–83, 105 Stat. 378 (August 6, 1991). 
23

367, 373 (Fed. Cir. 1994) (holding that a Board decision is required to vest the CAVC with 

jurisdiction over a claimant’s appeal); Ledford v. West, 136 F.3d 776, 779 (Fed. Cir. 1998) 

(explaining that the jurisdiction of the CAVC “is premised on and defined by the Board’s 

decision concerning the matter being appealed” (citing 38 U.S.C. § 7252(b))). Therefore, 

in order to reach the CAVC, a claim for veterans’ benefits must first go through the BVA.

The combination of these provisions, which establishes the review path through

the BVA and the CAVC, dictates the review path for the majority of VA benefits that are 

available to veterans, such as VA disability compensation and education benefits.

Generally speaking, this review path is from an adverse decision by the Secretary 

(typically by way of a VA regional office), to the BVA, to the CAVC, to the United States 

Court of Appeals for the Federal Circuit, and finally to the United States Supreme Court 

by grant of certiorari. See Burris v. Wilkie, 888 F.3d 1352, 1357 (Fed. Cir. 2018) 

(describing the steps under 38 U.S.C. §§ 511(a), 7104(a), 7252(a) for seeking reviews 

and appeals of VA benefits decisions). The parties in the above-captioned case do not 

dispute that this is the standard path for such VA claims. This review path, however, is 

not available for plaintiffs’ claims, because, pursuant to 38 U.S.C. § 1720G(c), a 

determination by the Secretary under the Family Caregivers Program “shall be 

considered a medical determination,” and according to the VA regulation at 38 C.F.R. 

§ 20.104(b), titled “Jurisdiction of the Board,” “[m]edical determinations . . . are not 

adjudicative matters and are beyond the Board’s jurisdiction.” Indeed, the preamble to the 

final Rule for the Family Caregivers Program directs:

[T]he Caregivers Act expressly states that “[a] decision by the Secretary 

under [the Program of Comprehensive Assistance for Family Caregivers or 

the Program of General Caregiver Support Services] affecting the furnishing 

of assistance or support shall be considered a medical determination.” 38 

U.S.C. [§] 1720G(c)(1). Therefore, all determinations that affect the 

furnishing of assistance or support through the programs under 38 U.S.C.

[§] 1720G are medical determinations as a matter of law, and as such may 

not be adjudicated in the standard manner as claims associated with 

veterans’ benefits.

Caregivers Program, 80 Fed. Reg. at 1366 (second and third alterations in original)

(emphasis added). 

Plaintiffs argue that preclusion from the standard review process makes this court 

available to adjudicate plaintiffs’ claims. Although there does not appear to be precedent

in this circuit specifically regarding the benefits provided under Family Caregivers 

Program, or even more generally regarding medical determinations by the VA that do not 

have available administrative review by the BVA, and subsequent, independent judicial 

review by the CAVC and the United States Court of Appeals for the Federal Circuit, the 

preclusive language that remains in 38 U.S.C. § 511(a) still applies. As quoted above, the 

statute at 38 U.S.C. § 511(a), as it reads today, states:
24

(a) The Secretary [of Veterans Affairs] 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. Subject to subsection (b), the decision of the 

Secretary as to any such question shall be final and conclusive and may not 

be reviewed by any other official or by any court, whether by an action in 

the nature of mandamus or otherwise. 

38 U.S.C. § 511(a) (emphasis added). This preclusive language generally prohibiting 

courts from reviewing decisions by the Secretary has remained, as discussed above, 

since its initial iteration, which can be traced back to the World War Veterans’ Act of 1924, 

Pub. L. 68-242, § 5, 43 Stat. 607, 608 (1924). The creation of the CAVC does not alter 

the long-standing precedent which relies on the preclusive language now in 38 U.S.C. 

§ 511(a). Even prior to the passage of the Veterans’ Judicial Review Act, courts in this 

circuit had found such preclusive language to make jurisdiction in federal courts 

unavailable. See, e.g., Slotnick v. United States, 8 Cl. Ct. 784, 787-88; Armstrong v. 

