Hiles v. Army Review Bd. Agency

MARSHALL G. HILES, Plaintiff,

v.ARMY REVIEW BOARD AGENCY, et al., Defendants.

Case No. 1:12-cv-673

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF OHIO WESTERN DIVISION

Dated: March 25, 2013

Weber, J.

Litkovitz, M.J.

ORDER AND REPORT AND

RECOMMENDATION

Plaintiff Marshall G. Hiles, proceeding pro se, brings this action individually and purportedly on behalf of the estate and heirs of his father, Charles D. Hiles, deceased (hereafter "Hiles"), against a number of federal agencies and departments. Plaintiff names as defendants the Army Review Board Agency (ARBA), the Veterans Administration (VA), the United States Army (Army), the Department of Defense (DOD), and the Department of Veterans Affairs (DVA). Plaintiff has filed a 405-page complaint that sets forth six claims for relief and supporting allegations, exhibits, and arguments. (Doc. 6). The matter is before the Court on defendants' motion to dismiss the complaint pursuant to Fed. R. Civ. P. 12(b)(1) for lack of jurisdiction over the subject matter of the complaint (Doc. 15)¹ , plaintiff's memorandum in opposition to defendants' motion to dismiss (Doc. 25), and defendants' reply in support of their motion to dismiss (Doc. 31). This matter is also before the Court on plaintiff's "Motion to Admit and Extend" (Doc. 21) and "Motion to Stay and Extend" (Doc. 22), defendants'memorandum in response to plaintiff's motions (Doc. 26), and plaintiff's reply memorandum in support of the motions (Doc. 27); plaintiff's "Motion for Oral Argument, Request for Hearing, Personal Appeal" (Doc. 32), defendants' memorandum in opposition to plaintiff's motion (Doc. 34), and plaintiff's reply memorandum in support of the motion (Doc. 35); and plaintiff's "Motion to Admit Legal Evidence and Addendum that Supports All Claims" (Doc. 33) and defendants' memorandum in opposition to plaintiff's motion (Doc. 37).

I. Background

This lawsuit arises out of injuries Hiles sustained in World War II during the 1944 Battle of Peleliu and ongoing efforts by Hiles and plaintiff to obtain what they believed to be fair disability ratings and just compensation for those injuries, as well as plaintiff's efforts to correct military records generated during Hiles's military service to accurately reflect the cause and extent of Hiles's injuries. (Doc. 6). Those efforts began shortly after Hiles's 1946 honorable discharge when he made his initial claim for VA benefits in 1948, and plaintiff has continued those efforts beyond Hiles's death in 2007.

Plaintiff brings his first claim for relief against the ARBA. (Doc. 6 at 424)² . In support of this claim, plaintiff alleges the Army falsely reported in records documenting the results of Hiles's discharge exam conducted on January 6, 1946, that "everything was normal," including Hiles's "mental status." (Id. at 425, 439). Plaintiff alleges that as a result of the Army's fraudulent conduct, Hiles never received from the VA the proper health care he required and the financial benefits to which he was entitled. (Id.). Plaintiff requests that the Court order theARBA to correct Hiles's military records to reflect the full extent of the injuries Hiles suffered at the Battle of Peleliu in 1944.

Plaintiff brings his second claim against the VA. (Doc. 6 at 440). Plaintiff makes the following allegations in support of this claim for relief: At Hiles's request, plaintiff filed a claim and an appeal with the VA in January of 2006 on the ground Hiles had never been properly rated by the VA, nor adequately compensated for, all of his combat related injuries. (Id.). The claim was submitted for expedited appeal to a unit known as the "Tiger Team," which rated Hiles as having a 100% service-connected disability, and the claim was then resubmitted to the VA for completion. The VA rated Hiles as having only a 70% service-connected disability. The VA engaged in stalling tactics, which included refusing to accept a Durable Power of Attorney submitted by plaintiff, and Hiles died before his appeal was finished and before payment was made to him based on the proper combat injury ratings. (Id. at 441). The VA has informed plaintiff that he has no standing to continue the appeal. (Id.). The VA also informed plaintiff that there was no appeal pending before it at the time of Hiles's death, when in fact Hiles had sent three letters to the VA asking the VA to account for his injuries at the proper rates, to pay him at the correct 100% disability rate, and to pay him back compensation for the period dating back to June 1948, when the VA initiated its delay tactics and wrongful claim denials. (Id. at 442). Plaintiff contends that had it not been for the VA's delays and diversion tactics, Hiles's claim and appeal would have been settled and payment would have been made to him before his death. (Id.). Plaintiff is pursuing a claim for back benefits he alleges are owed to Hiles for the period from 1948, when Hiles made his initial claim for benefits, until 2006 when the Tiger Team upheld Hiles's final claim and appeal, based on a 100% disability rating on the theory thathad it not been for the "VA's consistent and repeated acts of misconduct," Hiles's claim and appeal would have been completed before his death. (Id.). Plaintiff also seeks to recover Hiles's "remaining burial costs" that should have been paid were it not for the VA's conduct. (Id. at 525). Plaintiff further seeks an order from the Court directing the VA to complete the appeal upheld by the Tiger Team prior to Hiles's death and to address all outstanding issues. (Id. at 524).

