Brian v. United States Department of Veterans Affairs

• Court: District Court, D. Nevada
• Decided: March 7, 2024
• Docket: 2:23-cv-00245
• Status: Unknown

Opinion

1 2 3 4 UNITED STATES DISTRICT COURT 5 DISTRICT OF NEVADA 6 * * *

7 BRIAN CORNELL, Case No. 2:23-cv-00245-RFB-NJK

8 Plaintiff, ORDER

9 v.

10 UNITED STATES DEPARTMENT OF VETERANS AFFAIRS Northeast Las Vegas 11 VA Clinic,

12 Defendant.

13 14 Before the Court is the United States Department of Veterans Affairs’ (“USDVA”) 15 Motion to Dismiss (Electronic Court Filing (“ECF”) No. 5). For the reasons below, the motion is 16 granted in part and denied in part; this matter is dismissed without prejudice for want of subject 17 matter jurisdiction.1 18 I. FACTUAL ALLEGATIONS 19 The following allegations are taken from the Complaint. Brian Cornell is a veteran who 20 has used the Post 9/11 G.I. Bill to seek education. When G.I. Bill funding ran out, he contacted 21 the Northeast Las Vegas Veterans Affairs (“VA”) Clinic homeless prevention program because 22 he was concerned that he and his family may become homeless. A VA caseworker informed Mr. 23 Cornell that he did not qualify for assistance because he was motivated, in school, looking for 24 25 26 1 Because Mr. Cornell is proceeding pro se (that is, representing himself), the Court notes for his benefit that this dismissal is “without prejudice” as opposed to “with prejudice.” A 27 dismissal with prejudice would prevent a claim from being filed again. A dismissal without prejudice does not prevent re-filing in a court that has jurisdiction to hear the claim. As discussed 28 below, the United States Court of Federal Claims rather than Nevada state court or the Federal District Court, appears to be the only proper venue for Mr. Cornell’s claims. 1 work, and that his wife received a disability payment. Subsequently, Mr. Cornell and his family 2 went homeless. During that time, Mr. Cornell repeatedly visited the VA and, eventually, was 3 placed in transitional housing. The VA did not pay rent on the balance accrued and Mr. Cornell 4 and his family were evicted. Mr. Cornell represents that the VA refuses to house him and his 5 family, document falsehoods, and colludes to create evictions. 6 II. PROCEEDURAL HISTORY 7 On January 25, 2023, Mr. Cornell filed the Complaint in the Eighth Judicial District 8 Court for Clark County, Nevada. ECF No. 1. In the Complaint Mr. Cornell alleges a breach of 9 contract claim against the VA for failing to pay his rent on two occasions. Id. Because Mr. 10 Cornell brought the case against an agency of the United States in Nevada state court, the United 11 States was entitled to remove the matter from Nevada state court to the United States District 12 Court for the District of Nevada. 28 U.S.C. § 1442(a)(1). On February 15, 2023, the United 13 States did so, filing the Petition for Removal. ECF No. 1. On March 16, 2023, the United States 14 filed a Motion to Dismiss seeking dismissal for, among other things, a lack of subject matter 15 jurisdiction. ECF No. 6. Mr. Cornell did not file an opposition and, to date, has not appeared in 16 the removed federal action.2 The Court’s order follows. 17 18 III. LEGAL STANDARDS 19 Federal Rule of Civil Procedure 12(b)(1) allows for a defendant to move the court to 20 dismiss a complaint for a lack of subject matter jurisdiction. Simply put, subject matter 21 jurisdiction is the power of a court to hear the matter before it. Lightfoot v. Cendant Mortg. 22 Corp., 580 U.S. 82, 91-92 (2017). If subject matter jurisdiction is challenged, the burden is on 23 the party asserting jurisdiction to establish it. In re Dynamic Random Access Memory Antitrust 24 Litigation, 546 F.3d 981, 984 (9th Cir. 2008) (citations omitted). Dismissal under Rule 12(b)(1) 25 is appropriate if the complaint, considered in its entirety, fails to allege facts on its face that are 26 sufficient to establish subject matter jurisdiction. Id. at 984-85. The party asserting diversity

