United States District Court, D. Arizona
Jonathan L. Haas, Plaintiff,
Oregon Health and Science University; David L. Scott; United States of America, Defendants.
G. MURRAY SNOW, District Judge.
Pending before the Court is Defendants OHSU's and David L. Scott's Motion to Dismiss and Alternative Motion to Transfer Venue (Doc. 12) and Defendant United States' Motion to Dismiss and to Transfer Venue (Doc. 23). For the following reasons, the motions to dismiss are granted.
Plaintiff Jonathan L. Haas brings various claims against the Defendants because Defendants would not give Haas a kidney transplant. Haas is a veteran, and the Phoenix Veterans Affairs ("VA") Medical Center referred him to the Portland VA Medical Center for evaluation. The VA medical system operates several regional transplant facilities and transplant candidates from Arizona and other states in the region are sent to Portland for evaluation and possible treatment. Haas travelled to Portland, allegedly at the VA Medical System's expense, and was evaluated.
The Portland VA Medical Center and the Oregon Health and Science University ("OHSU") have a consortium, or sharing agreement, related to the transplant programs. They are located in adjacent, connected facilities, and work together to treat transplant patients by sharing staff and facilities. During Haas's evaluation, he was seen by several doctors including one examination by Defendant David L. Scott, an employee of OHSU.
Based on his evaluation, the Kidney Transplant Program Board (the "Board") determined whether Haas was eligible for a transplant. Initially, the Board approved him only for a live kidney donor because of his age and because he was determined to be a high-risk case based on other medical conditions. Latter the facility discontinued that designation category for live donor only. The Board reexamined Haas's case in light of this change and determined he was no longer qualified for its available transplant services. Haas appealed this determination and the Board denied his eligibility again.
Haas took issue with the Board's reliance on his age as a factor in determining his eligibility, arguing that doing so was impermissible under the Age Discrimination Act. He filed a claim with the VA in August of 2012, which it denied on January 22, 2013. Haas then filed this action under the Federal Tort Claims Act in the District of Arizona on June 27, 2013. (Doc. 1)
Defendants seek dismissal or transfer on various grounds. OHSU and Dr. Scott seek dismissal based on a lack personal jurisdiction or because of improper venue. The United States seeks dismissal based on a lack of subject matter jurisdiction, improper venue, and failure to state a claim.
I. Jurisdiction under the Veterans' Judicial Review Act
The substance of Haas's complaint is that the Defendant's denied him coverage for a transplant. At least as to the United States, Haas is asking this court to review the VA's decision not to treat him, and hold it liable for its failure to treat him. The Ninth Circuit recently reaffirmed that under the Veterans' Judicial Review Act of 1988 ("the VJRA"), district courts do not have the authority to review the VA's benefits decisions.
We held in Veterans for Common Sense v. Shinseki that a district court does not have jurisdiction over claims that would require it to review a question of fact or law relating to or affecting veterans' benefits decisions. 678 F.3d 1013, 1022-25 (9th Cir. 2012) (en banc) ("First, Congress has expressly disqualified us from hearing cases related to VA benefits in [38 U.S.C.] § 511(a)... and second, Congress has conferred exclusive jurisdiction over such claims to the [Court of Appeals for Veterans Claims] and the Federal Circuit." (citations omitted)). Stated another way, if reviewing Plaintiffs' claim would require review of the circumstances of individual benefits requests, jurisdiction is lacking. See id. at 1034. "Benefits" include "any payment, service, ... or status, entitlement to which is determined under laws administered by the Department of Veterans Affairs pertaining to veterans and their dependents and survivors." Id. at 1026 (citing 38 C.F.R. § 20.3(e)).
Recinto v. U.S. Dep't of Veterans Affairs, 706 F.3d 1171, 1175 (9th Cir. 2013) cert. denied, 134 S.Ct. 83 (2013).
Here, this Court does not have jurisdiction over the subject matter. A transplant is a benefit because it is a service or a payment. This Court would be reviewing an individual benefits request if it considered the circumstance around Haas's attempt to receive a transplant. Such a review would entail the review of both the facts of Haas's case and the law relating to the VA's treatment decision. As defined in the VJRA and interpreted by the Ninth Circuit in Veterans for Common Sense and Recinto, this Court does not have the subject matter jurisdiction to hear Haas's claims against the United States. All of Haas's six claims require a review of the United States actions in denying Haas's transplant and a ...