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Lopez v. Gumushyan

United States District Court, N.D. California, San Francisco Division

May 16, 2017

RICARDO JOSE CALDERON LOPEZ, Plaintiff,
v.
TIGRAN GUMUSHYAN, et al., Defendants.

          ORDER GRANTING THE DEFENDANTS' MOTION TO DISMISS RE: ECF NO. 121

          LAUREL BEELER, United States Magistrate Judge

         INTRODUCTION

         This case relates to the Social Security Administration's (“SSA”) termination of Ricardo Calderon Lopez's disability benefits.[1] Mr. Lopez asserts that the defendants - the United States, the SSA Commissioner, and three SSA employees (Tigran Gumushyan, Darryl Onizuka, and Doe Vazquez) - improperly terminated his Social Security benefits in 2013. He appears to assert tort-and constitutional-based claims for the defendants' improper disability determination and related conduct, and he seeks nearly $7 million in damages and judicial “intervention” to “suppress” an Administrative Law Judge's decision. The defendants move to dismiss the complaint under Federal Rule of Civil Procedure 12(b)(1) on the basis of sovereign immunity and subject-matter jurisdiction.[2]

         The court can decide the matter without oral argument and vacates the May 18, 2017 hearing. Civil L.R. 7-1(b). The court grants the motion because Mr. Lopez's claims are barred by sovereign immunity and so the court lacks subject-matter jurisdiction.

         STATEMENT

         As a result of a 1993 motor-vehicle accident, Mr. Lopez suffers from permanent hemiplegia.[3]In 2003, the SSA found that Mr. Lopez was disabled under the Social Security Act and awarded him benefits.[4] Over ten years later, though, the SSA determined that Mr. Lopez was no longer disabled and no longer entitled to benefits.[5] Mr. Lopez requested reconsideration of the SSA's conclusion and, per statute, asked that his benefits continue during his appeal.[6] The SSA granted Mr. Lopez's request for continuing benefits.[7]

         In March 2014, an SSA Disability Hearing Officer “found that the evidence was insufficient to establish disability” and affirmed the Administration's initial decision terminating Mr. Lopez's benefits.[8] Mr. Lopez stopped receiving his statutory continuing benefits.[9]

         After the Hearing Officer's decision, in May, Mr. Lopez visited the SSA's West Los Angeles office and spoke with defendant Vasquez.[10] Mr. Lopez alleges that Vasquez informed him of the Hearing Officer's decision (but refused to provide him a copy) and “intimidated [him] to complete several forms in order to reinstate [his] benefits.”[11] Among those forms that Mr. Lopez was “forced to complete” was a Request for Hearing by an Administrative Law Judge, which he filed on May 8, 2014.[12] He again requested statutory-based continuing benefits, which the SSA granted for the duration of his appeal before the ALJ.[13]

         The SSA sent Mr. Lopez a Notice of Hearing, “indicating that a hearing had been scheduled for August 26, 2015.”[14] The SSA unsuccessfully tried to contact Mr. Lopez by phone three weeks before the hearing, and it sent him a Notice of Hearing Reminder one week later.[15] Mr. Lopez did not appear, though, and the ALJ dismissed his claim.[16] Mr. Lopez's continuing benefits were terminated.[17] He filed a Request for Review of the ALJ's dismissal, but the Appeals Council denied the request.[18]

         In May 2014, around the time that Mr. Lopez requested an ALJ hearing, he also filed a complaint with the SSA's Office of the General Counsel.[19] In that complaint, it appears, Mr. Lopez alleged that the defendants engaged in fraud and discrimination while terminating his benefits.[20] The Office of the General Counsel denied the claim under the Federal Tort Claims Act (“FTCA”) in January 2017 (after Mr. Lopez filed this case).[21]

         Mr. Lopez initially sued the defendants in the Central District of California.[22] After one plaintiff (Starlight Entertainment Enterprises, Mr. Lopez's company) and one defendant (Sunset Housing Solutions, Mr. Lopez's former landlord) were dismissed, the case was transferred to this district.[23]

