Full opinion text
MEMORANDUM AND ORDER ALLEN SHARP, Chief Judge. I. The great Civil War historian, Kenneth P. Williams, quoted a letter from Abraham Lincoln to one of his generals: “I regret to find you denouncing so many persons as liars, scoundrels, fools, thieves, and persecutors of yourself.” Letter to Major General James G. Blunt. Kenneth P. Williams, Lincoln Finds a General, Vol. V, p. 106 (1959). Such is an important backdrop to this case which is about to have its tenth anniversary on the docket of this court. This court takes full judicial notice of all proceedings in this case, including the appellate proceeding and particularly the en banc decision reported in Marozsan v. United States, 852 F.2d 1469 (7th Cir.1988). Given the demands of the Civil Justice Reform Act of 1990, 28 U.S.C. §§ 471-182, and the regular work ethic of this court, a superficial examination of this record might cause one to question why it has taken so long since the decision of the Court of Appeals to once again address the issues in this case in finality. A closer examination of the record in this case will indicate variously and in detail why it has taken so long to arrive at this point, and this court is not the least apologetic about it. This plaintiff is pro se, although he has had a series of lawyers representing him at various stages of these proceedings. This court is all too familiar with the demands of Haines v. Kerner, 404 U.S. 519, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972), which have been most recently explicated in a highly common sense fashion by Justice Stevens in McNeill v. United States, — U.S. -, 113 S.Ct. 1980, 124 L.Ed.2d 21 (1993), as follows: It is no doubt true that there are cases in which a litigant proceeding without counsel may make a fatal procedural error, but the risk that a lawyer will be unable to understand the exhaustion requirement is virtually nonexistent. Our rules of procedure are based on the assumption that litigation is normally conducted by lawyers. While we have insisted that the pleadings prepared by prisoners who do not have access to counsel be liberally construed, see Haines v. Kerner, 404 U.S. 519 [92 S.Ct. 594, 30 L.Ed.2d 652] (1972); Estelle v. Gamble, 429 U.S. 97 [97 S.Ct. 285, 50 L.Ed.2d 251] (1976), and have held that some procedural rules must give way because of the unique circumstance of incarceration, see Houston v. Lack, 487 U.S. 266 [108 S.Ct. 2379, 101 L.Ed.2d 245] (1988) (pro se prisoner’s notice of appeal deemed filed at time of delivery to prison authorities), we have never suggested that procedural rules in ordinary civil litigation should be interpreted so as to excuse mistakes by those who proceed without counsel. As we have noted before, “in the long run, experience teaches that strict adherence to the procedural requirements specified by the legislature is the best guarantee of evenhanded administration of the law.” Mohasco Corp. v. Silver, 447 U.S807, 826, 100 S.Ct. 2486, 2497, 65 L.Ed.2d 532 (1980). Following massive and extremely time-consuming proceedings on the defendant’s motion for summary judgment, Magistrate Judge Robin D. Pierce entered his Report and Recommendation which generated an elaborate filing by the plaintiff on January 21, 1994, and a response thereto by the defendant, United States of America, on February 10, 1994. The beginning point for analysis here must be the narrow but significant window of opportunity afforded by the majority opinion in Marozsan v. United States, 852 F.2d at 1479, fn. 22. Certainly, there is nothing in the majority opinion or mandate of the Court of Appeals which prohibits the consideration of the issues there defined in the context of Rule 56 of the Federal Rules of Civil Procedure. To the contrary, fn. 22, supra, invites same. II. Summary judgment is proper if the pleadings, depositions, answers to interrogatories and admissions on file, together with any affidavits, show that there exists no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56; Russo v. Health, Welfare & Pension Fund, Local 705, 984 F.2d 762 (7th Cir.1993). A thorough discussion of Rule 56 by the Supreme Court of the United States, can be found in a trilogy of cases decided in 1986. See, Matsushita Electric Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986); Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); and Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Celotex addressed the initial burdens of the parties under Rule 56, and Anderson addressed the standards under which the record is to be analyzed within the structure of Rule 56. The initial burden is on the moving party to demonstrate, “with or without supporting affidavits,” the absence of a genuine issue of material fact and that judgment as a matter of law should be granted in the moving party’s favor. Celotex, 477 U.S. at 324, 106 S.Ct. at 2553 (quoting Fed.R.Civ.P. 56). A material question of fact is a question which will be outcome determinative of an issue in the case. The Supreme Court has instructed that the facts material in a specific case shall be determined by the substantive law controlling the given case or issue. Anderson, 477 U.S. at 248, 106 S.Ct. at 2510. Once the moving party has met the initial burden, the opposing party must “go beyond the pleadings” and “designate ‘specific facts showing that there is a genuine [material] issue for trial.’ ” Id. The nonmoving party cannot rest on its pleadings, Hughes v. Joliet Correctional Center, 931 F.2d 425, 428 (7th Cir.1991), or upon conclusory allegations in affidavits. Cusson-Cobb v. O’Lessker, 953 F.2d 1079, 1081 (7th Cir.1992). “The days are gone, if they ever existed, when the nonmoving party could sit back and simply poke holes in the moving party’s summary judgment motion.” Fitzpatrick v. Catholic Bishop of Chicago, 916 F.2d 1254, 1256 (7th Cir.1990). During its analysis, this court must construe the facts'and draw all reasonable inferences in the light most favorable to the nonmoving party. Brennan v. Daley, 929 F.2d 346, 348 (7th Cir.1991). Furthermore, it is required to analyze summary judgment motions under the standard of proof relevant to the case or issue. Anderson, 417 U.S. at 252-255, 106 S.Ct. at 2512-14. The 1986 Supreme Court trilogy was recently re-examined in Eastman Kodak v. Image Technical Services, — U.S.