Unpublished Disposition, 851 F.2d 361 (9th Cir. 1988)

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U.S. Court of Appeals for the Ninth Circuit - 851 F.2d 361 (9th Cir. 1988)

Eugene SOLIZ, Plaintiff-Appellant,v.UNITED STATES of America, Defendant-Appellee.

No. 86-6158.

United States Court of Appeals, Ninth Circuit.

Submitted May 12, 1988.* Decided June 27, 1988.

Before KOELSCH, KILKENNY and FARRIS, Circuit Judges.

Eugene Soliz ("appellant") appeals pro se from the district court's dismissal, without leave to amend, of his Federal Tort Claims Act ("FTCA") law suit for lack of subject matter jurisdiction. We review de novo, see Greater Los Angeles Council on Deafness, Inc. v. Baldrige, 827 F.2d 1353, 1358 (CA9 1987), and we remand.

We note at the outset that the appellant's action is a straight-forward FTCA claim for damages based on a non-constitutional challenge to Veterans Administration ("VA") decisions regarding the reduction and eventual termination of his VA benefits. We also note that the appellant did not file an administrative claim with the VA for his purported tort injuries that allegedly resulted from the VA's reduction and termination of his benefits prior to filing the instant action.

Ordinarily, the above two facts would prove fatal to claims such as those asserted. See 38 U.S.C. § 211(a) (courts lack subject matter jurisdiction over challenges to VA benefits decisions); Johnson v. Robison, 415 U.S. 361, 374 (1974) (limiting section 211(a) to non-constitutional challenges); Rosen v. Walters, 719 F.2d 1422, 1423 (CA9 1983) (same). See also 28 U.S.C. § 2675(a) (damage claims must be presented to appropriate federal agencies for administrative review prior to filing FTCA actions); Spawr v. United States, 796 F.2d 279, 280 (CA9 1986) (failure to comply with section 2675(a) ground for dismissal of FTCA action). However, as this court noted in Devine v. Cleland, 616 F.2d 1080 (CA9 1980), section 211(a) does not preclude jurisdiction over complaints alleging due process challenges to VA benefits legislation and regulations, and due process requires the VA to provide pretermination notice and hearings. 616 F.2d at 1083-85.

Here, the appellant has alleged that his VA benefits were first reduced, then terminated, all without the VA having provided him with prior notice or the opportunity for a hearing. Because of the deference accorded pro se litigants, we decline to hold that the appellant could not amend his complaint sufficiently to bring it within the confines of Devine, supra, by claiming a due process violation as the result of the VA's alleged failure to provide him with notice and an opportunity to be heard before reducing and terminating his benefits. See, e.g., Eldridge v. Block, 832 F.2d 1132, 1135 (CA9 1987) (pro se litigant must be given leave to amend complaint unless absolutely clear that deficiencies of complaint could not be cured by amendment).

Accordingly, we REMAND for proceedings consistent herewith.


The panel unanimously finds that this case is appropriate for submission without oral argument per FRAP 34(a) and CA9 Rule 34-4


This disposition is not appropriate for publication and may not be cited to or by the courts of this Circuit except as provided by CA9 Rule 36-3