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Local Rule 72.2(c)(1) provides for the automatic referral

of non-dispositive pretrial matters to a Magistrate Judge.

IN THE UNITED STATES DISTRICT COURT FOR THE 

SOUTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION

ERNEST BRAGGS, :

Plaintiff, :

vs. : CIVIL ACTION 09-0756-KD-M

DEPARTMENT OF VETERANS AFFAIRS, :

Defendant. :

REPORT AND RECOMMENDATION

Plaintiff, who is proceeding pro se and in forma pauperis,

filed a Complaint challenging Defendant’s decision not to award

him “back pay” when he was awarded veterans’ benefits. Along

with the Complaint Plaintiff filed a Motion to Proceed Without

Prepayment of Fees, which has been referred to the undersigned

for appropriate action pursuant to 28 U.S.C. § 636(b)(1)(A) and

Local Rule 72.2(c)(1).1 Because Plaintiff filed this Motion

instead of paying the filing fee, the Court is required under 28

U.S.C. § 1915 to screen the Complaint under 28 U.S.C. §

1915(e)(2)(B). Troville v. Venz, 303 F.3d 1256, 1260 (11th Cir.

2002) (applying § 1915(e) to non-prisoner actions). After

carefully screening the Complaint, it is recommended that this

action be dismissed without prejudice because the Court lacks

subject matter jurisdiction. 

Case 1:09-cv-00756-KD-M Document 6 Filed 01/19/10 Page 1 of 11
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I. Nature of Proceedings. 

Due to the Complaint’s brevity, the majority of its text is

set out below. 

Jurisdiction of this Court is invoke pursuant

to 28 U.S.C. 1345 and 1348 and the Civil

Rights Act of 1964 As Amended and 1866 and

the Americans with Disabilities Act of 1990

as Amended 

. . . .

I’m a disabled veteran with mental and

physical Disabilities. I received a Pension

Award from the Department of Veterans Board

of Veteran Appeals in Washington, D.C. On

November 6, 2003 Docket No. 95-2311-6 from my

appeal of 1998 in Montgomery, Alabama the VA

has intentionally committed Racial profiling,

racial deception, racial trickery against me

in refusing to honor my award with back pay

in violation of Civil Act of 1964 as amended

and the American Disabilities of 1990 as

amended against me.

Prayer for Relief

Grant me a injunction to stop V.A.

for racial profiling against me.

And retaliation for filing this

claim. Grant me my Pension Award

of November 6, 2003 with back pay

from my appeal of 1998 in

Montgomery Ala. Grant me Punitive

damages for V.A. evil Acts against

me intentionally refusing to honor

my Pension. 

(Doc. 1 at 1). Attached to the Complaint is the response of

Executive Office for United States Attorneys (hereinafter

“EOUSA”) to Plaintiff’s letter of September 26, 2009, wherein he

complained of the same matters as those contained in his

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Plaintiff’s prior actions in this Court are: Braggs v.

United States Corps of Engine, CA 86-0381-M (S.D. Ala. July 8,

1988) (docket only indicates an employment claim); Braggs v.

Mobile County Health Dept., et al., CA 91-0922-RV-C (S.D. Ala.

Sept. 1, 1992) (district court’s denial of employment claim was

affirmed on appeal); Braggs v. American Red Cross Blood Services,

Gulf Coast Region, CA 98-0661-CB-M (S.D. Ala. Jan. 21, 2000)

(employment claim was denied by district court and appeal was

dismissed for failure to prosecute); Braggs v. Apfel, CA 00-0735-

P-S (S.D. Ala. Nov. 1, 2001) (decision of Social Security

Commissioner to deny benefits was reversed and remanded to the

Commissioner for further proceedings).

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Complaint. EOUSA responded by stating that it does not conduct

investigations, give legal advice, or represent private citizens

and that he should consult an attorney. 

Other information relevant to Plaintiff’s claim is limited

because no documents from the Veterans Administration were

provided. However, in Plaintiff’s Motion to Proceed Without

Prepayment of Fees (Doc. 2), he states that he receives $693 a

month from the Social Security Administration and $376 a month

from the Veterans Administration based on a thirty-percent

disability.2 (Id. at 3). 

II. Analysis.

A. Legal Standard.

The Court’s first consideration in reviewing any action is

whether it has subject matter jurisdiction over the action. 

United States v. Denedo, ___ U.S. ___, ____, 129 S.Ct. 2213,

2219, 173 L.Ed.2d 1235 (2009). A federal court is a court of

limited of jurisdiction which is authorized by the Constitution

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or Congress to hear only certain types of actions. Kokkonen v.

Guardian Life Ins. Co., 511 U.S. 375, 377, 114 S.Ct. 1673, 1675,

128 L.Ed.2d 391 (1994). “Because a federal court is powerless to

act beyond its statutory grant of subject matter jurisdiction, a

court must zealously insure that jurisdiction exists over a case,

and should itself raise the question of subject matter

jurisdiction at any point in the litigation where a doubt about

jurisdiction arises.” Smith v. GTE Corp., 236 F.3d 1292, 1299

(11th Cir. 2001). This inquiry should be done at the earliest

stage in the proceedings and sua sponte whenever subject matter

jurisdiction may be lacking. University of South Alabama v.