-, 112 S.Ct. 2072, 119 L.Ed.2d 265 (1992), a case born in the context of antitrust law. The most that can be said for Kodak is that it did not tinker with Celotex and Anderson, and possibly involves an attempt to clarify Mat-sushita. This view is well supported by an in-depth academic analysis in Schwarzer, Hirsch, and Barrans, The Analysis and Decision of Summary Judgment Motions, 139 F.R.D. 441 (1992). Hi. It is readily apparent that Magistrate Judge Pierce has spent literally hundreds of judicial hours in attempting to sift through a most difficult record, made no less so by the frequent accusatory and acrimonious assertions by this pro se plaintiff. One must respect the service that this plaintiff has rendered to his nation, and can understand perhaps even empathize with some of his frustrations. However, it is the sworn duty of this court under Article III of the Constitution of the United States to apply the law as even-handedly as possible to all litigants, including pro se ones. As a general proposition, this court is in full agreement with the careful analysis, reasoning and result outlined by the magistrate judge on December 10, 1993. The court chooses to make some additional comments but in no way are these comments to be interpreted as any criticism of or disagreement with Magistrate Judge Pierce. Very recently, another judge of this court has most carefully delineated the proper standards to be applied under Rule 56 in Hayden v. La,-Z-Boy Chair Co., 838 F.Supp. 384 (N.D.Ind.1992). Specifically, Judge Lee very correctly emphasized that in order to determine the existence of a genuine issue of material fact: Substantive law determines which facts are material; that is, which facts might affect the outcome of the suit under the governing law. Id. 477 U.S. at 248, 106 S.Ct. at 2510. Irrelevant or unnecessary facts do not preclude summary judgment even when they are in dispute. Id. The issue of fact must be genuine. Fed. R.Civ.P. 56(c), (e). To establish a genuine issue of fact, the non-moving party “must do more than simply show that there is some metaphysical doubt, as to the material facts.” Matsushita, 475 U.S. at 586, 106-S.Ct. at 1356; First National Bank of Cicero v. Lewco Securities Corp., 860 F.2d 1407, 1411 (7th Cir.1988). The non-moving party must, come forward with specific facts showing that there is a genuine issue for trial. Id. A summary judgment determination is essentially an inquiry as to “whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law.” Anderson, 477 U.S. at 251-252, 106 S.Ct. at 2512. Id. p. 387. Apparently, a renewed effort is made here to challenge the constitutionality of 38 U.S.C. § 211(a), as follows: The Secretary shall decide all questions of law and fact necessary to a decision by the Secretary under a law that affects the provision of benefits by the Secretary to veterans or the dependents or survivors of veterans. Subject to subsection (b), the decision of the Secretary as to any. such question shall be final and conclusive and may not be reviewed by any other official or by any court, whether by an action in the nature of mandamus or otherwise. (b) The second sentence of subsection (a) does not apply to— (1) matters subject to section 502 of this title; (2) matters covered by sections 1975 and 1984 of this title; (3) matters arising under chapter 37 of this title; and (4) matters covered by chapter 72 of this title. (The same is re-codified now as 38 U.S.C. § 511(a)). The Department of Veterans Affairs Health-Care Personnel Act of 1991, Pub.L. No. 102-40, § 402(b)(1), 105 Stat. 187, 238, and the Department of Veterans Affairs Codification Act, Pub.L. No. 102-83, § 2 and 5, 105 Stat. 378, 406 (1991), made numerous technical changes to Title 38, United States Code, including redesig-nation of the section numbers of various provisions to conform to the numbers of the chapters in which those provisions appear. For sake of clarity, this court will continue to use the old § 211(a) citation-. Apparently, an effort is made to assert that that statute violates the Eighth Amendment of the Constitution of the United States. With no disrespect intended, the subject matter of this statute is not close to the kind of considerations that violate the Eighth Amendment. See, for example, Harmelin v. Michigan, 501 U.S. 957, 111 S.Ct. 2680, 115 L.Ed.2d 836 (1991), Solem v. Helm, 463 U.S. 277, 103 S.Ct. 3001, 77 L.Ed.2d 637 (1983), and Estelle v. Gamble, 429 U.S. 97, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976). During the first decade of the republic, it was held by Justice Samuel Chase in Calder v. Bull, 3 Dallas 386, 1 L.Ed. 648 (1798), that basically the ex post facto provision in Article I, Section 9, Clause 3 of the Constitution of the United States applied only to criminal statutes. While there has been some argument in the intervening time about what may or may not be criminal proceedings, this case certainly does not involve the application of any federal criminal statute or for that matter, any state criminal statute. The ex post facto provision of the Constitution of the United States has no application here. To the extent that the Court of Appeals has already ruled on the issue of the constitutionality of this statute, the same surely would now be binding on this plaintiff under the concepts of Allen v. McCurry, 449 U.S. 90, 101 S.Ct. 411, 66 L.Ed.2d 308 (1980). Much is written here on the whole subject of possible claims under Bivens v. Six Unknown Agents, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971), and this court will add very little. Claims under Bivens must be constitutional violations, and claims under 42 U.S.C. § 1983 are quite similar. The magistrate judge was completely correct that no such Bivens claims are here presented and that even if they were, they are clearly foreclosed by the statute of limitations. There is no judicial remedy in this court available with reference to the so-called claims regarding false testimony before the Congress of the United States, even assuming that such false testimony was given by a defendant in this case. The absolute immunity that Justice Stevens defined in Briscoe v. Lahue, 460 U.S. 325, 103 S.Ct. 1108, 75 L.Ed.2d 96 (1983), would cut a very wide swath through any such testimony, assuming that the necessary predicates could be established. Clearly, they have not been here. A great deal of paper has been taken up in this record in regard to service of process under Rule 4(j) of the Federal Rules of Civil Procedure. This court and the magistrate judge have clearly adhered to the existing law in this regard, and if the law is to be changed, it will have to be done either through the rule-making process, the Congress, or decisions of higher courts in the federal judiciary. Assertions are made with regard to an attempt to get this court to re-write the Supreme Court’s decision in Walters v. National Assn. of Radiation Survivors, 473 U.S. 305, 105 S.Ct. 3180, 87 L.Ed.2d 220 (1985), as it interprets 38 U.S.C. § 5904(c). This court simply is without authority to do so. Such cases as Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), and Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963), have no application here. The Sixth Amendment of the Constitution simply does not apply to this case. This court is well aware of the decision in Bounds v. Smith, 430 U.S. 817, 97 S.Ct. 1491, 52 L.Ed.2d 72 (1977), with reference to the due process right to access to courts, and the argument advanced under that heading by the plaintiff simply fails. It is not the proper function of this court to re-write the Veterans Judicial Review Act (VJRA), Public Law No. 100-687, Div. A, 102 Stat. 4105 (1988). See 38 U.S.C. § 7252(a). Neither is there a legitimate argument here under the Equal Protection Clause of the Fourteenth Amendment, which concept has also been applied to the federal government under the Fifth Amendment. Again, not to be disrespectful, but there is no suspect classification involved in this ease. For example, see Loving v. Virginia, 388 U.S. 1, 87 S.Ct. 1817, 18 L.Ed.2d 1010 (1967). When dealing with this species of social welfare legislation which does not involve an inherently suspect classification, Congress is rightfully given wide latitude under the Constitution to legislate without judicial interference. See United States R.R. Retirement Board v. Fritz, 449 U.S. 166, 101 S.Ct. 453, 66 L.Ed.2d 368 (1980). See