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DI SILVESTRO v. UNITED STATES

November 22, 1966

Joseph W. DI SILVESTRO, Plaintiff,
v.
UNITED STATES of America, Defendant



The opinion of the court was delivered by: MISHLER

MISHLER, District Judge.

 Several motions are presently before this Court involving these same parties: first, both parties have moved for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure; second, plaintiff has moved to modify Judge Bruchhausen's pre-trial order, dated September 29, 1965, and to restore the case to the trial calendar. Since the current proceedings represent but a small segment of a protracted series of litigation originating in 1947, it might be helpful to discuss the factual background in some detail.

 Background

 Plaintiff apparently is an honorably discharged veteran of World War II, who was employed as an "adjudicator" for the Veterans' Administration (V.A.) from March 10, 1945 until July 31, 1947, under a "War Service Indefinite" appointment. In 1947, however, any veteran in such status could acquire a preferential status if he had a service-connected disability of not less than ten per cent, had been recommended for such a conversion by his superior, had completed a probationary period, and had passed such examination as the Civil Service Commission may have prescribed. See 12 Fed.Reg. 2835, 5 C.F.R. § 3.102 (Supp.1947) (Effective May 1, 1947). During the term of his employment, plaintiff had submitted a claim for disability, but before it was finally disposed of, he was dismissed from his position as a result of a staff reduction. The dismissal was effective on July 31, 1947.

 On February 20, 1948, however, the Rating Board of the Veterans' Administration held that plaintiff had a ten per cent service-connected disability, retroactive to October 10, 1946. Thereupon plaintiff sought reinstatement to his former position, and reimbursement for back pay, on the ground that the Board's retroactive decision meant that at the time of his dismissal he should have been treated as one with a preferred, or competitive status. Under such circumstances, he argued, he would never have been removed. The Veterans' Administration denied his requests, and plaintiff sought a court order directing such relief.

 Judge Galston granted defendant's motion for summary judgment, holding that even if the Board's determination of disability was given effect with reference to his employment, plaintiff's action still must fall because he had never met any of the additional requirements for conversion to competitive status. Di Silvestro v. United States Veterans Administration, 81 F. Supp. 844 (E.D.N.Y.1949). The Second Circuit affirmed, stating that plaintiff's inability to furnish the necessary evidence of his disability at the time required, which could not be attributed to the V.A., meant that he would have to fulfill the requirements of the 1947 regulations before he could be reinstated. Di Silvestro v. United States Veterans Administration, 173 F.2d 933 (2d Cir. 1949).

 When plaintiff's motion to vacate the order of dismissal was denied, Di Silvestro v. United States Veterans Administration, 9 F.R.D. 435 (E.D.N.Y.1949), he sought leave to amend his complaint and attempted to join Carl Gray, Jr., the Veterans Administrator, and the United States, as party defendants, on the grounds that the V.A. had been negligent in not having processed his disability claim more quickly. Judge Byers refused to permit plaintiff to join either party: first, as regarding the United States, because the action did not fall under the Tucker Act; and, second, as regarding Gray, because the only proper venue was the District of Columbia. In addition, plaintiff's amended complaint was dismissed for failure to state a claim upon which relief could be granted, since plaintiff still failed to show, even with the disability, that he would have been entitled to competitive status. Di Silvestro v. United States Veterans Administration, 10 F.R.D. 20 (E.D.N.Y.1950), aff'd, 181 F.2d 502 (2d Cir.), cert. denied, 339 U.S. 989, 70 S. Ct. 1014, 94 L. Ed. 1390 (1950).

 Plaintiff then brought suit against Gray in the District of Columbia, but his complaint was dismissed on the ground that the same question had already been litigated on the merits. Di Silvestro v. Gray, 90 U.S.App.D.C. 184, 194 F.2d 355, cert. denied, 343 U.S. 930, 72 S. Ct. 765, 96 L. Ed. 1340 (1952).

 Thereafter, the V.A. appears to have re-examined plaintiff's file and concluded that he had tampered with his papers in order to make a more favorable record for his applications. *fn1" Accordingly, the V.A. cancelled all plaintiff's benefits, except his insurance, pursuant to 38 U.S.C. § 3503 (1964). *fn2"

 Thereafter, plaintiff sought restoration of his pension and compensation benefits, but the action was held to be barred by the no-review clause of 38 U.S.C. § 705 (1952), as amended, 38 U.S.C. § 211(a) (Supp. I, 1965). Di Silvestro v. United States, 132 F. Supp. 692 (E.D.N.Y.1955), aff'd, 228 F.2d 516 (2d Cir.), cert. denied, 350 U.S. 1009, 76 S. Ct. 654, 100 L. Ed. 870 (1956). Although the motion to dismiss was granted without prejudice to plaintiff's right to pursue his administrative remedies, the Board of Veterans' Appeal sustained the forfeiture. In 1957, plaintiff sought a declaratory judgment that the Board's determination was unlawful, but his action was again dismissed on the basis of the no-review clause. Di Silvestro v. United States Veterans Administration, 151 F. Supp. 337 (E.D.N.Y.1957), cert. denied, 355 U.S. 935, 78 S. Ct. 416, 2 L. Ed. 2d 416 (1958).

 In still another action, plaintiff listed five causes of action based upon the Federal Tort Claims Act, and again summary judgment was awarded to defendant. Di Silvestro v. United States, 181 F. Supp. 860 (E.D.N.Y.), cert. denied, 364 U.S. 825, 81 S. Ct. 65, 5 L. Ed. 2d 55 (1960). Another of plaintiff's actions was dismissed in Di Silvestro v. United States, No. 61-C-1, E.D.N.Y., March 20, 1961.

 Present Action

 Then in 1962, plaintiff instituted the action which is presently before this Court. Therein he sought the following relief: (1) the payment of $108.50, representing dividends declared in 1961 and 1962 on a National Service Life Insurance policy granted to plaintiff while he was serving in the armed forces; (2) the setting aside of the revocation of his award of disability, and (3) damages resulting from an allegedly wrongful denial to the plaintiff of medical and hospital care by the V.A.

 When the case came up before Judge Bartels on motions for judgment on the pleadings, he dismissed the second and third claims on the ground that they were res judicata, but ruled that since the first claim was based upon an alleged breach of a life insurance contract, suit may be brought under 28 U.S.C. § 1346(a)(2) (1964). ...


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