United States District Court, N.D. California
ORDER GRANTING DEFENDANT'S MOTION TO DISMISS
PLAINTIFF'S SECOND AMENDED COMPLAINT Re: Dkt. No.
HAYWOOD S. GILLIAM, JR., United States District Judge
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. 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
Motion to Dismiss for Lack of Subject Matter
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).
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).
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
Id. (internal quotation marks omitted)).
Motion to Dismiss for Failure to State a Claim
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).
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
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