                            UNITED STATES DISTRICT COURT
                            FOR THE DISTRICT OF COLUMBIA

_________________________________________
                                          )
HAROLD W. VAN ALLEN,                      )
                                          )
      Plaintiff,                          )
                                          )
              v.                          )                   Civil Action No. 12-1538 (ESH)
                                          )
UNITED STATES DEPARTMENT                  )
OF VETERANS AFFAIRS, et al.,              )
                                          )
      Defendants.                         )
_________________________________________ )

                                  MEMORANDUM OPINION

       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. § 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

                                         BACKGROUND

       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


1
  The Court notes that plaintiff has filed what appears to be a meritless petition for a writ of
mandamus with the D.C. Circuit. See In re: Harold W. Van Allen, No. 13-5059 (D.C. Cir. filed
2/19/13). In the absence of controlling law addressing a district court’s jurisdiction while such a
petition is pending, this Court looks to law addressing jurisdiction while an appeal is pending.
“The filing of a notice of appeal, including an interlocutory appeal, ‘confers jurisdiction on the
court of appeals and divests the district court of control over those aspects of the case involved in
the appeal.’” United States v. DeFries, 129 F.3d 1293, 1302-03 (D.C. Cir. 1997) (quoting Griggs
v. Provident Consumer Discount Co., 459 U.S. 56, 58 (1982) (per curiam)). However, courts
have “carved out a few narrow exceptions to this rule, such as where [a party] frivolously
appeals . . . or takes an interlocutory appeal from a non-appealable order.” Id. at 1302-03
(internal citations omitted); McKesson HBOC, Inc. v. Islamic Republic of Iran, 315 F. Supp. 2d
63, 66 (D.D.C. 2004) (“[A] notice of appeal from an unappealable order does not divest the
district court of jurisdiction.”). Accordingly, “[i]nstead of allowing [a party] to willy-nilly
deprive [a] Court of jurisdiction, thus bringing . . . proceedings to a standstill while a non-
appealable ruling wends its way through the appellate process, the Court [may] disregard the
notice of appeal from a non-appealable order and proceed with the case.” Hammon v. Barry, 752
F. Supp. 1087, 1092 (D.D.C. 1990) (internal citations and quotation marks omitted); see also
Ruby v. Sec’y of the United States Navy, 365 F.2d 385, 389 (9th Cir. 1966) (“Where the
deficiency in a notice of appeal, by reason of untimeliness, lack of essential recitals, or reference
to a non-appealable order, is clear to the district court, it may disregard the purported notice of
appeal and proceed with the case, knowing that it has not been deprived of jurisdiction.”). Under
this law, plaintiff’s petition does not deprive this Court of jurisdiction because the petition is
obviously frivolous. It would be a waste of judicial resources to hold this matter in abeyance
until the Circuit has the opportunity to review the petition and come to the same conclusion.
2
  While plaintiff has submitted voluminous attachments, which consist primarily of medical
records, he has only laid out minimal facts in his complaint and has failed to respond to
defendant’s motion. The Court therefore draws on the factual findings that the Court of Federal
Claims made in Van Allen II, which were in turn based on plaintiff’s “official personnel file and
a certified copy of the five-volume administrative file of the Board for Correction of Naval
                                                 2
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



Records.” Van Allen II, 70 Fed. Cl. at 58.
                                                   3
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 Van Allen v. United States, 236 Fed. Appx. 612, 612 (Fed. Cir. 2007) (per curiam).

       On July 14, 2010, plaintiff filed a new pro se action in the Court of Federal Claims,

asserting essentially the same claims based on a different medical condition; to wit, sleep apnea

and hypoxemia that he alleged were caused by a 1975 oral surgery performed during his military

service. See Van Allen v. United States, 2011 U.S. Claims LEXIS 2655, at *2 (Fed. Cl. Sept. 12,

2011) (“Van Allen III”)). The court dismissed the case, finding that “‘the new facts presented . . .

[did] not overcome the lack of subject matter jurisdiction nor the preclusive effect of [the]

Court’s prior judgment.’” Id. at *11.

