Opinion
22-cv-06081-AGT
01-30-2023
HARVEY P. SACKETT, Plaintiff, v. KILOLO KIJAKAZI, Defendant.
ORDER GRANTING MOTION TO DISMISS WITH LEAVE TO AMEND RE: DKT. NO. 10
ALEX G. TSE United States Magistrate Judge
The Commissioner's motion to dismiss is granted in full for the reasons stated on the record at the January 27, 2023, hearing. Dismissal is with leave to amend. Any amended complaint must be filed within 14 days of this order. The amendment must identify an express waiver of sovereign immunity by the United States. See Rattlesnake Coal. v. U.S. E.P.A., 509 F.3d 1095, 1103 (9th Cir. 2007) (“The United States must waive its sovereign immunity before a federal court may adjudicate a claim brought against a federal agency.”); see also Smith v. Grimm, 534 F.2d 1346, 1352 n.9 (9th Cir. 1976) (“The mandamus statute, 28 U.S.C. § 1361, is not a consent to suit by the sovereign.); People with Disabilities Found. v. Berryhill, 2017 WL 1398275, at *2 (N.D. Cal. Apr. 19, 2017) (collecting cases holding that the Social Security Act's fee provision, 42 U.S.C. § 406, does not waive sovereign immunity). The amendment must also identify a specific nondiscretionary duty to act by the Social Security Administration, and the legal source of that duty. “A cite to the Agency's general duty to award attorneys' fees, or to § 406 without more, will not suffice.” People With Disabilities Found. v. Colvin, 2016 WL 2984898, at *6 (N.D. Cal. May 24, 2016). Failure to comply will result in dismissal with prejudice.
IT IS SO ORDERED.