Prewitt v. McDonough

CourtDistrict Court, District of Columbia
DecidedJanuary 7, 2025
DocketCivil Action No. 2021-2243
StatusPublished

This text of Prewitt v. McDonough (Prewitt v. McDonough) is published on Counsel Stack Legal Research, covering District Court, District of Columbia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Prewitt v. McDonough, (D.D.C. 2025).

Opinion

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

GEORGE DUNBAR PREWITT, JR.,

Plaintiff, Civil Action No. 21-2243 (RDM) v.

DENIS R. MCDONOUGH, Secretary of the U.S. Department of Veterans Affairs, et al.,

Defendants.

MEMORANDUM OPINION

Plaintiff George Dunbar Prewitt, Jr., proceeding pro se, brings this action against the

Secretary of the Department of Veterans Affairs and the United States (collectively,

“Defendants”) to challenge (1) the constitutionality of the statutory procedures for adjudicating

veterans’ disability claims, and (2) a decision by the Army Board for Correction of Military

Records (“ABCMR”) regarding the circumstances of his separation from the military in 1970.

See Dkt. 18 at 17–18 (Am. Compl. ¶¶ 34–35). Wounded in the Vietnam War, Prewitt maintains

that the extent of his injuries warranted consideration for military disability retirement and that

the benefits he received from the Department of Veterans Affairs (“VA”) should have been

calculated based on a higher disability rating than the 30% rating that he received. See Prewitt v.

McDonough, 633 F. Supp. 3d 195, 198 (D.D.C. 2022) (“Prewitt I”); Dkt. 1 at 3–7 (Compl. ¶¶ 5–

13); Dkt. 23-1 at 11 (citing Gov’t Motion to Remand, Dkt. 18 at 2, Prewitt v. United States, No.

22-cv-1673 (Fed. Cl. Feb. 3, 2023)).

Prewitt’s efforts to remedy the latter issue have resulted in “a long and[,] from his

perspective[,] unsatisfactory journey through the VA benefits-adjudication process.” Prewitt, 633 F. Supp. 3d at 198. The latest episode in that journey is this lawsuit—or, more precisely, the

most recent iteration of this lawsuit—in which Plaintiff challenges the constitutionality of the

VA benefits-adjudication process. After the Court granted in part and denied in part Defendants’

motion to dismiss Plaintiff’s original complaint, see Prewitt I“” at 209, Plaintiff filed an

amended complaint, Dkt. 18. In Prewitt I, the Court held that it has jurisdiction to consider

Plaintiff’s facial challenges to the constitutionality of the statutory provisions to the extent those

challenges do “not require courts to inquire into or to pass judgment on VA decisions regarding

[his] benefit requests,” id. at 204, but lacks jurisdiction to consider his challenges to the decisions

of the VA, the Court of Appeals for Veterans Claims (“CAVC”), or the Federal Circuit, id. at

207. The Court also held that Plaintiff’s original complaint failed to include the challenges that

Plaintiff first raised in his opposition brief to Congress’s establishment of a non-Article III

court—that is, the CAVC—to consider his administrative appeal and to Congress’s failure to

provide those challenging the denial of VA benefits with a right to a jury trial. Id. at 208–09.

Liberally construed, Plaintiff’s amended complaint asserts five claims: He alleges that

the Veterans’ Judicial Review Act, Pub. L. No. 100-687, 102 Stat. 4105 (1988), is facially

unconstitutional because (1) it assigned judicial authority to a non-Article III court, (2) it

deprives veterans seeking to challenge the denial benefits with their Seventh Amendment right to

trial by a jury, (3) it unconstitutionally discriminates against veterans, who are predominantly

non-white and male, of the same right to bring challenges in federal district court that is afforded

to Social Security disability claimants, who are predominantly female, and (4) violates the

appointments clause of the Constitution. See generally Dkt. 18. Recently, Plaintiff has also

engaged in efforts to remedy the Army’s failure to consider him for military disability

retirement. Those efforts resulted in the evaluation of Plaintiff for medical disability retirement

2 by the ABCMR and a determination that disability processing was not warranted. Dkt. 23-1 at

12; Gov’t Motion to Remand at 2–3, Prewitt v. United States, No. 22-cv-1673 (Fed. Cl. Feb. 3,

2023), Dkt. 18. In his final claim, (5) Plaintiff now seeks an order from this Court declaring that

the ABCMR decision was “contrary to law” in violation of the Administrative Procedure Act

(“APA”). Dkt. 18 at 18 (Am. Compl. ¶ 35).

After Defendants moved to dismiss Plaintiff’s amended complaint, Dkt, 20, Plaintiff

contacted Defendants to clarify that he intended to include a challenge to the AMCMR decision

in that complaint. Dkt. 23-1 at 13-14. Although the amended complaint is far from clear,

Defendants agreed to construe the complaint in that manner (as the Court will do as well), and

Defendants then filed an amended motion to dismiss. Id. That motion is now before the Court.1

For the reasons explained below, the Court concludes that each of Prewitt’s claims fails as a

matter of law, even when he is given “the benefit of all inferences that can be derived from the

facts alleged,” Am. Nat’l Ins. Co. v. FDIC, 642 F.3d 1137, 1139 (D.C. Cir. 2011) (quoting

Thomas v. Principi, 394 F.3d 970, 972 (D.C. Cir. 2005)).

The Court will, accordingly, GRANT Defendants’ motion to dismiss.

I.

The Court begins its analysis with Prewitt’s Seventh Amendment and Article III claims,

which are best considered together. He argues that the VA’s system for adjudicating veterans’

benefit claims is unconstitutional because the relevant proceedings take place before a non-

1 After the Supreme Court granted certiorari in SEC v. Jarkesy, 143 S. Ct. 2688 (2023), this Court stayed proceedings in this case in order to obtain the benefit of the Supreme Court’s analysis of a potentially related issue. Min. Order (Jan. 21, 2024). After the Supreme Court issued its decision in Jarkesy, the parties submitted their views regarding the implications, if any, of that decision. See Dkt. 31, Dkt. 32. 3 Article III tribunal, where no jury trial is available. Dkt. 18 at 17–18 (Am. Compl. ¶¶ 34(a) &

(c)).

To receive benefits from the VA for an injury incurred while on active duty, a veteran

must first file a claim with the VA. 38 U.S.C. §§ 301(b), 1110; 38 C.F.R. § 3.155(b), (d). VA

regional offices receive veterans’ claims and render initial decisions on whether to grant or deny

benefits for each claim. See Henderson ex rel. Henderson v. Shinseki, 562 U.S. 428, 431 (2011).

If a veteran disagrees with the initial resolution of his claim, he can file a notice of disagreement

with the Board of Veterans’ Appeals (the “Board” or “BVA”), which then conducts a de novo

review of the claim. 38 U.S.C. § 7105(a), (d); see Thornton v. United States, 281 F. Supp. 3d

116, 118 (D.D.C. 2017). “The Board is a body within the VA that makes the agency’s final

decision in cases appealed to it.” Henderson, 562 U.S. at 431.

“Before 1988, a veteran whose claim was rejected by the VA was generally unable to

obtain further review.” Id. (citing 38 U.S.C. § 211(a) (1988)). But in 1988, Congress enacted

the Veterans’ Judicial Review Act (“VJRA”), Pub. L. No. 100-687, 102 Stat. 4105 (1988), which

created the Court of Appeals for Veterans Claims. A veteran unsatisfied with the Board’s

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