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Van Allen v. United States Dept. of Veterans Affairs

United States District Court, District of Columbia

February 28, 2013

Harold W. VAN ALLEN, Plaintiff,

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[Copyrighted Material Omitted]

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Harold W. Van Allen, Hurley, NY, pro se.

Jeffrey Earl Warner, U.S. Attorney's Office, Washington, DC, for Defendants.



Plaintiff Harold Van Allen, a Navy veteran, has filed this pro se action against the United States Department of Veterans Affairs (" VA" ) and the United States Department of the Navy, Board for Correction of Naval Records (" BCNR" ), under 5 U.S.C. ยง 706(2)(A) of the Administrative Procedure Act (" APA" ). ( See Complaint (" Compl." ) [ECF No. 1] at 2-3.) The suit is purportedly brought on behalf of " two related classes," for which he seeks certification: (1) a " class of similarly situated disabled veterans in various regional office districts seeking equal expedited and timely administrative review of veteran service connected disability claims" and (2) a " class of Navy veterans seeking review of BCNR staff administrative denials of reconsideration based [on] new facts." (Compl. at 1.) Plaintiff seeks " an injunction compelling defendant BCNR [to] review the DVA claim 29-719-334 with the newly DVA ... discovered facts and to correct military records and grant retroactive disability retirement; " " remand of Navy USCFC case(s) back to BCNR for further administrative review of new facts ... by BCNR staff not previously involved in the unauthorized denials of reconsideration; " and a writ of mandamus to " order the DVA to ensure (nationally) equal administrative timely handling of DVA service connection compensation claims." ( Id. at 1, 10-11.) Defendant moves to dismiss the complaint pursuant to Fed. R. Civ. Pro. 12(b)(1) and 12(b)(6).[1]

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Plaintiff has been an active litigant, having filed numerous earlier suits, including four suits in the Court of Federal Claims based on essentially the same set of facts. Plaintiff served as a qualified diver in the Navy from June 10, 1973 until June 20, 1978, during which time he incurred several injuries. See Van Allen v. United States, 70 Fed.Cl. 57, 58 (Fed.Cl.2006) (" Van Allen II " ).[2] In June 1978, plaintiff was honorably discharged from active duty. See id. at 59. His discharge was based on unsatisfactory performance, rather than on any medical condition. See id. After his transfer to the Naval Reserve, plaintiff was honorably discharged in November 1979 " for having twice failed of selection for promotion to the next higher grade." Id. (internal quotation marks and citation omitted).

Beginning in 1983, plaintiff sought disability compensation from the Veterans Administration (" VA" ). See id. (citation omitted). In February 1985, he petitioned the BCNR to correct his record to reflect " the apparent fact that my release from active duty was inreality [sic] due to medical conditions. (undiagnosed systemic lupus E. symptoms)." Id. (citation omitted). The BCNR denied that request in 1986, as well as a subsequent application for correction of his record in 1995. See id. (citation omitted). In 1992 and 1993, VA surgeons performed medical operations on plaintiff to treat a cyst. See id. at 60-61. (citation omitted). The Navy's medical expert determined that the condition likely predated plaintiff's service and that there was no evidence that the condition was aggravated by his active duty service. See id. at 61. (citation omitted). Plaintiff submitted numerous subsequent communications to the BCNR, which the BCNR deemed requests for reconsideration and denied. Id. at 60-61. (citations omitted).

In 2005, plaintiff began pressing the same issue, without success, in a variety of federal courts. On January 25, 2005, he filed a pro se action against the United States in the Court of Federal Claims, seeking to correct his Naval records to provide for disability retirement pay and health care reimbursement retroactive to 1978. See Van Allen v. United States, 66 Fed.Cl. 294 (Fed.Cl.2005) (" Van Allen I " ). The Court of Claims dismissed that action on the grounds that claims for veterans' benefits do not fall within its jurisdiction, and also noted that plaintiff's claim likely fell outside of the six-year statute of limitations. See id. at 297-98. The court declined to allow equitable tolling. See id. Plaintiff filed an amended complaint, which the court dismissed on the grounds that the claim was barred by the statute of limitations. See Van Allen II, 70 Fed.Cl. at 64-65. Plaintiff appealed to the Federal Circuit, which affirmed the lower court's rulings, including with regard to the statute of limitations and equitable tolling issues. See

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Van Allen v. United States, 236 Fed.Appx. 612, 612 ...

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