Thompson, 812 F.2d at 575.

A. Rule 12(b)(1)

   Subject matter jurisdiction is fundamental and cannot be waived. The party seeking to invoke the jurisdiction of the court has the burden of establishing that jurisdiction exists. Scott v. Breeland, 792 F2d 925, 927 (9th Cir. 1986). The court is under a continuing duty to dismiss an action whenever it appears that the court lacks jurisdiction. Billingsley v. C.I.R. 868 F.2d 17 1081, 1085 (9th Cir. 1989).

   The standards that must be applied in a Rule 12(b)(1) motion vary according to the nature of the jurisdictional challenge. If the challenge is a facial attack-one contesting jurisdiction solely on the allegations of the complaint-the factual allegations of the complaint are presumed to be true, and the motion is granted only if the plaintiff fails to allege an element necessary for subject matter jurisdiction. See Thornhill Pub. v. Gen'l Telephone & Electronics, 594 F.2d 730, 733 (9th Cir. 1979). If the challenge goes beyond a facial attack, as where the defendant contests one or more jurisdictional allegations in the pleadings by presenting evidence, the plaintiff is entitled to respond with evidence supporting jurisdiction. See Gould Electronics Inc. v. United States, 220 F. 3d 169, 177 (3rd Cir. 2000). If there is a dispute as to a material fact, the court must conduct a plenary trial prior to making a jurisdictional ruling. Id. The standard to be applied in determining whether a hearing is required is equivalent to that used in ruling on a motion for summary judgment under Rule 56 of the Federal Rules of Civil Procedure. Commodities Export Co. v. United States Customs Service, 888 F.2d 431, 436 (6th Cir. 1989).

B. Rule 12(b)(6)

   Federal Rule of Civil Procedure 12(b)(6) provides that a party may move to dismiss an action for failure to state a claim upon which relief may be granted. A motion to dismiss under Rule 12(b)(6) cannot be granted unless "it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conlav v. Gibson 355 U.S. 41, 45-46 (1957). Dismissal can be based on the lack of a cognizable legal theory or the absence of sufficient facts alleged under a cognizable legal theory. Balistreri v. Pacifica Police Dept., 901 F.2d 696, 699 (9th Cir. 1990). In analyzing whether to grant a Rule 12(b)(6) motion, the court should keep in mind that dismissal is disfavored and should be granted only in "extraordinary" cases. United States v. Redwood City, 640 F.2d 963, 966 (9th Cir. 1981).

   Generally, a district court may not consider any material beyond the pleadings in ruling on a Rule 12(b)(6) motion. Hal Roach Studios. Inc. v. Richard Feiner And Co., Inc., 896 F.2d 1542, 1555 n.19 (9th Cir. 1990). However, material which is properly submitted as part of the complaint may be considered. Id. In addition, documents whose contents are alleged in a complaint, and whose authenticity no party questions, but which are not physically attached to the pleading, may be considered. Branch v. Tunnell, 14 F.3d 449, 454 (9th Cir. 1994), Finally, the Court may take judicial notice of matters of public record. Mack v. South Bay Beer Distributors. Inc., 793 F.2d 1279, 1282 (9th Cir. 1986).

   In analyzing a motion to dismiss, the Court must accept as true all material allegations in the complaint, and construe them in the light most favorable to the nonmoving party. NL Industries, Inc. v. Kaplan, 792 F.2d 896, 898 (9th Cir. 1986). However, factual allegations can be disregarded if contradicted by the facts established by reference to documents attached as exhibits to the complaint. Durning v. First Boston Corp. 815 F.2d 1265, 1267 (9th Cir. 1987). Conclusory allegations, unsupported by the facts alleged, need not be accepted as true. Holden v. Hagopian, 978 F.2d 1115, 1121 (9th Cir. 1992).

C. Summary Judgment

   Rule: 56(c) of the Federal Rules of Civil Procedure provides that a court may grant summary judgment "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law."

