On May 20, 1976, plaintiff moved for permission to make a “third amendment” to her original petition filed November 10,1960. The amendment prayed, inter alia, for the reinstatement of plaintiff to her former Air Force position or to one of similar status.
Although plaintiff’s motion appeared on its face to fall under Rule 39 (b), in truth the prayer for reinstatement as shown in the amendment itself did not relate to any matter developed at trial. The new prayer was, instead, a request for additional relief, first set forth some 4 years after this court was granted reinstatement authority, see Pub. L. 92-415, now codified as 28 U.S.C. § 1491 (Supp. V, 1975), and some 16 years after plaintiff began her proceeding in this court on November 10,1960. As an amendment sought totally apart from developments in the proof, plaintiff’s May 20 motion falls not under Rule 39 (b), as her statement of reasons for the motion suggested, but under Rule 39 ( a). The amendment itself cites both Rules 39(a) and 39(b). The standards of neither rule, however, permit the motion to succeed. The June 4,1976, allowance, issued on erroneous representations, must be treated as void and improvidently issued.
Rule 39 (a) provides that, after the initial pleading period, “a party may amend his pleading (1) by leave of court (which shall be freely given when justice so requires), or (2) by written consent of the adverse party.” Defendant has not consented in writing to plaintiff’s amendment. The first standard therefore governs, requiring leave of court to amend the pleadings. The court’s permission is to be given freely, according to the rule, but with the qualification that it is to be given freely “when justice so requires.” The viability of plaintiffs May 20 motion rests squarely on whether justice requires that she be allowed to 'amend her pleadings in 1976 to add a prayer for reinstatement. Such a determination is left to the court’s discretion. It is obvious to us that considerations of fairness and substantial justice to both parties not only do -not require that permission to amend be given, -but to the contrary counsel against allowance of the motion. Plaintiff has waited 16 years from the filing of her original petition in this court to ask for the remedy of reinstatement. She could have sought mandatory or declaratory relief in this vein from the United States District Court for the District of Columbia as early as mid-1959, Levine v. Farley,
At oral argument, plaintiff was questioned by the court regarding this delay. She responded that she did not know that a request for reinstatement should have been made prior to the time that she convinced the court — presumably meaning the trial judge — that she was entitled to full back pay to the present date. Ignorance of rights and procedural rules may sometimes be forgiven a fro se claimant, as plaintiff now is, but other facts reveal her explanation
Since we have decided to read the pleadings absent the amendment requesting reinstatement, and since no findings were requested or made about it or proof adduced thereon which might justify amending the petition to conform to the evidence, nor does justice require it, no relief will be forthcoming beyond the payment of sums that have been or will be found properly owing in proceedings under Rule 131(c) to date of this judgment.
OPINION OP THE TRIAL JUDGE
In April 1970 it was determined that plaintiff was entitled to judgment of hack pay for procedurally improper separation in 1959 from her civilian position in the Air Force.
'So that these issues might be considered in their proper contest, highlights of the record are summarized, starting with plaintiff’s service in the Army Where for present purposes her official medical history in the Government, originated:
191iJr-Jp5: Served as private in Women’s Army Corps from August 7, 1944 to April 30, 1945. Hospitalized at three successive Army hospitals from February until April 30, 1945, with initial complaint of pneumonia. Honorably — albeit involuntarily — discharged on April 30,1945, on a Certificate
191¡S-1¡8: Original rating of 30-percent disability by VA for service aggravation of “psychoneurosis, anxiety, considerable social and industrial incapacity”, reversed on appeal because condition of “psychoneurosis, mixed type” was found to have preexisted service and was not service aggravated, but ultimately reinstated by VA Board of Veterans Appeals July 30, 1948, with rating reduced to- 10 percent from August 30, 1946, for service aggravated “psychoneurosis, mixed type.”
May 1937-August 195ly: Continuously employed, except for brief periods of unemployment 1945, 1947, and 1952, 8 months plus in Women’s Army Corps 1944-45, and periods as student.