also Belarmino v. Derwinski, 931 F.2d 1543 (Eed.Cir.1991), and Nagac v. Derwinski, 933 F.2d 990 (Fed. Cir.), cert. denied, — U.S. -, 112 S.Ct. 384, 116 L.Ed.2d 335 (1991). A word needs to be said with regard to the existence of absolute immunity from money damage claims to which veterans administrative adjudicators aré protected. It is certainly a species of judicial immunity, as exemplified in Stump v. Sparkman, 435 U.S. 349, 98 S.Ct. 1099, 55 L.Ed.2d 331 (1978), and Forrester v. White, 484 U.S. 219, 108 S.Ct. 538, 98 L.Ed.2d 555 (1988). That immunity has been extended well beyond common law judges. See McCray v. Maryland, 456 F.2d 1 (4th Cir.1972). There are some issues which appear to be asserted for the first time in the plaintiffs filings of January 21, 1994. It needs to be re-emphasized that evidence which is inadmissible cannot be considered in formulating whether there is a genuine issue of material fact under Rule 56. In the same vein, evidence that is purely hearsay cannot be considered in that formulation. The court is familiar with some of the dimensions of the so-called Privacy Act, 5 U.S.C. § 552a. See Doe v. Dept. of Navy, 764 F.Supp. 1324 (N.D.Ind.1991). This court does not conceive that the Privacy Act has anything to do with this case. Neither is it possible for this court to sit in an administrative capacity to correct military records. See Ortiz v. Secretary of Defense, 842 F.Supp. 7 (D.D.C.1993). See also Green v. Skulute, 839 F.Supp. 797 (D.Wyo.1993). This court has profound respect for the values that inhere in the Seventh Amendment of the Constitution of the United States. Delineating what are jury trial issues and what are not is not always an easy task. See Lorillard v. Pons, 434 U.S. 575 (1978). In any event, if there were valid claims for money damages which could survive summary judgment, this plaintiff might be entitled to a Seventh Amendment jury trial. However, any valid claims which are for injunctive relief are for the court to decide in equity. The long and short.of the magistrate judge’s report and recommendation is that there is no valid basis for relief here stated for money damages or injunctive relief and for that reason summary judgment is granted. It has already been stated that 42 U.S.C. § 1981, § 1982, § 1983, § 1985, and § 1986 do not provide any basis -for relief to this plaintiff in this case. Neither do 18 U.S.C. § 241 and § 242. See Snyder v. IRS, 596 F.Supp. 240 (N.D.Ind.1984). See also Powers v. Karen, 768 F.Supp. 46 (E.D.N.Y.1991). This court does not conceive that this plaintiff has any basis for recovery under 5 U.S.C. § 7324 or § 1206. The enforcement of those statutes is elsewhere. See Blaylock v. U.S. Merit Systems Protection Board, 851 F.2d 1348 (11th Cir.1988). The plaintiff has also requested that Magistrate Judge Pierce recuse himself from this case. Title 28 U.S.C. § 144 states: Whenever a party to any proceeding in a district court makes and files a timely and sufficient affidavit that the judge before whom the matter is pending has a personal bias or prejudice either against him or in favor of any adverse party, such judge shall proceed no further therein, but another judge shall be assigned to hear such proceeding. The affidavit shall state the facts and the reasons for the belief that bias or prejudice exists, and shall be filed not less than ten days before the beginning of the term at which the proceeding is to be heard, or good cause shall be shown for failure to file it within such time. A party may file only one such affidavit in any case. It shall be accompanied by a certificate of counsel of record stating that it is made in good faith. As amended May 24, 1949, c. 139, § 65, 63 Stat. 99. (emphasis added) United States v. Sibla, 624 F.2d 864, 868 (9th (Dir.1980), provides that a motion brought under § 144 will raise a question concerning recusal under § 455(b)(1) as well; the test for personal bias or prejudice is the same in both. Section 455 modifies § 144 in requiring the judge to go beyond the § 144 affidavit and consider the merits of the motion pursuant to § 455(a) and (b)(1). United States v. Bryant, 716 F.2d 1091 (6th Cir.1983), also provides that §§ 144 and 455 must be construed together, and that disqualification under § 455(a) must be predicated as previously under § 144, upon extra judicial conduct, rather than judicial conduct [citing City of Cleveland v. Krupansky, 619 F.2d 576 (7th Cir.1980) ]. United States v. International Business Machines Corporation, 475 F.Supp. 1372 (S.D.N.Y.1979) (hereafter I.B.M.), is an important object lesson provided by Judge David N. Edelstein, who presided over one of the federal judiciary’s longest and most complicated antitrust trials, in the middle of which the defendant, not pleased with various rulings of Judge Edelstein, tried to require his recusal. The aforesaid case was affirmed in In re International Business Machines Corporation, 618 F.2d 923 (2d Cir.1980). The holding in the I.B.M. case is that to be legally sufficient, an affidavit under § 144 must enable the judge to rule “whether the reasons and facts stated in the affidavit give fair support to the charge of a bent of mind that might impede the impartiality of the judgment” (p. 1379) [citing Berger v. United States, 255 U.S. 22, 41 S.Ct. 230, 65 L.Ed. 481 (1921) ]. The aforesaid affidavit under § 144 must allege specific facts and not mere conclusions or generalities. A United States magistrate judge is presumed impartial, and a substantial burden is imposed on the affi-ant to demonstrate that such is not the case. Only after a judge finds a legal sufficient claim of personal bias must another judge be assigned to the case (p. 1379). In New York City Development Corp. v. Hart, 796 F.2d 976 (7th Cir.1986), it is held that § 455(a) requires disqualification only when a judge’s decision might “reasonably” be questioned. The inquiry is objective, from the point of view of a reasonable person with access to all of the facts. Id. at 980. In Union Carbide Corp. v. U.S. Cutting Service, Inc., 782 F.2d 710 (7th Cir 1986), a case which involved District Judge Getzen-danner, it was stressed that the test is whether an objective, disinterested observer fully informed of the facts underlying the grounds on which recusal was sought, would entertain a significant doubt that justice would be done in the case [citing Pepsico, Inc. v. McMillen, 764 F.2d 458, 460 (7th Cir.1985) ]. See also United States v. Murphy, 768 F.2d 1518, 1538 (7th Cir.1985). In United States v. Harris, 542 F.2d 1283 (7th Cir.1976), a case in which this Judge acted as the district trial judge, it was held that a judge’s exposure to evidence presented at an earlier trial involving the same defendant does not per se create bias (p. 1304). Again, in United States v. Jeffers, 532 F.2d 1101 (7th Cir.1976), the Court of Appeals at page 1112 stated: The two basic facts presented by the defendant’s motion are 1) that Judge Sharp had presided and would preside over numerous trials concerning alleged Family members, and 2) that Judge Sharp presided at the defendant’s prior trial. The defendant alleged no facts which directly showed Judge Sharp’s bias, but relied only on the inference that the intimate connection with the defendant’s prior trial and other Family trials would create bias. We have dispatched this type of claim before. In United States