govinfo:USCOURTS-pamd-4_25-cv-02229-0

IN THE UNITED STATES DISTRICT COURT 
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA 
  
CHERYL C. FILLMORE, 
 
  Plaintiff, 
 
 v. 
 
THE UNITED STATES OF 
AMERICA, 
 
  Defendant. 
 No. 4:25-CV-02229 
 
 (Chief Judge Brann) 
 
  
 
MEMORANDUM OPINION 
 
SEPTEMBER 30, 2026 
Plaintiff Cheryl Fillmore filed the in stant lawsuit alleging negligence by the 
United States under the Federal Torts Claims Act (“FTCA”). 1 Presently pending is 
the Government’s motion to dismiss pursu ant to Federal Rule of Civil Procedure 
12(b)(1) for lack of subject matter jurisdiction. The government argues that, because 
Ms. Fillmore’s claim is fundamentally a ve teran benefits claim concealed in FTCA 
robes, the Court is stripped of subject ma tter jurisdiction by the Veterans’ Judicial 
Review Act of 1988 (“VJRA”). 2 The motion is now ripe for disposition; for the 
reasons that follow, it is denied. 
I. BACKGROUND 
The facts alleged in the complaint are as follows. 
 
1  Doc. 1 (Compl.) ¶ 9; 28 U.S.C. §§ 1346, 2671 et seq. 
2  Doc. 12, at 1. 
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Cheryl Fillmore is the 68-year-old wi dow of United States Marine Corps 
Veteran John Fillmore. 3 On December 17, 2023, after Mr. Fillmore submitted a 
supplemental claim to the Department of Veteran Affairs (“VA”) for a colorectal 
cancer diagnosis, an examining physician wr ote an opinion finding that his cancer 
diagnosis was connected to his military service. 4 Such a service connection would 
make Mr. Fillmore eligible for disabilit y benefits from the VA. Tragically, Mr. 
Fillmore passed away the next day. 5 Nevertheless, the VA two days later granted 
disability benefits to Mr. Fillmore for his cancer, effective from October 2022 and 
thereby including $51,035.86 in retroactive benefits.6 
As Mr. Fillmore’s widow, Cheryl Fillmore was entitled to her late husband’s 
benefits.7 Accordingly, in January 2024, Ms. Fillmore applied for various VA death-
related benefits, including for burial cost s, a “death benefit, ” and a survivor’s 
pension.8 The VA denied some benefits and granted others, including the death 
benefit and survivor’s pension. 9 Historically, Mr. Fillmore’s pension was paid into 
a checking account jointly held with Ms. Fillmore at Central Keystone FCU. 10 For 
 
3  Doc. 1 (Compl.) ¶¶ 9, 14. 
4  Id. ¶¶ 18-19. 
5  Id. ¶ 20. 
6  Id. ¶ 21. 
7  Id. ¶ 26. 
8  Id. ¶ 32. 
9  Id. ¶ 35. 
10  Id. ¶ 28. 
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her survivor’s pension, Ms. Fillmore requested the payments be paid into a different 
account at Central Keystone FCU.11 
A few months later, to Ms. Fillmore’s surprise, Central Keystone FCU began 
withholding access to all of Ms. Fillmore’s deposits. 12 This was because, although 
Ms. Fillmore was legally entitled to her late husba nd’s benefits, she was not 
administratively entitled to the benefits until sh e completed the VA Form 21P-
0847.13 Rather than requesting that Ms. Fillmore complete this form, a VA employee 
notified Central Keystone FC U of this fact and initiate d reclamation procedures, 
creating a sizable debt to the cr edit union in Ms. Fillmore’s name. 14 This prompted 
the credit union to place a hold on all funds in Ms. Fillmore’s accounts, leaving her 
nothing to live on.15 
Ms. Fillmore shortly became aware of the account hold, but it wasn’t until 
speaking with a credit union executive months  later that she learned of the debt 
against her.16 The news produced a profound shock. Ms. Fillmore was hospitalized 
and diagnosed with atrial fibrillation and now suffers other health problems 
 
11  Id. ¶ 37. 
12  Id. ¶ 39. 
13  Id. ¶ 30. 
14  Id. ¶¶ 39, 48, 49. 
15  Id. ¶ 49. 
16  Id. ¶ 57. 
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requiring ongoing cardiac care and counseling.17 Ms. Fillmore alleges that the harms 
she suffered amount to $12,000,000.00.18 
 According to Ms. Fillmore, the VA em ployees bore a legal duty to administer 
her VA benefits in a reasonable manner.19 This duty, she alleges, was breached when 
the VA employee failed to tell her how to cure the problem with her access to her 
late husband’s back benefits and instead sought to recoup the back benefits from the 
credit union, creating a debt in her name.20 These actions, according to Ms. Fillmore, 
proximately caused her subs tantial physical and mental health challenges. 21 She 
therefore seeks declaratory and moneta ry relief from the Government under the 
Federal Torts Claims Act.22 
The government argues otherwise. In its  motion to dismiss, the Government 
claims that Ms. Fillmore’s dispute is r eally a benefits claim “stylized” as a 
negligence claim. 23 According to the Government, Ms. Fillmore is requesting 
judicial review of a VA benefits decision and actions incidental to that decision. 24 
The distinction, although subtle, is dispositive. Negligence claims against the United 
States are subject to judicial review; veteran benefits claims are not. 
 