August 1954-December 1954,: Employed by Boeing Airplane Company as mathematician. Leave of absence from Boeing on December 9,1954, to enter YA hospital.
December 1954-April 1956: Three separate periods of hospitalization in YA hospital in 'Seattle, resulting in several “impressions” and/or “diagnoses” of “schizophrenic reaction, paranoid type”, a psychosis as opposed to a psychoneurosis, the difference being a mental disease versus a behavioral problem. These impressions and/or diagnoses plaintiff challenges as factually and proce&urally erroneous.
May-June 1955: In May 1955 VA proposed to end plaintiff’s disability compensation because the true diagnosis was said to be a nonratable “inadequate personality” instead of the prior diagnosis of psychosis, which latter was recommended to be held erroneous. In June 1955 the YA Central Office disagreed with the recommendation, and diagnosed plaintiff instead as service-connected “conversion reaction”, stated to be a character and behavior disorder and not a psychosis or a neurosis. YA Regional Office was accordingly instructed that plaintiff’s service connection for neuropsy-chiatric disorder not be disturbed.
September 1955: Despite the instruction of the YA Central Office in June 1955 noted in the preceding paragraph, in September 1955 the plaintiff’s YA disability rating was increased to 100 percent, effective retroactively to December 10, 1954, for a condition identified as “conversion reaction — now diagnosed schizophrenic reaction, paranoid type”, a psychosis, on the basis of an April 1955 final diagnosis by the Seattle YA Hospital. The plaintiff contends, with considerable authority, that in changing the diagnosis the YA failed to comply with procedures for such a change Which are made mandatory by certain YA regulations which she cites. Plaintiff has retained the 100-percent rating to date.
June 1956: Plaintiff’s YA 100-percent rating confirmed and continued, based upon plaintiff1’s renewed hospitalization at Seattle YA Hospital, and resultant diagnosis. The official YA Central Office conflicting diagnosis in June 1955 referred to above was apparently ignored.
July 1956-Jwne 1959: After medical clearance, and with full knowledge of her 100-percent YA disability rating, plaintiff was íhired as a mathematician by the Wright Air Development Center (an Air Force installation) in July 1956 and remained there until June 1959, when her resignation was accepted despite her prompt retraction. This is the separation declared proced-urally defective by the court in 1970.
Jime 1958: In June 1958, while plaintiff was employed as a mathematician at WADC, her VA rating of 100-percent disability for schizophrenia, paranoid type, was confirmed and continued, based upon a VA examination in May 1958. This diagnosis is also attacked by plaintiff as being factually and proeedurally erroneous.
1959-67: After exhausting all possibilities of obtaining employment as a mathematician
Jime 1967 to date:Unemployed.
It is clearly the plaintiff’s burden to prove that she was ready, willing and able to discharge the duties of the position from which she was illegally separated in 1959, before she can recover back pay. Manzi v. United States,
The VA informed the court by letter in 1973 that a disability rating assigned a veteran represents the average impairment of earning capacity which that disability would cause in civil occupations generally, and does not necessarily represent the reduction in earning capacity which a specific veteran may have suffered 'as the result of his disability. The YA advised that many veterans are able to overcome the handicap of their disability and earn substantial wages in private or Government employment while they continue to be paid disability compensation. Unlike 38 U.S.C. §§ 301 et seq. (1970), which does not by its terms preclude receipt of YA disability compensation by a veteran earning a salary for services rendered, by analogy section 7 of the Federal Employees’ Compensation Act of 1916, as emended, 5 U.S.C. § 8116(a) (Supp. V, 1975), provides that recipients of disability pay under that Act may not receive salary, pay, or remunerations of any type from the United States for the same period except in return for services 'actually performed. The grant of total disability under FECA is premised on the agency’s determination of the total and complete disability of the recipient to perform his normal work, so the claimant’s receipt of total disability compensation under FECA automatically establishes his inability to work for the purpose of precluding his recovery of back pay for wrongful discharge, unless he can establish that the agency’s determination of total disability Was clearly wrong. Graves v. United States,
In challenging Dr. Martin’s diagnosis plaintiff has gone to great lengths to itemize the respects in which Dr. Martin’s diagnostic evaluation failed to comply with the requirements specified in the Physician’s Guide, Disability Evaluation Examinations, published in June 1963 by the YA Department of Medicine and Surgery for the information and guidance of physicians performing examinations for VA compensation, pension, and insurance purposes. For these reasons, although Dr. Martin was well-qualified to assess plaintiff’s mental condition with respect to her em-ployability since 1959, it is not believed that he devoted the time or engaged the available YA resources sufficiently to justify complete reliance on his professional judgment in this instance.
