Opinion
No. CV-F-04-5647 REC/DLB.
November 8, 2005
ORDER GRANTING DEFENDANT'S MOTION FOR JUDGMENT ON THE PLEADINGS, DENYING PLAINTIFF'S MOTION TO AMEND AND DIRECTING ENTRY OF JUDGMENT FOR DEFENDANT
On November 7, 2005, the court heard defendant's motion for judgment on the pleadings and plaintiff's motion to amend.
Upon due consideration of the record and the arguments of the parties, the court grants defendant's motion and denies plaintiff's motion for the reasons set forth herein.
On April 29, 2004, Glen R. Webster, proceeding in pro per, filed a "COMPLAINT: Discrimination and Retaliation In Violation of the Americans With Disabilities Act and Civil Rights Act". On June 15, 2004, before the United States filed an Answer, plaintiff filed an Amended "Complaint: Discrimination and Retaliation In Violation of the Americans With Disabilities Act and Civil Rights Act". The United States filed an Answer to the Amended Complaint on October 15, 2004.
The United States moves the court for judgment on the pleadings. In addition to filing an opposition to the motion for judgment on the pleadings, plaintiff filed a motion to amend.
A. Motion for Judgment on the Pleadings. 1. Governing Standards.
As explained in Wright Miller, 5A Federal Practice and Procedure, § 1367, pp. 509, 514 (1990):
A Rule 12(c) motion is designed to provide a means of disposing of cases when the material facts are not in dispute and a judgment on the merits can be achieved by focusing on the content of the pleadings and any facts of which the court will take judicial notice. The motion for judgment on the pleadings only has utility when all material allegations of fact are admitted in the pleadings and only questions of law remain. . . .
. . .
Ordinarily, a motion for judgment on the pleadings should be made promptly after the close of the pleadings. If a party indulges in excessive delay before moving under Rule 12(c), the court may refuse to hear the motion on the ground that its consideration will delay or interfere with the commencement of the trial. The determination whether the motion constitutes a delay of trial is within the sound discretion of the judge. However, if it seems clear that the motion may effectively dispose of the case, the court should permit it regardless of any possible delay its consideration may cause. Conversely, if the pleadings do not resolve all of the factual issues in the case, a trial on the merits would be more appropriate than a resolution of the case on a Rule 12(c) motion.
This court held in City of Merced v. R.A. Fields, 997 F.Supp. 1326, 1331 (E.D.Cal. 1998) that the standard applied to a Rule 12(c) motion is essentially the same as that applied to a Rule 12(b)(6) motion. The motion to dismiss for failure to state a claim is rarely granted — it is possible only in "extraordinary cases. United States v. City of Redwood City, 640 F.2d 963, 966 (9th Cir. 1981). The pleading at issue must be construed in the light most favorable to the pleader. Parks School of Business, Inc. v. Symington, 51 F.3d 1480, 1484 (9th Cir. 1995). "[A] complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46 (1957). In reviewing a Rule 12(b)(6) motion, the court must accept as true all material allegations in the pleading at issue, as well as reasonable inferences to be drawn from them. NL Industries, Inc. v. Kaplan, 792 F.2d 896, 898 (9th Cir. 1986). This is so no matter how improbable the facts alleged. Neitzke v. Williams, 490 U.S. 319, 327 (1989). The question of plaintiffs' ability to prove its allegations is generally of no concern in ruling on a Rule 12(b)(6) motion. Nami v. Fauver, 82 F.3d 63, 65 (3d Cir. 1996). Courts need also to assume that all general allegations "embrace whatever specific facts might be necessary to support them," Peloza v. Capistrano Unified School Dist., 37 F.3d 517, 521 (9th Cir. 1994), but need not accept as true "conclusory allegations". Western Mining Council v. Watt, 643 F.2d 618, 624 (9th Cir. 1981).
2. Failure to Allege Compliance with Federal Tort Claims Act.
To the extent that the Amended Complaint is brought pursuant to the Federal Tort Claims Act, the United States moves for judgment on the pleadings. In so moving, the United States notes that the Amended Complaint does not allege compliance with the FTCA.