27 2 Under Local Rule 7-2(d) the failure of an opposing party to file points and authorities in 28 response to any motion, except for a motion for summary judgement or attorney’s fees, constitutes consent to granting that motion. 1 jurisdiction is required only to allege, and not prove, diversity at the pleading stage. See Kanter 2 v. Warner-Lambert Co., 265 F.3d 853, 857 (9th Cir.2001) (holding that “failure to specify state 3 citizenship was fatal to [an] assertion of diversity jurisdiction”). 4 IV. DISCUSSION 5 The Court now turns to the motion to dismiss. Among other arguments,3 Defendant 6 USDVA argues the Court lacks subject matter jurisdiction over this matter. In support of this 7 contention, USDVA contends that this claim falls within the United States Court of Federal 8 Claims exclusive subject matter jurisdiction. 9 The Court agrees with Defendant USDVA. It is settled law in this circuit that the Tucker 10 Act, 28 U.S.C. § 1491(a), and the “Little Tucker Act,” 28 U.S.C. § 1346(a)(2), together “provide 11 jurisdiction solely in the Court of Federal Claims for [breach of contract] claims seeking more 12 than $10,000 in damages.” Tritz v. U.S. Postal Serv., 721 F.3d 1133, 1137 (9th Cir. 2012) (italics 13 original) (quoting McGuire v. United States, 550 F.3d 903, 910-11 (9th Cir. 2008)). One 14 exception to this general rule is where Congress has specifically provided for another court to 15 have authority to hear these claims. Bowen v. Massachusetts, 487 U.S. 879, 910 n.48 (1988). 16 The Tucker Act covers actions against the United States and its agencies. Hewitt v. Grabicki, 794 17 F.2d 1373, 1382 (9th Cir. 1986) (affirming a Tucker Act dismissal for a breach of contract claim 18 against the VA). The Complaint is clear that Mr. Cornell is seeking twenty million dollars, plus 19 interest, for breach of contract. Therefore, the Court lacks subject matter jurisdiction over the 20 case because the United States Court of Federal Claims has exclusive jurisdiction over the breach 21 of contract claim in this matter. 22 /// 23 /// 24 25 3 Defendant also argue that Mr. Cornell has failed to plead a breach of contract action under Nevada law and that service was not properly completed. See Fed. R. Civ. Pro. 12(b)(5), 26 (b)(6). Because subject matter jurisdiction is a threshold issue and without subject matter jurisdiction, a court generally may not consider other aspects of a case, the Court does not 27 address USDVA’s other arguments for dismissal. Bibiano v. Lynch, 834 F.3d 966, 971 n.4 (9th Cir. 2016); see also Arbaugh v. Y&H Corp., 546 U.S. 500, 514 (2006) (“[C]ourts . . . have an 28 independent obligation to determine whether subject-matter jurisdiction exists, even in the absence of a challenge from any party.”). 1 Vv. CONCLUSION 2 For the foregoing reasons, IT IS ORDERED that the Motion to Dismiss (ECF No. 5) is 3 | GRANTED in part and DENIED in part. The motion is granted as far as it concerns a lack of subject matter jurisdiction and is denied in all other respects. 5 IT IS FURTHER ORDERED that the Complaint (ECF No. 1-2) is DISMISSED 6 | without prejudice. The Clerk of Court is instructed to close this case. 7 IT IS FURTHER ORDERED that the Clerk of Court will provide a copy of this Order 8 | to Mr. Cornell via email at the email address in his Complaint (ECF No. 1-2) and first class mail 9 | to the address on file. 10 11 | DATED: March 7, 2024. .

14 RICHARD F. BOULWARE, II UNITED STATES DISTRICT JUDGE 15 16 17 18 19 20 21 22 23 24 25 26 27 28

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