Plaintiff brings his third and fourth claims for relief against the Army and DOD. (Doc. 6 at 526). Plaintiff alleges that the Army and DOD fraudulently created military and medical records from July 1943 to January of 1946 relating to Hiles that concealed the incident on Peleliu and the full extent of Hiles's injuries. (Id.). Plaintiff further alleges that the VA relied on these fraudulent medical records thereafter to deny Hiles the correct disability ratings and benefits, beginning with Hiles's initial claim in 1948 which was denied on the basis his injuries were non-combat related. (Id. at 526, 532-33). Plaintiff alleges that he filed tort claims against these defendants in March of 2011 concerning actions the Army took to cover up what occurred at Peleliu and the full extent of Hiles's injuries. (Id. at 533). Plaintiff alleges these tort claims were consolidated, forwarded to the Chief Counsel of the Army, and further consolidated with two tort claims he had filed on behalf of Hiles and on his own behalf with the "U.S. Department of Affairs." (Id. at 526). He asserts the claims were rejected on sovereign immunity grounds. (Id.). As relief for the third and fourth claims, plaintiff seeks $3,000,000 to be awarded to Hiles's estate, alleging that were it not for the Army's fraudulent misconduct and tampering with Hiles's medical records, Hiles would have received proper health care, injury ratings, and compensation for all combat related injuries he sustained during World War II. (Id. at 560).

Plaintiff brings his fifth claim for relief against the VA on behalf of both Hiles and himself. (Doc. 6 at 562). First, plaintiff claims that the VA conspired with the Army and the U.S. War Department to defraud Hiles of his proper health care and benefits ratings that accounted for all his combat related injuries. (Id.). Plaintiff alleges the VA engaged in a pattern of fraud to conceal the truth about the incident on Peleliu and Hiles's resulting injuries, which began when Hiles first filed a claim for benefits in June of 1948, continued from 1962-1967 when Hiles repeatedly appealed the VA's reductions in his combat injury rating, and occurred again when the VA delayed Hiles's final appeal in February of 2006. (Id. at 562-563). Second, plaintiff brings a tort claim on his own behalf, alleging the VA's fraudulent concealment of documents important to Hiles's appeal since February of 2006 has damaged plaintiff personally and caused him much "grief, unnecessary expenses, and hundreds of hours of time." (Id. at 563). Plaintiff contends that a case which should have been completed by January of 2007 has turned into a case of "cruel and unusual punishment." (Id. at 564). As relief, plaintiff seeks an award of $2,732,000 to Hiles, his estate, and his family, as determined from the VA's rating tables, to account for Hiles's injuries dating back to 1948, plus lost wages, expenses, and uncovered medical costs Hiles incurred over the years. (Id. at 594). Plaintiff, as the executor of Hiles's estate and the holder of a Power of Attorney, seeks an award of $300,000 to compensate him for the time spent handling this case, which was an excessive amount of time due to the VA's refusal to accept the Power of Attorney. (Id. at 595).

Finally, plaintiff brings a claim against the DVA for repeated misconduct by the VA³ .(Doc. 6 at 596). Plaintiff asks the Court to issue an order directing the DVA to overhaul the entire VA claims and appeal system and to impose a deadline for doing so. (Id. at 597).

II. "Motion to Admit and Extend" (Doc. 21) and "Motion to Stay and Extend" (Doc. 22).

Plaintiff moves the Court to admit supplemental documentation, order the Army Board for Correction of Military Records (ABCMR) to correct Hiles's military and medical records as requested in the complaint, stay this lawsuit pending compliance by the ABCMR with the requested Court order, and grant plaintiff an extension of time to respond to defendants' motion to dismiss the complaint. Defendants do not oppose plaintiff's request to submit additional documentation. (Doc. 26). Defendants contend that plaintiff's motion to stay the case should be denied as moot because the ARBA has informed plaintiff it will not act on a request he submitted for correction of Hiles's military records because of the pendency of this lawsuit. (Id., citing Doc. 22-1).

Plaintiff's motions are granted in part and denied in part. P...