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Zaldivar v. United States Department of Veterans Affairs

United States District Court, D. Arizona

October 27, 2015

Jose Adalberto Zaldivar, Sr., Plaintiff,
United States Department of Veterans Affairs, et al., Defendants.


David G. Campbell United States District Judge

Plaintiff Jose Adalberto Zaldivar, Sr., who is currently confined in Arizona State Prison Complex-Eyman, brought this pro se civil rights case pursuant to 42 U.S.C. §§ 1981, 1982, 1983, 1985, and 1986, as well as Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971), and the Freedom of Information Act (FOIA). (Doc. 1.) Pending before the Court are: (1) Defendant Veterans Affairs Office of Inspector General’s (OIG) Motion to Dismiss (Doc. 20), and (2) Defendant Veterans Affairs Regional Office-Phoenix (VARO) and Office of General Counsel’s (OGC) Partial Motion to Dismiss (Doc. 21). Plaintiff opposes both Motions (Docs. 24, 27).[1]

The Court will grant the Motions. . . . .

I. Background

On July 1, 2014, Plaintiff filed a three-count Complaint, naming as Defendants the OIG, the VARO, and Pima County. Plaintiff alleged in Count One that he submitted FOIA requests to the VARO in 2002, 2005, and 2007 for copies of statements and letters in his veteran compensation file that had been filed against him by his former wife, Rebecca Zaldivar. The VARO responded with documents that had certain personal information redacted. In December 2007, Plaintiff filed a FOIA appeal regarding the denial of certain documents he had requested earlier that year. The VARO responded that it had given Plaintiff the documents he requested and the only information redacted was Rebecca Zaldivar’s personal information, the release of which would constitute an “unwarranted invasion of personal privacy[.]” (Doc. 1 at 6.)[2] On February 14, 2008, Plaintiff appealed this decision to the OGC, claiming that the VARO’s denial of this information hampered his “right to a fair trial” and that disclosing the redacted information would not invade his former wife’s privacy. (Id.) The OGC responded on August 4, 2010 that it was denying Plaintiff’s appeal after determining that releasing his former wife’s personal information would constitute an invasion of privacy and that a document Plaintiff sought-a claim submitted by his former wife dated October 1, 2001-was never received by the VA and was not in Plaintiff’s file.

Plaintiff submitted a fourth FOIA request to VARO on April 26, 2012, requesting various documents, including an application for apportionment to support Plaintiff’s dependent spouse, notes related to that application, a VA letter dated April 3, 2012, stating that Plaintiff’s former wife was entitled to benefits, and a list of names and contact information “of benefits payable claimed by surviving spouses, dependent spouses and children entitled to dependency and i[n]dem[n]ity compensation.” (Doc. 1 at 8.) Plaintiff did not receive a response to this request and he filed an appeal with the VARO. On June 21, 2012, Plaintiff received a copy of his entire claim folder except for his service treatment records, which VARO said had already been provided to him.

On May 15, 2013, Plaintiff filed a complaint with the OIG pursuant to 38 C.F.R. § 42, the Program Fraud Civil Remedies Act of 1986 (PFCRA), alleging that his former wife made false statements to the VARO. On May 20, 2013, Plaintiff submitted additional exhibits in support of his May 15, 2013 complaint to the OIG. The OIG notified Plaintiff on June 27, 2013 that it was responding to his May 20, 2013 complaint and that it had determined “that it does not warrant formal investigation by the OIG.” (Doc. 1 at 11.) Plaintiff filed a “Notice of disagreement” on July 18, 2013, which he said also served as a “motion for reconsideration on the matters of the initial complaint.” (Id.) Plaintiff wrote that if there was “no right to the motion for reconsideration, then to consider this as a notice of appeal to be forwarded to the Secretary of Veterans Affairs.” (Id.) Plaintiff also requested that OIG provide “any ‘handbook’ describing their appeal process and/or administrative appeals to higher-level agency officials before seeking help from the courts for relief.” (Id. at 11-12.) Plaintiff did not receive a response to his request as of the date of his Complaint. (Id. at 12.)

In Count Two, Plaintiff alleged that on May 20, 2013, he submitted a FOIA request to VARO for copies of various communications between Rebecca Zaldivar and the VA. Plaintiff did not receive a response and so filed an appeal on July 15, 2013.

