Bacani v. Dept of Vet Affairs, et al

*Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________
No. 99-11016
Summary Calendar
_____________________
ALFREDO C. BACANI, M.D.,
Plaintiff-Appellant,
versus
DEPARTMENT OF VETERANS AFFAIRS,
(DVA); TOGO WEST, Secretary, DVA,
Defendants-Appellees.
_________________________________________________________________
Appeal from the United States District Court for the
Northern District of Texas
USDC No. 3:98-CV-1728-G
________________________________________________________________
May 18, 2000
Before JOLLY, JONES, and BENAVIDES, Circuit Judges.
PER CURIAM:*
Alfredo C. Bacani, M.D., appeals the district court’s
dismissal of his complaint for lack of subject matter jurisdiction.
Bacani argues that the Administrative Procedures Act (“APA”)
provides the basis for subject matter jurisdiction.
5 U.S.C. § 702-704. He contends that even if he has not
demonstrated a “final agency action” for purposes of the APA, the
district court should have exercised jurisdiction under the

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exception set forth in Leedom v. Kyne, 358 U.S. 184 (1958). He
argues that the existence of subject matter jurisdiction is
supported by 28 U.S.C. §§ 1331 and 3001 when read in conjunction
with 28 U.S.C. § 2201. Bacani requests that this court rule on his
motions for class-action certification, for summary judgment, and
on his “multipurpose motion,” all of which were denied as moot by
the district court, if this court determines that the district
court erred in dismissing his complaint for lack of subject matter
jurisdiction.
We review de novo a district court’s dismissal for lack of
subject matter jurisdiction. Musslewhite v. State Bar of Texas, 32
F.3d 942, 945 (5th Cir. 1994). For essentially the reasons set
forth in the district court’s memorandum order, we affirm the
dismissal of Bacani’s complaint for lack of subject matter
jurisdiction. Bacani v. Department of Veteran Affairs, No.
3:98-CV-1728-G (N.D. Tex. Aug. 25, 1999). Bacani has not presented
the sort of “extraordinary situation” in which judicial
intervention under the Kyne doctrine is warranted. See Kirby Corp.
v. Pena, 109 F.3d 258, 268-69 (5th Cir. 1997). Because the
district court lacked subject matter jurisdiction, it did not err
in denying as moot Bacani’s motions for class-action certification,
for summary judgment, and in denying his “multipurpose motion.”
A F F I R M E D.

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