   The Supreme Court's 1986 "trilogy" of Celotex Corp. v. Catrett, 477 U.S. 317 (1986), Anderson v. Liberty Lobby. Inc., 477 U.S. 242 (1986), and Matsushita Electric Industrial Co. v. Zenith Radio Corp., 475 U.S. 574 (1986), requires that a party seeking summary judgment show the absence of a genuine issue of material fact. The moving party need not produce admissible evidence showing the absence ot a genuine issue of material fact when the nonmoving party has the burden of proof, but may discharge its burden simply by pointing out that there is an absence of evidence to support the nonmoving party's case. Celotex, 477 U.S. at 324-25. Once the moving party has done so, the nonmoving party must "go beyond the pleadings and by her own affidavits, or by the 'depositions, answers to interrogatories, and admissions on file, designate specific facts showing that there is a genuine issue for trial.'" Celotex, 477 U.S. at 324 (quoting Fed. R. Civ. P. 56(c)). "When the moving party has carried its burden under Rule 56(c), its opponent must do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita, 475 U.S. at 586. "If the evidence is merely colorable, or is not significantly probative, summary judgment may be granted." Liberty Lobby, 477 U.S. at 249-50 (citations omitted). When determining whether there is a genuine issue for trial "inferences to be drawn from the underlying facts ... must be viewed in the light most favorable to the party opposing the motion." Matsushita, 475 U.S. at 587, (citation omitted).

A. Claims For Injunctive Relief

   1. Subject Matter Jurisdiction

   Plaintiffs seek injunctive relief in connection with the following: (1) the Secretary's and/or her designee's decision not to provide legal assistance to Tom Olsen under 33 U.S.C. § 939(c)(1) during the proceedings described above; (2) the failure of District Director Williams and his superiors to adequately "supervise the medical management" of Tom Olsen in connection with further claims for benefits under the LHWCA; and (3) the failure on the part of ALJ Mapes to adequately provide accommodations for Olsen's alleged disabilities. Plaintiffs allege these actions violate their rights under the LHWCA, the Fifth and Fourteenth Amendments, the Americans With Disabilities Act ("ADA"). 42 U.S.C. § 12101 et seq. and the Rehabilitation Act of 1973, 29 U.S.C. § 794, and contend that Tom Olsen "should not be forced to attend an Administrative hearing without the court first addressing this issue on the merits." (Compl. ¶ 102.)

   Mandamus, however, is a "drastic" remedy, "to be invoked only in extraordinary situations." Kerr v. United States District Court, 426 U.S. 394, 402 (1976). In Nova Stylings v. Ladd, 695 F.2d 1179 (9th Cir. 1983), the Ninth Circuit outlined the contours of a district courts jurisdiction under §1361:

[I]ts remedy remains extraordinary and it is appropriate only when the plaintiffs claim is clear and certain and the duty of the officer is ministerial and so plainly prescribed as to be free from doubt. Mandamus does not lie to review the discretionary acts of officials.... The availability of an adequate alternative remedy will also preclude mandamus review.

Nova Stylings v. Ladd, 695 F.2d 1179, 1180 (9th Cir. 1983) (internal quotations and citations omitted).

   There, the plaintiffs brought a mandamus action to compel the Register of Copyrights to register jewelry designs. The Ninth Circuit held that the availability of review through the Administrative Procedure Act was an adequate remedy precluding mandamus jurisdiction, noting that "mandamus review may not generally be used when a statutory mode of review has been prescribed." Id. at 1180-82; see also Fallini v. Hodel, 783 F2d 1343, 1345 (9th Cir. 1986) (noting where statute prescribes an exclusive remedy courts should be cautious in extending it). Here, the comprehensive scheme of the LHWCA provides the exclusive procedures for determining benefits under the Act, and similarly affords plaintiffs the availability of review by both the Benefits Review Board and the United States Court of Appeals as set forth above. Thus, the availability of review under the LHWCA precludes mandamus in this case and such claims against the federal defendants are hereby DISMISSED.

   3. Immunity

   Plaintiffs' claims against defendants John Vittone, Paul Mapes and Jean Hall, and Phillip Williams fail for the additional reason that these defendants are entitled to absolute immunity.

   a. Defendants Vittone, Mapes, and Hall

   Included among the over fifty defendants sued by plaintiffs are several judicial officers connected in some way with Olsen's LHWCA proceedings. John Vittone is Chief Judge of the OALJ. Paul Mapes is the ALJ assigned by Judge Vittone to conduct the formal hearing in Tom Olsen's LHWCA case and who has issued numerous pre-trial orders. Jean Hall is the Chief Administrative Appeals Judge of the BRB, who has signed various orders regarding Tom Olsen's case. As such, these defendants are entitled to absolute quasi-judicial irrimunity from suit.

