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Knight v. U.S. Department of Veterans Affairs

United States District Court, Ninth Circuit

November 8, 2013

PARKER MICHAEL KNIGHT, Plaintiff,
v.
U.S. DEPARTMENT OF VETERANS AFFAIRS, Defendant.

PARKER MICHAEL KNIGHT, Portland, OR, Plaintiff, Pro Se.

S. AMANDA MARSHALL, United States Attorney, JAMES E. COX, JR., Assistant United States Attorney, Portland, OR, Attorneys for Defendants.

OPINION AND ORDER

ANNA J. BROWN, District Judge.

This matter comes before the Court on Defendant's Motion (#4) to Dismiss. For the reasons that follow, the Court GRANTS Defendant's Motion.

BACKGROUND

On August 6, 2013, Plaintiff filed a pro se complaint in Multnomah County Circuit Court in which he alleges Defendant

[p]osted a job announcement on USAJOBS.GOV.... VA was received [Plaintiff's] information from USAJOBS.GOV and cancelled job posting over 50 times.... When submitting application to VA, petitioner uses VRE special hiring authority, and veteran's federal hiring preference letter with 10 points and DD- 214 which exposes Veteran Petitioner is disabled person that require accommodation required from ADA 1991.
* * *
Recently, Petitioner filed two positions exactly same title and pay rate and same locations, with one exception. One job was Competitive and other was non-competitive. For competitive job, USAJOBS.gov stated on application status, Disabled Veteran Petitioner as being "application received" and other "Minimum qualification not met." Both job received same application related forms and resume. Both positions were not sending Petitioner any notifications afterward being applications received status.

Compl. at ¶ II.

Plaintiff alleges he "feel[s] [an] American Disability Act... violation has occurred based on [his] disability, race, and age." Plaintiff also alleges the following in Counts I through III:

Defendant and or his agents willfully, maliciously and intentionally inflicted emotional distress upon the Plaintiff.
* * *
Defendant and or his agents have intentional fly], maliciously, and without just cause, slandered the Plaintiff's names, business and reputation[] in the community by making knowingly false, malicious and intentional statements about the Plaintiff, Plaintiff's family, and the Plaintiff's business.
* * *
Defendant and or [its] agents have intentionally, maliciously and without just cause, engaged in deceitful business practices and malicious and intentional fraud that were calculated to harm the Plaintiff[] and [his] business.

Compl. at ¶¶ III-V.

On August 6, 2013, Defendant removed the matter to this Court as an agency of the United States government pursuant to 28 U.S.C. § 1442(a)(1).

On August 28, 2013, Defendant filed a Motion to Dismiss on the grounds that the Court lacks subject-matter jurisdiction and Plaintiff failed to state a claim. The Court took Defendant's Motion under advisement on October 3, 2013.

STANDARDS

1. Dismissal for lack of jurisdiction pursuant to Rule 12(b)(1)

Plaintiff has the burden to establish that the court has subject-matter jurisdiction. Robinson v. Geithner, 359 F.App'x 726, 728 (9th cir. 2009). See also Ass'n of Am. Med. Coil. v. United States, 217 F.3d 770 (9th Cir. 2000).

When deciding a motion to dismiss for lack of subject-matter jurisdiction under Rule 12(b)(1), the court may consider affidavits and other evidence supporting or attacking the complaint's jurisdictional allegations. Rivas v. Napolitano, 714 F.3d 1108, 1114 n.1 (9th Cir. 2013). The court may permit discovery to determine whether it has jurisdiction. Laub v. United States Dep't of Interior, 342 F.3d 1080, 1093 (9th Cir. 2003). When a defendant's motion to dismiss for lack of jurisdiction "is based on written materials rather than an evidentiary hearing, the plaintiff need only make a prima facie showing of ...


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