Opinion
03-CV-1074 (JBW)
November 18, 2003
MEMORANDUM ORDER
Plaintiff, a Vietnam veteran, filed a pro se complaint alleging various injuries related to his service in the Vietnam War, Defendants, United States Environmental Protection Agency, Department of Veteran Affairs, Department of Army, Department of Defense, Department of Energy, Centers for Disease Control and Prevention, Department of Health and Human Services, National Archives and Records Administration, National Personnel Records Center (collectively the "Federal Defendants"), and the International Atomic Energy Agency, move to dismiss under Federal Rule of Civil of Procedure 12(b)(1) and 12(b)(6).
Their motion is granted for three reasons: (1) The court lacks subject matter jurisdiction over claims for veterans' disability benefits and tort claims against the government related to military service, (2) Plaintiff has failed to exhaust the administrative remedies required under the Freedom of Information Act. (3) Plaintiff has failed to state a claim for relief under section 1983 of title 42 of the United States Code.
Plaintiff challenges the Department of Veteran Affairs' ("VA") denial of his individual benefits claims. In addition to the administrative appeals process, the Court of Appeals for the Federal Circuit has exclusive jurisdiction to review VA benefit determinations, 38 U.S.C. § 511(a); 38 U.S.C. § 7292(c); Fahie v. Dep't of Veteran Affairs 39 F. Supp.2d 332, 334 (S.D.N.Y. 1999). This court lacks subject matter jurisdiction.
A member of the United States military may not seek damages against the government or its agencies for injuries suffered incident to military service. Jones v. New York State Div. Of Military Naval Affairs, 166 F.3d 45 (2d Cir. 1998). "[T]he government is not liable under the Federal Torts Claims Act for injuries to servicemen where the injuries arise out of or arc in the course of activity incident to military service." Feres v. United States, 340 U.S. 135, 146 (1950). Plaintiff seeks damages for injuries arising out of and incident to his service in the United States Army, The alleged injuries were incurred while plaintiff was a member of the Army, Plaintiffs claim is barred by Feres. This court lacks subject matter jurisdiction. See Wake v. United States, 89 F.3d 53 (2d Cir. 1996). A fortiori that is true of an international agency such as the Atomic Energy Agency.
Plaintiff makes a claim under the Freedom of Information Act ("FOIA") to compel the Federal Defendants to release information related to chemical exposure in Vietnam. 5 U.S.C. § 552, Plaintiff has failed to exhaust his administrative remedies under FOIA. He is precluded from seeking the information through the courts. See, e.g., Sloman v. United States Dep't of Justice, 832 F. Supp. 63, 66-67 (S.D.N.Y. 1993). Subject matter jurisdiction is lacking.
Plaintiff has failed to set forth a cognizant claim under section 1983 of title 42 of the United States Code.
The motion to dismiss the complaint is granted. No costs or disbursements.
SO ORDERED.