The opinion of the court was delivered by: Judge Munley
Before the court for disposition is the defendants' motion to dismiss the plaintiff's complaint. The motion is fully briefed and ripe for disposition. For the reasons that follow the motion will be granted without prejudice to the plaintiff filing an amended second complaint with regard to Count 1.
Plaintiff James L. Culver served in the armed forces from April 14, 1961 to October 30, 1967. (Doc. 14 at 3). His Department of Veterans Affairs's (hereinafter "VA") records indicate that he subsequently received treatment for multiple skin diseases.*fn1 Id. In 1994, he underwent surgery to remove an actinic keratosis. Id. Plaintiff, however, never received a biopsy at any subsequent time. Id. Furthermore, the VA has not ordered additional lab work to treat plaintiff's ongoing conditions. Id. Plaintiff claims that VA medical professionals would fail to take his "vitals" at regularly scheduled appointments. Id. According to the plaintiff, he is currently experiencing additional manifestations of his skin diseases such as three lumps on his right tricep, as well as skin lesions and rashes growing exponentially on his entire body including the insides of ears. Id.
In August 2003, plaintiff applied for an increase in benefits he receives from the VA. (Doc. 14 at 4). The VA determined that Urticaria was plaintiff's only service connected disability and consequentially raised his benefits from 10% to 30%. On May 24, 2004, plaintiff appealed the 30% determination and on March 6, 2005 requested a formal hearing. Id. The VA denied plaintiff's appeal on November 2, 2005, however, without benefit of a formal hearing. Id. Plaintiff claims several other examples of alleged misfeasance by the VA, including a letter the VA failed to timely send plaintiff which forced him to miss a mandatory doctor's appointment, the VA's failure to commit important information to writing, communication by the VA of contradictory information, and the frustration of plaintiff's medical treatment by the VA which requires medical tests which they continually fail to provide. Id. at 3-6.
On September 22, 2006, plaintiff filed suit against Defendants United States Department of Veterans Affairs and Does 1 through 10 for I) medical malpractice relating to Plaintiff's skin conditions under the Federal Torts Claim Act (hereinafter FTCA); and II) procedural due process violations concerning the VA Ratings Board's decision to designate plaintiff 30% disabled due to his service connected skin conditions. (Doc. 1). Plaintiff seeks damages for personal injury, legal costs, that his disability benefits be determined at 100% and such other relief as the court deems proper. (Doc. 14 at 7).
On November 26, 2006, defendant moved to dismiss the original complaint. (Doc. 3). Defendants filed a brief in support of their motion on December 6, 2006. (Doc. 4). On January 23, 2007, plaintiff amended his complaint to name the United States as a defendant. (Doc. 14).
On February 9, 2007, defendants filed the instant 12(b)(1) and 12(b)(6) motion to dismiss due to lack of subject matter jurisdiction over an agency of the United States in an FTCA suit, lack of subject matter jurisdiction over decisions relating to the determination if a veteran's rating for service connected disabilities, the United State's failure to waive sovereign immunity for constitutional claims for money damages, and the federal government is not restrained by constitution of the Commonwealth of Pennsylvania.*fn2 (Doc. 16 at 1-3).
Federal courts, being courts of limited jurisdiction, have a continuing duty to satisfy themselves of jurisdiction before addressing the merits of a case. Packard v. Provident Nat'l Bank, 994 F.2d 1039, 1049 (3d Cir. 1993) cert. denied sub nom Upp v. Mellon Bank, N.A., 510 U.S. 964 (1993).
Under Rule 12(b)(1) of the Federal Rules of Civil Procedure, this court dismisses cases for "lack of jurisdiction over the subject matter." Fed. R. Civ. Pro. 12(b)(1). The standard for surviving a motion to dismiss under Rule 12(b)(1), however, is not a difficult one to achieve: "dismissal for lack of jurisdiction is not appropriate merely because the legal theory alleged is probably false." Lunderstadt v. Colafella, 885 F.2d 66, 70 (3d Cir. 1989). Instead, courts may "dismiss a claim for lack of jurisdiction if the federal claim is 'made solely for the purpose of obtaining jurisdiction ' or if the claim is 'wholly insubstantial and frivolous." Kullick v. Pocono Downs Racing Ass'n, 816 F.2d 895 (3d Cir. 1987) (quoting Bell v. Hood, 327 U.S. 678, 682-83 (1956)). To justify dismissal, "the claim must be 'so insubstantial, implausible, foreclosed by prior decisions of this Court, or otherwise completely devoid of merit as not to involve a federal controversy." Kehr Packages v. Fidelcor, Inc., 926 F.2d 1406, 1409 (3d Cir. 1991) (quoting Oneida Indian Nation v. County of Oneida, 414 U.S. 661, 666 (1946).
The defendant also moves us to dismiss case under Rule 12(b)(6) of the Federal Rules of Civil Procedure. When a 12(b)(6) motion is filed, the sufficiency of a complaint's allegations are tested. The issue is whether the facts alleged in the complaint, if true, support a claim upon which relief can be granted. In deciding a 12(b)(6) motion, the court must accept as true all factual allegations in the complaint and give the pleader the benefit of all reasonable inferences that can fairly be drawn therefrom and view them in the light most favorable to the plaintiff. Morse v. Lower Merion Sch. Dist., 132 F.3d 902, 906 (3d Cir. 1997).
Defendants raise the following four general issues in their motion to dismiss: 1) Should the United States Department of Veteran Affairs be dismissed under the doctrine of sovereign immunity? 2) Is the medical negligence claim inadequately pled? 3) Does this court lack jurisdiction over the due process claims? and 4) ...