McNabb v. United States Department of the Army

concurring in part and dissenting in part:

I agree with the majority that sovereign immunity bars Mrs. McNabb’s claim against the VA, and that the claim against Prudential fails because the Army’s alleged failure to provide notice does not affect the validity of the beneficiary designation. But on the majority’s holding that the Army has no claim to sovereign immunity, I respectfully dissent.

As the majority acknowledges, it is well established that “[t]he federal government may waive its sovereign immunity, but any waiver ‘must be unequivocally expressed in statutory text ... and will not be implied.’ ” Ordonez v. United States, 680 F.3d 1135, 1138 (9th Cir.2012) (quoting Lane v. Pena, 518 U.S. 187, 192 , 116 S.Ct. 2092 , 135 L.Ed.2d 486 (1996)). “To sustain a claim that the Government is liable for awards of monetary damages, the waiver of sovereign immunity must extend unambiguously to such monetary claims.” Lane v. Pena, 518 U.S. at 192 , 116 S.Ct. 2092 . “Any ambiguities in the statutory language are to be construed in favor of immunity, so that the Government’s consent to be sued is never enlarged beyond what a fair reading of the text requires. Ambiguity exists if there…

FILED

NOT FOR PUBLICATION AUG 19 2015

MOLLY C. DWYER, CLERK

UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

GEORGETTE McNABB, No. 13-35502

Plaintiff - Appellant, D.C. No. 3:12-cv-06038-RBL

v. MEMORANDUM*

UNITED STATES DEPARTMENT OF

THE ARMY; UNITED STATES

DEPARTMENT OF VETERANS

AFFAIRS; PRUDENTIAL INSURANCE

COMPANY OF AMERICA,

Defendants/Third-Party Plaintiffs - Appellees,

v.

JANA LEE SMITH; THE ESTATE OF

BARETT WAMBLI MCNABB,

Third-Party Defendants - Appellees.

Appeal from the United States District Court for the Western District of Washington Ronald B. Leighton, District Judge, Presiding

* This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. Argued and Submitted May 5, 2015 Seattle, Washington

Before: GOULD and CHRISTEN, Circuit Judges, and BLOCK, Senior District Judge.**

Georgette McNabb appeals the dismissal of her claims against the United

States Department of Veterans Affairs (“VA”), the United States Department of the

Army (“Army”),…

MEMORANDUM **

Georgette MeNabb appeals the dismissal of her claims against the United States Department of Veterans Affairs (“VA”), the United States Department of the Army (“Army”), and Prudential Insurance Company of America (“Prudential”). With respect to the VA, we vacate and remand ■with instructions to dismiss for lack of subject-matter jurisdiction. With respect to the remaining two defendants, we affirm.

1. 38 U.S.C. § 1975 grants the district court jurisdiction over “any civil action or claim against the United States founded upon this subchapter,” i.e., the subchapter governing the Servicemembers’ Group Life Insurance program *872 (“SGLI”). We have said that the statute waives sovereign immunity, but that the waiver “extends only to actions alleging breach of an explicit or implicit duty under the SGLI subchapter.” Denton v. United States, 638 F.2d 1218, 1220 (9th Cir.1981). Mrs. McNabb claims that the VA breached the insurance policy “by failing to approve coverage and find compensability to pay the death benefit to [her] as required by the terms of said policy.” There is, however, no statute or regulation imposing any claims-processing duties on the VA. Because Mrs.…