Sackett v. Kijakazi

Opinion

1 2 5 6 HARVEY P. SACKETT, Case No. 22-cv-06081-AGT 7 Plaintiff, ORDER GRANTING MOTION TO 8 v. DISMISS WITH LEAVE TO AMEND 9 KILOLO KIJAKAZI, Re: Dkt. No. 10 10 Defendant. 11 The Commissioner’s motion to dismiss is granted in full for the reasons stated on the 12 || record at the January 27, 2023, hearing. Dismissal is with leave to amend. Any amended E 13 || complaint must be filed within 14 days of this order. The amendment must identify an express 14 || waiver of sovereign immunity by the United States. See Rattlesnake Coal. v. U.S. E.P.A., 509 3 15 || F.3d 1095, 1103 (9th Cir. 2007) (“The United States must waive its sovereign immunity before a 16 || federal court may adjudicate a claim brought against a federal agency.”); see also Smith v. Grimm, i 17 || 534 F.2d 1346, 1352 n.9 (9th Cir. 1976) (“The mandamus statute, 28 U.S.C. § 1361, is not a Z 18 || consent to suit by the sovereign.); People with Disabilities Found. v. Berryhill, 2017 WL 1398275, 19 || at *2(N.D. Cal. Apr. 19, 2017) (collecting cases holding that the Social Security Act’s fee 20 || provision, 42 U.S.C. § 406, does not waive sovereign immunity). The amendment must also 21 identify a specific nondiscretionary duty to act by the Social Security Administration, and the legal 22 || source of that duty. “A cite to the Agency’s general duty to award attorneys’ fees, or to § 406 23 without more, will not suffice.” People With Disabilities Found. v. Colvin, 2016 WL 2984898, at 24 || *6(N.D. Cal. May 24, 2016). Failure to comply will result in dismissal with prejudice. 26 || Dated: January 30, 2023 27 AL “TSE 28 United States Magistrate Judge