The opinion of the court was delivered by: I. LEO GLASSER
GLASSER, United States District Judge:
In two pending actions, plaintiff Daniel Sugrue alleges that the Department of Veterans Affairs ("VA") and its employees violated his constitutional and statutory rights in determining his veterans's benefits award. Plaintiff moves to serve a second amended complaint in the first action, CV-90-1972 ("Sugrue I"), which is identical to a complaint already filed in the second action, CV-91-2041 "Sugrue II"). The government moves to dismiss both Sugrue I and Sugrue II for lack of subject matter jurisdiction and for failure to state a claim upon which relief can be granted, or, in the alternative, for summary judgment. For the following reasons, the government's motion to dismiss is granted in both actions and the plaintiff's motion to amend his complaint in Sugrue I is denied.
On June 11, 1990, plaintiff Daniel Sugrue, an attorney admitted to the New York bar in 1961, commenced an action against defendant Thomas Derwinski, Secretary of the VA, alleging that the VA in setting his disability rating at 50 percent and refusing to revise that disability rating, violated the Privacy Act ("PA"), 5 U.S.C. § 552a; the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552; and his rights to Due Process. In an amended complaint, filed on October 9, 1990, plaintiff repeated those claims, but added a clam that his property was taken without just compensation in violation of the Fifth Amendment and requested damages.
Plaintiff was a prisoner of war during the Korean War from April 1951 until his release in August 1953. When he was released, plaintiff complained of hand tremors. At a medical examination conducted by the VA on January 19, 1954, plaintiff was diagnosed as suffering from (1) Parkinsonism and (2) Anxiety Reaction. On March 17, 1954, the Adjudication Division gave plaintiff a disability rating of 30 percent based on his medical condition of "Anxiety Reaction with Parkinson Features, Chronic Mod. Severe."
In 1981, former prisoners of war were notified of recent legislation allowing them to seek medical assistance at VA facilities. Amended Complaint at P 37. On February 14, 1983, plaintiff was examined by a neurologist in a VA facility. The examining physician, Dr. Bennett Derby, who was not a VA employee, determined that plaintiff suffered from "a marked neurological impairment" which "approached total disability for work as an attorney." Amended Complaint at PP 40, 41. In addition, the test results of the neurological examination were recorded. Thereupon, plaintiff filed a claim for veterans' benefits, contending that this neurological impairment originated when he was a prisoner of war. On April 6, 1983, in a letter of S. Wohl, the VA rejected this claim based on plaintiff's outpatient medical records of October 15, 1982 through February 14, 1983, including the results of the tests performed by Dr. Derby, but did not mention Dr. Derby's diagnosis.
Plaintiff timely filed a Notice of Disagreement on April 5, 1984. Plaintiff was then sent to a psychiatrist, Dr. Abeles, and another neurologist, Dr. Barrett. Based on those examinations, in a letter dated October 16, 1984, Robert Schmidt, Adjudication Officer, notified plaintiff that his nervous condition would be increased to a 50 percent disability rating. Plaintiff disagreed with this determination and argued that he was entitled to a higher rating based on the aggregate of his medical conditions: hand tremors and neurological disorder. The Board of Veterans Appeals ("Board" or "BVA") disagreed. The Board affirmed the determination of the VA, finding that the tremors and the neurological disorder were part of a single disability, only entitling plaintiff to a 50 percent disability rating.
On June 7, 1991, plaintiff sought to file a second amended complaint in Sugrue I to name Robert Schmidt, an Assistant Adjudication Officer at the VA's New York Regional Office, S. Wohl,
and certain unidentified individuals as defendants (collectively "the individual defendants"). On that same day -- June 7, 1991 -- plaintiff filed an identical complaint in Sugrue II against the VA and the individual defendants to prevent the expiration of the statute of limitations. Plaintiff now moves this Court for leave to file his proposed second amended complaint in Sugrue I.
The government opposes plaintiff's motion to amend the complaint in Sugrue I and cross-moves to dismiss both actions under Fed. R. Civ. P. 12(b)(1) and (b)(6) and, in the alternative, for summary judgment under Fed. R. Civ. P. 56 in both actions.
For the following reasons, plaintiff's motion to amend the complaint in Sugrue I is denied, and the government's motion to dismiss Sugrue I and Sugrue II for lack of subject matter jurisdiction is granted.
Plaintiff asserts four grounds for relief against the VA in Sugrue I and against the VA and the individual defendants in Sugrue II, alleging that they violated (1) the Privacy Act ("PA") (2) the Freedom of Information Act ("FOIA"); (3) the Due Process clause of the Fifth Amendment; and (4) the Takings Clause of the Fifth Amendment. However, since the plaintiff seeks, in essence, judicial review of his disability rating and of his benefits award, all four claims for relief must be dismissed for lack of subject matter jurisdiction.