Opinion
Case No: C 10-2468 SBA Dkt. 17
08-23-2011
ROMEO R. DE FERNANDEZ, CIRIACO C. DELA CRUZ, VALERIANO v. MARCELINO, VETERANS EQUITY CENTER, a non-profit organization on behalf of themselves and others similarly situated, Plaintiff, v. UNITED STATES DEPARTMENT OF VETERANS AFFAIRS; ERIK K. SHINESKI, Secretary of Department of Veterans Affairs; MICHAEL WALCOFF, Acting Under Secretary, Veterans Benefits Administration, DAVID WEST, Veterans Service Center Manager, Oakland Regional Office of Veterans Benefits Administration; Defendants.
ORDER SETTING BRIEFING
SCHEDULE
Plaintiffs are Filipino World War II veterans, along with a public interest group, who bring the instant action individually and on behalf of others similarly situated to challenge the government's denial of benefits under the Filipino Veterans Equity Compensation Fund ("FVEC"). In response to the Complaint, Defendants filed a Motion to Dismiss, pursuant to Federal Rule of Civil Procedure 12(b)(1), or alternatively, 12(b)(6). Dkt. 17. In their motion, Defendants contend, inter alia, that Plaintiffs' claims are barred by the doctrine of sovereign immunity and the Veterans' Judicial Review Act of 1988 ("VJRA").
Subsequent to the close of briefing on Defendants' motion, Ninth Circuit rendered its decision in Veterans for Common Sense v. Shinseki, 644 F.3d 845 (9th Cir. 2011). Veterans for Common Sense addressed various issues, including whether sovereign immunity and the VJRA barred the plaintiff's claims against the Department of Veterans Affairs. Defendants appropriately filed a Notice of New Authority, which briefly discusses the effect of Veterans for Common Sense on the issues presented in their motion. Dkt. 32. Nonetheless, the Court finds that the more appropriate course of action to have Defendants resubmit their motion to dismiss to incorporate Veterans for Common Sense into their analysis. This approach will allow Plaintiffs a full and fair opportunity to respond to Defendants' revised arguments and to analyze Veterans for Common Sense. Accordingly,
After the close of briefing on Defendants' motion to dismiss, but prior to the Ninth Circuit's decision in Veterans for Common Sense, this Court rendered its decision in Recinto v. The U.S. Dept. of Veterans Affairs, No. 10-4542 SBA, 2011 WL 1599635, (N.D. Cal., Apr. 28, 2011). To the extent that Recinto has any bearing on Defendants' arguments, the parties should discuss Recinto as well.
IT IS HEREBY ORDERED THAT:
1. Defendants shall file a revised motion to dismiss, consistent with this Order, by no later than September 13, 2011. Plaintiffs' opposition or statement of non-opposition to the renewed motion to dismiss shall be filed by September 27, 2011. Defendants' reply shall be filed by October 4, 2011. The moving and opposition briefs shall be limited to seventeen (17) pages, and the reply shall be limited to ten (10) pages.
2. The hearing on Defendants' renewed motion to dismiss will take place on November 15, 2011 at 1:00 p.m. A Case Management Conference shall follow the hearing on the motion. Prior to the date scheduled for the conference, the parties shall meet and confer and prepare a joint, updated Case Management Conference Statement. Plaintiffs shall file a joint statement no less than seven (7) days prior to the conference date.
3. Pursuant to Federal Rule of Civil Procedure 78(b) and Local Rule 7-1(b), the Court, in its discretion, may decide the motion without oral argument, in which case no appearance for the motion hearing or Case Management Conference will be necessary. The parties are advised to check the Court's website to determine whether a court appearance is required.
4. This Order terminates Docket 17.
IT IS SO ORDERED.
SAUNDRA BROWN ARMSTRONG
United States District Judge