UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN JOSE DIVISION
April 15, 2011
UNITED STATES DEPARTMENT
OF VETERANS AFFAIRS, DEFENDANT.
The opinion of the court was delivered by: Lucy H. Koh United States District Judge
United States District Court For the Northern District of California
ORDER GRANTING DEFENDANT'S MOTION TO DISMISS
Plaintiff Robert Hannah brings suit requesting review of the denial of total disability issued by Defendant United States Department of Veterans Affairs ("VA"). Defendant moves to dismiss Plaintiff's complaint for lack of subject matter jurisdiction pursuant to Fed. R. Civ. P. 12(b)(1).
Pursuant to Civil Local Rule 7-1(b), the Court concludes that this motion is appropriate for 21 determination without oral argument and VACATES the motion hearing scheduled for April 21, 2011. For the reasons discussed below, Defendant's motion to dismiss is GRANTED.
Plaintiff Hannah is a veteran who served in active duty from 1979 to 1982 before being discharged with a service-related disability. Compl. at 13. He initially received a disability rating 26 of 40%, which was increased to 60% in 1986. Id. at 3, 13. This rating again increased in 1997, 27 when Plaintiff received a rating of Total Disability due to Individual Unemployability ("TDIU").Id. In 2001, Plaintiff received an Associate's degree in surgical technology, and located work as a surgical technician. Id. at 3, 14. However, Plaintiff's disability interfered with his ability to work.
Plaintiff should resign from his employment and remain under the benefits of TDIU. Id. light of Plaintiff's employment, on March 2, 2007, the VA proposed discontinuation of the TDIU 6 benefits. Id. On April 17, 2002, the VA notified the Plaintiff of a request for physical examination 7 to evaluate the severity of his conditions. Id. On August 23, 2007, before a physical examination 8 had been scheduled, the VA determined that the Plaintiff was gainfully employed and discontinued Since receipt of the notice proposing discontinuation of TDIU benefits in March of 2007,Plaintiff has contacted the VA Regional Office multiple times regarding the lack of a physical examination, requesting a personal hearing, and requesting a hearing before the Board of Veterans' Appeals. Id. at 4-6. The VA has engaged in written correspondence with the Plaintiff, but no 14 hearing has been held. Id. at 18-19. Plaintiff filed his complaint on October 26, 2010, requesting 15 reinstatement of TDIU by the VA with retroactive benefits from November 30, 2007.
Except where statutes divest courts of jurisdiction, agency action is judicially reviewable under 28 U.S.C. § 1331. Califano v. Sanders, 430 U.S. 99, 107 (1977). Rule 12(b)(1) of the Federal Rules of Civil Procedure requires dismissal of a complaint if the Court lacks subject matter 20 jurisdiction. On a motion to dismiss for lack of subject matter jurisdiction under Rule 12(b)(1), the 21 party asserting jurisdiction has the burden of establishing that subject matter jurisdiction is proper. 199, 201 (9th Cir.1989). "When subject matter jurisdiction is challenged under [Rule] 12(b)(1), the 24 plaintiff has the burden of proving jurisdiction in order to survive the motion. A plaintiff suing in a 25 federal court must show in his pleading, affirmatively and distinctly, the existence of whatever is 26 essential to federal jurisdiction, and, if he does not do so, the court, on having the defect called to 27 its attention or on discovering the same, must dismiss the case, unless the defect be corrected by 28 amendment." Tosco Corp. v. Communities for a Better Env't, 236 F.3d 495, 499 (9th Cir. 2001) Id. at 4. Upon examination by a VA physician, Plaintiff, his employer, and the VA agreed that In 2005, Plaintiff again started working as a surgical technician on a per diem basis. Id. In TDIU benefits. Id. In 2008, Plaintiff was terminated from his employment. Id. at 16.
United States District Court For the Northern District of California
II. LEGAL STANDARDS
Kokkonen v. Guardian Life Ins. Co., 511 U.S. 375, 377 (1994); St. Clair v. City of Chico, 880 F.2d 23 (citations and internal quotations omitted).
Plaintiff claims that Defendant improperly denied him TDIU benefits. Compl. at 1-2.