   ALJs and judges serving on the BRB are entitled to absolute immunity for performing judicial acts. See Butz v. Economou, 438 U.S. 478, 513-514 (1978) (holding persons performing adjudicatory functions within a federal agency are entitled to absolute immunity: the role of an administrative law judge is "functionally comparable" to that of a judge). The BRB is itself a quasi-judicial body. See Kalaris v. Donovan, 697 F. 2d 376, 382-83 n.15, 393-94 n.70 (D.C. Cir. 1983) (noting that BRB is defined as 'quasi-judicial' by regulation); 20 C.F.R. §§ 801.103-801.104. Congress, in amending the LHWCA in 1972, intended to vest in the BRB the same judicial power to rule on substantive legal questions as was previously possessed by the district courts. See Gibas v. Saginaw Mining Co., 748 F.2d 1112, 1118 (6th Cir. 1984). The quasi-judicial immunity available to federal officers is not limited to immunity from damages, but extends to actions for declaratory, injunctive, and other equitable relief. See Moore v. Brewster, 96 F.3d 1240, 1243 (9th Cir. 1996).

   Quasi-judicial immunity is overcome in only two situations. See Mireles v. Waco, 502 U.S. 9, 11 (1991). First, a judge is not immune from liability for non-judicial actions. Id. Second, a judge is not immune for actions, though judicial in nature, taken in complete absence of all jurisdiction. Id. at 12; Tanner v. Heise, 879 F.2d. 572, 576 (9th Cir. 1989) (holding judges enjoy absolute immunity even when their actions are erroneous, malicious, or in excess of judicial authority," unless they act in the clear absence of all jurisdiction).

   In the instant case, plaintiffs seek injunctive relief against Judges Vittone, Mapes, and Hall for various rulings made during the course of proceedings under the LHWCA, acts clearly undertaken as part of their official adjudicatory duties. The complaint does not allege that these defendants acted in the complete absence of all jurisdiction. Indeed, plaintiffs allege precisely the contrary. Plaintiffs contend that the OALJ and the BRB had jurisdiction to take certain actions, specifically to hear plaintiffs repeated interlocutory appeals, and wrongfully refused to exercise that jurisdiction. (Compl. ¶ 94, 97)

   As the allegations against Judges Vittone, Mapes, and Hall relate to actions taken in their quasi-judicial capacity and within their jurisdiction. these defendants are deemed absolutely immune from suit for the injunctive relief sought, and all such claims are DISMISSED for that reason as well.

   b. Defendant Williams

   District Director Williams is also entitled to absolute immunity when engaged in the performance of their quasi-judicial functions. Courts take a "functional approach" in analyzing whether to extend quasi-judicial immunity, examining the nature of the functions that an official has been entrusted with and the effect of exposure to liability from the exercise of those functions. Forrester v. White. 484 U.S. 219, 224 (1988). Although courts are sparing in recognizing claims of absolute immunity, id., immunity has been extended to a wide range of persons playing a role in the judicial process, including court clerks and court-appointed mediators. See Moore, 96 F.3d at 1244 (holding clerk of United States district court entitled to absolute quasi-judicial immunity); Mullis v. Bankr. Court for the Dist. of Nevada, 828 F.2d 1358, 1390 (9th Cir. 1987) (holding deputy clerks of Bankruptcy Court entitled to absolute quasi-judicial immunity); Wagsha! v. Forster, 28 F.3d 1249, 1254 (D.C. Cir. 1994) (holding absolute quasi-judicial immunity extends to state court mediators).

   Although district directors no longer have the adjudicatory authority that they had prior to the 1972 amendments to the LHWCA, see Dir. Office of Workers' Comp. Programs, Dept of Labor v. Newport News Shipbuilding and Dry Dock Co., 514 U.S. 122, 138 (1995) (Ginsburg, J. concurring), their functions are a hybrid of the functions performed by judges, court clerks and mediators. Like judges, district directors are authorized to resolve disputes among private parties by evaluating and approving settlement agreements. See 33 U.S.C. § 908(1); 20 C.F.R. §§ 702.241-702.243. Where the parties agree, district directors issue binding compensation orders. See 20 C.F.R. § 702.315. Where an employer defaults on payment, district directors issue supplementary orders. See 33 U.S.C. § 918(a). Like court mediators, district directors convene informal mediation conferences in an effort to resolve disputes that otherwise go to formal litigation. See 33 U.S.C. §919(c); 20 C.F.R. 702.311. In mediating disputes, district directors may arrange for independent medical examinations. See 33 U.S.C. § 907(e), 919(h). District directors also function in a manner analogous to court clerks in filing and serving compensation orders. See 33 U.S.C. §§ 919(e), 921(a). Similar to a court clerk's office, the Office of the District Director processes many of the documents related to a LHWCA claim. See 20 C.F.R. §§ 702.251-252, 702.261-262, 702.317.

