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HARTMANN v. UNITED STATES

August 14, 1985

WILLIAM HARTMANN, et al, Plaintiffs,
v.
THE UNITED STATES OF AMERICA, et al, Defendants



The opinion of the court was delivered by: WEXLER

MEMORANDUM AND ORDER

WEXLER, District Judge

 Plaintiffs bring this action against the United States government, the Veteran's Administration ("V.A."), its Administrator, and its employees and agents. The defendants will be denominated simply as the V.A. Plaintiffs Hartmann, Bernagozzi, and Naples Are Viet Nam veterans who earlier filed malpractice suits against the V.A. under the Federal Tort Claims Act alleging failure to diagnose and treat them for filariasis. *fn1" Plaintiffs Agnostakios and Arnao do not appear to have filed malpractice claims and no particular factual allegations are made with respect to their condition and treatment. While the complaint clearly indicates an intention to seek class certification for all Viet Nam veterans suffering from filariasis, a formal application for class certification has not been made or granted. Accordingly, this is not a yet a class action.

 Filariasis is a disease caused by a minute parasitic worm endemic to parts of Viet Nam and transmitted by certain species of mosquito. The symptoms can be quite horrible and include swelling of the lymph glands, legs and genitalia, joint pain, night sweats, and rashes that become so severe as to look like "chopped meat." Detection of the disease can be difficult, but is done by blood test or observation of a reaction to drug used to treat the disease, Hetrazan. *fn2" Allegedly, there are World War II veterans who were treated for filariasis, and treatment with Hetrazan is neither difficult or expensive.

 Plaintiffs seek mandamus, declaratory and equitable relief pursuant to 28 U.S.C. § 2201, 2202, and 1361. They allege violation of equal protection under the Fifth Amendment, and violation of the Ninth Amendment and the Veterans' Benefit Act, 38 U.S.C. §§ 601 and 5001. Plaintiffs ground jurisdiction in 28 U.S.C. § 1331 and § 1346(a) (2), and 5 U.S.C. § 702. In essence, they ask that this Court order the V.A. to provide diagnostic testing and correct treatment for filariasis in Viet Nam veterans. Plaintiffs contend that as Viet Nam veterans they are not receiving the medical care for filariasis that World War II veterans receive and the the V.A. thus violates their right to equal protection under the Constitution and their right to benefits provided by federal statute. They seek a preliminary injunction ordering the V.A. to test and treat for filariasis veterans already deemed eligible for medical care by the V.A.

 Defendant opposes the grant of preliminary equitable relief and cross-moves for dismissal, asserting that this Court lacks subject matter jurisdiction. Rule 12(b)(1), Fed.R.Civ.P. Plaintiffs, in turn, content that the Court does have jurisdiction to hear and decide their claims.

 I.

 Congress has explicitly limited the courts' jurisdiction to review the V.A. Administrator's decisions of fact and law. As provided by 38 U.S.C. § 211:

 
(a) 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 dependants or survivors shall be final and conclusive and to 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.

 Clearly, as a rule the federal courts lack the power to review the actions of the V.A.

 There are, however, exceptions to the rule. In Johnson v. Robinson the United States Supreme Court held that § 211(a) is not a bar to judicial review of constitutional claims. 415 U.S. 361, 94 S. Ct. 1160, 39 L. Ed. 2d 389 (1974). In that case the constitutional question before the Supreme Court was whether conscientious objectors who performed alternative service, instead of military service as draftees, were entitled to veterans' benefits. The conscientious objectors contended that to deny them benefits denied them equal protection under the law. U.S. Const. amend. V. The government argued that § 211(a) deprived the Supreme Court of jurisdiction to review the constitutionality of the statutory provisions at issue.

 In rejecting the government's argument the Court concluded that Congress intended to insulate the day-to-day policy decisions of the V.A. from judicial review and identified the two primary purposes of § 211(a):

 
(1) to insure that veterans' benefits claims will not burden the courts and the Veterans' Administration with expensive and time- consuming litigation, and (2) to insure that the technical and complex determinations and applications of Veterans' Administration policy connected with veteran's benefits decisions will be adequately and uniformly made.

 Id. at 370, 94 S. Ct. at 1167 (footnotes omitted). Nevertheless, the Court reasoned that in view of the legislative purpose, the proper construction of the no-review clause allowed the federal courts to review constitutional challenges to veterans' benefits law. Id. at 373, 94 S. Ct. ...


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