Elliott v. The Department of Veterens Affairs

Filing 29

ORDER OF DISMISSAL. Signed by Judge JEFFREY S. WHITE on 9/3/14. (jjoS, COURT STAFF) (Filed on 9/3/2014)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA
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VANCE S. ELLIOTT,

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For the Northern District of California

United States District Court

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Plaintiff,

No. C 14-02678 JSW

v.

No. C 14-02679 JSW

DEPARTMENT OF VETERANS,
Defendant.

ORDER OF DISMISSAL
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Now before the Court are the motions to dismiss for lack of subject matter jurisdiction in

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the two above-captioned matter. Plaintiff Vance S. Elliot (“Plaintiff”) did not file an opposition

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to the motions to dismiss in either case. In Case No. C 14-02678, the Court issued an Order to

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Show Cause (“OSC”) in writing by no later than August 20, 2013 why the pending motion to

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dismiss should not be granted in light of his failure to file a timely opposition or statement of

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non-opposition and to show cause why his case should not be dismissed for failure to prosecute.

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Plaintiff was admonished that his failure to respond this Order by August 20, 2014, would result

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in a dismissal of this action without further notice. Plaintiff did not file a response to the OSC.

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Accordingly, the Court finds that based on his failure to oppose the motions to dismiss and his

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failure to respond to the OSC, that these two cases should be dismissed for failure to prosecute.

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Moreover, the Court finds that the motions to dismiss are meritorious. In both cases,

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Plaintiff brings a libel claim against the United States Department of Veterans Affairs. The

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United States can only be sued where it has expressly waived its rights to sovereign immunity.

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Lane v. Pena, 518 U.S. 187, 192 (1996). The Federal Tort Claims Act (“FTCA”) constitutes a

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limited waiver of the United States’ sovereign immunity for claims that are based on its

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negligent or wrongful acts. Yanez v. United States, 63 F.3d 870, 872 (9th Cir. 1995). The

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FTCA provides that the government may be sued for torts caused by the negligence or wrongful

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acts or omissions by any government employee acting within the course and scope of his

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employment. 28 U.S.C. § 1346(b)(1). Where, as here, Plaintiff has sued government

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employees acting in the scope of their employment, the FTCA is the exclusive remedy against

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the United States for his alleged tort. See 28 U.S.C. § 2679(b)(1). However, the FTCA

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specifically excludes libel from the government’s general waiver of sovereign immunity. See

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28 U.S.C. § 2680(h); Mundy v. United States, 983 F.2d 950, 952 (9th Cir. 1993) (“When a claim
falls within a statutory exception to the FTCA’s waiver of sovereign immunity, the court is

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For the Northern District of California

United States District Court

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without subject matter jurisdiction to hear the case.”). Because the United States has not

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waived its sovereign immunity for claims of libel, the Court lacks subject matter jurisdiction

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over Plaintiff’s claims. The Court thus grants the pending motions to dismiss with prejudice.

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IT IS SO ORDERED.

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Dated: September 3, 2014
JEFFREY S. WHITE
UNITED STATES DISTRICT JUDGE

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UNITED STATES DISTRICT COURT
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FOR THE
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NORTHERN DISTRICT OF CALIFORNIA
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VANCE S ELLIOTT et al,
Plaintiff,

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CERTIFICATE OF SERVICE

v.

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DEPARTMENT OF VETERANS et al,

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Defendant.

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For the Northern District of California

United States District Court

Case Number: CV14-02678 JSW
Case Number: CV14-02679 JSW

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I, the undersigned, hereby certify that I am an employee in the Office of the Clerk, U.S.
District Court, Northern District of California.
That on September 3, 2014, I SERVED a true and correct copy(ies) of the attached, by
placing said copy(ies) in a postage paid envelope addressed to the person(s) hereinafter
listed, by depositing said envelope in the U.S. Mail, or by placing said copy(ies) into an
inter-office delivery receptacle located in the Clerk's office.

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Vance S. Elliott
640 Eddy Street
Room 219
San Francisco, CA 94109
Dated: September 3, 2014
Richard W. Wieking, Clerk
By: Jennifer Ottolini, Deputy Clerk