An action against the United States for damages resulting from the negligence or wrongful conduct of a government employee must be brought under the Federal Tort Claims Act, 28 U.S.C. §§ 2671- 2680. As a jurisdictional prerequisite, a FTCA action can only be instituted once an administrative claim is denied, either actually or constructively by the agency's failure to act upon the claim within six months. 28 U.S.C. § 2675(a). Therefore, a FTCA action may not be maintained when the claimant failed to exhaust administrative remedies prior to filing suit. McNeil v. United States, 508 U.S. 106 (1993). Further, a plaintiff cannot bring a FTCA action prematurely and then subsequently amend his complaint after denial of the administrative claim because the district court lacks jurisdiction over an FTCA action filed before the exhaustion requirement of Section 2675(a) is satisfied. Duplan v. Harper, 188 F.3d 1195, 1199 (10th Cir. 1999); Sparrow v. U.S. Postal Service, 825 F.Supp. 252, 254-255 (E.D.Cal. 1993).
According to the Second Affirmative Defense alleged in the Answer, plaintiff filed a tort claim on August 10, 2004. As noted, plaintiff commenced this action on April 29, 2004, before he filed the tort claim. In his opposition to the motion for judgment on the pleadings, plaintiff asserts:
[T]he Plaintiff has received the usual letter of denial from VA that any of there [sic] people did anything wrong. The Plaintiff having spent many years as a National Service Officer working in the VA system knew exactly what VA would come back with. In his many years of experience working in the VA system he has never seen VA admit to doing any wrong. The denial letter was provided to the Defendants Council [sic] long before we got to the point of going before this Court. In the case in 2001 the same procedure was done and excepted [sic] by the Court.
However, plaintiff does not address the failure to comply with the exhaustion requirements of the FTCA. The fact that plaintiff believes he knew what the response to the tort claim would be does not excuse compliance with the exhaustion requirements of the FTCA. In Webster v. Veterans Administration, et al., No. CV-F-01-5271 REC/LJO, the United States moved to dismiss plaintiff's complaint for lack of compliance with the FTCA. After describing the jurisdictional prerequisites to an action under the FTCA, the court noted:
However, at oral argument, the United States, because of the allegation of a violation of the ADA, agreed to hold this action in abeyance pending the expiration of the six month period. The court construes this agreement to be consent to a waiver of sovereign immunity to allow Webster to file an amended complaint alleging compliance with the FTCA, see Duplan v. Harper, 188 F.3d 1195, 1199-1200 (10th Cir. 1999) (Plaintiffs' filing of an amended complaint was treated by the parties and the court has the institution of a new suit against the United States under the FTCA).
Here, however, no such agreement or waiver has been made by the United States. The United States cannot be forced to do so because of the strictures of sovereign immunity. Therefore, plaintiff cannot rely on what occurred in the earlier case to excuse his noncompliance with the exhaustion requirement of the FTCA. Accordingly, to the extent that this action is based on the FTCA, it must be dismissed for lack of subject matter jurisdiction.
The United States argues that the claims alleged in the Amended Complaint must be dismissed with prejudice to the extent that those claims are based on tort. The United States notes that plaintiff's claim was denied on February 3, 2005, approximately eleven months after this action was commenced. 28 U.S.C. § 2401(b) provides in pertinent part that "[a] tort claim against the United States shall be forever barred unless . . . action is begun with six months after the date of mailing, by certified or registered mail, of notice of final denial of the claim by the agency to which it was presented." Because plaintiff did not file a complaint within six months of the denial of the tort claim, the United States asserts that the claims alleged in the Amended Complaint are forever barred by the provisions of Section 2401(b).
The court agrees with the United States. The six-month statute of limitations set forth in Section 2401(b) commences to run when the agency properly mails a notice of final denial.See Lehman v. United States, 154 F.3d 1010, 1015 (9th Cir. 1998), cert. denied, 526 U.S. 1040 (1999). To proceed with the claims under the FTCA, plaintiff would have had to file a complaint on August 3, 2005. Plaintiff did not do so and, as noted above, he could not have further amended the Amended Complaint in this action to allege compliance with the FTCA. Therefore, any claims for relief under the FTCA alleged in the Amended Complaint are barred by 28 U.S.C. § 2401(b) and are dismissed with prejudice.
3. Americans with Disabilities Act.
The United States moves for judgment on the pleadings to the extent that the Amended Complaint purports to allege a claim against the Veterans Administration under the Americans with Disabilities Act.
Judgment on the pleadings is granted on this ground. Title II of the ADA does not apply to the federal government. Cellular Phone Taskforce v. FCC, 217 F.3d 72, 73 (2nd Cir. 2000),cert. denied, 531 U.S. 1070 (2001).
4. 38 U.S.C. § 511.
