Ramos v. United States Department of Veterans Affairs et al

MOTION to Dismiss for Lack of Jurisdiction

D. Ariz.May 26, 2017

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ELIZABETH A. STRANGE Acting United States Attorney District of Arizona PETER M. LANTKA Assistant U.S. Attorney Arizona State Bar No. 030678 Two Renaissance Square 40 North Central Avenue, Suite 1200 Phoenix, Arizona 85004-4408 Telephone: (602) 514-7500 Facsimile: (602) 514-7760 E-Mail: peter.lantka@usdoj.gov Attorneys for the Defendant UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA Timothy E. Ramos, Plaintiff, v. Department of Veterans Affairs, VA Hospital, Dr. Piatt, Dr. Johnson, Patient Advocate’s Nissa and Barbera, Dr. Johnson, David Blount, Wheelchair Rep Debbie, Heather Harding, Steve Young, and Jerry Eastday, Defendant(s). CV-17-08099-GMS MOTION TO DISMISS (Formerly Yavapai Superior Court No.: P-1300-CV-201700238) Come now the named Defendants, the Department of Veterans Affairs, the Prescott Veterans Hospital, and various VA personnel: “Dr. Piati,” “Dr. Johnson,” “Nissa,” “Barbera;” “Dr. Johnson,” “David Blount,” “Debbie” “Heather Harding,” “Steve Young,” and “Jerry Eastday” (Collectively the VA, or Defendants), and pursuant to Fed. R. Civ. P. 12(b)(1) and (6) respectfully request that Plaintiff’s case be dismissed for lack of subject matter jurisdiction. The United States’ Motion is supported by the Memorandum of Points and Authorities below and all matters of record.1 1 Undersigned counsel certifies that he has conferred with the Plaintiff, by email, on May 26, 2017, in an attempt to resolve this Motion. Case 3:17-cv-08099-GMS Document 4 Filed 05/26/17 Page 1 of 7 2 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 MEMORANDUM OF POINTS AND AUTHORITIES Plaintiff Timothy Ramos initiated the present action in Yavapai County Superior Court on April 5, 2017. Because the suit pertains to actions on behalf of federal employees, the United States Attorney’s Office removed the matter pursuant to 28 U.S.C. § 1442 on May 25, 2017. Plaintiff’s April 5, 2017 Complaint is difficult to decipher. Read liberally, it appears as if Mr. Ramos is challenging VA officials’ refusal to prescribe Oxycodone, Valium, and several other opioids as well as the Agency’s denial of his request for either a prosthetic device or wheelchair. See, Complaint, passim. Plaintiff filed an Amended Complaint on May 8, 2017. The Amended Complaint is equally difficult to decipher. Although Mr. Ramos uses the term “negligence” in the initial page of his Amended Complaint, the actual text of his Amended Complaint concern the same allegations as those in his initial filing, namely his disagreement with the VA’s decision regarding his eligibility to receive “outpatient medical services, including prosthetics, medical equipment, and supplies.” Amend Comp at p. 2. Regardless of the propriety of VA employees’ decisions, Mr. Ramos’s case must be dismissed because neither this Court, nor the Superior Court in which he filed his claim, have jurisdiction over Plaintiff’s dispute. As articulated below, the Board of Veterans’ Appeals has exclusive jurisdiction over the VA’s decisions regarding the provision of veterans’ benefits; Plaintiff’s claim should therefore be denied for lack of subject matter jurisdiction. I STANDARDS OF REVIEW The United States Motion is brought pursuant to Fed. R. Civ. P. 12(b)(1) and (6). Under Fed. R. Civ. P. 12(b)(1), a party may move to dismiss based on the court’s lack of subject matter jurisdiction. See Fed. R. Civ. P. 12(b)(1). A district court may lack jurisdiction under a statutory scheme created by Congress that confers jurisdiction over certain claims to specific federal courts and denies jurisdiction over the claims to all other federal courts. See Veterans for Common Sense v. Shinseki, 678 F.3d 1013, 1019 (9th Cir. 2012). It may also lack jurisdiction over certain tort claims if the plaintiff has failed to Case 3:17-cv-08099-GMS Document 4 Filed 05/26/17 Page 2 of 7 3 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 exhaust administrative remedies. See 28 U.S.C. § 2675. When considering a motion to dismiss pursuant to Rule 12(b)(1), this Court is not