rights to National Service Life Insurance benefits for the period June 1, 1946 to August 9, 1954, which he claims were denied him by the administrative decision of May 17, 1946; (4) a restoration of his rights to disability compensation benefits which he alleges were denied by the administrative review decision of June 11, 1946; (5) recovery of his records from the possession of the Veterans' Administration; and (6) a termination of what he characterizes in general language as 'racial discrimination' against him. He avers that although he saw a rate sheet upon which his monthly compensation rate was $ 124.50, effective February 21, 1958, he is still receiving only $ 55 a month on that account.
Upon the return of the notices of the respective motions (1) of the defendants to dismiss the complaint, and (2) of the plaintiff for appointment of an attorney, oral argument thereon was heard. Upon the conclusion of the argument decision was reserved upon both motions pending further examination of the complaint and of the briefs submitted in behalf of each of the parties.
This Court is without jurisdiction over the defendants Veterans' Administration and Whittier, Administrator. In this case, as in Mitchell v. United States, D.C.N.J.1952, 111 F.Supp. 104, the failure of Congress to constitute the Veterans' Administration a body corporate, or to authorize it to be sued as such renders it immune to suit. See Blackmar v. Guerre, 1952, 342 U.S. 512, 72 S. Ct. 410, 96 L. Ed. 534. This Court has also failed to acquire jurisdiction over the Administrator in this District. His official residence, for purposes of suit, is the District of Columbia. Service of summons upon him there was ineffective to subject him to the jurisdiction of this Court. Rule 4(f) F.R.Civ.P., 28 U.S.C.A.; Harry L. Crowley & Co. v. R.F.C., D.C.N.J.1953, 14 F.R.D. 460; Pinkus v. Walker, D.C.N.J.1945, 61 F.Supp. 610. Only a Court of the District of Columbia has competent jurisdiction to reach the defendant Whittier. See Blackmar, supra. This Court lacks jurisdiction over the Administration and over the Administrator. Neither service upon the chief attorney of the Administration's regional office at Newark, nor upon any other representative thereof, was effective to clothe this Court with jurisdiction over the Administration, and personal service on the Administrator in the District of Columbia is ineffective for the acquisition of personal jurisdiction over him in this District of New Jersey. The complaint will be dismissed as to the Veterans' Administration and as to its Administrator, Summer G. Whittier.
In the present action the relief prayed for by the plaintiff has two aspects, viz., (1) a claim for payment of disability compensation in an increased amount, and (2) a claim for refund of premiums paid by deduction from disability compensation payments in the period June 1, 1946 to September 1, 1954, during which waiver of premium upon plaintiff's National Service Life Insurance policy was denied.
The defendant United States of America contends that the complaint in this case fails to state a claim upon which relief can be granted because of the provision in 38 U.S.C. § 211(a) that 'the decisions of the Administrator on any question of law or fact concerning a claim for benefits or payments under any law administered by the Veterans' Administration shall be final and conclusive, and no other official or any court of the United States shall have power or jurisdiction to review any such decision.' The constitutionality of the foregoing statutory provisions has been upheld in Strong v. United States, D.C.Mass.1957, 155 F.Supp. 468, appeal dismissed 356 U.S. 226, 78 S. Ct. 709, 2 L. Ed. 2d 712.
The finality of the Administrator's decision upon the plaintiff's disability compensation claim and the pendency of the appeal before the Board of Veterans' Appeals deprives this Court of jurisdiction as to such claim. See 38 U.S.C. §§ 211(a) and 4004; Magnus v. United States, 7 Cir., 1956, 234 F.2d 673, certiorari denied 352 U.S. 1006, 77 S. Ct. 569, 1 L. Ed. 2d 551.
However, subsection 38 U.S.C. § 211(a) is, by its terms inapplicable to cases contemplated by section 784 of the same Title.
Although this section (38 U.S.C. § 784(a)) gives this Court jurisdiction of a veteran's action on a claim arising under a contract of National Service Life Insurance, subdivision (b) of the same section conditions that right to judicial review upon the bringing of an appropriate action upon the claim 'within six years after the right accrued for which the claim is made.' The same subsection fixes the accrual of the right 'on the happening of the contingency on which the claim is founded.' Part of the relief which the plaintiff here seeks is a refund of premiums paid during the period for which waiver of premiums was refused upon his National Service Life Insurance policy. The complaint discloses that a waiver of such premiums was granted September 21, 1943 but discontinued effective May 31, 1946. The limitation statute referred to provides that the running of the six-year period is suspended between the filing of the claim and the denial thereof. Defendants argue that the files of the Veterans' Administration reveal that the plaintiff made written claim by letter to the Veterans' Administration, dated July 23, 1946, which was treated as an application for reconsideration of the Administration's denial of further waiver of premiums, and that the Administration advised the plaintiff by letter of October 15, 1946, that its premium waiver termination decision of May 17th of that year would remain in effect. Therefore, despite this three months' suspension of the running of the six-year limitation period, it expired August 24, 1952, without any attempt on the part of the plaintiff to review the decision of the Administrator. Assuming as true the facts as so stated by the defendants, recovery upon any claim for restoration of premium waiver would be barred by the period of limitation which expired eight years ago.
Respecting the veteran's complaints that he was refused treatment, inadequately treated, or otherwise improperly dealt with by physicians, or other employees of the Veterans' Administration, his so-called complaint fails to set forth a claim upon which relief could be granted in this action. In the first place, the veteran's pleading is utterly barren of any specific allegation of misconduct on the part of any individual connected with the Veterans' Administration from which the existence of a cause against such individual or individuals or against the Administration or the Administrator could be reasonably inferred. Furthermore, since the Administrator has not been brought into Court in this action and none of the individual representatives of the Administration of whose conduct the veteran complains has been made a party to this proceeding, no relief could be effectively afforded in this case appropriate to the general dissatisfaction with the conduct of the representatives of the Administration expressed by the veteran in his pleading.
The motion of the defendants to dismiss the complaint is granted. The motion of the plaintiff for appointment of an attorney is denied. An appropriate order may be presented in accordance with the views hereinabove expressed.