Defendant also moves for judgment on the pleadings to the extent that the Complaint seeks judicial review of benefit determinations by the Veterans Administration, defendant contending that judicial review by this court is barred by 38 U.S.C. § 511. 38 U.S.C. § 511 provides:
(a) The Secretary shall decide all questions of law and fact necessary to a decision by the Secretary under a law that affects the provision of benefits by the Secretary to veterans or the dependents of survivors of veterans. Subject to subdivision (b), the decision of the Secretary as to any such question shall be final and conclusive and may not be reviewed by any other official or by any court, whether by an action in the nature of mandamus or otherwise.
The exceptions set forth in 38 U.S.C. § 511(b) are: (1) matters subject to 38 U.S.C. § 502 (Federal Circuit jurisdiction over Administrative Procedure Act review of VA rulemaking); (2) matters covered by 38 U.S.C. §§ 1975 and 1984 (jurisdiction of federal district courts over suits on Veterans' Group Life Insurance, National Service Life Insurance and U.S. Government Life Insurance); (3) matters arising under chapter 37 of Title 38 (involving VA housing and small business loans); and (4) matters arising under chapter 72 of Title 38 (covering the appeals process to the Board, Court of Appeals for Veterans Claims and, ultimately to the Federal Circuit Court of Appeals and the Supreme Court. See Bates v. Nicholson, 398 F.3d 1355, 1359 n. 1 (Fed. Cir.), cert. denied, 125 S.Ct. 2294 (2005). None of these exceptions apply to the allegations of the Amended Complaint.
In Price v. United States, 228 F.3d 420, 421 (Fed. Cir. 2000),cert. denied, 534 U.S. 903 (2001), the Federal Circuit explained:
As amended by the Veterans Judicial Review Act, Pub.L. No. 100-687, 102 Stat. 4105 (1988) (VJRA), the Veterans' Benefits Act of 1957, Pub.L. No. 85-86, 71 Stat. 83, precludes judicial review in Article III courts of VA decisions affecting the provision of veterans' benefits, including medical expense reimbursement. 38 U.S.C. § 511(a) . . . The exclusive avenue for redress of veterans' benefits determinations is appeal to the Court of Veterans Appeals and from there to the United States Court of Appeals for the Federal Circuit.
In Devine v. Cleland, 616 F.2d 1080 (9th Cir. 1980), the Ninth Circuit addressed whether the district court had jurisdiction to review the VA's procedures for suspending or terminating student-veterans' educational benefits. The Ninth Circuit noted that the Supreme Court in Johnson v. Robison, 415 U.S. 361 (1974), held that Section 211(a), now Section 511(a), does not preclude judicial review of the constitutionality of veterans' benefits legislation. The Ninth Circuit further referred to its decision in Moore v. Johnson, 582 F.2d 1228 (9th Cir. 1978). The Devine court then explained:
We have interpreted Robison to require a examination of the `substance' of an action, to determine whether it challenges a `decision of the Administrator on a "question of law or fact concerning a benefit provided by a law administered by the Veterans Administration,"' . . . or instead challenges the constitutionality of an Act of Congress . . . In conducting such an examination, we are assisted by the legislative considerations that prompted the passage of section 211(a). The Court in Robison identified two primary purposes:
(1) to insure that veterans' benefits claims will not burden the courts and the Veterans' Administration with expensive and time-consuming litigation, and (2) to insure that the technical and complex determinations and applications of Veterans' Administration policy connected with veterans' benefits decisions will be adequately and uniformly made.
Here, the "substance" of the Amended Complaint is that the Veterans Administration did not provide a machine allegedly needed for plaintiff's post-operative recovery for rotator cuff surgery on plaintiff's right shoulder and pain medication in a timely manner; that the Veterans Administration will not pay for antibiotics prescribed by a "civilian doctor"; and that the Veterans Administration will not replace "his appointed V.A. doctor . . . a doctor Yee . . . with a English speaking American Doctor." None of these claims can be construed as challenging the constitutionality of an Act of Congress.