Plaintiff further contends that Defendant's current actions regarding the adjudication of his claims 5 are in violation of the Fourteenth Amendment. Id. at 6; P.'s Resp. to MTD at 1. Defendant has 6 moved to dismiss Plaintiff's complaint for lack of subject matter jurisdiction. Defendant argues 7 that District Court review is precluded by the doctrine of sovereign immunity as well as by
a. Sovereign Immunity
Defendant's motion to dismiss has raised the defense of sovereign immunity, which is evidence of the VA's intent to retain the protection. See, Yakima Indian Nation v. State of Wash.
Dep't of Revenue, 176 F.3d 1241, 1245 (9th Cir. 1999) (holding that cooperation in litigation did not act as a waiver of Eleventh Amendment immunity because the state agency asserted sovereign immunity as an affirmative defense in its first responsive pleading). The United States may not be sued without its consent, and the terms of its consent to be sued define this Court's jurisdiction.
See United States v. Dalm, 494 U.S. 596, 608 (1990). "Where a suit has not been consented to by 17 the United States, dismissal of the action is required." Gilbert v. DaGrossa, 756 F.2d 1455, 1458 18 (9th Cir. 1985). Waiver of this immunity cannot be implied. Rather, such waiver must be unequivocally expressed. Id. This sovereign immunity extends to government agencies like the VA. See Weber v. Dep't of Veterans Affairs, 521 F.3d 1061, 1065 (9th Cir. 2008) ("In order for a plaintiff to bring a viable suit against the federal government or its agencies, the government must have waived its sovereign immunity."). Accordingly, without a waiver of sovereign immunity, this
b. Administrative Procedures Act
The Administrative Procedures Act ("APA") acts as a waiver of sovereign immunity for certain agency actions. 5 U.S.C. § 702. However, this waiver is limited. Section 701 denies 27 authority to grant relief if review is precluded by other statutes. 5 U.S.C. § 701(a)(1). District 28 Court lacks subject matter jurisdiction in this case.
Court review of actions involving the administration of veterans' benefits is explicitly precluded by statute. Title 38, U.S.C. § 511 provides in pertinent part that "the decision of the Secretary as to 2 any such question [regarding the provision of benefits to veterans] shall be final and conclusive and 3 may not be reviewed by any other official or by any court, whether by an action in the nature of 4 mandamus or otherwise." This statute bars District Courts from hearing individual claims for 5 veterans' benefits. See Tietjen v. U.S. Veterans Admin., 884 F.2d 514, 515 (9th Cir. 1989).
Furthermore, by statute, judicial review of any dispute over the administration of veterans' benefits 7 beyond the Board of Veterans' Appeals is given to the U.S. Court of Appeals for Veterans Claims ("CAVC"). See 38 U.S.C. § 7261. Appeals from the CAVC are exclusively under the jurisdiction 9 of the U.S. Court of Appeals for the Federal Circuit. See 38 U.S.C. § 7292. Thus, the statutory 10 procedure for judicial review of individual claims involving veterans' benefits also precludes review by the District Court.
c. Fourteenth Amendment
Plaintiff argues that the actions of the Defendant are in violation of his Fourteenth Amendment right to due process. Compl. at 6; Pl.'s Resp. to MTD at 1.
The Fourteenth Amendment applies to actions by a State and does not confer jurisdiction on this Court over this 16 matter. While other courts have permitted a challenge to the constitutional validity of veterans' 17 benefit legislation, no such challenge is brought here by the Plaintiff. See, e.g., Disabled Am.
d. Sufficiency of Service
Defendant argues that Plaintiff has not properly served his complaint according to the Federal Rules of Civil Procedure. Because subject matter jurisdiction is lacking in the present 22 case, this issue of sufficiency of service is moot.
Accordingly, the Court GRANTS Defendant's Motion. Plaintiff's Complaint is DISMISSED without prejudice to his asserting these claims in the proper forum.
Veterans v. U.S. Dept. of Veterans Affairs, 962 F.2d 136, 140-41 (2d Cir. 1992).
IT IS SO ORDERED.
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