17  Id. ¶¶ 58-61. 
18  Id. at 10. 
19  Id. ¶ 66. 
20  Id. ¶¶ 67-69. 
21  Id. ¶ 70. 
22  Id. at 10. 
23  Doc. 12, at 5-6. 
24  Id. 
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II. LEGAL STANDARD  
A. Motion to Dismiss Standard of Review 
Under Federal Rule of Civil Procedure 12(b)(1), “a court must grant a motion 
to dismiss if it lacks subject-matte r jurisdiction to hear a claim.” 25  The first step in 
evaluating a 12(b)(1) motion is to address whether it presents a “facial” or “factual” 
attack on the plaintiff’s claims. 26  The “distinction is significant because, among 
other things, it determines whether we ac cept as true the non-moving party’s facts 
as alleged in its pleadings.”27 
A facial challenge contests the cour t’s subject-matter jurisdiction “without 
disputing the facts alleged in the complaint,’”28 and requires a court to construe the 
“allegations of the complaint and documents  … in the light most favorable to the 
plaintiff.”29  A factual challenge, by contrast, asserts that the underlying facts of the 
case do not support jurisdiction, “either through the filing of an answer or otherwise 
presenting competing facts.”30  When considering a factual challenge, a court may 
 
25  In re Schering Plough Corp. Intron/Temodar Consumer Class Action , 678 F.3d 235, 243 (3d 
Cir. 2012).   
26  Constitution Party of Pa. v. Aichele, 757 F.3d 347, 357-58 (3d Cir. 2014) (citation omitted). 
27  In re Horizon Healthcare Servs. Inc. Data Breach Litig., 846 F.3d 625, 625, 632 (3d Cir. 2017) 
(citation omitted). 
28  Davis v. Wells Fargo , 824 F.3d 333, 346 (3d Cir. 2016) (quoting Petruska v. Gannon Univ. , 
462 F.3d 294, 302 n.3 (3d Cir. 2006)). 
29  In re Schering Plough Corp., 678 F.3d at 243 (quoting Gould Elecs. Inc. v. United States, 220 
F.3d 169, 176 (3d Cir.2000)). 
30  Davis, 824 F.3d at 346 (quoting Aichele, 757 F.3d at 358 (cleaned up)). 
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consider evidence outside the pleadings.31  Further, the plaintiff bears the burden of 
contesting a factual challenge and proving that jurisdiction exists.32   
Nevertheless, “a district court must take care not to reach the merits of a case” 
where substantive and jurisdictional facts are intertwined.33  Where a court could not 
rule on jurisdiction without also making a determination on the merits, “the proper 
procedure for the district court is to find that jurisdiction exists and to deal with the 
objection as a direct attack on the merits of the plaintiff’s case.” 34  In these 
circumstances, courts must demand “less in  the way of jurisdictional proof than 
would be appropriate at a trial stage.”35 
B. Veterans’ Judicial Review Act 
 The VJRA provides that 
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 .... [T]he 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.36 
Courts have interpreted the VJRA to pr eclude judicial review of “any type of 
substantive benefits decision,” includi ng “any and all determinations by the 
 
31  Id. 
32  Davis, 824 F.3d at 346. 
33  CNA v. United States, 535 F.3d 132, 144 (3d Cir. 2008). 
34  Davis, 824 F.3d at 348 (internal quotat ion marks omitted) (quoting Kulick v. Pocono Downs 
Racing Ass’n, 816 F.2d 895, 898 n.5 (3d Cir. 1987)). 
35  CNA, 535 F.3d at 144 (citation omitted). 
36  38 U.S.C. § 511(a). 
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Secretary as to eligibility, entitlement, or the scope of benefits (including health care 
benefits).”37 Courts have additionally interprete d it to bar review of “any decision 
made by the Secretary in the course of making a benefits determination.”38 
C. Federal Torts Claims Act 
 The FTCA states that  
[T]he the district courts ... shall ha ve exclusive jurisdiction of civil 
actions on claims against the United States, for money damages ... for 
... personal injury ... caused by the negligent or wrongful act or 
omission of any employee of the G overnment while acting within the 
scope of his office or employmen t, under circumstances where the 
United States, if a private person, w ould be liable to the claimant in 
accordance with the law of the pl ace where the act or omission 
occurred.39 
Veterans may bring suit under the FTCA if they are injured because of malpractice 
or negligence of a VA health care em ployee providing care or treatment on behalf 
of the VA.40 Plainly, the VJRA does not bar true FTCA claims.41 
III. DISCUSSION 
The parties primarily disagree about the timing of the Government’s allegedly 
tortious conduct—what the Plaintiff calls  the Government’s “harmful behavior 
 