v. Dichiarinte, 445 F.2d 126, 132 (7th Cir.1971), Judge Swygert wrote: The fact that the judge might have formed an opinion concerning the guilt or innocence of the defendant from the evidence presented at an earlier trial involving the same person is not the kind of bias or prejudice which requires disqualification. Accord, Wolfson v. Palmieri, 396 F.2d 121 (2d Cir.1968). Similarly, “inferences drawn from prior judicial determinations are insufficient grounds for recusal because it is the duty of the judge to rule upon issues of fact and law and .questions of conduct which happen to form a part of the proceedings before him.” United States v. Partin, 312 F.Supp. 1355, 1358 (E.D.La.1970). Many of the aforesaid authorities have previously been summarized by this court in McChristion v. Hood, 551 F.Supp. 1001 (N.D.Ind.1982). The Court of Appeals has also dealt with this subject in the Matter of National Union Fire Insurance of Pittsburgh, Pennsylvania and Allstate Insurance Company, 839 F.2d 1226 (7th Cir.1988). See also United States v. Barnes, 909 F.2d 1059 (7th Cir.1990). For an application of 28 U.S.C. § 144 in a lighter vein, see Huff v. Standard Life Insurance Company, 643 F.Supp. 705 (S.D.Fla.1986). See also Person v. General Motors Corporation, 730 F.Supp. 516 (W.D.N.Y.1990). For an example of where judicial disqualification exists, see United States v. Pepper & Potter, Inc., 677 F.Supp. 123 (E.D.N.Y.1988). But compare Grand Entertainment Group, Ltd. v. Arazy, 676 F.Supp. 616 (E.D.Pa.1987). In Hadler v. Union Bank and Trust Co. of Greenburg, 765 F.Supp. 976 (S.D.Ind.1991), Judge Tinder held that a judge’s friendship with a witness who had a financial stake in the outcome of the action and whose credibility would be at issue in a case tried by the court warranted recusal. In United States v. Troxell, 887 F.2d 830 (7th Cir.1989), Judge Coffey stated: “The fact that knowledge of the defendant was gained in separate courtroom proceedings presided over by the same judicial officer does not alter the judicial character of the knowledge. United States v. Dichiarinte, 445 F.2d 126, 132 (7th Cir.1971). Judge Mills’ decision to proceed with the case was proper.” See also Greater Buffalo Press v. Federal Reserve Bank, 129 F.R.D. 462 (W.D.N.Y.1990). In United States of America ex rel. John Britz v. James Thieret, 737 F.Supp. 59 (C.D.Ill.1990), Judge Richard Mills held that there was no appearance of impropriety warranting recusal when a district judge, who was a member of a state appellate panel that reversed the petitioner’s original conviction, presided over the petitioner’s habeas petition challenging a second conviction for the same offense. In Spangler v. Sears, Roebuck & Co., 759 F.Supp. 1327 (S.D.Ind.1991), Judge Tinder ruled that language in a published opinion that was critical of counsel was not a basis to require recusal absent showing there was extrajudicial source for the court’s alleged bias and that bias is pervasive. In United States v. Kehlbeck, 766 F.Supp. 707 (S.D.Ind.1990), Judge Tinder held that the defendant was not entitled to recusal of judge for actual bias under § 144, and further held that the defendant was not entitled to recusal of judge for appearance of bias under § 455(a). In Sexson v. Servaas, 830 F.Supp. 475 (S.D.Ind.1993), Judge Barker held that the fact that the district judge was a member of boards of two not-for-profit civil organizations did not require the judge to recuse herself. Magistrate Judge Pierce is not disqualified under either 28 U.S.C. § 144 or § 455. There is no assertion here whatsoever that Magistrate Judge Pierce is in any capacity other than in his judicial capacity. In that regard, he has been enormously patient and careful. The fact that someone may not agree with his decision does not create a disqualification under either § 144 or § 455. Therefore, the motion to disqualify Magistrate Judge Pierce is now carefully considered and DENIED in its entirety. IT IS SO ORDERED. There can be no doubt that this case in its larger sense touches some very sensitive social nerves in the body politic.- It has been said often and variously that you can tell about a society by the way it treats those convicted of crime ,or those who are disadvantaged. It can be equally true of the social dynamic of how a free democratic society treats those who served it faithfully in its military is of enormous importance. The values involved are deeply embedded in the culture and history of this republic. It is equally true that the Constitution of the United States, which those in the military have fought to defend variously for over two centuries, provides, quite appropriately, a government of distinct and separate responsibilities often called checks and balances or separation of powers. There has been a debate almost continuously in the history of the Constitution as to proper scope and function of the exercise of federal judicial authority. At different periods in history there has been an ebb and a flow of how much judicial activism on the one hand and how much judicial restraint on the other should there be in society. In Calder v. Bull in 1798 the opinion of Justice Samuel Chase was a clarion call for judicial activism, the kind that especially found favor in the 1890’s as substantive due process. In the same case, the opinion of Justice James Iredell spoke to a much more restrained view of judicial power which gave honor and sustenance to the elected representatives of the people who served in Congress and in the various state legislatures. It has been wisely said that there is not a judicial remedy for every evil and ill in society, and perhaps that statement ought to be modified today to emphasize that there is especially not a federal judicial remedy. A decent respect for the various responsibilities of the coordinate branches of the government is not a copout, but a fulfillment of the highest aspirations of those who wrote the Constitution of the United States in Philadelphia in 1787. Additionally, in eases such as this, it may fervently hope that the Congress can, has and will provide wise and compassionate legislation to fulfill the admonition in Abraham Lincoln’s Second Inaugural Address to “care for him who shall have borne the battle and for his widow, and his orphan ....” It is the sworn duty of the magistrate judge and of this court to consider cases on the record before it to determine whether there is a genuine issue of material fact to go forward, keeping in mind the mandate of the Court of Appeals, which this court is duty bound to respect and honor. The magistrate judge and this court have concluded that there is no such genuine issue of material fact. Therefore, the Report and Recommendation is APPROVED. Summary judgment for the defendants and against the plaintiff is GRANTED. Each party will bear its own costs. It is the intention by this Memorandum and Order to enter a final, appealable decision. IT IS SO ORDERED. REPORT AND RECOMMENDATION PIERCE, United States Magistrate Judge. Since 1953, Stephen S. Marozsan has been fighting with the Veterans Administration, now the Department of Veterans Affairs (the “V.A.”), and a growing number of perceived adversaries, over a claim for veterans’ disability benefits. He brought the present action in 1984, claiming among other things that the procedures followed by the V.A. in adjudicating his