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People With Disabilities Foundation v. Berryhill

United States District Court, N.D. California

April 19, 2017



          HAYWOOD S. GILLIAM, JR., United States District Judge

         People with Disabilities Foundation (“Plaintiff” or “PWDF”) is a § 501(c)(3) organization whose staff attorneys represented nine claimants in proceedings before the Social Security Agency (“Agency”). Dkt. No. 30 (“SAC”) ¶¶ 17, 22; Dkt. No. 36 (“Opp.”) at 1 n.2.[1] Plaintiff alleges that each claimant prevailed before the Administrative Law Judge and was awarded fees pursuant to either the “fee petition process” governed by 42 U.S.C. § 406(a)(1) or by the “fee agreement process” governed by § 406(a)(2). SAC ¶¶ 4-6. Plaintiff contends that after the expiration of time allotted in § 406(a)(3), Defendant Nancy A. Berryhill, Acting Commissioner of Social Security, failed to pay some or all of the attorney's fees without providing reasonable notice or the opportunity to submit a written opposition. SAC ¶ 6. Plaintiff asserts a declaratory relief claim premised upon the alleged violations of 42 U.S.C. § 406(a), and a due process claim. SAC ¶¶ 64-71. Defendant has moved to dismiss the SAC for lack of subject matter jurisdiction and for failure to state a claim upon which relief can be granted. Dkt. No. 34 (“Mot.”) at 15-25; see also Fed. R. Civ. P. 12(b)(1), (b)(6). The motion is GRANTED WITHOUT LEAVE TO AMEND.[2]


         A. Motion to Dismiss for Lack of Subject Matter Jurisdiction

         Rule 12(b)(1) allows a defendant to move for dismissal on grounds that the court lacks jurisdiction over the subject matter. Fed.R.Civ.P. 12(b)(1). The burden is on the plaintiff to establish that the Court has subject matter jurisdiction over an action. See Assoc. of Am. Medical Colleges v. United States, 217 F.3d 770, 778-79 (9th Cir. 2000); Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 376-78 (1994).

         “A complaint will be dismissed if, looking at the complaint as a whole, it appears to lack federal jurisdiction either ‘facially' or ‘factually.'” Thornhill Publ'g Co., Inc. v. Gen. Tel. & Elecs. Corp., 594 F.2d 730, 733 (9th Cir. 1979). In resolving a “facial” attack, a court limits its inquiry to a plaintiff's allegations, which are taken as true, and construes the allegations in the light most favorable to the plaintiff. Safe Air for Everyone v. Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004); NL Indus. v. Kaplan, 792 F.2d 896, 898 (9th Cir. 1986).

         In contrast, “[i]n resolving a factual attack on jurisdiction, the district court may review evidence beyond the complaint without converting the motion to dismiss into a motion for summary judgment.” Safe Air, 373 F.3d at 1039.

Once the moving party has converted the motion to dismiss into a factual motion by presenting affidavits or other evidence properly brought before the court, the party opposing the motion must furnish affidavits or other evidence necessary to satisfy its burden of establishing subject matter jurisdiction.

Id. (internal quotation marks omitted)).

         B. Motion to Dismiss for Failure to State a Claim

         Federal Rule of Civil Procedure 8(a) requires that a complaint contain “a short and plain statement of the claim showing that the pleader is entitled to relief[.]” A defendant may move to dismiss a complaint for failing to state a claim upon which relief can be granted under Federal Rule of Civil Procedure 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). To survive a Rule 12(b)(6) motion, a plaintiff must plead “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). A claim is facially plausible when a plaintiff pleads “factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).

         In reviewing the plausibility of a complaint, courts “accept factual allegations in the complaint as true and construe the pleadings in the light most favorable to the nonmoving party.” Manzarek v. St. Paul Fire & Marine Ins. Co., 519 F.3d 1025, 1031 (9th Cir. 2008). Nonetheless, Courts do not “accept as true allegations that are merely conclusory, unwarranted deductions of fact, or unreasonable inferences.” In re Gilead Scis. Secs. Litig., 536 F.3d 1049, 1055 (9th Cir. 2008). And even where facts are accepted as true, “a plaintiff may plead [him]self out of court” if he “plead[s] facts which establish that he cannot prevail on his . . . claim.” Weisbuch v. County of Los Angeles, 119 F.3d 778, 783 n.1 (9th Cir. 1997) (quotation marks and citation omitted).


         Plaintiff asserts federal question jurisdiction under 28 U.S.C. § 1331; jurisdiction under the Administrative Procedures Act, 5 U.S.C. §§ 701-06 (“APA”); and mandamus jurisdiction under 28 U.S.C. § 1361. In dismissing the First Amended Complaint, Dkt. No. 20 (“FAC”), the Court already considered whether there was jurisdiction under any of these statutes, the Social Security Act, or the Declaratory Judgment Act. See Dkt. No. 29 (People with Disabilities Found. v. Colvin, No. 15-cv-02570-HSG, 2016 WL 2984898, at *4-6 (N.D. Cal. May 24, 2016)). The Court found that Plaintiff had failed to allege that the United States had unequivocally waived its sovereign immunity under any statute. Id. at *4; see also Rattlesnake Coal. v. U.S. E.P.A., 509 F.3d 1095, 1103 (9th Cir. 2007) (holding that the federal courts lack subject matter jurisdiction over claims brought against a federal agency ...

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