37  Roberson v. United States , No. 23-2583, 2024 WL 2104498, at *2 (3d Cir. May 10, 2024) 
(internal quotation marks omitted) (quoting Smith v. United States, 7 F.4th 963, 985 (11th Cir. 
2021)). 
38  Id. (internal quotation marks omitted) (quoting Tunac v. United States , 897 F.3d 1197, 1202 
(9th Cir. 2018)); see also Smith, 7 F.4th at 985. 
39  28 U.S.C. § 1346. 
40  See 38 U.S.C. § 7316(a)(1); see also United States v. Brown, 348 U.S. 110, 113 (1954). 
41  See Roberson, 2024 WL 2104498, at *2 (citing Tunac, 897 F.3d at 1205) 
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trying to collect a debt.”42 In the Plaintiff’s telling, the Government had already made 
its substantive determination that Ms. Fillm ore was eligible for and entitled to her 
late husband’s benefits when the Gove rnment’s allegedl y tortious conduct 
occurred.43 In the Defendant’s telling, however , the Government was still in the 
course of determining Ms. Fillmore’s benefits eligibility when the allegedly tortious 
conduct occurred.44 The former narrative suggests that  judicial review here would 
not compel an impermissible review of th e Secretary’s benefits determination; the 
latter suggests that it would. 
As an initial matter, the Government presents no competing facts. Therefore, 
the Court considers the Government’s moti on as a facial, rather than factual, 
challenge.45 This Court must therefore view th e allegations of the complaint and 
documents referenced and attached in the light most favorable to the Plaintiff.46 
 The sole question at this stage is ju risdictional: Whether Ms. Fillmore’s claim 
presents, and requires the Court to review, “questions of law and fact necessary to a 
decision by the Secretary under a law that  affects the provision of benefits”? 47 The 
answer is dispositive. 
 
42  Doc. 13, at 3. 
43  Doc. 1, at ¶¶ 26, 43. 
44  See Doc. 12, at 5-6. 
45  Davis, 824 F.3d at 346 (citing Aichele, 757 F.3d at 358). 
46  Lincoln Ben. Life Co. v. AEI Life, LLC , 800 F.3d 99, 105 (3d Cir. 2015) 
47  See 38 U.S.C. § 511(a). 
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A. Text of § 511(a) 
From the text of Section 511(a) of the VJRA, two inquiries emerge. First, does 
Ms. Fillmore’s claim involve “a decision by the Secretary under a law that affects 
the provision of benefits … to veterans.” 48 That is, does Ms. Fillmore’s claim 
implicate a determination by the Secretary as to eligibility, entitlement, or the scope 
of benefits? The second inquiry asks wh ether Ms. Fillmore’s claim would require 
review of “questions of law and fact necessary” to the Secretary’s decision.49 
B. Analysis 
The present analysis concludes at th e first step. Cloudy waters prevent the 
Court from resolving whether Ms. Fillmore ’s claim implicates a decision of the 
Secretary made substantively about or in the course of a benefits determination. 50 
Viewed in the light most favorable to Ms. Fillmore, the allegations plausibly suggest 
that the Government’s allegedly tortious conduct arose not in the course of a benefits 
determination but rather from simple procedural negligence in attempting to recoup 
a debt. 51 At the least, the jurisdictional a nd substantive issues here are “so 
intertwined that the question of jurisdiction is dependent on the resolution of factual 
issues going to the merits of [the] action.”52 Therefore, the proper procedure for this 
 
48  Id. 
49  Id. 
50  See Roberson, 2024 WL 2104498, at *2 (citations omitted). 
51  See In re Schering Plough Corp., 678 F.3d at 243 (citing Gould Elecs. Inc., 220 F.3d at 176). 
52  Davis, 824 F.3d at 348 (internal quotation marks omitted) (quoting Sun Valley Gasoline, Inc. 
v. Ernst Enters., Inc., 711 F.2d 138, 139 (9th Cir. 1983)). 
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Court “is to find that jurisdiction exists a nd to deal with the objection as a direct 
attack on the merits of the plaintiff's case.”53 
IV. CONCLUSION   
For the foregoing reasons, Defendant’s  motion to dismiss is denied. An 
appropriate Order follows. 
       B Y  T H E  C O U R T :  
 
 
s/ Matthew W. Brann 
       M a t t h e w  W .  B r a n n  
       Chief United States District Judge 
 
 
 
53  CNA, 535 F.3d at 144 (citation omitted). 
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