United States, 230 Ct. Cl. 966, cert. denied, 459 U.S. 1102 (1983); Minimo v. United 

States, 230 Ct. Cl. 896; Baker v. United States, 225 Ct. Cl. 668; Cunningham v. United 

States, 549 F.2d 753, 212 Ct. Cl. 451). Indeed, the passage of the Veterans’ Judicial 

Review Act in 1988 did not repeal the preclusive language that was in 38 U.S.C. § 211(a)

at the time, nor did it add an exemption for the United States Court of Federal Claims

from court review preclusion, as it did for the CAVC. Without explicit direction by Congress 

to reverse this long-standing precedent precluding review from this court of benefits under 

the discretion of the Secretary, the United States Court of Federal Claims remains bound 

accordingly. Moreover, the reasons for barring claims arising under the Family Caregivers 

Act from this court are aligned with the purposes that went into the initial “no review” 

language. Slotnick v. United States, 8 Cl. Ct. at 787. The United States Claims Court 

judge in Slotnick observed: 

The legislative history of § 211 is rather scant. Nevertheless, from what is 

available, two general purposes seem to underly the “no review” procedure. 

The first is, not surprisingly, a monetary consideration. Basically, the 

provision was enacted to prevent the added administrative and judicial costs 

of potentially voluminous and possibly protracted litigation involving 

veterans’ benefit claims. Second, and closely related, was to prevent the 

technical and complex medical determinations engendered in such claims 

from burdening the courts with the obligation of judicial review.

Slotnick v. United States, 8 Cl. Ct. at 787-88 (footnotes omitted). Indeed, to be eligible for 

Family Caregivers Program benefits, an “eligible veteran” may require a determination of 

the presence of “traumatic brain injury, psychological trauma, or other mental disorder.” 

See 38 U.S.C. § 1720G(a)(2), (a)(2)(B). These are the kinds of medical determinations

that are of such a “technical and complex” nature that could burden the court with “the 

obligation of judicial review.” See Slotnick v. United States, 8 Cl. Ct. at 787-88.
25

Furthermore, although claims under the Family Caregivers Program do not have 

the opportunity for administrative review by the BVA, the VHA’s clinical appeals process 

is available. See VHA Directive 1041. While plaintiffs point out that some of the plaintiffs’ 

claims arose before VA Directive 1041 was issued, plaintiffs do not dispute the existence 

of the VHA clinical appeals process outlined in prior directives, such as the 2006 VHA 

Clinical Appeals Directive.6

Plaintiffs next argue that because “plaintiffs, and those they seek to represent, are 

not necessarily veterans in order to qualify for the entitlements they claim,” their claims 

should fall outside of the preclusive reach of 38 U.S.C. § 511(a). The first sentence of 

section 511(a) states that “[t]he 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) (emphasis added). The United States Court of Appeals for the Federal Circuit 

has analyzed the language of this part of section 511(a), and determined its purpose and 

scope, although in a different context from the one currently at issue. In Bates v. 

Nicholson, the court found that “section 511’s reference to a ‘law’ is to a single statutory 

enactment that bears a Public Law number in the Statutes at Large,” and therefore, 38 

U.S.C. § 511(a) applied to a law pertaining to the revocation of an attorney’s VA

accreditation because the Statute at Large “‘affect[ed] the provision of benefits’” by the 

Secretary to veterans. Bates v. Nicholson, 398 F.3d at 1361-62 (quoting 38 U.S.C. 

§ 511(a)); see also Hanlin v. United States, 214 F.3d 1319 (Fed. Cir. 2000); Cox v. West, 

149 F.3d 1360 (Fed. Cir. 1998). Moreover, the VA defines “[b]enefit” as “any payment, 

service, commodity, function, or status, entitlement to which is determined under laws 

administered by the Department of Veterans Affairs pertaining to veterans and their 

dependents and survivors.” 38 C.F.R. § 20.3(e) (2019) (emphasis added).

 6 As discussed in this Opinion above, VHA Directive 2006-057 states, in relevant part: 

In 1991, VHA issued a Directive mandating that all medical centers operate 

a Patient Advocate Program to address patient inquiries and complaints. In 

Fiscal Year (FY) 1999, in response to Eligibility Reform and the 

implementation of an enrollment system with the provision of a fixed 

benefits package, VHA initiated a review of how clinical disputes were being 

handled throughout the system. As an outgrowth of that review, in FY 2000, 

VHA instituted an External Appeal system, which allows Veterans 

Integrated Service Networks (VISNs) to request prompt, impartial reviews 

of clinical determination decisions by a professional board external to the 

agency. As an additional development, this Directive addresses the 

handling of clinical appeals internal to the agency, with the goal of creating 

a more efficient and consistent system that incorporates VISN-based 

management into the reviews and associated veteran customer service 

improvement activities.

Id. at 1 (emphasis in original). As noted above, VHA Directive 2006-057 was rescinded 

and replaced with VHA Directive 1041 in 2016.
26

As discussed above, the Family Caregivers Program at issue in the abovecaptioned case was originally enacted by the passage of the Caregivers Act, Pub. L. No. 

