The opinion of the court was delivered by: SAND
This pro se action arises out of the enactment of the Veterans Rehabilitation and Education Amendment of 1980, Pub.L. No. 96-466, § 602(a), (c), 94 Stat. 2171, 2208-09 (1980) (hereinafter "1980 Amendment"). Petitioner, Travis Jackson, is a veteran of the United States Armed Forces and is currently incarcerated in Greenhaven Correctional Facility. He claims to be enrolled as a student at Marist College of Poughkeepsie, New York. Jackson has filed a petition for writ of mandamus to compel the Veterans Administration (hereinafter "VA") to resume payment of benefits alleged to be due him under the Veterans Educational Assistance Program. The defendants filed this motion to dismiss pursuant to Fed.R.Civ.Pr. 12(b)(6).
The 1980 Amendment took effect on October 1, 1980, amending, inter alia, two sections of Title 38 of the United States Code: § 1682 was amended to include subsection (g) which provides:
"(1) Subject to the provisions of paragraph (2) of this subsection, the amount of the educational allowance paid to an eligible veteran who is pursuing a program of education under this chapter while incarcerated in a Federal, State, or local penal institution for conviction of a felony may not exceed such amount as the Administrator determines, in accordance with regulations which the Administrator shall prescribe, is necessary to cover the cost of established charges for tuition and fees required of similarly circumstanced nonveterans enrolled in the same program and to cover the cost of necessary supplies, books, and equipment, or the applicable monthly educational assistance allowance prescribed for a veteran with no dependents in subsection (a)(1) or (c)(2) of this section or section 1787(b)(1) of this title, whichever is the lesser.
(2) Paragraph (1) of this subsection shall apply in the case of any veteran who is pursuing a program of education under this chapter while residing in a halfway house or participating in a work-release program in connection with such veteran's conviction of a felony if the Administrator determines that all the veteran's living expenses are being defrayed by a Federal, State, or local government."
38 U.S.C.A. § 1682(g) (Supp.1982). Subdivision (6) was also added to § 1780(a) to provide that no payment of educational assistance to eligible veterans pursuing a program of education shall be made
"to any eligible veteran or person incarcerated in a Federal, State, or local prison or jail for any course (A) to the extent the tuition and fees of the veteran or person are paid under any Federal program (other than a program administered by the Administrator) or under any State or local program, or (B) for which there are no tuition and fees."
38 U.S.C.A. § 1780(a)(6) (Supp.1982).
Thus, under the 1980 Amendment, incarcerated veterans' educational benefits are limited to the cost of tuition, fees and supplies or the allowance of an unincarcerated veteran with no dependents, whichever is less. Furthermore, to the extent that an incarcerated veteran's education costs are paid by other governmental agencies, the VA benefits are suspended.
As a result of the 1980 Amendment, Jackson's educational benefits were suspended by the VA, after an administrative determination that his educational expenses were already being paid by other governmental programs. Petitioner attacks this result on three grounds: he contends that the statute violates petitioner's equal protection rights, deprives petitioner of property without due process of law, and constitutes a breach of the government's contractual obligation to provide petitioner with educational benefits.
The defendants contend, however, that this Court lacks subject matter jurisdiction over petitioner's claims to the extent that Jackson is requesting a review of the decision of the VA. With respect to petitioner's constitutionally based claims, the defendants contend that Jackson has failed to state a claim upon which relief may be granted.
Congress has specifically removed the power of federal courts to review decisions of the VA:
"On and after October 17, 1940, except as provided in sections 775, 784, and as to matters arising under chapter 37 of this title, the decisions of the Administrator on any question of law or fact under any law administered by the Veterans Administration providing benefits for veterans and their dependents or survivors shall be final and conclusive and no other official or any court of the United States shall ...