Appeal from a judgment of the United States District Court for the Southern District of New York, Cooper, J, holding (1) that the court had jurisdiction over plaintiff's claim, and (2) that Veteran's Administration regulation 38 C.F.R. § 3.301(c)(2) violates section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794. Reversed and remanded. Judge Kearse dissents in a separate opinion.
Before: TIMBERS, KEARSE, and PRATT, Circuit Judges.
Defendants, the Veterans' Administration ("VA") and the VA administrator, raise two questions on appeal: (1) Did the district court have jurisdiction to review the VA's denial of plaintiff Traynor's claim for extension of his period of eligibility for veterans' educational benefits? (2) period of eligibility for veterans' educational benefits? (2) Does VA regulation 38 C.F.R. § 3.301(c)(2), which, as interpreted and applied by the VA, treats primary alcoholism as "willful misconduct" barring extension of the period of eligibility for veterans' educational benefits, violate section 504 of the Rehabilitation Act of 1973, as amended, 29 U.S.C. § 794? The district court answered both questions affirmatively. Since we hold on the first question that the district court lacked jurisdiction to review the VA's denial of Traynor's claim, we do not reach the second question.
Plaintiff Eugene Traynor, a 44 year old veteran of the United States Army, suffered from alcoholism over approximately a fifteen year period ending in 1974. During that time, he served on active duty in the army for an 18-month period ending on August 27, 1969, when he was honorably discharged. Since February 1974, when he began to attend Alcoholics Anonymous meetings daily, Traynor has apparently not had a drink.
When Traynor entered college in 1977, he applied for and received veterans' education assistance benefits. Although entitled to 24 months of those benefits based upon his military service, he had used only nine and one-half months of benefits when they were terminated on August 27, 1979.
Traynor's benefits were terminated pursuant to 38 U.S.C. § 1662(a)(1), which, with one exception, limits a veteran's educational assistance to a period of ten years beginning with his discharge from the service. Under the exception, however, a veteran will be granted an extension of his eligibility period if he was prevented from pursuing his educational program due to a physical or mental disability "which was not the result of such veteran's own willful misconduct." 38 U.S.C. § 1662(c)(1).
VA regulations implicitly provide that alcoholism may be considered willful misconduct:
(2) Alcoholism. The simple drinking of alcoholic beverage is not of itself willful misconduct. The deliberate drinking of a known poisonous substance or under conditions which would raise a presumption to that effect will be considered willful misconduct. * * * Organic diseases and disabilities which are a secondary result of the chronic use of alcohol as a beverage, whether out of compulsion or otherwise, will not be considered of willful misconduct origin.
In practice, the VA interprets this regulation to provide a distinction between "primary" alcoholism, which does not result from an underlying psychiatric disorder, and "secondary" alcoholism, which does result from such a disorder. The former is presumptively considered to be willful misconduct, while the latter is not.
Traynor applied to the VA for an extension of his benefit period on the ground that his alcoholism had prevented him from pursuing his education until he first applied to college. The VA denied his claim, stating in part that his "periods of hospitalization because of alcoholism are not for consideration, since they are a result of the veteran's own willful misconduct." Plaintiff appealed the VA's decision of the Board of Veteran's Appeals ("board"), contending that the VA's presumptive characterization of his primary alcoholism as "willful misconduct" was "wrong in fact and in law." After a hearing, the board affirmed the initial decision, and on reconsideration, confirmed its own determination.
Having exhausted his administrative remedies, Traynor filed this action in the district court seeking monetary and injunctive relief as well as a declaratory judgment that as interpreted and applied the regulation violated the Rehabilitation Act of 1973 and the fifth amendment to the United States Constitution. The district court held (1) that it had jurisdiction over the action, and (2) that while the regulation withstood constitutional scrutiny, it violated the Rehabilitation Act's prohibition against discrimination base on an individual's handicap, 29 U.S.C. ...