# (PS) Benoist v. Veterans Administration > District Court, E.D. California · August 2, 2019 URL: https://www.frixlaw.com/law-library/cases/10012994 ## Case - **Court:** District Court, E.D. California - **Decided:** August 2, 2019 - **Opinion:** 100trialcourt - **Cited by:** 0 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10012994 ## Opinion text 1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 NOEL BENOIST, No. 2:18-CV-1611-MCE-DMC 12 Plaintiff, 13 v. FINDINGS AND RECOMMENDATIONS 14 VETERANS ADMINISTRATION, 15 Defendant. 16 17 Plaintiff, who is proceeding pro se, brings this civil action. Pending before the 18 court is defendant’s motion to dismiss (ECF No. 19). 19 20 I. PLAINTIFF’S ALLEGATIONS 21 This action proceeds on plaintiff’s first amended complaint. See ECF No. 6. 22 Plaintiff claims he was found to be in perfect health upon his entry into the Army in 1966. See 23 id. at 4. According to plaintiff, he was later “injured to the degree that Army regulations 24 REQUIRE a medical review board for possible medical discharge.” Id. Plaintiff states he was 25 diagnosed with “congenital fusion,” a diagnoses plaintiff claims is intentionally inaccurate. Id. 26 at 5. Plaintiff alleges defendant made a “clear and unmistakable error” in not granting 100% 27 disability when he was eventually discharged from the military. ECF No. 6, pg. 6. Plaintiff 28 states he had four prior cases adjudicated by the “U.S. District Court for Veterans Appeals” and 1 that four remands issued by that court were ignored by defendant. See id. at 7. Plaintiff alleges 2 defendant acted maliciously and criminally, in violation of the Racketeer Influenced and 3 Corrupt Organizations Act (RICO). See id. Plaintiff faults defendant for not declaring him 4 100% disabled. See id. at 35. 5 6 II. STANDARDS FOR MOTION TO DISMISS 7 In considering a motion to dismiss, the court must accept all allegations of material 8 fact in the complaint as true. See Erickson v. Pardus, 551 U.S. 89, 93-94 (2007). The court must 9 also construe the alleged facts in the light most favorable to the plaintiff. See Scheuer v. Rhodes, 10 416 U.S. 232, 236 (1974); see also Hosp. Bldg. Co. v. Rex Hosp. Trustees, 425 U.S. 738, 740 11 (1976); Barnett v. Centoni, 31 F.3d 813, 816 (9th Cir. 1994) (per curiam). All ambiguities or 12 doubts must also be resolved in the plaintiff's favor. See Jenkins v. McKeithen, 395 U.S. 411, 13 421 (1969). However, legally conclusory statements, not supported by actual factual allegations, 14 need not be accepted. See Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949-50 (2009). In addition, pro se 15 pleadings are held to a less stringent standard than those drafted by lawyers. See Haines v. 16 Kerner, 404 U.S. 519, 520 (1972). 17 Federal Rule of Civil Procedure 8(a)(2) requires only “a short and plain statement 18 of the claim showing that the pleader is entitled to relief” in order to “give the defendant fair 19 notice of what the . . . claim is and the grounds upon which it rests.” Bell Atl. Corp v. Twombly, 20 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). However, in order 21 to survive dismissal for failure to state a claim under Rule 12(b)(6), a complaint must contain 22 more than “a formulaic recitation of the elements of a cause of action;” it must contain factual 23 allegations sufficient “to raise a right to relief above the speculative level.” Id. at 555-56. The 24 complaint must contain “enough facts to state a claim to relief that is plausible on its face.” Id. at 25 570. “A claim has facial plausibility when the plaintiff pleads factual content that allows the 26 court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” 27 Iqbal, 129 S. Ct. at 1949. “The plausibility standard is not akin to a ‘probability requirement,’ but 28 it asks for more than a sheer possibility that a defendant has acted unlawfully.” Id. (quoting 1 Twombly, 550 U.S. at 556). “Where a complaint pleads facts that are ‘merely consistent with’ a 2 defendant’s liability, it ‘stops short of the line between possibility and plausibility for entitlement 3 to relief.” Id. (quoting Twombly, 550 U.S. at 557). 