Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Robert Hannah v. United States Department

April 15, 2011

ROBERT HANNAH,
PLAINTIFF,
v.
UNITED STATES DEPARTMENT
OF VETERANS AFFAIRS, DEFENDANT.



The opinion of the court was delivered by: Lucy H. Koh United States District Judge

United States District Court For the Northern District of California

ORDER GRANTING DEFENDANT'S MOTION TO DISMISS

Plaintiff Robert Hannah brings suit requesting review of the denial of total disability issued by Defendant United States Department of Veterans Affairs ("VA"). Defendant moves to dismiss Plaintiff's complaint for lack of subject matter jurisdiction pursuant to Fed. R. Civ. P. 12(b)(1).

Pursuant to Civil Local Rule 7-1(b), the Court concludes that this motion is appropriate for 21 determination without oral argument and VACATES the motion hearing scheduled for April 21, 2011. For the reasons discussed below, Defendant's motion to dismiss is GRANTED.

I. BACKGROUND

Plaintiff Hannah is a veteran who served in active duty from 1979 to 1982 before being discharged with a service-related disability. Compl. at 13. He initially received a disability rating 26 of 40%, which was increased to 60% in 1986. Id. at 3, 13. This rating again increased in 1997, 27 when Plaintiff received a rating of Total Disability due to Individual Unemployability ("TDIU").Id. In 2001, Plaintiff received an Associate's degree in surgical technology, and located work as a surgical technician. Id. at 3, 14. However, Plaintiff's disability interfered with his ability to work.

Plaintiff should resign from his employment and remain under the benefits of TDIU. Id. light of Plaintiff's employment, on March 2, 2007, the VA proposed discontinuation of the TDIU 6 benefits. Id. On April 17, 2002, the VA notified the Plaintiff of a request for physical examination 7 to evaluate the severity of his conditions. Id. On August 23, 2007, before a physical examination 8 had been scheduled, the VA determined that the Plaintiff was gainfully employed and discontinued Since receipt of the notice proposing discontinuation of TDIU benefits in March of 2007,Plaintiff has contacted the VA Regional Office multiple times regarding the lack of a physical examination, requesting a personal hearing, and requesting a hearing before the Board of Veterans' Appeals. Id. at 4-6. The VA has engaged in written correspondence with the Plaintiff, but no 14 hearing has been held. Id. at 18-19. Plaintiff filed his complaint on October 26, 2010, requesting 15 reinstatement of TDIU by the VA with retroactive benefits from November 30, 2007.

Except where statutes divest courts of jurisdiction, agency action is judicially reviewable under 28 U.S.C. § 1331. Califano v. Sanders, 430 U.S. 99, 107 (1977). Rule 12(b)(1) of the Federal Rules of Civil Procedure requires dismissal of a complaint if the Court lacks subject matter 20 jurisdiction. On a motion to dismiss for lack of subject matter jurisdiction under Rule 12(b)(1), the 21 party asserting jurisdiction has the burden of establishing that subject matter jurisdiction is proper. 199, 201 (9th Cir.1989). "When subject matter jurisdiction is challenged under [Rule] 12(b)(1), the 24 plaintiff has the burden of proving jurisdiction in order to survive the motion. A plaintiff suing in a 25 federal court must show in his pleading, affirmatively and distinctly, the existence of whatever is 26 essential to federal jurisdiction, and, if he does not do so, the court, on having the defect called to 27 its attention or on discovering the same, must dismiss the case, unless the defect be corrected by 28 amendment." Tosco Corp. v. Communities for a Better Env't, 236 F.3d 495, 499 (9th Cir. 2001) Id. at 4. Upon examination by a VA physician, Plaintiff, his employer, and the VA agreed that In 2005, Plaintiff again started working as a surgical technician on a per diem basis. Id. In TDIU benefits. Id. In 2008, Plaintiff was terminated from his employment. Id. at 16.

United States District Court For the Northern District of California

II. LEGAL STANDARDS

Kokkonen v. Guardian Life Ins. Co., 511 U.S. 375, 377 (1994); St. Clair v. City of Chico, 880 F.2d 23 (citations and internal quotations omitted).

III. DISCUSSION

Plaintiff claims that Defendant improperly denied him TDIU benefits. Compl. at 1-2.

Plaintiff further contends that Defendant's current actions regarding the adjudication of his claims 5 are in violation of the Fourteenth Amendment. Id. at 6; P.'s Resp. to MTD at 1. Defendant has 6 moved to dismiss Plaintiff's complaint for lack of subject matter jurisdiction. Defendant argues 7 that ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.