111-163, § 101, 124 Stat. 1130. The preamble to the Caregivers Act describes the law 

as “An Act To amend title 38, United States Code, to provide assistance to caregivers of 

veterans, to improve the provision of healthcare to veterans, and for other purposes.” Id.

(capitalization in original). Title I of the Caregivers Act is titled “Caregiver Support,” and 

provides for a benefit to veterans by way of caregiver assistance. See id. Consistent with 

the Bates v. Nicholson analysis, the Caregivers Act as a whole is therefore a Statute at 

Large which “affects the provision of benefits by the Secretary to veterans.” 38 U.S.C. 

§ 511(a); Bates v. Nicholson, 398 F.3d at 1361-62. Moreover, while the monetary

assistance provided for in the Family Caregivers Program is given to individuals who need 

not be veterans, dependents, nor survivors of veterans, themselves, this law ultimately

provides care to veterans based on the veteran’s medical condition and medical needs.

Furthermore, each application must be submitted not only by the family caregiver seeking 

assistance, but also by the eligible veteran describing his or her medical condition to 

obtain benefits, 38 U.S.C. § 1720G(a)(4), and the approved family caregiver must be 

determined qualified to assist in the care of an eligible veteran. See, e.g., 38 U.S.C. 

§ 1720G(a)(3)(A)(i)(I) (“[T]he Secretary shall provide to family caregivers of eligible 

veterans . . . such instruction, preparation, and training as the Secretary considers 

appropriate for the family caregiver to provide personal care services to the eligible 

veteran.”); 38 U.S.C. § 1720G(a)(1)(B) (“The Secretary shall only provide support under 

the program required by subparagraph (A) [the Family Caregivers Program] to a family 

caregiver of an eligible veteran if the Secretary determines it is in the best interest of the 

eligible veteran to do so.”) The Caregivers Act, therefore, explicitly ties the eligibility for 

caregiver assistance to the health conditions of an eligible veteran. The functions of the 

assistance provided to primary family caregivers, such as respite care, financial planning 

services and legal services are likewise aimed to “relat[e] to the needs of injured 

veterans.” See 38 U.S.C. § 1720G(a)(3)(A)(ii)(aa), (bb). The monthly stipend is provided 

to the primary family caregiver to assist in providing support and care to the veteran.

Therefore, for the reasons stated above, the Family Caregivers Program is a “law that 

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

regardless of the fact that caregivers may not themselves be veterans.

In sum, assistance provided under the important and valuable Family Caregivers 

Program is at the discretion of the Secretary. Moreover, the precedent in this circuit has 

determined that the explicit conceptual language, which previously was in 38 U.S.C. 

§ 211(a), and, is now in 38 U.S.C. § 511(a), precludes this court from reviewing decisions 

of the Secretary affecting the provision of benefits by the Secretary to veterans. This is 

true, notwithstanding the fact that decisions by the Secretary under the Family Caregivers 

Program are not reviewable by the BVA, or subsequent, independent review by the

CAVC. The VHA clinical appeals process is the sole review process for claims under the 

Family Caregivers Program. Therefore, adhering to the long-standing precedent which 

has generally precluded jurisdiction to review decisions made by the Secretary involving 

claims for veterans’ benefits based on the no-review language in 38 U.S.C. § 511(a), and

which traces as far back as the World War Veterans’ Act of 1924, this court finds that it 
27

lacks the jurisdiction to hear plaintiffs’ claims brought under the Family Caregivers 

Program. The court recognizes the sacrifices made by veterans, especially disabled 

veterans, and the lifelong difficulties they might endure. Veterans whose family caregivers 

have not been awarded assistance under the program, whose benefits have been 

terminated or whose benefits have been reduced in tier, admittedly, potentially face 

difficult challenges. Nonetheless, the statutory scheme for the benefits available to 

veterans by the VA, as it is currently structured, precludes this court from hearing plaintiffs’ 

claims for review of determinations by the Secretary regarding primary caregiver status 

for the benefit of disabled veterans, who, together with their proposed caregiver, have 

applied to be included in the program.

CONCLUSION

For the reasons stated above, defendant’s motion to dismiss for lack of subjectmatter jurisdiction is GRANTED, and plaintiffs’ complaint is DISMISSED. The Clerk of the 

Court shall enter JUDGMENT consistent with this Opinion.

IT IS SO ORDERED.

 s/Marian Blank Horn 

 MARIAN BLANK HORN

 Judge