       In 2012, plaintiff filed yet another suit in the Court of Federal Claims, alleging that the

“BCNR’s unauthorized handling of disability retirement has caused money damages to a class of

similarly situated Navy veterans with service-connected cognitive/behavioral impairments

prevent[ing] them from timely filing.” Van Allen v. United States, 2012 U.S. Claims LEXIS

431, at *6-7 (Fed. Cl. Apr. 24, 2012) (“Van Allen IV”). The court dismissed plaintiff’s claims,

noting that plaintiff’s class claims did not create jurisdiction “because a party cannot bring a

class action if its own claims are time-barred.” Id. at *10.

       In filing the instant suit, plaintiff has selected a new forum in which to bring essentially

the same claims as in his prior suits. Defendant has moved to dismiss under 12(b)(6) and

12(b)(1). Having reviewed defendant’s motion, the record of the case, and rulings issued in

plaintiff’s previous duplicative suits, the Court will grant defendant’s motion on the merits under



                                                  4
Rule 12(b)(1) and will dismiss the case in its entirety. 3

                                              ANALYSIS

I.      STANDARD OF REVIEW

        A.      Rule 12(b)(1)

        To survive a motion to dismiss under Rule 12(b)(1), plaintiff must demonstrate that the

court has jurisdiction. See Khadr v. United States, 529 F.3d 1112, 1115 (D.C. Cir. 2008). Since

district courts are courts of limited jurisdiction, the inquiry into “subject matter jurisdiction is, of

necessity, the first issue for an Article III court.” Loughlin v. United States, 393 F.3d 155, 170

(D.C. Cir. 2004) (internal quotation marks omitted). In “determining the question of jurisdiction,

federal courts accept the factual allegations contained in the complaint as true . . . . Moreover, the

Court can consider material outside of the pleadings when determining whether it has

jurisdiction.” Halcomb v. Office of the Senate Sergeant-At-Arms, 563 F. Supp. 2d 228, 235

(D.D.C. 2008) (internal citations omitted).




3
  Plaintiff failed to file an opposition to defendant’s motion, despite the Court issuing two Orders
pursuant to Fox v. Strickland, 837 F. 2d 507 (D.C. Cir. 1988), notifying him that the motion
could be granted as conceded if he failed to respond. Instead, plaintiff has now filed, three days
past the extended deadline for his opposition, a “Motion for Expansion of Time to Respond to
MTD And Or Stay of Proceedings Pending DON (Navy) FOIA Appeal and DVA Albany
VAMC FOIA and USCA-DCC Original Proceeding 13-5059 In re: Harold Van Allen.” [ECF
No. 10]. Plaintiff has not indicated that he needs more time to respond substantively to
defendant’s motion. Instead, it appears that he primarily wishes to stay the Court’s decision on
the motion pending resolution of various FOIA appeals and his petition for a writ of mandamus
to the D.C. Circuit. The Court sees no reason to wait or to stay this matter as requested, for the
reasons stated above (see supra note 1) and because this case can be resolved solely on a legal
basis so, contrary to plaintiff’s suggestion, no further development of the facts would be of
assistance. Plaintiff’s motion will therefore be denied. Moreover, in the absence of an
opposition, the Court could grant defendant’s motion as conceded. See L. Civ. R. 7(b). But
because plaintiff is proceeding pro se, the Court will consider the merits of defendant’s
arguments to ensure that no injustice is being worked.


                                                   5
       B.      Plaintiff’s Claims Are Precluded By Collateral Estoppel and/or Res Judicata

       “‘Under the doctrine of res judicata, or claim preclusion, a subsequent lawsuit will be

barred if there has been prior litigation (1) involving the same claims or cause of action, (2)

between the same parties or their privies, and (3) there has been a final, valid judgment on the

merits, (4) by a court of competent jurisdiction.’” Capitol Hill Group v. Pillsbury, Winthrop,

Shaw, Pittman, LLC, 569 F.3d 485, 490 (D.C. Cir. 2009) (quoting Smalls v. United States, 471

F.3d 186, 192 (D.C. Cir. 2006)). “Res judicata bars relitigation not only of matters determined in

a previous litigation but also ones a party could have raised.” Capitol Hill Group, 569 F.3d at

491 (internal quotation marks, edits, and ellipsis omitted). In other words, “‘claim preclusion

precludes the litigation of claims, not just arguments.’” Id. at 490 (quoting NRDC v. EPA, 513

F.3d 257, 261 (D.C.Cir. 2008)) (emphasis omitted).

