Allen W. HICKS, Plaintiff-Appellant, v. Dr. Elisabeth SMALL, M.D., Defendant-Appellee

Good Law
69 F.3d 967·95 Daily Journal DAR 14206·1995 WL 616594·1995 U.S. App. LEXIS 29769·95 Cal. Daily Op. Serv. 8232
United States Court of Appeals for the Ninth CircuitOctober 23, 199594-15011California993 words

Opinion

Opinion

Ezra, J.

This appeal presents two principal issues. First, does the Veterans’ Judicial Review Act of 1988, 38 U.S.C. § 7251 et seq. (1991) (“the VJRA”), provide an exclusive remedial structure that precludes Appellant from asserting a Bivens cause of action in district court? Second, did the district court properly determine that it lacked subject matter jurisdiction under 38 U.S.C. § 511 (a) (1991), to hear Appellant’s state tort action brought under the Federal Tort Claims Act? We answer both of these questions in the affirmative.

I.

Plaintiff-Appellant Hicks receives veterans benefits for a disability resulting from his service in Vietnam in 1968. In July through August 1988, Hicks received care at the Veteran’s Administration Medical Center in Reno, Nevada. He contends that Defendant-Appellee Dr. Elisabeth Small prevented him from contacting his congressional representatives to complain about his treatment by Dr. Small specifically and the VA Medical Center at Reno, Nevada, generally. Hicks further alleges that Dr. Small attempted to reduce, and for a period of time succeeded in reducing, his benefits in retaliation for his complaints.

Hicks’ complaint alleges a Bivens claim against…

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