4 In deciding a Rule 12(b)(6) motion, the court generally may not consider materials 5 outside the complaint and pleadings. See Cooper v. Pickett, 137 F.3d 616, 622 (9th Cir. 1998); 6 Branch v. Tunnell, 14 F.3d 449, 453 (9th Cir. 1994). The court may, however, consider: (1) 7 documents whose contents are alleged in or attached to the complaint and whose authenticity no 8 party questions, see Branch, 14 F.3d at 454; (2) documents whose authenticity is not in question, 9 and upon which the complaint necessarily relies, but which are not attached to the complaint, see 10 Lee v. City of Los Angeles, 250 F.3d 668, 688 (9th Cir. 2001); and (3) documents and materials 11 of which the court may take judicial notice, see Barron v. Reich, 13 F.3d 1370, 1377 (9th Cir. 12 1994). 13 Finally, leave to amend must be granted “[u]nless it is absolutely clear that no 14 amendment can cure the defects.” Lucas v. Dep’t of Corr., 66 F.3d 245, 248 (9th Cir. 1995) (per 15 curiam); see also Lopez v. Smith, 203 F.3d 1122, 1126 (9th Cir. 2000) (en banc). 16 17 III. DISCUSSION 18 In its motion to dismiss, defendant argues: (1) this court lacks subject matter 19 jurisdiction to review any decision relating to veterans benefit determinations; (2) the federal 20 government has not waived its sovereign immunity as to any tort claims and such claims are 21 barred in any event; and (3) no RICO claim can be asserted against the federal government. For 22 the reasons discussed below, the court finds it lacks subject matter jurisdiction to consider 23 plaintiff’s claims.1 24 / / / 25 / / / 26 27 1 In making this finding, the court expresses no opinion on the merits of plaintiff’s claims and in no way intends to disparage plaintiff’s service to this country, for which the court is 28 grateful. 1 A. Judicial Review of Veterans Benefit Determinations 2 Under 38 U.S.C. § 511(a), the Secretary of Veterans Affairs “shall decide all 3 questions of law and fact necessary to a decision by the Secretary under a law that affects the 4 provision of benefits by the Secretary to veterans or the dependents or survivors of veterans.” 5 The decision of the Secretary may not be reviewed by any other official or by any court. See id. 6 By the plain language of the statute, judicial review of any decisions related to plaintiff’s veterans 7 benefits is foreclosed. See Veterans for Common Sense v. Shinseki, 678 F.3d 1013, 1019-26 (9th 8 Cir. 2012) (en banc); see also Sorrell v. Department of Veterans Affairs, 2017 WL 1365029, at *2 9 (D. Ariz. 2017). 10 B. Sovereign Immunity 11 To the extent plaintiff presents viable tort claims, the court lacks jurisdiction 12 over such claims because plaintiff has not complied with the Federal Tort Claims Act. As 13 defendant notes, plaintiff does not allege he filed an administrative claim. Because he has 14 failed to do so, the government has not waived its sovereign immunity. See 28 U.S.C. § 15 2675(a). Moreover, to the extent plaintiff presents tort claims based on fraud or 16 misrepresentation, such claims are barred. See 28 U.S.C. § 2680(h); see also Owyhee Grazinv 17 Ass’n, Inc. v. Field, 637 F.2d 694, 697 (9th Cir. 1981). 18 C. RICO 19 A RICO claim cannot lie against the federal government. See McMillan v. Dep’t 20 of Interior, 907 F. Supp. 322, 326 (D. Nev. 1995). 21 / / / 22 / / / 23 / / / 24 / / / 25 / / / 26 / / / 27 / / / 28 / / / 1 IV. CONCLUSION 2 Based on the foregoing, the undersigned recommends that defendant’s motion to 3 | dismiss (ECF No. 19) be granted. 4 These findings and recommendations are submitted to the United States District 5 | Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(). Within 14 days 6 | after being served with these findings and recommendations, any party may file written objections 7 | with the court. Responses to objections shall be filed within 14 days after service of objections. 8 | Failure to file objections within the specified time may waive the right to appeal. See Martinez v. 9 | Yist, 951 F.2d 1153 (9th Cir. 1991). 10 11 12 | Dated: August 2, 2019 Ssvcqo_ 8 DENNIS M. COTA 14 UNITED STATES MAGISTRATE JUDGE 15 16 17 18 19 20 21 22 23 24 25 26 27 28 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10012994. Public record. Not legal advice.