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MENDEZ v. GEARAN

November 21, 1996

LESLIE MENDEZ, Plaintiff,
v.
MARK GEARAN, director of the U.S. Peace Corps, Defendant.



The opinion of the court was delivered by: HENDERSON

ORDER

 This matter came on for oral argument before the Court on November 18, 1996, upon defendant's motion to dismiss.

 FACTUAL BACKGROUND

 Plaintiff Leslie Mendez was denied entry to the United States Peace Corps when medical officials learned that she was taking an anti-depressant medication. Plaintiff instigated this action in federal court under § 504 of the Rehabilitation Act. 29 U.S.C. § 794. Plaintiff asks this Court to declare she is medically eligible to serve and reinstatement, reasonable attorneys' fees, and an injunction barring the Peace Corps from utilizing its current criteria concerning psychological conditions. FAC, (P.F.R.) P 1-4. Defendant now moves to dismiss on the grounds that plaintiff's claim is appropriately brought under the Administrative Procedures Act (APA), which has an exhaustion requirement that plaintiff has failed to complete.

 LEGAL STANDARD

 Because federal courts are courts of limited jurisdiction, a federal court is presumed to lack jurisdiction in a particular case unless the contrary affirmatively appears. Stock West, Inc. v. Confederated Tribes, 873 F.2d 1221, 1225 (9th Cir. 1989). The plaintiff therefore always bears the burden of establishing subject matter jurisdiction. See, e.g., KVOS, Inc. v. Associated Press, 299 U.S. 269, 278, 81 L. Ed. 183, 57 S. Ct. 197 (1936); 1 Schwarzer, Federal Civil Procedure Before Trial 9:77.

 A motion to dismiss for lack of subject matter jurisdiction may either attack the allegations of the complaint or attack the existence of subject matter jurisdiction in fact. Thornhill Publishing Co. v. General Telephone & Electronics Corp., 594 F.2d 730, 733 (9th Cir. 1979). Where the jurisdictional issue is separable from the merits of the case, the judge may consider the evidence presented with respect to the jurisdictional issue and rule on that issue, resolving factual disputes if necessary. Id.

 While a court must give deference to a plaintiff's factual allegations when considering a motion to dismiss for failure to state a claim under Rule 12(b)(6), a court is not obligated to take plaintiff's allegations as true when considering a motion to dismiss for lack of jurisdiction under Rule 12(b)(1). Id. (explaining that where a court is faced with a factual attack on subject matter jurisdiction, "no presumptive truthfulness attaches to plaintiff's allegations, and the existence of disputed material facts will not preclude the trial court from evaluating for itself the merits of jurisdictional claims").

 DISCUSSION

 The issue to be determined here is whether plaintiff's claim is appropriately brought under the APA or § 504 of the Rehabilitation Act.

 I. Effect of Proceeding Under Either § 504 or the APA

 If the APA is the governing statute, this court will have to dismiss this case for failure to exhaust administrative remedies. Under the APA, judicial review is only available for final agency actions. Heckler v. Chaney, 470 U.S. 821, 827, 84 L. Ed. 2d 714, 105 S. Ct. 1649 (1985). Section 10(c) of the APA "explicitly requires exhaustion of all intra-agency appeals mandated either by statute or by agency rule...." Darby v. Cisneros, 509 U.S. 137, 147, 125 L. Ed. 2d 113, 113 S. Ct. 2539 (1993). The procedures for discrimination complaints against the Peace Corps are set out in the Code of Federal Regulations. Those procedures require a complainant to follow a four-step process: (1) contact the appropriate counselor, (2) file a complaint with the Peace Corps EO director, (3) appeal to the Director of the Peace Corps, and (4) file an action in district court. 45 C.F.R. part 1225. Plaintiff has not alleged to have exhausted any of the three potential administrative remedies before filing in district court. Accordingly, if this action may only be brought under the APA, this Court would not have subject matter jurisdiction and must dismiss.

 The Rehabilitation Act, however, does not have an administrative remedies exhaustion requirement. Greater Los Angeles Council on Deafness, Inc. v. Balridge, 827 F.2d 1353, 1361, fn. 6 (9th Cir. 1987). Consequently, a plaintiff alleging discrimination on the basis of disability by a federal agency would have immediate recourse to federal court under § 504.

 II. Right of Action Under § 504

 The Ninth Circuit has established that individuals have a private right of action against federal agencies for disability discrimination under § 504 of the Rehabilitation Act. *fn1" J.L. v. Social Security Administration, 971 F.2d 260, 269 (9th Cir. 1991) ("Therefore, we conclude that a plaintiff states a claim under the Rehabilitation Act by alleging that the government's action...discriminates on the basis of handicap"); Smith v. Barton, 914 F.2d 1330, 1338 (9th Cir. 1990) cert. denied, 501 U.S. 1217, ...


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