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UNITED STATES v. ROWIN

November 15, 1982

UNITED STATES OF AMERICA, Plaintiff,
v.
JOHN H. ROWIN, JR., Defendant



The opinion of the court was delivered by: ELFVIN

MEMORANDUM and ORDER

 In this action the plaintiff United States of America ("the Government") seeks judgment against the defendant in the amount of $1,060.93, the total of educational funds allegedly received by defendant from the Veterans' Administration from January through May, 1977. By his Answer defendant admits receipt of at least part of the claimed sum and that demand was made upon him by the Government for the amount claimed herein. Nevertheless, he asserts two affirmative defenses -- to wit, that he was denied the opportunity to contest the matter before the Veterans' Administration and/or obtain a waiver of the overpayment and that such denial violates 38 U.S.C. § 3102(a) and regulations promulgated thereunder at 38 C.F.R. § 1.963.

 The Government's response to defendant's affirmative defenses is set forth in an affidavit by counsel, sworn to September 9, 1981, and submitted in support of its pending motion for summary judgment.

 Deponent states in pertinent part:

 
"3. On October 27, 1980, this office requested the Veterans Administration review the file of John Rowin for purposes of granting a waiver. *fn1"
 
"4. I have reviewed the Veterans Administration file of John H. Rowin, Jr. which relates to his receipt of educational benefits. That file contains a memorandum dated December 10, 1980 from J. Z. Schultz of Adjudication Unit 3 to the District Counsel. It states that no adjustment of award is necessary as the mitigating circumstances are not of issue or acceptance and that a request for waiver was not received within the two year time period.
 
"5. On December 17, 1980, we were advised that the waiver was not granted for the aforementioned reasons.
 
"6. There is no requirement that the veterans [sic] be informed of the result of his waiver request before a complaint is filed."

 In reliance on these allegations, the Government asserts that its claim is ripe for summary judgment.

 In defendant's affidavit in opposition to summary judgment he states that he attended a community college in California from January to March or April, 1977 when he withdrew from two courses. Shortly thereafter he stopped attending classes entirely because his car became unusable. Defendant contends that without a car he was unable to traverse the thirty miles of the Mohave desert between his residence and the school. He states that he informed the school and the Veterans' Administration of each change in his student status as it took place, responded to all subsequent communications from the Veterans' Administration and twice requested a waiver of the alleged overpayment, in or about June 1977 and again in 1980. Defendant contends that the circumstances under which he stopped attending school warrant a waiver of repayment of educational benefits received.

 38 U.S.C. § 211(a) enunciates that decisions of the Administrator of Veterans' Affairs as to:

 
"any question of law or fact under any law administered by the Veterans' Administration providing benefits for veterans * * * shall be final and conclusive and no other official or any court of the United States shall have power or jurisdiction to review any such decision by an action in the nature of mandamus or otherwise."

 This limitation on judicial review was intended to serve two primary purposes -- namely, to prevent the federal courts from becoming burdened with litigation over veterans' benefits, and to insure the uniform application of the often complex policies of the Veterans' Administration. See, Johnson v. Robison, 415 U.S. 361, 370, 39 L. Ed. 2d 389, 94 S. Ct. 1160 (1974). *fn2"

 If the decision before me reflected a final decision of the Administrator, I would have no choice but to grant summary judgment to the Government. I am, however, confronted with a request to grant judgment on a debt, the existence and amount of which is still subject to administrative review. Under such circumstances neither judicial ...


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