In Count Three, Plaintiff alleged that on June 4, 2013, he filed a FOIA request to VARO for documents requested or submitted by Rebecca Zaldivar “previously not supplied without having to make future request[s].” (Doc. 1 at 19.) Plaintiff did not receive a response and he filed a FOIA appeal on July 15, 2013.

On screening under 28 U.S.C. § 1915A(a), the Court determined that Plaintiff stated a claim under FOIA and directed the OIG, the VARO, and the OGC to answer the FOIA claims in Counts One and Two of the Complaint. The Court dismissed the remaining claims and Defendants. (Doc. 9.)

The OIG seeks dismissal pursuant to Federal Rule of Civil Procedure 12(b)(1), arguing that the Court lacks subject matter jurisdiction over it. (Doc. 20 at 2.) The VARO and OGC filed a partial Motion to Dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6), arguing that three of Plaintiff’s five claims against them are barred by the statute of limitations.[3] (Doc. 21 at 2-3.)

II. OIG’s Motion to Dismiss

A. Federal Rule of Civil Procedure 12(b)(1)

A Rule 12(b)(1) motion to dismiss for lack of subject matter jurisdiction may be a facial or a factual challenge to the existence of federal jurisdiction. White v. Lee, 227 F.3d 1214, 1242 (9th Cir. 2000). A facial challenge alleges that the pleadings are insufficient to support subject matter jurisdiction. Safe Air for Everyone v. Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004). In resolving a facial challenge, the district court must accept the allegations of the complaint as true. Doe v. Holy See, 557 F.3d 1066, 1073 (9th Cir. 2009) (citing Wolfe v. Strankman, 392 F.3d 358, 362 (9th Cir. 2004)). A factual challenge alleges that there is no actual existence of jurisdiction. Safe Air for Everyone, 373 F.3d at 1039. When a party makes a factual challenge, the court is not required to presume the truth of the allegations and may consider other properly presented evidence in the record for the purpose of determining the existence of subject matter jurisdiction. Id. The party asserting subject matter jurisdiction has the burden to prove such jurisdiction, regardless of whether it is the movant. See In re Dynamic Random Access Memory (DRAM) Antitrust Litig., 546 F.3d 981, 984 (9th Cir. 2008).

B. Facial Challenge to OIG’s Investigation Decision

1. Parties’ Arguments

OIG asserts that it is making a facial challenge to Plaintiff’s claim regarding the OIG’s decision not to launch a formal investigation of his complaint. Thus, the Court must accept as true Plaintiff’s Complaint allegations. Holy See, 557 F.3d at 1073.

OIG argues that this Court lacks jurisdiction over Plaintiff’s failure-to-investigate claim because there has been no waiver of sovereign immunity. OIG further argues that under the Inspector General Act of 1978, 5 U.S.C. app. §§ 1, et seq., the agency is afforded “absolute discretion in how investigations are conducted, ” thus precluding any claim by Plaintiff under the Administrative Procedure Act (APA). (Doc. 20 at 3.) OIG cites to the VA’s Standards for Implementing the PFCRA to argue that the regulation “vests complete discretion in the VA-OIG to make an initial determination of whether the VA-OIG believes ‘that an action under the [PFCRA] may be warranted’ before any obligation to refer a matter to the VA-OGC arises.” (Doc. 29 at 2, citing 38 C.F.R. § 42.4(c).) OIG also argues that Plaintiff lacks constitutional standing to challenge the OIG’s decisions under the PFCRA because he is a third party, notwithstanding his claim that he is a victim of his former wife’s alleged misconduct.

Plaintiff responds that “sovereign immunity does not grant one a discretion on whether [] or not to investigate any claim.” (Doc. 24 at 3.) Plaintiff asserts that he “is not asking that the sovereign immunity enjoyed by the VA-OIG be waived, or that the PFCRA act as a waiver, thereof.” (Id. at 5.) Plaintiff contends that as a veteran and the “principle party” he is owed a duty to investigate” because he has “been held accountable and garnishment implemented for past overpayments provided to a fiduciary (Plaintiff’s former spouse).” (Id. at 3.) Plaintiff ...

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