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EASTERN PARALYZED VETERANS v. VETERANS'

April 22, 1991

EASTERN PARALYZED VETERANS ASSOCIATION, INC., PLAINTIFF,
v.
VETERANS' ADMINISTRATION, THOMAS K. TURNAGE, AS ADMINISTRATOR OF VETERANS AFFAIRS AND HEAD OF THE VETERANS' ADMINISTRATION, RONALD F. LIPP, AS DIRECTOR OF THE CASTLE POINT VETERANS' ADMINISTRATION MEDICAL CENTER, C. ALEX ALEXANDER, AS CHIEF OF STAFF OF THE CASTLE POINT VETERANS' ADMINISTRATION MEDICAL CENTER, AND ALMIRA U. YUSI, AS CHIEF, SPINAL CORD INJURY SERVICE OF THE CASTLE POINT VETERANS' ADMINISTRATION MEDICAL CENTER, DEFENDANTS.



The opinion of the court was delivered by: Robert J. Ward, District Judge.

OPINION

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.

BACKGROUND

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 States Constitution.*fn2

DISCUSSION

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) (same).

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 stated:

  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 ...


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