Bacani v. Dept of Vet Affairs

• Court: Court of Appeals for the Fifth Circuit
• Decided: May 24, 2000
• Docket: 99-11016
• Status: Unpublished

Opinion

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_____________________

No. 99-11016 Summary Calendar _____________________

ALFREDO C. BACANI, M.D.,

Plaintiff-Appellant,

versus

DEPARTMENT OF VETERANS AFFAIRS, (DVA); TOGO WEST, Secretary, DVA,

Defendants-Appellees. _________________________________________________________________

Appeal from the United States District Court for the Northern District of Texas USDC No. 3:98-CV-1728-G ________________________________________________________________ May 18, 2000

Before JOLLY, JONES, and BENAVIDES, Circuit Judges.

PER CURIAM:*

Alfredo C. Bacani, M.D., appeals the district court’s

dismissal of his complaint for lack of subject matter jurisdiction.

Bacani argues that the Administrative Procedures Act (“APA”)

provides the basis for subject matter jurisdiction.

5 U.S.C. § 702-704. He contends that even if he has not

demonstrated a “final agency action” for purposes of the APA, the

district court should have exercised jurisdiction under the

* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4. exception set forth in Leedom v. Kyne, 358 U.S. 184 (1958). He

argues that the existence of subject matter jurisdiction is

supported by 28 U.S.C. §§ 1331 and 3001 when read in conjunction

with 28 U.S.C. § 2201. Bacani requests that this court rule on his

motions for class-action certification, for summary judgment, and

on his “multipurpose motion,” all of which were denied as moot by

the district court, if this court determines that the district

court erred in dismissing his complaint for lack of subject matter

jurisdiction.

We review de novo a district court’s dismissal for lack of

subject matter jurisdiction. Musslewhite v. State Bar of Texas, 32

F.3d 942, 945 (5th Cir. 1994). For essentially the reasons set

forth in the district court’s memorandum order, we affirm the

dismissal of Bacani’s complaint for lack of subject matter

jurisdiction. Bacani v. Department of Veteran Affairs, No.

3:98-CV-1728-G (N.D. Tex. Aug. 25, 1999). Bacani has not presented

the sort of “extraordinary situation” in which judicial

intervention under the Kyne doctrine is warranted. See Kirby Corp.

v. Pena, 109 F.3d 258, 268-69 (5th Cir. 1997). Because the

district court lacked subject matter jurisdiction, it did not err

in denying as moot Bacani’s motions for class-action certification,

for summary judgment, and in denying his “multipurpose motion.”

A F F I R M E D.