HONG MAI, SA, Plaintiff-Appellant, v. JOHN DOE, SECRETARY OF THE ARMY, JANE DOE,, (2nd Cir. 2001)

Docket Number: 00-6121

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UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT SUMMARY ORDER THIS SUMMARY ORDER WILL NOT BE PUBLISHED IN THE FEDERAL REPORTER AND MAY NOT BE CITED AS PRECEDENTIAL AUTHORITY TO THIS OR ANY OTHER COURT, BUT MAY BE CALLED TO THE ATTENTION OF THIS OR ANY OTHER COURT IN A SUBSEQUENT STAGE OF THIS CASE, IN A RELATED CASE, OR IN ANY CASE FOR PURPOSES OF COLLATERAL ESTOPPEL OR RES JUDICATA.

At a stated term of the United States Court of Appeals for the Second Circuit, held at the United States Courthouse, Foley Square, in the City of New York, on the 23rd day of March , two thousand one.

PRESENT:

HON. SONIA SOTOMAYOR, HON. ROBERT A. KATZMANN, Circuit Judges, HON. WILLIAM O. BERTELSMAN, District Judge.*

HONG MAI, SA, Plaintiff-Appellant, v. No. 00-6121

JOHN DOE, SECRETARY OF THE ARMY, JANE DOE, Chief of Veterans Affairs, SECRETARY OF THE DEPARTMENT OF VETERANS AFFAIRS, Defendants-Appellees, Appearing for Appellant: HONG MAI, pro se, Richmond Hill, New York.

Appearing for Appellee: DEBORAH B. ZWANY and GAIL A. MATTHEWS, Assistant United States Attorneys, Brooklyn, N.Y. (Loretta E. Lynch, United States Attorney, Eastern District of New York, Brooklyn, N.Y.).

UPON DUE CONSIDERATION of this appeal from a judgment of the United States District Court for the Eastern District of New York (Allyne R. Ross, Judge), it is hereby ORDERED, ADJUDGED AND DECREED that the judgment of the district court is AFFIRMED.

Appeal from a judgment of the United States District Court for the Eastern District of New York (Allyne R. Ross, Judge) dismissing appellant's claim against the Chief and Secretary of the Department of Veteran's Affairs (the "V.A.") pursuant to Fed R. Civ. P. 12(b)(1) and 38 U.S.C. §

511, and, with respect to appellant's claims against the Secretary of the Army (the "Army"), granting summary judgment in favor of the Army.

In her complaint, appellant alleged that (i) the V.A improperly denied her application for disability benefits, (ii) that the Army improperly denied her medical treatment for several illnesses and disabilities; and (iii) that the Army Board for Correction of Military Records improperly denied her application to recharacterize her separation from the Army. On appeal, appellant reiterates each of these claims. We affirm the district court's dismissal of these claims for substantially the reasons stated by the district court.

Appellant also contends that the district court erred in granting summary judgment in favor of the Army based solely on the Army's submissions. This contention is without merit. Pursuant to Vital v. Interfaith Med. Ctr., 168 F.3d 615, 620 (2d Cir. 1999), the district court notified appellant that she had 20 days to submit materials in response to the Army's motion for summary judgment, and also issued several warnings to appellant in this regard. Appellant voluntarily chose not to avail herself of this opportunity.

We have considered petitioner's remaining arguments and find them to be without merit. For the reasons discussed, the judgment of the district court is hereby AFFIRMED.

[*]-. The Honorable William O. Bertelsman, of the United States District Court for the Eastern District of Kentucky, sitting by designation.