Chika v. Chansky, MD., et al
ORDER ON MOTION TO DISMISS FOR LACK OF SUBJECT MATTER JURISDICTION, granting 8 Motion to Dismiss. Signed by Judge Robert J. Bryan. (JL) Paper copy sent to plaintiff at Tacoma address . Modified on 2/27/2017 (JL).
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON AT TACOMA
CASE NO. 16-6036 RJB
ORDER ON MOTION TO
DISMISS FOR LACK OF
UNITED STATES OF AMERICA,
This matter comes before the Court on the United States’ Motion to Dismiss for Lack of
Subject Matter Jurisdiction. Dkt. 8. The Court has considered the motion and record, and is
FACTS AND PROCEDURAL HISTORY
On October 13, 2016, Plaintiff filed this case, pro se, asserting that various care providers
at the Veteran’s Administration denied or delayed him medical care. Dkt. 1-1, at 1-5. He seeks
damages, and “is demanding that they pay for the air they bread [sic] by giving 7.77 cents to the
orphans and battered womens [sic] shelter and the vets of foreign wars every day 7 days a week
for 50 years.” Id.
ORDER ON MOTION TO DISMISS FOR LACK OF SUBJECT MATTER JURISDICTION- 1
On January 19, 2017, the Defendant filed a Motion to Dismiss pursuant to Fed. R. Civ. P.
2 12(b)(1). Dkt. 8. It argues that the case against it should be dismissed pursuant to Rule 12(b)(1)
3 because Plaintiff failed to file an administrative claim as required under the Federal Torts Claims
4 Act (“FTCA”), 28 U.S.C. §§ 2675 (a), and so this court does not have jurisdiction to consider the
5 claims. Id. The Defendant further argues that, to the extent that Plaintiff asserts claims related to
6 the denial of veterans’ benefits, this court is divested of jurisdiction to consider those claims
7 under the Veterans’ Judicial Review Act, 38 U.S.C. § 511, and so the case should be dismissed.
8 Id. The motion to dismiss was noted for consideration on February 10, 2017. Id. Plaintiff did
9 not timely respond.
On February 10, 2017, a notification was sent to Plaintiff regarding the nature of motions
11 to dismiss under Fed. R. Civ. P. 12 (b)(1), and informing him that, if granted, his case may be
12 dismissed. Dkt. 10. It was also noted that Plaintiff failed to respond to the motion. Id. Plaintiff
13 was further notified that pursuant to Western District of Washington R. Civ. P. 7(b)(2), “[i]f a
14 party fails to file papers in opposition to a motion, such failure may be considered by the court as
15 an admission that the motion has merit.” Id. The motion to dismiss (Dkt. 8) was renoted to
16 February 24, 2017. Id. As of the date of this order, Plaintiff still has not filed a response.
A. STANDARD ON MOTION TO DISMISS
Pursuant to Fed. R. Civ. P. 12(b), a party may assert the following defenses in a motion to
20 dismiss: “(1) lack of subject matter jurisdiction; (2) lack of personal jurisdiction; (3) improper
21 venue; (4) insufficient process; (5) insufficient service of process; (6) failure to state a claim
22 upon which relief can be granted; and (7) failure to join a party under Rule 19.” Under Fed. R.
23 Civ. P. 12 (b)(1), a complaint must be dismissed if, considering the factual allegations in the light
ORDER ON MOTION TO DISMISS FOR LACK OF SUBJECT MATTER JURISDICTION- 2
1 most favorable to the plaintiff, the action: (1) does not arise under the Constitution, laws, or
2 treaties of the United States, or does not fall within one of the other enumerated categories of
3 Article III, Section 2, of the Constitution; (2) is not a case or controversy within the meaning of
4 the Constitution; or (3) is not one described by any jurisdictional statute. Baker v. Carr, 369
5 U.S. 186, 198 (1962); D.G. Rung Indus., Inc. v. Tinnerman, 626 F.Supp. 1062, 1063 (W.D.
6 Wash. 1986); see 28 U.S.C. §§ 1331 (federal question jurisdiction) and 1346 (United States as a
7 defendant). When considering a motion to dismiss pursuant to Rule 12(b)(1), the court is not
8 restricted to the face of the pleadings, but may review any evidence to resolve factual disputes
9 concerning the existence of jurisdiction. McCarthy v. United States, 850 F.2d 558, 560 (9th Cir.