restricted to the face of the pleadings, but may review any evidence, such as affidavits and testimony, to resolve factual disputes concerning the existence of jurisdiction. See, e.g., Land v. Dollar, 330 U.S. 731, 735 n. 4, 67 S. Ct. 1009, 91 L. Ed. 1209 (1947) (“when a question of the District Court’s jurisdiction is raised ... the court may inquire by affidavits or otherwise, into the facts as they exist.”); Biotics Research Corp. v. Heckler, 710 F.2d 1375, 1379 (9th Cir. 1983) (consideration of material outside the pleadings did not convert a Rule 12(b)(1) motion into one for summary judgment). Under Fed. R. Civ. P. 12(b)(6), a party may move to dismiss based on the failure to state a claim upon which relief may be granted. Fed. R. Civ. P. 12(b)(6). A motion to dismiss based on Rule 12(b)(6) challenges the legal sufficiency of the claims alleged. See Parks Sch. of Bus., Inc. v. Symington, 51 F.3d 1480, 1484 (9th Cir. 1995). In considering such a motion, a court must take all allegations of material fact as true and construe them in the light most favorable to the nonmoving party, although “conclusory allegations of law and unwarranted inferences are insufficient to avoid a Rule 12(b)(6) dismissal.” Cousins v. Lockyer, 568 F.3d 1063, 1067 (9th Cir. 2009). While “a complaint need not contain detailed factual allegations ... it must plead enough facts to state a claim to relief that is plausible on its face.” Id. “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 129 S. Ct. 1937, 1949, 173 L. Ed. 2d 868 (2009); see also Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556, 127 S. Ct. 1955, 167 L. Ed. 2d 929 (2007). II PLAINTIFF’S COMPLAINT SHOULD BE DISMISSED FOR LACK OF SUBJECT MATTER JURISDICTION Read liberally, Plaintiff’s Complaint and Amended Complaint challenge the VA’s determination regarding his access to painkillers and a prosthetic device. As such, the case must be dismissed because the sole avenue to challenge the VA’s decision is the Board of Veterans’ Appeals. Case 3:17-cv-08099-GMS Document 4 Filed 05/26/17 Page 3 of 7 4 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 With the Veterans’ Judicial Review Act of 1988 (“VJRA”), “Congress [] created a scheme conferring exclusive jurisdiction over claims affecting veterans’ benefits to some federal courts, while denying all other federal courts any jurisdiction over such claims.” Veterans for Common Sense, 678 F.3d, 1020. Pursuant to the VJRA, the Board of Veterans’ Appeals has exclusive jurisdiction over the VA’s decisions regarding the provision of veterans’ benefits. See 38 U.S.C. § 511(a) (the Board decides all issues under any law affecting the provision of benefits to veterans); Id. § 7104(a) (the Board of Veterans’ Appeals has exclusive jurisdiction over VA’s benefits decisions). If a veteran’s appeal to the Board of Veterans’ Appeals is unsuccessful, the veteran may appeal the Board’s decision to the Court of Appeals for Veterans’ Claims, which has exclusive jurisdiction to review the VBA’s decision. 38 U.S.C. § 7252(a). If still unsuccessful, veterans may seek a third level of review in the United States Court of Appeals for the Federal Circuit. 38 U.S.C. §§ 7252, 7292(c). The Federal Circuit’s appellate jurisdiction to review and decide any challenge is also exclusive. 38 U.S.C. § 7292(c). The Federal Circuit’s decision is then subject to final review by the Supreme Court upon certiorari. 38 U.S.C. § 7292(c); 28 U.S.C. § 1254. Plaintiff’s claim lies with the Board of Veterans’ Appeals and should be denied for lack of subject matter jurisdiction. See Veterans for Common Sense, 678 F.3d at 1013 (affirming district court’s decision that it lacked jurisdiction to review claims related to the provision of veterans’ benefits); see also Haas v. Oregon Health & Sci. Univ., CV-13- 01290-PHX-GMS, 2014 WL 900726 *2 (D. Ariz. Mar. 7, 2014) (holding that this Court lacked jurisdiction to review the VA’s denial of the plaintiff’s request to pay for a kidney transplant). Plaintiff’s attempt to challenge the VA’s determination based on various VA employees’ conduct does not escape the VJRA’s exclusivity, as the VJRA applies to the underpinning actions associated with