In direct contradiction to the views of defendant’s Dr. Martin is the testimony of Mr. John H. Hoffman, who for the entire period of plaintiff’s employment at WADC from 1956 to 1959, and for many years preceding and following that chapter of this record, was a certified clinical psychologist serving as the Chief of the Mental Hygiene Section, Federal Civilian Employees Health Service Branch at WADC. In this capacity Mr. Hoffman was consultant in psychology to the medical member of the Board of United States Civil Service Examiners for the Civil Service Commission facility at WADC. With full knowledge of plaintiff’s medical history in the Army and YA, Mr. Hoffman, after examining her on the basis of clinical psychological tests which he conducted,
During the plaintiff’s first probationary year of employment at WADC, Mr. Hoffman received periodic reports from plaintiff’s supervisors which were entirely favorable to her, with no derogatory information whatsoever. These favorable reports were corroborated by the plaintiff’s periodic efficiency reports which were uniformly “satisfactory.” This record of official satisfaction with plaintiff’s performance at WADC is diametrically inconsistent with other evidence from plaintiff’s superiors, portraying plaintiff as a constant troublemaker who caused repeated management disruptions by her charges of discrimination, and who was moved from job to job. If these latter facts were true it is remarkable that they were not brought to the attention of Mr. Hoffman. Despite the contradictions, it is concluded that the official record does not establish that plaintiff was not mentally or technically qualified to perform her duties as a mathematician during her 3 years at WADC. In fact, Mr. Hoffman testified that even if the derogatory record of plaintiff’s employment at WADC as reported by her superiors was correct it would not alter his conclusion that plaintiff was suffering from neither a psychosis nor a neurosis. Fie diagnosed plaintiff at the outset of her employment at WADC as “psychoneurosie, mixed, chronic, mild” (a relatively mild form of behavior disturbance), but he later found that even this diagnosis was not appropriate and could not be sustained. It was his belief that it would be difficult for a person burdened with a diagnosis of schizophrenia reaction, paranoid type, 'known to others, to lead a life with normal relationships, particularly in the area of employment. Nor would he be surprised that plaintiff, having been denied employment in her field of mathematics because of her YA diagnosis of psychosis (as she was denied on numerous occasions in seeking jobs in that field) would have her record of going from one secretarial job to another from 1959 to 1967.
The court has had at least two occasions to consider the effect of a mental disability diagnosis on an individual’s chances of securing employment. In Scroggins v. United States,
Finally, plaintiff came to Washington, D.C., to seek a secretarial job, and from December 1,1959 to June 1967 held a series of six secretarial jobs, usually in law firms. In this 8-year period of 1959-67 plaintiff was unemployed for a total of approximately 11 months between jobs. About half of her 8 years of private employment was with one employer, which was the only one where no questionable circumstances attended her departure. In each of the others some incident involving a clash of personalities precipitated her resignation or discharge. The facts of record are insufficient to establish the justification for her terminations. There were no complaints concerning her technical capacity, for plaintiff is an exceptionally intelligent person. 'She feels that her terminations were due to knowledge gained by her employers of her medical history, but proof leaves this assumption speculative.