At oral argument, plaintiff contended that he is being discriminated against with regard to benefits by the Veteran's Administration in retaliation for the filing by plaintiff ofWebster v. Veterans Administration, et al., No. CV-F-01-5271 REC/LJO. As noted, the caption of plaintiff's Amended Complaint refers to the "Civil Rights Act". To the extent that the Amended Complaint may be construed to be an attempt to allege a claim for violation of constitutional rights, the FTCA does not contain a waiver of sovereign immunity for constitutional tort claims.See Cato v. United States, 70 F.3d 1103, 1111 (9th Cir. 1995). Furthermore, plaintiff cannot state a claim for violation of constitutional rights against employees of the Veteran's Administration under Bivens v. Six Unknown Agents of the Federal Narcotics Bureau, 403 U.S. 388 (1971), because such a claim is precluded by Section 511(a). See Hicks v. Small, 842 F.Supp. 407 (D.Nev. 1993), aff'd, 69 F.3d 967 (9th Cir. 1995).
Consequently, the United States is entitled to judgment on the pleadings because of this court's lack of jurisdiction under Section 511(a).
Plaintiff did not respond to the merits of the citation to Section 511(a). Plaintiff does not argue that the statute is inapplicable to his claims under the standards set forth above. However, plaintiff does state:
The Defendant can site all the Veterans Judicial Review Act he pleases but it isn't going to justify the day to day treatment and Lack of treatment we Veterans get on a daily basis. If this Court sees fit to dismiss this Complaint, the Plaintiff will be back to file it again and again until his Complaint is judged on it's merits instead of twisted stories to fit the issue at hand.
Plaintiff is advised that he has a remedy by law set forth in 38 U.S.C. § 7104 by which he can appeal any benefits determination to the Board of Veterans Appeals. If dissatisfied with the ruling of the Board of Veterans Appeals, plaintiff may appeal to the Court of Appeals for Veterans Claims pursuant to 38 U.S.C. § 7252. If still dissatisfied, plaintiff may appeal to the United States Court of Appeals for the Federal Circuit pursuant to 38 U.S.C. § 7292. Plaintiff cannot proceed in this court if this court does not have jurisdiction. Plaintiff is warned that he risks being sanctioned if he persists in filing complaints in this court that this court has ruled it does not have jurisdiction to consider. Such sanctions can include pre-filing review of complaints attempted to be filed by plaintiff, a requirement that plaintiff pay the court's filing fee before filing a complaint and/or other monetary or terminating sanctions, including dismissal. While plaintiff has the right to file a complaint containing allegations and prayers for relief within this court's subject matter jurisdiction, the court cautions plaintiff that plaintiff will be responsible for considering the law cited by this court in filing any such future complaints and that the failure to heed this court's rulings may lead to the imposition of sanctions as described in this Order.
B. Plaintiff's Motion to Amend.
In his motion to amend, "[t]o show the continual harassment and Retaliation shown by the Veterans Administration", plaintiff seeks leave to add allegations pertaining to the delay in providing medical coverage benefits to his new spouse and her child after his marriage on February 19, 2005 and the reduction in plaintiff's benefits because of his divorce and remarriage, plaintiff contending that the alleged actions were due to the gross negligence and misfeasance of the Veterans Administration.
Rule 15(a), Federal Rules of Civil Procedure, provides that "leave [to amend] shall be freely given when justice so requires." "The purpose of pleading is `to facilitate a proper decision on the merits' . . . and not erect formal and burdensome impediments to the litigation process. Unless undue prejudice to the opposing party will result, a trial judge should ordinarily permit a party to amend its complaint." Howey v. United States, 481 F.2d 1187, 1990 (1973). However, "[t]his strong policy toward permitting the amendment of pleadings . . . must be tempered with considerations of `undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of allowance of the amendment, futility of amendment, etc.' Foman v. Davis, 371 U.S. 178, 182 . . . (1962)." Schlacter-Jones, 936 F.2d 455, 443 (9th Cir. 1991).
Here, leave to amend is denied on the ground of futility. First of all, defendant is entitled to judgment on the pleadings for lack of jurisdiction with regard to the allegations of the Amended Complaint presently before the court. Secondly, to the extent that plaintiff seeks to amend to include claims for negligence and/or misfeasance against the Veterans Administration, the proposed amendments do not include allegations that plaintiff has complied with the requirements of the Federal Tort Claims Act with respect to the proposed allegations and plaintiff made no such representations at oral argument. Thirdly, the proposed allegations challenge decisions concerning the provision of benefits. As ruled supra, this court does not have jurisdiction to conduct such a review because of the provisions in 38 U.S.C. § 511(a).
ACCORDINGLY:
1. Defendant's motion for judgment on the pleadings is granted.
2. Plaintiff's motion to amend is denied.
3. Judgment for defendant to be entered.
IT IS SO ORDERED.