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Robert L. Theede v. United States of America

August 8, 2011

ROBERT L. THEEDE, PLAINTIFF,
v.
UNITED STATES OF AMERICA, ET AL.,
DEFENDANTS.



ORDER AND FINDINGS AND RECOMMENDATIONS

Plaintiff, Robert Theede, is proceeding in this action pro se and in forma pauperis pursuant to 28 U.S.C. § 1915. This matter was referred to the undersigned in accordance with Local Rule 72-302(c)(21) and 28 U.S.C. § 636(b)(1). Pending before the court are plaintiff's amended complaint, motion for preliminary injunction and motion for the appointment of counsel.

Under 28 U.S.C. § 1915(e)(2), the court must dismiss the complaint at any time if the court determines that the pleading is frivolous or malicious, fails to state a claim on which relief may be granted, or seeks monetary relief against an immune defendant. A complaint is legally frivolous when it lacks an arguable basis in law or in fact. Neitzke v. Williams, 490 U.S. 319, 325 (1989); Franklin v. Murphy, 745 F.2d 1221, 1227-28 (9th Cir. 1984). Under this standard, a court must dismiss a complaint as frivolous where it is based on an indisputably meritless legal theory or where the factual contentions are clearly baseless. Neitzke, 490 U.S. at 327; 28 U.S.C. § 1915(e).

To state a claim on which relief may be granted, the plaintiff must allege "enough facts to state a claim to relief that is plausible on its face." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007). In considering whether a complaint states a cognizable claim, the court accepts as true the material allegations in the complaint and construes the allegations in the light most favorable to the plaintiff. Hishon v. King & Spalding, 467 U.S. 69, 73 (1984); Hosp. Bldg. Co. v. Trustees of Rex Hosp., 425 U.S. 738, 740 (1976); Love v. United States, 915 F.2d 1242, 1245 (9th Cir. 1989). Pro se pleadings are held to a less stringent standard than those drafted by lawyers. Haines v. Kerner, 404 U.S. 519, 520 (1972). However, the court need not accept as true conclusory allegations, unreasonable inferences, or unwarranted deductions of fact. Western Mining Council v. Watt, 643 F.2d 618, 624 (9th Cir. 1981).

The minimum requirements for a civil complaint in federal court are as follows: A pleading which sets forth a claim for relief . . . shall contain (1) a short and plain statement of the grounds upon which the court's jurisdiction depends . . . , (2) a short and plain statement of the claim showing that the pleader is entitled to relief, and (3) a demand for judgment for the relief the pleader seeks.

Fed. R. Civ. P. 8(a).

Here, plaintiff's amended complaint is deficient in several respects.*fn1 First, plaintiff's amended complaint seeks "monetary relief" from the United States of America, the Mid-America Program Service Center, the U.S. Department of Labor, the Office of Workers' Compensation Programs and the U.S. Department of Health and Human Services. (Am. Compl. (Doc. No. 9) at 1, 10.) Addressing the issue of sovereign immunity, plaintiff asserts in a conclusory manner that the "United States of America is believed to have waived its sovereign immunity" and that "if the defendants are not going to pay an approved workers' compensation under law and oblige, then Defendants have lost their sovereign immunity." (Id. at 3, 7.)

"The basic rule of federal sovereign immunity is that the United States cannot be sued at all without the consent of Congress." Block v. North Dakota ex rel. Bd. of Univ. & Sch. Lands, 461 U.S. 273, 287 (1983). Similarly, no federal agency can be sued unless Congress has explicitly revoked that agency's immunity. Gerritsen v. Consulado General de Mexico, 989 F.2d 340, 343 (9th Cir. 1993); City of Whittier v. U.S. Dep't of Justice, 598 F.2d 561, 562 (9th Cir. 1979). Put another way, no court has jurisdiction to award relief against the United States or a federal agency unless the requested relief is expressly and unequivocally authorized by federal statute. United States v. King, 395 U.S. 1, 4 (1969) (citing United States v. Sherwood, 312 U.S. 584, 586-87 (1941)).

"The question whether the United States has waived its sovereign immunity against suits for damages is, in the first instance, a question of subject matter jurisdiction." McCarthy, 850 F.2d at 560. Absent a waiver of sovereign immunity, a claim against the United States or a federal agency must be dismissed for lack of subject matter jurisdiction. See Gerritsen, 989 F.2d at 343; Gilbert v. DaGrossa, 756 F.2d 1455, 1458 (9th Cir. 1985). If conditions are attached to legislation that waives the sovereign immunity of the United States, the conditions must be strictly observed by the courts, and exceptions are not to be readily implied. Block, 461 U.S. at 287. See also Cato v. United States, 70 F.3d 1103, 1107 (9th Cir. 1995) ("The terms of the United States' consent to be sued in any court define that court's jurisdiction to entertain the suit."). Here, plaintiff does allege in his amended complaint that the sovereign immunity of the United States or the federal agency defendants has been explicitly revoked by federal statute.

Plaintiff also seeks monetary compensation from the Social Security Administration. Plaintiff alleges that the Social Security Administration falsely claimed that he was overpaid Social Security benefits and, in response, terminated those benefits. (Am. Compl. (Doc. No. 9) at 3.)

Section 405(g) of the Social Security Act provides a waiver of sovereign immunity as to final decisions of the Commissioner of Social Security. See 42 U.S.C. § 405(g); Califano v. Sanders, 430 U.S. 99, 108 (1977). That provision states, in relevant part, that:

Any individual, after any final decision of the Commissioner of Social Security made after a hearing to which he was a party, irrespective of the amount in controversy, may obtain a review of such decision by a civil action commenced within sixty days after the mailing to him of notice of such decision or within such further time as the Commissioner of Social Security may allow. Such action shall be brought in the district court of the United States for the judicial district in which the plaintiff resides . . .

Except as provided by statute, "[n]o findings of fact or decision of the Commissioner shall be reviewed by any person, tribunal, or governmental agency." 42 U.S.C. § 405(h). These regulations "operate as a statute of limitations setting the time period in which a claimant may appeal a final decision of the Commissioner." Berrigan v. Astrue, No. 1:10-cv-000165-GSA, 2010 WL 4392941, *2 (E.D. Cal. Oct. 29, 2010) (citing Bowen v. City of New York, 476 U.S. 467, 479 (1986). See also Matthews v. Eldridge, 424 U.S. 319, 328 n. 9 (1976). This time limit for commencing a civil action under § 405(g) is a condition on the waiver of sovereign immunity, and it must be strictly construed. Bowen, 476 U.S. at 479. Here, plaintiff does not allege in his amended complaint that he obtained a final decision of the Commissioner of Social Security with respect to the claim he is attempting to pursue in this civil action.

Second, plaintiff alleges in his amended complaint that for over 28 years he paid for health insurance with Kaiser Permanente. (Am. Comp. (Doc. No. 9) at 7.) Plaintiff alleges that In 2010 he switched his health insurance coverage from Kaiser Permanente to Mail Handlers. (Id.) According to plaintiff, in April of 2011 he "was informed that he did not have Medicare Part B coverage, all to plaintiff's surprise lack of knowledge, detriment, harm concern and ongoing damages." (Id.)

Title XVIII of the Social Security Act of 1935, commonly referred to as the Medicare Act, "establishe[d] a federally subsidized health insurance program for elderly and disabled persons." Ass'n of Am. Med. Colls. v. United States, 217 F.3d 770, 774 (9th Cir. 2000) (citing 42 U.S.C. § 1395). The Medicare Act contains multiple parts, including Part B, 42 U.S.C. §§ 1395j-1395w-4, which covers medical services provided directly ...


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