benefits claim violated his right to due process under the Fifth Amendment. Chief Judge Sharp thereafter granted summary judgment in favor of the United States and the V.A., holding that 38 U.S.C. § 211(a) “bars a court from hearing and reviewing an action challenging a decision of the V.A., even when a plaintiff alleges that the decision violates his constitutional rights.” Marozsan v. United States, 635 F.Supp. 578, 580 (N.D.Ind.1986). On appeal, the Seventh Circuit, in an en banc decision, Marozsan v. U.S., 852 F.2d 1469 (7th Cir.1988), affirmed in part, reversed in part, and remanded the case to this court for further proceedings on Marozsan’s constitutional challenge to V.A. procedures. Following remand, Marozsan was allowed to file a third amended complaint which added a Bivens action against a number of V.A. employees, including John M. Higgins, a Y.A. Adjudication Officer. This case is now before the court on motions to dismiss, or alternatively for summary judgment, by defendants Higgins, the United States and the V.A. Background To qualify for disability compensation benefits, a veteran must show that his or her disability is “service-connected,” meaning that the disability “was incurred or aggravated ... in the line of duty in the active military, naval or air service.” 38 U.S.C. § 101(16). After a veteran has submitted a claim for benefits on an appropriate form, 38 C.F.R. § 3.151(a), the claim is reviewed by a three-person Rating Board at a V.A. Regional Office. Claimants are “entitled to a hearing at any time on any issue involved in a claim,” 38 C.F.R. § 3.103(c), as well as representation of their choice at every stage of the proceedings. 38 C.F.R. § 3.103(e). The proceedings before the Rating Board are “ex parte in nature, and it is the obligation of the [V.A.] to assist a claimant in developing the facts pertinent to the claim and to render a decision which grants every benefit that can be supported in law while protecting the interests of the Government.” 38 C.F.R. § 3.103(a). All reasonable doubts are to be resolved in favor of the claimant. 38 C.F.R. § 3.102. The principal issues are the extent of the claimant’s disability and whether the disability is service-connected. “Service connection connotes many factors but basically it means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred comcident with service in the Armed Forces, or if preexisting such service, was aggravated therein.” 38 C.F.R. § 3.303(a). If the Rating Board determines that a particular condition is service-connected, it assigns a disability rating from 0 percent to 100 percent. In general, the higher the percentage of disability, the more money a claimant receives as a monthly benefit. The claimant is then notified in writing of the Rating Board’s decision, its reasons, the date the decision will become effective, and the right to a hearing. The claimant may then initiate an appeal -by filing a Notice of Disagreement with the local agency. 38 C.F.R. § 3.103(f). When a Notice of Disagreement is timely filed, the local agency must reexamine the claim and determine if additional review or development is warranted. 38 C.F.R. § 19.26. If the local agency adheres to its decision, it must prepare a Statement of the Case containing a summary of the evidence' and the applicable laws and regulations, together with a determination on each issue. 38 C.F.R. §§ 19.26, 19.29. The claimant may then appeal to the Board of Veterans’ Appeals (“BVA”). A hearing before the BVA will be granted if the claimant expresses a desire to appear in person. 38 C.F.R. § 20.700(a). Such hearings are subject to essentially the same rules as are hearings before the local agency. See 38 C.F.R. § 20.700. Prior to the enactment of' the Veterans’ Judicial Review Act of 1988, Pub.L. No. 100-687, Div. A, 100 Stat. 4015 (1988) (“VJRA”), the BVA’s decisions were not subject to judicial review. Under the VJRA, however, claimants are permitted to appeal BVA decisions to the newly-created Court of Veterans Appeals, and then to the Federal Circuit. See National Ass’n of Radiation Survivors v. Derwinski 994 F.2d 583, 587 (9th Cir.1992); Larrabee by Jones v. Derwinski 968 F.2d 1497 (2nd Cir.1992). Procedural History Marozsan’s service in the military began when he enlisted in the U.S. Navy on November 17, 1943. After graduating from the Northwestern U.S. Naval Radio School as a radio operator, he was stationed in the Aleutian Islands where he remained for the duration of World War II. On May 26, 1946, he was honorably discharged with a radioman second clas.s rating. He then re-enlisted in the U.S. Navy in April, 1948, as a radioman second class operator. During his second term of enlistment, he helped erect a training facility at the South Bend Naval Reserve Training Center. On September 30,1949, he again was honorably discharged from the Navy with a radioman second class rating. Marozsan filed an application for veterans’ disability benefits with the V.A. in May, 1953. His claim, based upon a back injury that allegedly occurred during his second term of enlistment, was denied by the V.A.’s Indianapolis Regional Office, and he appealed that decision to the Board of Veterans’ Appeals (“BVA”). On May 27, 1955, the BVA denied Marozsan’s claim of service connection with respect to a back condition. Although Mar-ozsan reopened his claim for service connection, based upon a back condition, in October, 1971, that claim was also disallowed by the Regional Office. (Deposition of Steven Mar-ozsan taken on Nov. 28, 1989, p. 17.) In 1977, Marozsan again sought to reopen his claim, but the Regional Office again denied service connection for a back condition. The BVA subsequently concluded, in a decision issued on February 20, 1980, that “[t]he additional evidence submitted since [its] previous decision ... [did] not establish a new factual basis with respect to the issue of entitlement to service connection for a disability of the lumbo sacral spine.” Accordingly, the BVA held that its 1955 decision was final and denied the claim. (Attachment 2 to Declaration of Martin Sendek, p. 9.) After Marozsan requested reconsideration, the BVA issued a decision on June 17, 1981, granting service connection for his lower back condition, based upon a difference of opinion. Benefits were granted retroactive to March 25,1980, the date of his request for reconsideration. Following the BVA’s decision of June 17, 1981, Marozsan’s ease was returned to the Regional Office for rating action. He subsequently underwent a V.A. examination on July 24, 1981. Thereafter, on August 12, 1981, the Regional Office issued an administrative decision which granted a 20 percent evaluation for his back disorder, “on the basis of the grant of service connection by the Board of Veterans’ Appeals and on the basis of a current medical examination conducted at the Veterans Administration Medical Center.” The decision “continued the evaluations for the nonservice-connected conditions and showed the continued entitlement to nonservice connected pension benefits_” It was noted that “[t]he evaluation of the service-connected condition was made on the reported examination which included the subjective complaints and the history given by the veteran.” (Affidavit of John M. Higgins, Ex. 2, p. 3.) On October 9, 1981, after Marozsan filed a notice of disagreement, the Rating Board at the Regional