   District directors, like the Bankruptcy court clerks in Mullis, provide assistance to parties seeking to file claims. See 33 U.S.C. § 939; Ingalls Shipbuilding. Inc. v. Director, Office of Workers' Compensation Programs, Department of Labor, 519 U.S. 248,262-64 (1997). Plaintiffs' allegation that the federal defendants, including the District Director, failed to provide Tom Olsen with adequate assistance in the processing of his LHWCA claims, (see Compl. at ¶ 94), is the precise contention that the Mullis court held was barred by absolute immunity. See Mullis, 828 F.2d at 1390.

   As all of the allegations brought against District Director Williams relate to his exercise of judicially-related functions, and there is no allegation that he acted in the complete absence of jurisdiction. Williams is absolutely immune from suit for the injunctive relief sought and all such claims against him are DISMISSED for that reason as well.

B. Claims for Damages

   Plaintiffs seek damages against the federal defendants based on the following actions: (1) the failure to timely pay Tom Olsen's benefits at some point "within the last year;" (2) the failure to provide legal and other assistance to Tom Olsen under the LHWCA; (3) the failure to adequately "supervise the medical management" of Tom Olsen in connection with his claims for benefits under the LHWCA; and (4) the failure to address the "merits" of Plaintiff's claims and to provide Tom Olsen with adequate accommodations for his disabilities. (see Compl. ¶ 77, 93-97.)

42 U.S.C. § 12132. The ADA, however, specifically defines a public entity as (a) any state or local government; (b) any department, agency, special purpose district, or other instrumentality of a State or local government; and (c) the National Railroad Passenger Corporation, as well as "any commuter authority (as defined in section 502(8) of Title 45)." See 42 U.S.C. § 12131(1). Federal agencies and their officials cannot be held liable under the ADA because they are not "public entities" within the meaning of that act. See Zingher v. Yacovone, 30 F. Supp. 2d 446, 452 (D.Vt. 1997) (holding that the language of the statute does not include federal executive agencies as public entities), affd, Zingher v.Vermont Division of Vocational Rehabilitation, 165 F.3d 1015 (2d. Cir. 1999). Accordingly, plaintiffs' claims against the federal defendants for damages under the ADA fail as a matter of law and such claims are DISMISSED.

   Similarly, plaintiffs' claims for damages under the Rehabilitation Act are barred by the doctrine of sovereign immunity. See Dufresne v. Venemen, 114 F.3d 952, 954 (9th Cir. 1997) (quoting Lane v. Pena, 518 U.S. 187, 192 (1996) ("The clarity of expression necessary to establish a waiver of the Government's sovereign immunity against monetary damages for violations of § 504 is lacking in the text of the relevant provisions.").

   Accordingly, plaintiffs have failed to state a claim for damages against the federal defendants under the Rehabilitation Act, and such claims are DISMISSED.

   5. Federal Torts Claims Act

   The Federal Tort Claims Act ("FTCA") 28 U.S.C. §1346, 2671-2680 waives the sovereign immunity of the United States for actions in tort. All suits sounding in tort against a federal agency must be brought under the FTCA. 28 U.SC. §2679(a). A suit against a federal officer acting in his official capacity is deemed to be a suit against the United States. See Hawaii v. Gordon, 373 U.S. 57, 58 (1963); see also Brown v. Armstrong, 949 F.2d 1007, 1010-13 (8th Cir. 1991) (holding FTCA is exclusive remedy for torts committed by federal employees acting within the scope of their employment).

   Before filing an action in court, a tort claimant must first file an administrative claim with the federal agency whose activities gave rise to that claim. See 28 U.S.C. §2675(a); Jerves v. United States, 966 F.2d 517, 519 (9th Cir. 1992). If the plaintiff fails to comply with the procedures set forth in the FTCA, the action must be dismissed. See id.; Jerves, 966 F2d at 519. The administrative claim requirements of Section 2675(a) are jurisdictional. See Jerves, 966 F.2d at 519, 521.

   For the reasons expressed above, all claims as against all of the federal defendants are hereby DISMISSED without leave to amend.

   This order closes Docket #s 96 and 117.

   IT IS SO ORDERED.

Dated: OCT 31 2001

       MAXINE M. CHESNEY
       United States District Judge