American Tobacco Co., 168 F.3d 405, 410 (11th Cir. 1999)

(citations omitted). “[O]nce a court determines that there has

been no [jurisdictional] grant that covers a particular case, the

court’s sole remaining act is to dismiss the case for lack of

jurisdiction.” Morrison v. Allstate Indem. Co., 228 F.3d 1255,

1261 (11th Cir. 2000). 

It is a plaintiff’s responsibility in a federal civil action

to set forth in the complaint the basis for the Court’s subject

matter jurisdiction. Taylor v. Appleton, 30 F.3d 1365, 1367

(11th Cir. 1994). He “must affirmatively allege facts

demonstrating the existence of jurisdiction and include a short

and plain statement of the grounds upon which the court’s

jurisdiction depends.” Id.; Kirkland Masonry, Inc. v. Comm’r,

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The Eleventh Circuit in Bonner v. City of Prichard, 661

F.2d 1206, 1209 (11th Cir. 1981) (en banc), adopted as binding

precedent the decisions of the former Fifth Circuit rendered

prior to October 1, 1981.

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614 F.2d 532, 533 (5th Cir. 1980) (same).3 Furthermore, when a

court considers dismissal for lack of subject matter

jurisdiction, it accepts the “well-pled facts as true, [but] is

not required to accept a plaintiff’s legal conclusions.” 

Sinaltrainal v. Coca-Cola Co., 578 F.3d 1252, 1260 (11th Cir.

2009). 

When addressing a pro se litigant’s allegations, the Court

gives them a liberal construction by holding them to a more

lenient standard than those of an attorney. Haines v. Kerner,

404 U.S. 519, 520, 92 S.Ct. 594, 595-596, 30 L.Ed.2d 652 (1972). 

However, the Court does not have “license . . . to rewrite an

otherwise deficient pleading [by a pro se litigant] in order to

sustain an action.” GJR Investments, Inc. v. County of Escambia,

Fla., 132 F.3d 1359, 1369 (11th Cir. 1998). Furthermore, a pro

se litigant “is subject to the relevant law and rules of court

including the Federal Rules of Civil Procedure.” Moon v.

Newsome, 863 F.2d 835, 837 (11th Cir.), cert. denied, 493 U.S.

863 (1989).

B. Lack of Subject Matter Jurisdiction.

In examining Plaintiff’s Complaint the Court is unable to

discern a basis for its subject matter jurisdiction. Plaintiff

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appears to be complaining about the Veterans Administration’s

November 6, 2003, decision to award him disability benefits that

did not include “back payments,” that is, retroactive benefits. 

It is not clear which entity in the process made this decision or

if both did. But the entity’s identity is not necessary for this

recommendation to be entered, because the type of claim that

Plaintiff is bringing controls the disposition. 

Claims concerning veterans’ benefits are governed by 

38 U.S.C. § 511, which provides:

(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 or 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. Subsection b “provides exceptions to the preclusion review

for challenges to rulemaking under 38 U.S.C. § 502, certain

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insurance questions under 38 U.S.C. §§ 1975 and 1984, matters

relating to housing and small business loans under 38 U.S.C. ch.

37, and review of board of Veterans’ Appeals decisions in the

Court of Veterans Appeals under 38 U.S.C. ch. 72.” Sindram v.

United States, 130 Fed. Appx. 456, 458 n.1 (Fed. Cir. 2005)

(unpublished). 

Section 511 was enacted as part of the Veterans’ Judicial

Review Act of 1988 (hereinafter “VJRA”)that created an exclusive

review procedure for the resolution of veterans’ disputes. Hicks

v. Veterans Admin., 961 F.2d 1367, 1370 (8th Cir. 1992). 

“Section 511(a) is designed to (1) ensure that benefits claims

will not burden the courts and the VA with litigation, and (2)

promote the adequacy and uniformity of complex veterans’ benefits

decisions.” Sugrue v. Dewinski, 26 F.3d 8, 11 (2d Cir.), cert.

denied, Sugrue v. Brown, 515 U.S. 1102 (1995). “Both the text of

the statute and [the Act’s] extensive legislative history express

Congressional intent to construct an exclusive source of review

for veterans benefits claims.” Beamon v. Brown, 125 F.3d 965,

970 (6th Cir. 1997). “[U]nder the statutory scheme, judicial

review of a particular application of the law made by the

Secretary with respect to a veteran’s entitlement to benefits may

be had only by appealing to the Board, then to the Court of

Veterans Appeals, the Federal Circuit Court of Appeals and the

Supreme Court.” Hall v. United States Dept. Veterans’ Affairs,

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85 F.3d 532, 534 (11th Cir. 1996) (noting 38 U.S.C. § 7292

establishes the parameters for review by the Court for the

Federal Circuit). This scheme does not permit review of the

denial of veterans’ benefits in the federal district courts. 

Sugrue, 26 F.3d at 11.

Inasmuch as Plaintiff is complaining about the denial of

retroactive benefits, 38 U.S.C. § 511(a) precludes this Court

from exercising its subject matter jurisdiction over his claim. 