       Under collateral estoppel, also known as issue preclusion, “once a court has decided an

issue of fact or law necessary to its judgment, that decision may preclude relitigation of the issue

in a suit on a different cause of action involving a party to the first case.” Allen v. McCurry, 449

U.S. 90, 94 (1980). There are three elements to collateral estoppel: (1) “the same issue now

being raised must have been contested by the parties and submitted for judicial determination in

the prior case;” (2) “the issue must have been actually and necessarily determined by a court of

competent jurisdiction in that prior case;” and (3) “preclusion in the second case must not work a

basic unfairness to the party bound by the first determination.” Martin v. Dep’t of Justice, 488

F.3d 446, 454 (D.C. Cir. 2007). Res judicata and collateral estoppel are based on the same

principles: to “relieve parties of the cost and vexation of multiple lawsuits, conserve judicial

resources, and, by preventing inconsistent decisions, encourage reliance on adjudication.” Allen,

449 U.S. at 94.



                                                  6
       Every one of the claims that plaintiff states in this case has been previously decided one

or more times by the Court of Federal Claims. Plaintiff stated the same claim for correction of

his military records and the Navy’s disability retirement decision in Van Allen I, Van Allen II,

Van Allen III, and Van Allen IV. In each case, the court found that the statute of limitations had

run and that equitable tolling did not apply. See Van Allen I, 66 Fed. Cl. at 297-98; Van Allen II,

70 Fed. Cl. at 64; Van Allen III, 2011 U.S. Claims LEXIS at *10-11; Van Allen IV, 2012 U.S.

Claims LEXIS at *9-10. The same is true of plaintiff’s claims to represent a class challenging

the authority of the BCNR staff to deny reconsideration requests. The courts that decided both

Van Allen III and Van Allen IV made it abundantly clear that plaintiff could not manufacture

subject matter jurisdiction by asserting his allegations on behalf of a purported class. See Van

Allen III, 2011 U.S. Claims LEXIS at *10-11; Van Allen IV, 2012 U.S. Claims LEXIS at *9-10.

The instant complaint cannot be viewed as anything other than an attempt to rehash the same

issues in a new court, even though, as discussed below, this Court lacks subject matter

jurisdiction over the claims. Thus, the Court will dismiss the complaint on the grounds of res

judicata and/or collateral estoppel.

       C.      Plaintiff’s Claims Are Barred Under Tucker Act

       Even if plaintiff’s claims were not barred by res judicata or collateral estoppel, they

would be barred under the Tucker Act. Although plaintiff seeks equitable relief, the intended

effect is monetary recovery. Plaintiff’s request to correct his military records to reflect a service-

related injury is only meaningful to the extent that it would entitle him to associated pay and

benefits. Indeed, he explicitly seeks medical retirement benefits extending back to 1978, the

value of which would clearly exceed $10,000. (See Compl. at 2.) Because this is, in essence, a

request for monetary relief, the Tucker Act applies. See 28 U.S.C. § 1346.



                                                  7
       Plaintiff cannot avoid the jurisdictional limitations of the Tucker Act by simply omitting

any mention of it. “To decide whether a plaintiff is attempting to sidestep Tucker Act

jurisdiction, the court must look to the substance rather than the form of the complaint.” Bliss v.

England, 208 F. Supp. 2d 2, 6 (D.D.C. 2002). In a Tenth Circuit case similar to this one, the

plaintiff sought to change his honorable discharge into a disability discharge under the APA. See

Burkins v. United States, 112 F.3d 444, 450 (10th Cir. 1997). The Tenth Circuit found that the

effect of the relief plaintiff sought would be to receive retroactive benefits in excess of $10,000,

therefore the Tucker Act applied. See id. at 449. The same is true here. Because plaintiff seeks

relief that triggers the Tucker Act, and he has not waived damages in excess of $10,000, the

Court lacks jurisdiction to consider his claims.