Office determined that the August 12, 1981 rating decision contained a “clear and unmistakable” error because it failed to base the initial rating on the information then available in Marozsan’s file at the point of remand by the BVA. That information showed that Maroz-san’s back condition was rated at 40 percent for nonservice-connected pension purposes. To correct this perceived error, defendant Higgins and the Rating Board increased Marozsan’s rating to 40 percent from the date of remand by the BVA, March 25, 1980, to the date of Marozsan’s most recent physical examination, July 24, 1981. (Higgins Affidavit, p. 5; Ex. 1.) However, because the Rating Board believed that the 20 percent evaluation for Marozsan’s back condition was correct, based upon the findings of his July, 1981 medical examination, it gave him a 20 percent rating from July, 1981 forward. (Higgins Affidavit, p. 5; Ex. 1.) Marozsan appealed. In a decision issued on September 7,1982, the BVA remanded the case for further development of the medical evidence, adjudicative action with respect to Marozsan’s claim for a 100 percent rating due to individual unemployability, and for consideration of his request for an increased rating. (Attachment 4 to Declaration of Martin Sendek, p. 3.) While the ease was on remand, Marozsan requested and was granted a hearing before a travelling panel of the BVA sitting in Indianapolis, in August, 1983. (Attachment 5 to Declaration of Martin Sendek, pp. 2, 8.) After hearing the evidence, the BVA issued a detailed decision on May 7, 1984, denying Marozsan an increased disability rating. On August 15, 1984, Marozsan filed the present action pro se against the United States of America, the Attorney General, the Veterans Administration, Administrator Harry N. Walters, V.A. Regional Adjudication Officer R.L. Hornbarger, the National American Legion, Robert E. Lyngh, Director of Veterans Affairs & Rehabilitation, and the National American Legion Executive Officers. The complaint alleged that a number of V.A. regulations had been violated; that the V.A. had utilized an arbitrary quota system in processing claims; that Marozsan had been denied due process; and that 38 U.S.C. § 211(a), which precluded judicial review of V.A. decisions, denied equal protection to veterans. The complaint requested an order directing the V.A. to restore Marozsan’s “rightful” disability rating, an injunction directing the VA. to follow its regulations and guidelines, a 100 percent unemployability rating and an award of $5,000,000 in damages for violating his rights. On October 16, 1984, Marozsan filed an amended complaint, with the assistance of counsel, alleging that the V.A. had refused to recognize witnesses or evidence, harassed him, failed to abide by its own rules and regulations and utilized an improper quota system. The amended complaint further alleged that the “use and existence of 38 U.S.C. § 211 denies the Plaintiff due process of law, and the existence of violations permits the court to review Plaintiffs case pursuant to 5 U.S.C. § 42.” Marozsan again sought an increase in his disability rating and damages, but added a claim for retroactive benefits to the date of his alleged disability. Chief Judge Sharp subsequently dismissed all of the defendants except the United States and the V.A., converted their motion to dismiss to a motion for summary judgment, and granted summary judgment in their favor, thus rejecting Marozsan’s equal protection challenge to § 211(a) and holding that the statute “bars a court from hearing and reviewing an action challenging a decision of the V.A., even when a plaintiff alleges that the decision violates his constitutional rights.” Marozsan, 635 F.Supp. at 580. On appeal, the Seventh Circuit held that “§ 211(a) bears a rational relationship to the legitimate state ends of ensuring adequate and uniform decisions on veterans’ benefits decisions,” Id. at 1471 n. 3, and affirmed that portion of the district court’s decision granting summary judgment in favor of the defendants on Marozsan’s equal protection challenge to § 211(a). However, the Seventh Circuit concluded that § 211(a) did not deprive a federal court of jurisdiction to entertain Marozsan’s claim that the V.A. violated his constitutional rights by employing arbitrary methods of determining which benefits claims to grant. Accordingly, the Court of Appeals reversed, and directed the district court to “assume federal question jurisdiction over Marozsan’s due process claims under 28 U.S.C. § 1331,” Id. at 1479. On December 29, 1988, following remand of the case from the Seventh Circuit, Maroz-san was granted leave to file another amended complaint in which he again alleged that “[t]he use and existence of 38 U.S.C. See. 211 denies the Plaintiff due process of law, and the existence of violations permits the Court to review Plaintiffs case pursuant to 5 USC 43.” The amended complaint further alleged that “[t]he actions of employees of the Defendant have resulted in the Plaintiff being denied his rights and privileges granted to him by Federal statute.” Marozsan’s second amended complaint made no demand for monetary damages, but instead requested an injunction directing the V.A. to conduct a new hearing to determine his disability rating, to desist from violating his constitutional rights and to award him retroactive benefits commencing with the initial date of filing. The parties thereafter proceeded with discovery. Pursuant to a Rule 16 status conference conducted on February 20, 1990, the court directed that any requests for class certification and any motion by the plaintiff seeking leave to file any amendment to the pleadings be filed on or before May 1, 1990. On May 1, 1990, Marozsan, who was then represented by Professor Frank E. Booker of the Notre Dame Law School, moved for leave to file a third amended complaint, his second following appeal. Count III of his proposed third amended complaint included an action under Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971), which sought damages against various officers or officials of the V.A. who allegedly violated his constitutional rights under the First and Fifth Amendments. Those defendants included A.P. Cowan, W.R. Gladding, M.D., P. Mon-cure, James F. Sponzo, R.L. Hornbarger, J. Higgins, Dr. B. Gardner, Sydney J. Shuman, Max Cleland and H.M. Walters. Professor Booker withdrew as Marozsan’s counsel on November 1, 1990. In a Report and Recommendation issued on December 18, 1990, the undersigned found that Maroz-san’s Bivens claims under Count III were barred by the applicable statute of limitations, and recommended that leave to amend be denied. That recommendation was subsequently adopted by Judge Sharp. However, on February 14,1992, the undersigned decided, upon reconsideration, that Marozsan should be granted leave to file a re-drafted third amended complaint setting forth his Bivens action under Count II. In doing so, the undersigned observed that “it is best to allow the amendment and then to consider any defenses raised by defendants through a fully briefed motion to dismiss or motion for summary judgment,” and noted that the “timeliness of plaintiffs Bivens claims can best be examined in the context of a motion to dismiss or motion for summary judgment, after a full opportunity for briefing.” On March 30, 1992, Marozsan filed his “ReDrafted Third Amended