(PS)Ortiz v. Hackney, 2:19-cv-02089

Plaintiff Rene Ortiz, proceeding pro se, filed state-court suit alleging a VA Vocational Rehabilitation & Employment (VR&E) officer breached duties and refused to reimburse law-school expenses.
Defendant Rodney Hackney removed the case to federal court under 28 U.S.C. § 1442(a)(1) and moved to dismiss under Fed. R. Civ. P. 12(b)(1).
Defendant submitted a declaration and documents indicating the dispute concerns denial of VR&E benefits (tuition reimbursement); plaintiff’s filings indicate an attempt to obtain payment from the VA.
Plaintiff opposed dismissal (arguing jurisdiction because he is “still a Sensitive Seven”) and separately moved for appointment of counsel without identifying an attorney.
The magistrate judge concluded the Veterans’ Judicial Review Act (VJRA) channels review of individual VA benefits decisions to the Veterans Court (and then the Federal Circuit), recommended dismissal without prejudice for lack of subject-matter jurisdiction, denied leave to amend as futile, and denied appointment of counsel.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the district court has subject-matter jurisdiction over a challenge to denial of VR&E/VA benefits under the VJRA	Ortiz contends the court has jurisdiction (claims he is a "Sensitive Seven")	VJRA bars district-court review of individual VA benefits decisions; review lies in the Veterans Court then Federal Circuit	Dismissed for lack of subject-matter jurisdiction under the VJRA
Whether leave to amend should be granted	Not argued in detail; plaintiff asked generally to proceed	Defendant argued jurisdictional bar cannot be cured by amendment	Leave to amend denied as futile
Whether counsel should be appointed for plaintiff	Plaintiff requested appointment (did not identify counsel)	Court lacks authority to require counsel; appointment only under exceptional circumstances	Motion to appoint counsel denied (no exceptional circumstances given pending dismissal)

Thornhill Publ’g Co. v. Gen. Tel. & Elecs. Corp., 594 F.2d 730 (9th Cir. 1979) (distinguishes facial and factual Rule 12(b)(1) attacks)
Safe Air for Everyone v. Meyer, 373 F.3d 1035 (9th Cir. 2004) (facial Rule 12(b)(1) motions and consideration of limited outside evidence)
McCarthy v. United States, 850 F.2d 558 (9th Cir. 1988) (district court may review evidence when resolving factual jurisdictional disputes)
Veterans for Common Sense v. Shinseki, 678 F.3d 1013 (9th Cir. 2012) (VJRA channels review of individual VA benefits decisions to the Veterans Court)
Tunac v. United States, 897 F.3d 1197 (9th Cir. 2018) (decisions of Veterans Court reviewed exclusively by Federal Circuit)
Mallard v. United States Dist. Court, 490 U.S. 296 (1989) (district courts lack authority to appoint counsel in civil cases except under limited statutory authority)
Wilborn v. Escalderon, 789 F.2d 1328 (9th Cir. 1986) (test for exceptional circumstances in appointing counsel)
California Architectural Bldg. Prod. v. Franciscan Ceramics, 818 F.2d 1466 (9th Cir. 1988) (leave to amend may be denied for futility)