       D.      Sovereign Immunity Precludes this Court from Reviewing VA’s Decisions

       The Court also lacks jurisdiction because plaintiff’s claims fall, not under the APA, but

under 38 U.S.C. § 511, which explicitly bars judicial review of such claims. It is beyond cavil

that the United States cannot be sued without its consent. See United States v. Testan, 424 U.S.

392, 399 (1976) (quoting United States v. Sherwood, 312 U.S. 584, 586 (1941)). “In analyzing

whether Congress has waived the immunity of the United States, we must construe waivers

strictly in favor of the sovereign and not enlarge the waiver beyond what the language requires.”

Forman v. Small, 271 F.3d 285, 296 (D.C. Cir. 2001) (quoting Library of Congress v. Shaw, 478

U.S. 310, 318 (1986)). The Supreme Court has consistently stated that “a waiver of sovereign

immunity must be ‘unequivocally expressed’ in a statutory text.” Fed. Aviation Admin. v.

Cooper, 132 S. Ct. 1441, 1448 (2012) (citations omitted).

       While plaintiff states his claims under the APA, which provides a waiver of sovereign

immunity at 5 U.S.C. § 702, the waiver is only applicable to “final agency action for which there



                                                   8
is no other adequate remedy in a court.” 5 U.S.C. § 704. See also Lujan v. Nat’l Wildlife

Federation, 497 U.S. 871, 882 (1990). District courts are explicitly deprived of jurisdiction to

review any claim made by the VA “that affects the provision of benefits . . . to veterans.” 38

U.S.C. § 511. Instead, appellate review of such decisions proceeds from “the Board of Veterans’

Appeals, then to the Court of Appeals for Veterans’ Claims, to the Federal Circuit, and

ultimately to the Supreme Court.” Thomas v. Principi, 394 F.3d 970, 973-74 (D.C. Cir. 2005)

(citing 38 U.S.C. §§ 7104(a), 7252(a), 7292(c)). Because this system of judicial review,

established by the Veterans Judicial Review Act of 1988, Pub. L. No. 100-687, Tit. III, 102 Stat.

4105, 4113-4122 (codified in various sections of 38 U.S.C.), provides an adequate alternate

remedy, claims such as plaintiff’s “[fall] within the § 704 exception to the APA’s waiver of

sovereign immunity.” See Beamon v. Brown, 125 F.3d 965, 970 (6th Cir. 1997). Additionally,

“[u]nder 5 U.S.C. § 701(a)(1), the APA does not waive sovereign immunity when statutes

preclude judicial review,” as § 511 explicitly does. Id. See also 38 U.S.C. § 511 (“[T]he

decision of the Secretary as to any such question . . . may not be reviewed by any other official

or by any court, whether by an action in the nature of mandamus or otherwise.”).

       Nor does the Court have jurisdiction to “order the DVA to ensure (nationally) equal

administrative timely handling of DVA service connection compensation claims.” (Compl. at 10-

11.) The Ninth Circuit recently considered a very similar claim challenging “‘average’ delays in

the VA’s provision of mental health care and disability benefits.” See Veterans for Common

Sense v. Shinseki, 678 F.3d 1013, 1017 (9th Cir. 2012), cert denied, 133 S.Ct. 840 (2013). The

court noted in that case that “§ 511 undoubtedly would deprive us of jurisdiction to consider an

individual veteran’s claim that the VA unreasonably delayed his mental health care” and further,

that jurisdiction is not acquired “just because [plaintiff] challenges many benefits decisions



                                                 9
rather than a single decision.” Id. at 1026, 1027. See also Vietnam Veterans of Am. v. Shinseki,

599 F.3d 654, 658 (D.C. Cir. 2010) (finding that veterans’ associations lacked standing to bring

claims that VA’s average processing times were too long). Similarly, whether the focus here is

on plaintiff’s individual denial of benefits or a challenge to the timing of the VA’s benefit

decisions with respect to a purported class, this Court is precluded by § 511 from entertaining

such claims. Thus, the Court lacks jurisdiction over plaintiff’s claims for this reason as well.

                                         CONCLUSION

       For the foregoing reasons, the Court grants defendant’s Motion to Dismiss. A separate

Order accompanies this Memorandum Opinion.

                                                               ___/s/           ___
                                                      ELLEN SEGAL HUVELLE
                                                      United States District Judge


Date: February 28, 2013




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