the VA’s benefit decisions. See Wright v. United States, 3:14-CV-03008-CRB, 2015 WL 1205263 *4 (N.D. Cal. Mar. 16, 2015) (dismissing for lack of jurisdiction where the plaintiff alleged “that VA physicians and many other defendants participated in ‘corruption’ of her medical files); see also Larrabee by Jones v. Derwinski, 968 F.2d 1497, 1498 (2d Cir. 1992) (holding that the district court lacked Case 3:17-cv-08099-GMS Document 4 Filed 05/26/17 Page 4 of 7 5 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 jurisdiction where “[t]he gravamen of the amended complaint [was] that the VA ha[d] failed to provide [the veteran] with adequate care”); Zuspann v. Brown, 60 F.3d 1156, 1157 (5th Cir. 1995) (finding lack of jurisdiction where veteran challenged a physician’s conclusion that “chemical sensitivity was the incorrect diagnosis for the veteran’s condition); Weaver v. United States, 98 F.3d 518, 519 (10th Cir. 1996) (finding no jurisdiction where the claimant sued for conspiracy, fraud, and misrepresentation, claiming that VA employees concealed his medical records); Price v. United States, 228 F.3d 420, 422 (D.C. Cir. 2000) (noting that “courts have consistently held that a federal district court may not entertain constitutional or statutory claims whose resolution would require the court to intrude upon the VA’s exclusive jurisdiction”); See C.f. Recinto v. U.S. Dep't of Veterans Affairs, 706 F.3d 1171, 1175 (9th Cir. 2013) cert. denied, 134 S. Ct. 83, 187 L. Ed. 2d 31 (U.S. 2013) (VJRA barred review of plaintiffs’ due-process claim). This Court lacks subject matter jurisdiction over Plaintiff’s claim, and it should be dismissed. III IN THE ALTERNATIVE, PLAINTIFF CANNOT STATE A CLAIM FOR RELIEF In addition and in the alternative to this Court’s lack of subject matter jurisdiction, Plaintiff’s Complaint must be dismissed for failure to state a claim. Rule 12(b)(6) is designed to “test[ ] the legal sufficiency of a claim.” Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001). To survive dismissal for failure to state a claim pursuant to Rule 12(b)(6), a complaint must contain more than “labels and conclusions” or a “formulaic recitation of the elements of a cause of action”; it must contain factual allegations sufficient to “raise a right to relief above the speculative level.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). While “a complaint need not contain detailed factual allegations ... it must plead ‘enough facts to state a claim to relief that is plausible on its face.’ ” Clemens v. DaimlerChrysler Corp., 534 F.3d 1017, 1022 (9th Cir. 2008) (quoting Twombly, 550 U.S. at 570). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Twombly, 550 Case 3:17-cv-08099-GMS Document 4 Filed 05/26/17 Page 5 of 7 6 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 U.S. at 556). Plausibility requires “more than a sheer possibility that a defendant has acted unlawfully.” Twombly, 550 U.S. at 555. Plaintiff’s Complaint fails to set forth a legal standard to which the VA is held and facts that could lead this Court to plausibly believe that the VA violated that standard. Mr. Ramos’s pleading is insufficiently drafted and does not set forth a claim for relief. Hence, even if this Court had subject matter jurisdiction – which it does not – Plaintiff’s Complaint should be dismissed for failure to state a claim. IV CONCLUSION For the foregoing reasons, Defendants respectfully request that this Court dismiss Plaintiff’s Complaint. Respectfully submitted this 26th day of May, 2017. ELIZABETH A. STRANGE Acting United States Attorney District of Arizona s/ Peter M Lantka PETER M. LANTKA Assistant United States Attorney Case 3:17-cv-08099-GMS Document 4 Filed 05/26/17 Page 6 of 7 7 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 CERTIFICATE OF SERVICE I hereby certify that on May 26, 2017, I electronically transmitted the attached document to the Clerk's Office using the CM/ECF System and mailed a copy of the same to the following individual, who is not a CM/ECF registrant: Timothy E. Ramos 1524 Northridge Drive Prescott, Arizona 86301 s/Irene Millsaps U.S. Attorney=s Office Case 3:17-cv-08099-GMS Document 4 Filed 05/26/17 Page 7 of 7