Kermit Owens v. Department of Veteran Affairs

947 F.2d 945 NOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit. Kermit OWENS, Plaintiff-Appellant, v. DEPARTMENT OF VETERAN AFFAIRS, Defendant-Appellee. No. 91-3512. United States Court of Appeals, Sixth Circuit. Nov. 6, 1991. Substituted Order Issued Nunc pro tunc Jan. 22, 1992. — 1 — Before RALPH B. GUY, Jr., Circuit Judge, WELLFORD, Senior Circuit Judge, and CHURCHILL, Senior District Judge.* ORDER — 2 — Kermit Owens, proceeding without benefit of counsel, appeals the dismissal of his suit for injunctive relief filed against the Department of Veterans Affairs. This case has been referred to a panel of the court pursuant to Rule 9(a), Rules of the Sixth Circuit. Upon examination, this panel unanimously agrees that oral argument is not needed. Fed.R.App.P. 34(a). — 3 — Owens sought to enjoin or restrain the Department of Veterans Affairs from finding that he is not entitled to a non-service connected pension. The district court sua sponte dismissed Owen's cause of action, without prejudice, for failure to prosecute pursuant to Fed.R.Civ.P. 41(b). The failure to prosecute arose as a result of Owens's failure to move for a default judgment when the defendant failed to move or plead to the complaint. We conclude that the district court acted within its jurisdiction. See 38 U.S.C. § 211(a). — 4 — It is clear from Owens' complaint and request for temporary restraining order that he is attempting to appeal the decision of the Department of Veterans Affairs to terminate his pension benefits. The district court lacks jurisdiction over Owens' complaint. See Holley v. United States, 352 F.Supp. 175 (S.D.Ohio 1972), aff'd, 477 F.2d 600 (6th Cir.), cert. denied, 414 U.S. 1023 (1973). — 5 — Accordingly, the complaint is hereby dismissed. Rule 9(b)(3), Rules of the Sixth Circuit. Footnotes [-s] * The Honorable James P. Churchill, Senior U.S. District Judge for the Eastern District of Michigan, sitting by designation