Olear v. United States Department of Veterans Affairs

Filing 17

ORDER granting dft's 12 Motion to Dismiss without prejudice for lack of jurisdiction. It is further ORDERED vacating the Scheduling Conference set for July 2, 2010. Signed by Judge Frederick J Martone on 5/11/10.(KMG)

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 WO NOT FOR PUBLICATION IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA Brian Keith Olear, Plaintiff, vs. Department of Veterans Affairs, Defendant. ) ) ) ) ) ) ) ) ) ) ) ) No. CV-10-08010-PCT-FJM ORDER The court has before it defendant Department of Veterans Affairs' motion to dismiss (doc. 12), pro se plaintiff Brian Olear's response (doc. 13), defendant's reply (doc. 14), and plaintiff's sur-reply (doc. 15). Plaintiff alleges that defendant denied a medical disability claim he filed in Biloxi, Mississippi in May 2001. According to plaintiff, he supported his claim with evidence, but it was denied because his medical records from the Navy had been lost. He contends that defendant refuses to follow applicable laws and owes him eight and a half years of back disability pay plus 10% interest. Defendant moves to dismiss for lack of subject matter jurisdiction. District courts have limited jurisdiction to hear claims concerning veterans' benefits. Plaintiff seeks review of defendant's decision to deny him benefits on the facts of his disability claim. Because we lack jurisdiction to review defendant's decision, however, he may not do so in this court. 38 U.S.C. 511(a); Rosen v. Walters, 719 F.2d 1422, 1423 (9th 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Cir. 1983). In its reply, defendant provides the address of a web site designed to assist veterans in appealing a denial of benefits and summarizes the necessary steps. Reply at 4 n.3. We advise plaintiff to read this information and seek the aid of a lawyer to determine whether he has a claim. He may find it helpful to contact the Maricopa County Bar Association's Lawyer Referral Service. The phone number is (602) 257-4434. Accordingly, IT IS ORDERED GRANTING defendant's motion to dismiss without prejudice for lack of jurisdiction (doc. 12). It is further ORDERED vacating the Scheduling Conference set for July 2, 2010. DATED this 11th day of May, 2010. -2-

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