The opinion of the court was delivered by: Robert J. Ward, District Judge.
Defendants Veterans' Administration, Thomas K. Turnage,
Ronald F. Lipp, C. Alex Alexander, and Almira U. Yusi
(collectively, the "VA") have moved, pursuant to Rules 12(b)(1)
and 12(b)(6), Fed.R.Civ.P., to dismiss the complaint for lack
of subject matter jurisdiction and failure to state a claim
upon which relief may be granted.*fn1 Plaintiff has moved for
class certification. For the reasons that follow, defendants'
motion to dismiss the complaint is denied, and plaintiff's
motion for class certification is granted.
In the instant action, plaintiff Eastern Paralyzed Veterans
Association ("EPVA"), on behalf of spinal cord injured
("s.c.i.") patients at the Castle Point Veterans'
Administration Medical Center ("Castle Point") located in
Castle Point, New York, claims that certain actions and
procedures of the VA have deprived the s.c.i. veterans at
Castle Point of equal protection and due process of law in
violation of the fifth and fourteenth amendments to the United
I. Subject Matter Jurisdiction.
Defendants first contend that the Court lacks jurisdiction to
hear plaintiff's claims based upon 38 U.S.C. § 211(a), which
bars judicial review of decisions of the Administrator as to
"all questions of law and fact necessary to a decision by the
Administrator under a law that affects the provisions of
benefits . . . to veterans. . . ." 38 U.S.C. § 211(a) (as
amended Pub.L. 100-687, Title I, § 101(a), 102 Stat. 4105)
(1990 Supp.). The primary issue thus presented on the instant
motion is whether section 211 operates to bar judicial review
of a claim by a broad class of veterans that the level of
treatment provided them is inferior, as a matter of general
policy, to the treatment received by similarly situated
veterans based upon an unreasonable or arbitrary distinction.
Because the law in this area is unsettled, a fairly extensive
discussion of the case law is necessary.
Section 211(a) is generally considered to bar judicial review
of decisions of the VA, subject to certain specified
exceptions. E.g., Hartmann v. United States, 615 F. Supp. 446,
448 (E.D.N.Y. 1985) (two exceptions to jurisdictional
restriction of section 211 have been articulated); Ryan v.
Cleland, 531 F. Supp. 724, 729 (E.D.N.Y. 1982) (unless complaint
falls within one of the narrow exceptions to the broad
prohibition of section 211, the court lacks jurisdiction);
Doyle v. Dep't of Veterans Affairs, No. 1:90-CV-272, slip op.,
1990 WL 294247 (W.D.Mich. November 30, 1990) (available on
Lexis at 1990 U.S.Dist. LEXIS 16366) (statute precludes review
with two exceptions).
In Johnson v. Robison, 415 U.S. 361, 94 S.Ct. 1160, 39
L.Ed.2d 389 (1974), the Supreme Court articulated the first of
these "exceptions"*fn3 to the jurisdictional bar, holding that
section 211(a) does not preclude judicial review of
constitutional challenges to veterans' benefits legislation.
Specifically, the Johnson Court held that judicial review was
appropriate in the case of a class action by veterans
challenging 38 U.S.C. § 101(21), 1652(a)(1) and 1661(a) as
violative of the First and Fifth Amendments. In support of its
holding, the Court noted that neither the language of the
statute itself nor the legislative history evidenced "a
congressional intention to bar judicial review even of
constitutional questions." Id. at 368, 94 S.Ct. at 1166.
Examining the legislative history of the 1970 amendment to
section 211(a), the Court set out the two primary purposes of
the no-review clause:
(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
veterans' benefits decisions will be adequately
and uniformly made.
Id. at 370, 94 S.Ct. at 1167 (footnotes omitted). According to
the Court's analysis, these policies would not be undermined by
allowing review of constitutional challenges to the legislation
itself. In sum, the Court found that "neither the text nor the
scant legislative history of § 211(a) provides the `clear and
convincing' evidence of congressional intent required by this
Court before a statute will be construed to restrict access to
judicial review." Id. at 373-74, 94 S.Ct. at 1169 (citing
Abbott Laboratories v. Gardner, 387 U.S. 136, 141, 87 S.Ct.
1507, 1511, 18 L.Ed.2d 681 (1967)).
Following the Supreme Court's decision in Johnson, lower
courts applied, and in some instances extended, its rationale
to allow judicial review of veterans' claims in certain
instances. Some Courts held that section 211 did not bar due
process challenges to the regulations and procedures of the VA.
See Devine v. Cleland, 616 F.2d 1080 (9th Cir. 1980) (review
permitted in class action challenging absence of sufficient
pretermination procedures in benefits legislation and
regulations promulgated thereunder); Plato v. Roudebush,
397 F. Supp. 1295 (D.Md. 1975) (same). Other courts determined that
review was permitted over claims that the administrator had
exceeded his authority to promulgate challenged regulations.
See Wayne State University v. Cleland, 590 F.2d 627 (6th Cir.
1978) (review permitted over claim that administrator exceeded
his authority in promulgating regulation); Evergreen State
College v. Cleland, 621 F.2d 1002 (9th Cir. 1980) (same);
Maryland v. Cleland, 621 F.2d 98 (4th Cir. 1980) (same); Merged
Area X (Education) v. Cleland, 604 F.2d 1075 (8th Cir. 1979)
The Second Circuit appears to have rejected, at least to some
extent, both lines of cases outlined above. In
Pappanikoloaou v. Administrator of the Veterans Admin.,
762 F.2d 8, 9 (2d Cir. 1985) (per curiam), cert. denied,
474 U.S. 851, 106 S.Ct. 150, 88 L.Ed.2d 124 (1985), the Second Circuit
To the extent the complaint seeks damages for the
VA's denial of due process in handling his claim,
we agree with those circuits that have held that
one may not circumvent § 211(a) by seeking damages
on a constitutional claim arising out of a denial
of benefits. See Anderson v. Veterans
Administration, 559 F.2d 935 (5th Cir. 1977) (per
curiam); Ross v. United States, 462 F.2d 618 (9th
Cir.) (per curiam), cert. denied, 409 U.S. 984 [93
S.Ct. 326, 34 L.Ed.2d 249] . . . (1972); Milliken
v. Gleason, 332 F.2d 122 (1st Cir. 1964) (per
curiam), cert. denied, 379 U.S. 1002 [85 S.Ct. 723,
13 L.Ed.2d 703] . . . (1965).
Id. The cited authorities had each held that due process
challenges to the procedures followed by the VA in denying
their individual benefits claims were unreviewable. Their
holdings would appear on the surface to conflict with the
reasoning of Devine and those cases holding that review ...