FRANK S. WALKER, Plaintiff(s),
CAROLYN W. COLVIN, Commissioner of Social Security, Defendant(s)
ORDER GRANTING DEFENDANT'S MOTION TO DISMISS [Docket Item No(s). 50]
EDWARD J. DAVILA, District Judge.
Plaintiff Frank S. Walker ("Plaintiff") initiated the instant action on April 18, 2013, against Defendant Carolyn W. Colvin, Commissioner of Social Security ("Defendant") in order to challenge Defendant's determination that Plaintiff must repay an overpayment of Social Security benefits received at a time when Plaintiff was also working. According to the Complaint, Plaintiff seeks a protective order, temporary restraining order and other injunctive relief against Defendant. See Docket Item No. 1. It also appears that Plaintiff seeks a tort recovery against Defendant for medical issues related to the corresponding reduction in his benefits.
Presently before the court is Defendant's Motion to Dismiss the Complaint pursuant to sections (b)(1) and (b)(6) of Federal Rule of Civil Procedure 12. See Docket Item No. 50. Plaintiff has filed written opposition to the motion. See Docket Item No. 59. The court finds this matter suitable for decision without oral argument pursuant to Civil Local Rule 7-1(b). Accordingly, the hearing scheduled for October 25, 2013, will be vacated and Defendant's motion will be granted for the reasons stated below.
II. LEGAL STANDARD
A. Federal Rule of Civil Procedure 12(b)(1)
A Rule 12(b)(1) motion challenges subject matter jurisdiction and may be either facial or factual. Wolfe v. Strankman , 392 F.3d 358, 362 (9th Cir. 2004). A facial 12(b)(1) motion involves an inquiry confined to the allegations in the complaint, whereas a factual 12(b)(1) motion permits the court to look beyond the complaint to extrinsic evidence. Id . When a defendant makes a facial challenge, all material allegations in the complaint are assumed true, and the court must determine whether lack of federal jurisdiction appears from the face of the complaint itself. Thornhill Publ'g Co. v. General Tel. Elec. , 594 F.2d 730, 733 (9th Cir. 1979). "A party invoking the federal court's jurisdiction has the burden of proving the actual existence of subject matter jurisdiction." Thompson v. McCombe , 99 F.3d 352, 353 (9th Cir. 1996).
B. Federal Rule of Civil Procedure 12(b)(6)
Federal Rule of Civil Procedure 8(a) requires a plaintiff to plead each claim with sufficient specificity to "give the defendant fair notice of what the... claim is and the grounds upon which it rests." Bell Atl. Corp. v. Twombly , 550 U.S. 544, 555 (2007) (internal quotations omitted). A complaint which falls short of the Rule 8(a) standard may be dismissed if it fails to state a claim upon which relief can be granted. Fed.R.Civ.P. 12(b)(6). "Dismissal under Rule 12(b)(6) is appropriate only where the complaint lacks a cognizable legal theory or sufficient facts to support a cognizable legal theory." Mendiondo v. Centinela Hosp. Med. Ctr. , 521 F.3d 1097, 1104 (9th Cir. 2008). The factual allegations "must be enough to raise a right to relief above the speculative level" such that the claim "is plausible on its face." Twombly , 550 U.S. at 556-57.
When deciding whether to grant a motion to dismiss, the court generally "may not consider any material beyond the pleadings." Hal Roach Studios, Inc. v. Richard Feiner & Co. , 896 F.2d 1542, 1555 n. 19 (9th Cir. 1990). The court must generally accept as true all "well-pleaded factual allegations." Ashcroft v. Iqbal , 556 U.S. 662, 664 (2009). The court must also construe the alleged facts in the light most favorable to the plaintiff. Love v. United States , 915 F.2d 1242, 1245 (9th Cir. 1988). However, the court may consider material submitted as part of the complaint or relied upon in the complaint, and may also consider material subject to judicial notice. See Lee v. City of Los Angeles , 250 F.3d 668, 688-69 (9th Cir. 2001). "[M]aterial which is properly submitted as part of the complaint may be considered." Twombly , 550 U.S. at 555. But "courts are not bound to accept as true a legal conclusion couched as a factual allegation." Id.
Defendant argues this action must be dismissed because (1) Plaintiff has not demonstrated a basis for subject matter jurisdiction and (2) Plaintiff did not exhaust his administrative remedies before filing this action. The court agrees with Defendant on both points.
As to the issue of subject matter jurisdiction, the court notes that Plaintiff did not comply with the requirement that he include in the Complaint "a short and plain statement of the grounds for the court's jurisdiction." Fed.R.Civ.P. 8(a). That being the case, subject matter jurisdiction does not appear on the face of the Complaint, and Defendant's 12(b)(1) motion could be granted on that ground alone.
In light of the Plaintiff's unrepresented status, however, the court will determine whether some jurisdictional basis exists under a liberal construction of the pleading. Plaintiff faces significant challenges under such an analysis. Since Plaintiff has sued a federal official, he must overcome the litigation bar imposed by sovereign immunity. "It is well settled that the United States is a sovereign, and, as such, is immune from suit unless it has expressly waived such immunity and consented to be sued." Gilbert v. DaGrossa , 756 F.2d 1455, 1458 (9th Cir. 1985). Any waiver of sovereign immunity ...