Di Silvestro v. UNITED STATES VETERANS'ADMINISTRATION, Civ. No. 15366.
| Decision Date | 24 June 1955 |
| Docket Number | Civ. No. 15366. |
| Citation | 132 F. Supp. 692 |
| Parties | Joseph W. DI SILVESTRO, (veteran), Plaintiff, v. UNITED STATES VETERANS' ADMINISTRATION et al., Defendants. |
| Court | U.S. District Court — Eastern District of New York |
Joseph W. Di Silvestro, Long Island City, pro se.
Leonard P. Moore, U. S. Atty., Brooklyn, N. Y., Elliot Kahaner, Asst. U. S. Atty., Brooklyn, N. Y., for defendants.
These are cross-motions which will be disposed of in this opinion.
Defendants move for a dismissal of the complaint on the grounds that the court lacks jurisdiction over the subject-matter; that the complaint fails to state a claim upon which relief can be granted, and that the plaintiff failed to join an indispensable party. The plaintiff's cross-motion in effect seeks to dismiss defendant's motion, and a declaratory judgment adjudging his rights, and miscellaneous relief.
The subject-matter of this litigation has been before the courts on several occasions. See Di Silvestro v. Gray, 90 U.S.App.D.C. 184, 194 F.2d 355; certiorari denied 343 U.S. 930, 72 S.Ct. 765, 96 L.Ed. 1340; Di Silvestro v. United States Veterans' Administration, D.C. E.D.N.Y., 81 F.Supp. 844, affirmed, 2 Cir., 173 F.2d 933, amended complaint dismissed, D.C.E.D.N.Y., 10 F.R.D. 20, affirmed, 2 Cir., 181 F.2d 502, certiorari denied 339 U.S. 989, 70 S.Ct. 1014, 94 L.Ed. 1390. The plaintiff's complaint in substance seeks to have certain alleged rights restored in connection with his pension and compensation benefits. The allegations are not too clear, but he alleges that a decision of the Administrator of Veterans' Affairs, declaring a forfeiture of compensation and pension, was without authority.
The plaintiff, in his prayer for relief in his amended complaint, "demands" that the defendants be ordered to revoke their forfeiture penalty in the decision of March 11, 1955, and that they be ordered specifically to release all monetary compensation and subsistence allowances owing to the plaintiff, and that they be ordered to reinstate and restore "retroactively from October 10, 1946 all rights and claims of and belonging to the disabled plaintiff for his faithful and honorable service rendered to his country in time of war."
This court is unable to grant any of the relief sought. Title 38 U.S.C.A. § 705, reads as follows:
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DiSilvestro v. United States
...was held to be barred by the "no-review clause" of 38 U.S.C. § 705,4 as amended, 38 U.S.C. § 211(a). DiSilvestro v. United States Veterans' Administration, 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, rehearing deni......
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Di Silvestro v. United States
...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 ......
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Di Silvestro v. U.S.
...935, 78 S.Ct. 416, 2 L.Ed.2d 416, rehearing denied, 355 U.S. 968, 78 S.Ct. 550, 2 L.Ed.2d 544 (1958); Di Silvestro v. United States Veterans' Administration, 132 F.Supp. 692 (E.D.N.Y.1955), aff'd, 228 F.2d 516 (2d Cir.) (per curiam), cert. denied, 350 U.S. 1009, 76 S.Ct. 654, 100 L.Ed.870,r......
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Blanc v. United States
...341 U.S. 935, 71 S.Ct. 854, 95 L.Ed. 1363; Nolen v. United States, 109 F.Supp. 391, 124 Ct. Cl. 230, and Di Silvestro v. United States Veterans' Administration, D.C., 132 F. Supp. 692, affirmed 2 Cir., 228 F.2d 516, further support the principle that Congress is possessed with the power of ......