         In the complaint, Mr. Lopez sues the United States, including the SSA Commissioner, and three of its employees (Gumushyan, Onizuka, and Vazquez), and he seeks damages for the defendants' allegedly wrongful termination of his disability benefits. For example, he asserts that his “benefits were improperly terminated, ”[24] Vazquez intimidated and forced him to complete several forms to challenge the termination, [25] Vazquez and Gumushyan conspired to discriminate against him after he appealed, [26] Vazquez and Gumushyan “d[id] not follow regulation” when they “refus[ed] the continuation of [his] benefits” and thus “deprived [him] of [his] Constitutional Right, ”[27] that, although he received a copy of his file, the defendants' normal practice “is to deny common law rights to inspect and copy the information contained in [the] file, ”[28] and the defendants “tampered with the information [in his] file, which led to his identity be[ing] stolen.”[29]Among the relief that he seeks - including $5.5 million from Gumushyan; $750, 000 from Vazquez; and $500, 000 from supervisor Onizuka[30] - he asks the court to “intervene” and “suppress the unlawfully initiated Hearing by Administrative Law Judge (ALJ) and to order the federal agency-SSA to pay the correct amount of back-payment of benefits owed.”[31]

         The defendants move to dismiss the complaint under Rule 12(b)(1) and argue that the government has not waived sovereign immunity for Mr. Lopez's claims and thus the court lacks subject-matter jurisdiction.[32] Mr. Lopez opposes the motion but argues only that his appeal of the court's order denying his withdrawal of consent to magistrate jurisdiction divested this court of jurisdiction to hear the matter.[33]

         GOVERNING LAW

         1. Rule 12(b)(1) Subject-Matter Jurisdiction

         A complaint must contain a short and plain statement of the ground for the court's jurisdiction (unless the court already has jurisdiction and the claim needs no new jurisdictional support). Fed.R.Civ.P. 8(a)(1). The plaintiff has the burden of establishing jurisdiction. See Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994); Farmers Ins. Exchange v. Portage La Prairie Mut. Ins. Co., 907 F.2d 911, 912 (9th Cir. 1990). A defendant's Rule 12(b)(1) jurisdictional attack can be either facial or factual. White v. Lee, 227 F.3d 1214, 1242 (9th Cir. 2000). “A ‘facial' attack asserts that a complaint's allegations are themselves insufficient to invoke jurisdiction, while a ‘factual' attack asserts that the complaint's allegations, though adequate on their face to invoke jurisdiction, are untrue.” Courthouse News Serv. v. Planet, 750 F.3d 776, 780 n.3 (9th Cir. 2014). Under a facial attack, the court “accept[s] all allegations of fact in the complaint as true and construe[s] them in the light most favorable to the plaintiffs.” Warren v. Fox Family Worldwide, Inc., 328 F.3d 1136, 1139 (9th Cir. 2003). In a factual attack, the court “need not presume the truthfulness of the plaintiff's allegations” and “may review evidence beyond the complaint without converting the motion to dismiss into a motion for summary judgment.” Safe Air for Everyone v. Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004).

         If a court dismisses a complaint, it should give leave to amend unless the “the pleading could not possibly be cured by the allegation of other facts.” Cook, Perkiss and Liehe, Inc. v. Northern California Collection Serv. Inc., 911 F.2d 242, 247 (9th Cir. 1990).

         2. Sovereign Immunity

         “It is axiomatic that the United States may not be sued without its consent and that the existence of consent is a prerequisite for jurisdiction.” Jachetta v. United States, 653 F.3d 898, 903 (9th Cir. 2011) (quoting United States v. Mitchell, 463 U.S. 206, 212 (1983)). This is the doctrine of sovereign immunity. The Ninth Circuit has explained: “Before we may exercise jurisdiction over any suit against the government, we must have ‘a clear statement from the United States waiving sovereign immunity, together with a claim falling within the terms of the waiver.'” Id. (quoting in part United States v. White Mountain Apache Tribe, 537 U.S. 465, 472 (2003)). “[L]imitations and conditions upon which the Government consents to be sued must be strictly observed and exceptions thereto are not to be implied.” Mollison v. United States, 568 F.3d 1073, 1075 (9th Cir. 2009) (citing Soriano v. United States, 352 U.S. 270, 276 (1957)) (internal quotations omitted; alteration in original).

         Absent a waiver, “a court does not have authority to award relief against the United States or a federal agency . . . .” Isaacs v. United States, No. 13-cv-01394-WHO, 2013 WL 4067597, at *1 (N.D. Cal. Aug. 1, 2013). “As the party asserting a claim against the United States, [the plaintiff] has the burden of ‘demonstrating unequivocal waiver of immunity.'” United States v. Park Place Associates, Ltd., 563 F.3d 907, 924 (9th Cir. 2009) (quoting Cunningham v. United States, 786 F.2d 1445, 1446 (9th Cir. 1986)).

         ANALYSIS

         1. Judicial Review Under the ...


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