Duke v. United States, 305 F. Supp.2d 478, 490 (E.D. Pa. 2004)

(finding the district court was deprived of subject matter

jurisdiction over a claim for retroactive benefits because the

Act provided the review process for this benefits claim). Rather

than filing an action in this federal district court, Plaintiff

should seek review of the decision on his benefits by an entity

included in review process created by VJRA. 

Nonetheless, Plaintiff appears to be attempting to side-step

the statutory review process for veterans’ benefits by claiming

racial discrimination and asserting other bases for his claim,

Civil Rights Act and American with Disabilities Act. However,

Plaintiff “cannot avoid the jurisdictional bar of § 511 by

couching his claims in terms of racial discrimination [because

t]he statute . . . includes all claims, whatever their bases, as

long as the claim is necessary to a decision by the Secretary

under a law that affects the provision of benefits by the

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Secretary to veterans.” Bell v. Hill, 2008 WL 4877862, at *2

(M.D. Ala. Nov. 12, 2008) (citation and quotation marks omitted)

(unpublished); see Sugrue, 26 F.3d at 11 (“[T]he courts do not

acquire jurisdiction to hear challenges to benefits determination

merely because those challenges are cloaked in constitutional

terms.”); Larrabee by Jones v. Derwinski, 968 F.2d 1497, 1501 (2d

Cir. 1992) (This statutory scheme “amply evinces Congress’s

intent to include all issues, even constitutional ones, necessary

to a decision which affects benefits in this exclusive appellate

review scheme.”). Accordingly, Plaintiff does not have separate

claims under 42 U.S.C. §§ 1983 (Civil Rights Act) and 12101

(Americans with Disabilities Act) that this Court may review

because a claim for veterans’ benefits based on those sections is

subsumed into his claim that can only be addressed by the

exclusive veterans’ benefits review scheme. 

In addition, Plaintiff’s reference to 28 U.S.C. §§ 1345 and

1348 is inappropriate because these statutes provide jurisdiction

over actions brought by the United States. And 42 U.S.C. § 1866,

which concerns the National Science Foundation, is not relevant

to this action.

 IV. Conclusion.

Based upon the foregoing reason, it is recommended that this

action be dismissed without prejudice because the Court lacks

subject matter jurisdiction. Plaintiff is advised that he may

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Effective December 1, 2009, the time for filing written

objections was extended to “14 days after being served with a

copy of the recommended disposition[.]” FED.R.CIV.P. 72(b)(2).

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file an objection to this Report and Recommendation and that, if

he does, he should include in his objection all matters that he

wants to bring before the Court. 

MAGISTRATE JUDGE’S EXPLANATION OF PROCEDURAL RIGHTS

AND RESPONSIBILITIES FOLLOWING RECOMMENDATION

AND FINDINGS CONCERNING NEED FOR TRANSCRIPT

1. Objection. Any party who objects to this recommendation or

anything in it must, within fourteen days of the date of service

of this document, file specific written objections with the clerk

of court. Failure to do so will bar a de novo determination by

the district judge of anything in the recommendation and will bar

an attack, on appeal, of the factual findings of the magistrate

judge. See 28 U.S.C. § 636(b)(1)(C); Lewis v. Smith, 855 F.2d

736, 738 (11th Cir. 1988); Nettles v. Wainwright, 677 F.2d 404

(5th Cir. Unit B, 1982)(en banc). The procedure for challenging

the findings and recommendations of the magistrate judge is set

out in more detail in SD ALA LR 72.4 (June 1, 1997), which

provides that:

A party may object to a recommendation entered by a

magistrate judge in a dispositive matter, that is, a

matter excepted by 28 U.S.C. § 636(b)(1)(A), by filing

a “Statement of Objection to Magistrate Judge’s

Recommendation” within ten days4 after being served

with a copy of the recommendation, unless a different

time is established by order. The statement of

objection shall specify those portions of the

recommendation to which objection is made and the basis

for the objection. The objecting party shall submit to

the district judge, at the time of filing the

objection, a brief setting forth the party’s arguments

that the magistrate judge’s recommendation should be

reviewed de novo and a different disposition made. It

is insufficient to submit only a copy of the original

brief submitted to the magistrate judge, although a

copy of the original brief may be submitted or referred

to and incorporated into the brief in support of the

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objection. Failure to submit a brief in support of the

objection may be deemed an abandonment of the

objection.

A magistrate judge’s recommendation cannot be appealed to a

Court of Appeals; only the district judge’s order or judgment can

be appealed.

2. Transcript (applicable where proceedings tape recorded). 

Pursuant to 28 U.S.C. § 1915 and Fed.R.Civ.P. 72(b), the

magistrate judge finds that the tapes and original records in

this action are adequate for purposes of review. Any party

planning to object to this recommendation, but unable to pay the

fee for a transcript, is advised that a judicial determination

that transcription is necessary is required before the United

States will pay the cost of the transcript.

DONE this 19th day of January, 2010.

s/BERT W. MILLING, JR. 

UNITED STATES MAGISTRATE JUDGE

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