10 1988), cert. denied, 489 U.S. 1052 (1989); Biotics Research Corp. v. Heckler, 710 F.2d 1375,
11 1379 (9th Cir. 1983). A federal court is presumed to lack subject matter jurisdiction until
12 plaintiff establishes otherwise. Kokkonen v. Guardian Life Ins. Co. of America, 511 U.S. 375
13 (1994); Stock West, Inc. v. Confederated Tribes, 873 F.2d 1221, 1225 (9th Cir. 1989). Therefore,
14 plaintiff bears the burden of proving the existence of subject matter jurisdiction. Stock West, 873
15 F.2d at 1225; Thornhill Publishing Co., Inc. v. Gen’l Tel & Elect. Corp., 594 F.2d 730, 733 (9th
16 Cir. 1979).
B. FAILURE TO FILE AN ADMINISTRATIVE CLAIM
The United States, as sovereign, is immune from suit unless it consents to be sued. See
19 United States v. Mitchell, 445 U.S. 535, 538 (1980); Cato v. United States, 70 F.3d 1103, 1107
20 (9th Cir. 1995). If a claim does not fall squarely within the strict terms of a waiver of sovereign
21 immunity, a district court is without subject matter jurisdiction. See, e.g., Mundy v. United States,
22 983 F.2d 950, 952 (9th Cir. 1993).
ORDER ON MOTION TO DISMISS FOR LACK OF SUBJECT MATTER JURISDICTION- 3
The FTCA is the exclusive remedy for state law torts committed by federal employees
2 within the scope of their employment. 28 U.S.C. § 2679(b)(1). The FTCA is a limited waiver of
3 sovereign immunity, rendering the United States liable for certain torts of federal employees. See
4 28 U.S.C. § 1346(b). Pursuant to 28 U.S.C. § 2675(a),
An action shall not be instituted upon a claim against the United States for money
damages for injury or loss of property or personal injury or death caused by the
negligent or wrongful act or omission of any employee of the Government while
acting within the scope of his office or employment, unless the claimant shall
have first presented the claim to the appropriate Federal agency and his claim
shall have been finally denied by the agency in writing and sent by certified or
registered mail. . .
“[T]he administrative claim requirements of Section 2675(a) are jurisdictional in nature, and thus
must be strictly adhered to.” Jerves v. United States, 966 F.2d 517, 521 (9th Cir. 1992).
Plaintiff failed to present an administrative tort claim to the Department of Veteran
Affairs before filing suit. Accordingly, he has failed to exhaust his administrative remedies and
so, there has been no waiver of sovereign immunity. Defendant’s motion (Dkt. 8) should be
granted and the case dismissed.
C. COURT IS DIVESTED OF JURISDICTION FOR CLAIMS RELATED TO
THE DENIAL OF VETERAN’S BENEFITS
In Veterans for Common Sense v. Shinseki, the Ninth Circuit determined that the Veteran’s
18 Judicial Review Act precludes federal court jurisdiction over “cases where adjudicating veterans'
19 claims requires the district court to determine whether the VA acted properly in handling a
20 veteran's request for benefits” and “also to those decisions that may affect such cases.” 678 F.3d.
21 1013, 1023-26 (9th Cir. 2012).
To the extent that Plaintiff makes claims that the VA improperly denied his request for
23 benefits, his claims should be dismissed pursuant to the Veteran’s Judicial Review Act. Further,
ORDER ON MOTION TO DISMISS FOR LACK OF SUBJECT MATTER JURISDICTION- 4
1 to the extent that Plaintiff’s claims would require a decision that may affect the VA’s handling of
2 Plaintiff’s request for benefits, his claims should also be dismissed.
It is ORDERED that:
Defendant’s Motion to Dismiss for Lack of Subject Matter Jurisdiction, pursuant to Fed.
R. Civ. P. 12(b)(1) (Dkt. 8) IS GRANTED; and
Plaintiff’s case IS DISMISSED.
The Clerk is directed to send uncertified copies of this Order to all counsel of record and
9 to any party appearing pro se at said party’s last known address.
Dated this 27th day of February, 2017.
ROBERT J. BRYAN
United States District Judge
ORDER ON MOTION TO DISMISS FOR LACK OF SUBJECT MATTER JURISDICTION- 5
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