To the defendant this record of plaintiff’s private employment from 1959 to 1967 proves that she was unemployable, in that she was unable to hold a job. To the plaintiff her employment during that time proves just the contrary, that she was able to work, and the fact that she was unable to find work comparable to the position from which she was discharged cannot be held against her, for her medical record prevented it. In Manzi v. United States, supra, the court held at 498 that the claimant must show “that he was ready, willing and able to perform the duties of the position from which he was removed for the period for which he seeks recovery.” As long ago as Nicholas v. United States,
In the Keith case, supra, where the defendant failed to show that plaintiff was physically unable to perform her duties in
•Summing up, the plaintiff’s record of almost constant employment from 1956 to 1967 as a mathematician at WAD'O for 3 years, 'and as a legal secretary thereafter, during all of which period she was drawing 100-percent YA disability compensation based on a diagnosis of psychosis, plus the fact that whatever mental condition she ¡had has been inactive and in remission for over 20 years, the conflicting views of Dr. Martin and Mr. Hoffman as to her employability, the substantial conflicts in her diagnoses within the VA itself, the serious questions which exist as to the regularity of the diagnoses of mental incompetence by the VA, and the able manner in which the plaintiff has represented herself in this complex case ever since its inception in 1960, lead to the unavoidable conclusion that from her separation at WADC in June 1959 to her last employment in June 1967 the plaintiff has shown herself to be ready, willing, and 'able to work in some gainful occupation. Since her ability to perform duties as a mathematician at WADC existed at the time of her separation therefrom, there is a presumption in the absence of evidence to the contrary that those abilities remain, diminished though they may 'be through a desuetude not fairly chargeable to plaintiff.
From 1967 to the rendition of this court’s opinion on the liability issue in April 1970 the plaintiff’s time was occupied with the preparation of requested findings and briefs following a trial in March 1967, preparation of brief and exceptions to the report of the trial judge, several discovery motions, and a motion for summary judgment which was allowed. From April 1970 to date the plaintiff’s time has been fully consumed in the preparation of literally dozens of discovery motions, pretrial conferences, preparation for trial, trial in June 1974, and preparation of voluminous requested findings and briefs. The Government, which steadfastly resisted plaintiff’s efforts for many years to gain access to all of her medical records on the grounds that their production would be injurious to her mental health, finally gave in after the court granted a series of plaintiff’s discovery motions in 1970 and 1971, and thereafter reluctantly capitulated in meeting plaintiff’s numerous demands for additional records which had not hitherto been produced, to the end that at this time it is safe to say that the Government has furnished plaintiff all of the records which it has been able to find. Incidentally, their disclosure to plaintiff has not had any deleterious consequences to her health as the Government had feared, so far as is known.
All of this has taken an enormous amount of plaintiff’s time. One need only examine the many pages of the court’s docket book to appreciate the extent of plaintiff’s personal involvement. While for certain periods she was represented by counsel of record, there is reason to believe that plaintiff 'herself was responsible for virtually all of the paperwork, research, legal strategy, discovery, and presentation at trial. It is questionable whether plaintiff, even if financially able to do so, could have found counsel willing or able to spend the time required to duplicate her own efforts. It is true that much of the effort has been expended unproductively in connection with the elaborate reconstruction of her records in the Army and VA in order to expunge or edit them, but as a nonlawyer the plaintiff cannot be expected to exercise legal discernment
In Urbina v. United States, supra, it was said at 886 of the opinion: “An illegally discharged employee will not be denied his back salary for failure to work during periods when his time is reasonably consumed in prosecuting appeals from such discharge.” In Schwartz v. United States,
Paradoxically, the plaintiff objected to the judgment awarded her by the court in 1970 on the issue of liability because 'at all times an award of ba'ck pay for illegal separation has been distinctly subordinate in her wants. Pier overriding goal in this litigation is and always has been to secure an official pronouncement by the court that the series of Army and VA mental diagnoses from 1945 to 1955 were invalid. She is particularly concerned over the subsisting VA diagnosis of “schizophrenic reaction, paranoid type”, a pathological psychosis — in Short, insanity — because it has permanently blighted her professional career as a mathematician and has made her a social outcast. If in fact the plaintiff was wronged in these diagnoses we can only sympathize with her plight, but even so would be powerless to render the relief she demands, for the power to correct lies only in the source, namely, the Army and the VA.