Complaint” (hereinafter third amended complaint), and on April 2, 1992, Judge Sharp adopted the February 14, 1992 Report and Recommendation. After contacting some 38 attorneys in an effort to secure counsel for Marozsan (Transcript of Aug. 3, 1992 status conference, p. 7), the court was finally successful in locating two very able and experienced attorneys who agreed to undertake joint representation. Accordingly, on May 29, 1992, the court appointed Haniid Kashani of Indianapolis and Wyatt Mick of Elkhart as counsel for Maroz-san. On June 25, 1992, however, Marozsan filed a motion seeking to discharge his court-appointed attorneys, asserting that they were only interested in representing him on a part-time basis, “with Hamid Kashani willing to only put forth 400 Hours into the case.” Marozsan indicated that he was “under severe apprehensions of such part time representations would tremendously advantage the Defendant’s [sic] numerous full time, current and uptodate [sic] U.S. Attorneys representations and would in effect cause ‘FUNDAMENTAL UNFAIRNESS IMPINGING ON DUE PROCESS.’” Both Mick and Kashani subsequently filed motions for leave to. withdraw. During a status conference conducted on August 3, 1992, Marozsan advised the court of his desire to proceed pro se: I would like to make this additional comment, with no disrespect intended to either of the two learned counselors. After studying for the last three weeks, there are Federal Rules of Evidences and Procedures, cross-examination, direct examination, and all that. I cannot perceive how either of these two gentlemen would be able to adequately, with the time restraints on them, do the job when this case is one of the most massive and complex eases that’s been in this court for quite some time. I feel that I’m the only one competent enough and has the knowledge, after 40 years. I feel that after all the years that I’ve put in at law school, pursuing and updating myself on Federal Rules of Evidences, procedures, direct examination, cross-examination, hearsay, rules of evidences-, all the way down the line, so that we can eliminate as much of the time spent in the trial, where any uncertainty on my part would hesitate and cause more time. Therefore, I feel, with all that, that I would be the most competent. And I think it would be to my advantage to continue this case pro se. (Hearing of August 3, 1992, Tr. 4-5.) After hearing from Kashani and Mick, the court granted their requests for leave to withdraw. During the same hearing, counsel for the United States pointed out that Marozsan had failed to serve any of the Bivens defendants with summons and his third amended complaint within 120 days, as required by Rule 4(j) of the Federal Rules of Civil Procedure. Accordingly, on August 4, 1992, the court issued an order directing Marozsan to file a written statement, on or before August 14, 1992, showing good cause why service was not effected within the 120-day time limitation. He submitted several documents in response or reaction to that Order, but only one of them, his “Statement to the Court ‘Showing Good Cause’ Why Service of Summons Have not Been Executed todate [sic], as Ordered by the U.S. Magistrate’s Order of August 4, 1992,” was filed by the August 14, 1992 deadline. Thereafter, on October 23, 1992, the United States, on behalf of the V.A., filed a motion to dismiss under Rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure, or alternatively for summary judgment. The United States accompanied its alternative motion with a notice advising Marozsan in the spirit of Lewis v. Faulkner, 689 F.2d 100, 102 (7th Cir.1982). On December 10, 1992, Higgins, one of the individual Bivens defendants, filed a motion to dismiss under Rules 4(j), 12(b)(1), 12(b)(3) and 12(b)(6), or alternatively for summary judgment. Higgins also provided Marozsan with a similar notice advising of the effect of his motion to dismiss or for summary judgment. 12(b)(6) Standard Federal Rule of Civil Procedure 12(b)(6) authorizes dismissal of complaints that state no actionable claim. When reviewing pro se complaints, the court must employ standards less stringent than if the complaint had been drafted by counsel. Haines v. Kerner) 404 U.S. 519, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972); Jones v. Morris, 777 F.2d 1277 (7th Cir.1985). The court must accept as true all well-pleaded factual allega tions and inferences which may reasonably be drawn from those facts. Scheuer v. Rhodes, 416 U.S. 232, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974); Corcoran v. Chicago Park District, 875 F.2d 609, 611 (7th Cir.1989); Gomez v. Illinois State Board of Education, 811 F.2d 1030 (7th Cir.1987); Vaden v. Village of Maywood, Ill., 809 F.2d 361, 363 (7th Cir.), cert. denied, 482 U.S. 908, 107 S.Ct. 2489, 96 L.Ed.2d 381 (1987); Hampton v. City of Chicago, 484 F.2d 602 (7th Cir.1973), cert. denied, 415 U.S. 917, 94 S.Ct. 1413, 39 L.Ed.2d 471 (1974). At the same time, the court is not required to “ ‘ignore any facts set forth in the complaint that undermine the plaintiffs claim_’” Martin v. Davies, 917 F.2d 336, 341 (7th Cir.1990), quoting Gray v. Dane County, 854 F.2d 179, 182 (7th Cir.1988). A motion to dismiss will not be granted under these circumstances unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief. Hishon v. King & Spalding, 467 U.S. 69, 104 S.Ct. 2229, 81 L.Ed.2d 59 (1984); Conley v. Gibson, 355 U.S. 41, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957); Illinois Health Care Ass’n v. Illinois Dept. of Public Health, 879 F.2d 286, 288 (7th Cir.1989); Gomez v. Illinois State Board of Education, 811 F.2d 1030 (7th Cir.1987); Ellsworth v. City of Racine, 774 F.2d 182, 184 (7th Cir.1985), cert. denied, 475 U.S. 1047, 106 S.Ct. 1265, 89 L.Ed.2d 574 (1986); French v. Heyne, 547 F.2d 994 (7th Cir.1976). A plaintiff may not avoid dismissal, however, merely by attaching bare legal conclusions to narrated facts which fail to outline the basis of his claims. Perkins v. Silverstein, 939 F.2d 463 (7th Cir.1991); Strauss v. City of Chicago, 760 F.2d 765, 767-68 (7th Cir.1985); Sutliff, Inc. v. Donovan Companies, 727 F.2d 648, 654 (7th Cir.1984). Summary Judgment Standard Summary judgment is appropriate “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Fed.R.Civ.P. 56(c). A party seeking summary judgment bears the initial responsibility of informing the court of the basis for the motion, and identifying “those portions of ‘the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, which it believes demonstrate the absence of a genuine issue of material fact.’ ” Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 2553, 91 L.Ed.2d 265 (1986). However, once a properly supported motion for summary judgment is made, the party that bears the burden of proof on a particular issue at trial cannot resist the motion by merely resting on its pleadings. U.S. v. Lair, 854 F.2d 233, 235 (7th Cir.1988). Rather, the party opposing the motion must “affirmatively demonstrate, by specific factual allegations, that there is a genuine issue of material fact which requires trial.” Beard v. Whitley County REMC, 840 F.2d 405, 410 (7th Cir.1988); Valley Liquors, Inc. v. Renfield Importers, Ltd., 822 F.2d 656, 659 (7th Cir. 1987). “A genuine issue for trial only exists when there is sufficient evidence favoring the nonmovant for a jury to return a verdict for that party.” Celotex Corp. v. Catrett, 477 U.S. at 323, 106 S.Ct. at 2553. “Supporting materials designed to establish issues of fact in a summary judgment proceeding ‘must be established through one of the vehicles designed to ensure reliability and veracity — depositions, answers to interrogatories, admissions and affidavits. When a party seeks to offer evidence through other exhibits, they must be identified by affidavit or otherwise made admissible in evidence.’ ” Friedel v. City of Madison, 832 F.2d 965, 970 (7th Cir.1987), quoting Martz v. Union Labor Life Insurance Co., 757 F.2d 135, 139 (7th Cir.1985). Affidavits presented in opposition to a motion for summary judgment must be based upon personal knowledge; a statement merely indicating that a purported affidavit is based upon “information and belief’ is insufficient. Price v. Rockford, 947 F.2d 829, 832-33 (7th Cir.1991); Visser v. Packer Engineering Associates, Inc., 924 F.2d 655, 659 (7th Cir.1991); Scheriz v. Wau-paca County, 875 F.2d 578, 582 (7th Cir.1989); Amcast Indus. Corp. v. Detrex Corp., 779 F.Supp. 1519, 1526 (N.D.Ind.1991). Rule 56(e) requires that any such affidavits “set forth such facts as would be admissible in evidence, and ... show affirmatively that the affiant is competent to testify to the matters stated therein.” Inadmissible hearsay contained in affidavits or other discovery materials such as interrogatories or depositions cannot be considered. Horta v. Sullivan, 4 F.3d 2, 8-9 (1st Cir.1993) (newspaper article which contained “hearsay within hearsay” could not be considered); Mitchell v. Toledo Hospital, 964 F.2d 577, 584-85 (6th Cir.1992) (affidavit which contained nothing more than rumors, conclusory allegations and subjective beliefs could not be considered); Hong v. Children’s Memorial Hospital, 993 F.2d 1257, 1264 (7th Cir.1993) (“We do not consider hearsay statements that are otherwise inadmissible at trial, and this limitation applies to deposition testimony based on inadmissible hearsay.”); Cormier v. Pennzoil Exploration & Production Co., 969 F.2d 1559, 1561 (5th Cir.1992); Garside v. Osco Drug, Inc., 895 F.2d 46, 50 (1st Cir.1990) (refusing to consider interrogatory answer which contained hearsay); Pfeil v. Rogers, 757 F.2d 850, 862 (7th Cir.1985), cert. denied, 475 U.S. 1107, 106 S.Ct. 1513, 89 L.Ed.2d 912 (1986); Liberty Leasing Co. v. Hillsum Sales Corp., 380 F.2d 1013, 1015 (5th Cir.1967) (deposition containing inadmissible hearsay properly disregarded). Conclusory statements or indications of opinion or belief offered without any factual support are also insufficient to create a genuine issue of fact. Cusson-Cobb v. O’Lessker, 953 F.2d 1079 (7th Cir.1992); Covalt v. Carey Canada, Inc., 950 F.2d 481 (7th Cir.1991); Davis v. City of Chicago, 841 F.2d 186, 189 (7th Cir.1988). “Rule 56 demands something more specific than the bald assertion of the general truth of a particular matter, rather it requires affidavits that cite specific concrete facts establishing the existence of the truth of the matter asserted.” Hadley v. County of Du Page, 715 F.2d 1238, 1243 (7th Cir.1983). “Summary judgment is properly entered in favor of a party when the opposing party is unable to make a showing sufficient to prove an essential element of a case on which the opposing party bears the burden of proof.” Common v. Williams, 859 F.2d 467 (7th Cir.1988). “If the evidence is merely colorable, or is not significantly probative, summary judgment may be granted.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S.Ct. 2505, 2511, 91 L.Ed.2d 202 (1986); Flip Side Productions, Inc. v. Jam Productions, Ltd., 843 F.2d 1024, 1032 (7th Cir.1988). The inquiry involved in ruling on a motion for summary judgment implicates the.substantive evidentiary standard of proof, for example, preponderance of the evidence, that would apply at trial. Anderson, 477 U.S. at 251, 106 S.Ct. at 2512. 477 factual inferences must be drawn in favor of the non-moving party. Valley Liquors, 822 F.2d at 659. Evidentiary Submission Marozsan has submitted a number of affidavits in opposition to defendants’ motions. However, many of them do not, for various reasons, constitute admissible evidence and cannot, therefore, be considered by the court in determining the existence of a triable issue of fact. Horta, 4 F.3d at 8. Among the materials submitted by Marozsan are four affidavits by Sidney Cooper, the National Legislative Director of an organization called Veterans Due Process. Three of the affidavits authenticate and attest to the truth of attached statements which Cooper presented to the House and Senate Veterans Affairs Committees in 1988 and 1990. The fourth attempts to attest to the veracity of attached testimony by Dr. Alcide Pellerin before the Senate Committee on Veterans Affairs. The first three Cooper statements amount to little more than collections of argumentative and conclusory assertions, and there is no indication that the statements and opinions expressed by Cooper in his testimony before Congress were based upon personal knowledge. See Resolution Trust Corp. v. Juergens, 965 F.2d 149, 152-53 (7th Cir.1992). Cooper’s fourth affidavit, which purports to attest to the truth of testimony by Dr. Pelle-rin, is hearsay. Cooper’s affidavits, accordingly, are ncit admissible. In addition, Marozsan has submitted the affidavit of Philip E. Cushman, President of Veterans Due Process, Inc. But Cushman’s affidavit, like those of Cooper, is composed of general complaints, arguments and concluso-ry statements, unsupported by specific facts and unaccompanied by a demonstration of personal knowledge. Consequently, the Cushman affidavit is inadmissible. Marozsan has also introduced an affidavit by Rick Paradise, his “Expert Computer Mathematical analyst,” in support of his theory that the V.A. utilizes a quota system in rating disabilities. Paradise’s affidavit, however, merely states that he is “willing to testify that [he] has produced the Statistical Graphical Illustrations and Curvings for Steven S. Marozsan’s Exhibits as viable proofs [sic] of the existences of a ‘QUOTA SYSTEM’ DEPLOYED BY THE DEFENDANT’S [sic], The Veterans Administration and its Officers.” Paradise further states that his “ ‘particularized’ Statistic’s [sic] were taken from the Numerical Stats” provided to Marozsan by the V.A.; that he used the information “for [his] Computers;” and that “[t]he graphical computer output is a DIRECT RELATIONSHIP to the Defendant’s, [sic] annual assignments of Degree’s [sic] in Disabilities granted by the defendant’s [sic] by Regional Rating Boards throughout the United States.” The affidavit concludes by noting that Paradise’s “analysis was performed on an IBM-AT Computer using the Quattfo-Pro ■ Program by Borland International.” It is well-established that facts and opinions contained in an expert’s deposition or affidavit may only be considered if they would be allowed in evidence under the Federal Rules of Evidence. Porter v. Whitehall Laboratories, Inc., 791 F.Supp. 1335, 1342 (S.D.Ind.1992), aff'd., 9 F.3d 607 (7th Cir.1993). While “[c]oherent facts and opinions stated by an expert may meet the standard of relevance provided by Rule 401 of the Federal Rules of Evidence, [they] may be held inadmissible if they run afoul of some other Rule.” Id. Before an expert’s testimony will be found admissible, three independent tests must be s