To this end there is pending before the Army Board for Correction of Military Becords plaintiff’s application filed in January 1973, demanding that 'her Army medical, service, and discharge records be corrected to eliminate all references and findings as to her mental or emotional condition on the grounds of factual and procedural errors. The Board proceeding has been suspended awaiting the conclusion in this case. The authority of the Board derives from 10 U.S.C. §1552 (1970), as implemented by regulations, 32 C.F.B. §581.3 (1976), under which the Secretary of the Army, acting through a board of appointed civilians, may correct any Army military record when necessary “to correct an error or remove an injustice.” The scope of authority is broad. It does not, of course, embrace the correction of VA records. There is no express sanction against judicial review. Although resort to the Board has been considered to be a permissive rather than a mandatory remedy so that it does not toll the running of the statute of limitations from first accrual of the cause of action (O'Callahan v. United States,
The plaintiff’s demand that the court revise and correct the VA diagnosis of her mental condition because of factual and procedural errors and violations is completely beyond our jurisdiction. The statute, 38 U.S.C. § 211(a) (1970), makes decisions of the VA on any question of law or fact concerning a claim for benefits or payments final and conclusive and not subject to judicial review, with certain exceptions not here pertinent. Veterans’ benefits are considered to be gratuities, and establish no vested rights in the recipients, so that Congress is not obligated to provide a remedy through the courts but may provide only an administrative remedy. Milliken v. Gleason,
We are uninformed by the record as to whether the VA has a formal procedure comparable to the Army’s Correction Board designed to correct errors in past VA medical diagnoses, other than its duty to make periodic examinations of beneficiaries to adjust their disability rating according to fluctuating physical conditions. If the VA were to have such a procedure, certainly the record which the plaintiff has advanced to the court would justify a restudy in depth of plaintiff’s contentions, for as in the case of the plaintiff’s contentions concerning the correction of her Army record, her representations as to her VA diagnoses are not without prima facie appeal. In her insistence on the correction of her VA diagnoses — a demand we cannot redress — plaintiff places at serious risk the valuable disability compensation she has been receiving. Her quixotic compulsion to jeopardize that in exchange for a clean bill of health is beyond the writ of this court.
As for the arithmetic of plaintiff’s recovery, the following schedule reflects to and including July 25,1970, and without consideration of tax liability, an amount due her of $57,182.75:
The plaintiff is also entitled to recover back pay from July 25, 1970, in an amount to be determined pursuant to Rule 131 (c) .
CONCLUSION
Plaintiff is entitled to recover the sum of $57,182.75, representing back pay
Notes
The court amended Its opinion by order on September 25, 1970, in a manner not relevant here.
The trial Judge’s findings of fact, copies of which have been distributed to the parties, are not printed, however, as those essential to the decision appear in the opinion which follows.
We reject and do not discuss certain other relief requested in the amendment as it is concluded that such is inappropriate in connection with this claim for back pay and, in any event, the amendment is voided for reasons which follow. It is noted that plaintiff has incorrectly captioned her motion and amendment as the third amendment. The plaintiff’s amendments to her petition are as follows: (1) Mar. 6, 1961; (2) Nov. 23, 1965; (3) Jan. 16, 1974; and (4) June 4, 1976.
From December 10, 1954 through July 81, 1974, the 'Plaintiff received $70,812 In VA disability compensation, none of which Is deductible from her recovery. She now receives such tax free compensation in the monthly amount of $655, which is equivalent to an annual wage of about $9,235 before federal Income tax at the 1975 rates, assuming no other income, one personal exemption, and the use of the standard deduction.
On January 16, 1974, the petition was amended to demand back pay and accumulated leave “and for such other and further relief as the Court may deem Just and proper.” There is no express prayer for reinstatement.