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November 13, 1974


The opinion of the court was delivered by: Bauer, District Judge.


This cause comes before the Court on defendant's motion to dismiss for lack of jurisdiction or for a summary judgment in its favor.

This is an action brought pursuant to 28 U.S.C. § 1331 on behalf of a purported class of veterans who allegedly have, or will be, denied hospital or domiciliary benefits by virtue of § 2.08(b)(1) of the Veterans Administration Department of Medicine & Surgery Regulations (No. M-2, Part X, § 2.08(b)(1). The regulation states:

b. Patients Under Criminal Charges

    (1) A veteran under criminal charges, or in the
  custody of civil authorities, does not forfeit
  any right he may have to hospital or domiciliary
  care by the Veterans Administration. However, the
  veteran must be in a position to accept hospital
  or domiciliary care if it is proffered to him by
  the Veterans Administration. Charges will have to
  be dropped, and/or the veteran paroled or
  released unconditionally to the Veterans
  Administration. If the veteran is paroled by the
  court, he may be accepted only if there is no
  obligation to restore him thereafter to the
  custody of the civil authorities. This does not
  preclude advising the civil authorities of the
  contemplated date of discharge when requested.

On March 22, 1974, the named plaintiff, James L. Taylor, was denied admission to the Veterans Administration Hospital because, at that time, he was in the custody of the State of Illinois Department of Corrections by virtue of a pending criminal charge for disorderly conduct. Mr. Taylor is charged with a charge of aggravated assault against a police officer. He had been previously released on bond as to this charge.

Illinois Circuit Court Judge James Murray, on March 22, 1974, attempted to order the Veterans Administration Hospital to accept James Taylor for medical treatment, pending a determination of his competency to stand trial. Apparently, the court had received several psychiatric reports which indicated that Mr. Taylor was a paranoid schizophrenic, and in need of medical attention. Although Mr. Taylor was before the court for trial on the aggravated assault charge, Judge Murray was reluctant to proceed in light of the question of the defendant's competency and apparent need of care. Because, however, the state court was without jurisdiction to order the Veterans Administration to admit Taylor, Judge Murray suggested that Taylor's attorneys proceed in federal court, so as to obtain an order commanding that the Veterans Administration receive Mr. Taylor.

The initial complaint, Count I, was brought before Judge Phillip Tone of the United States District Court for the Northern District of Illinois as an emergency prayer for mandamus and other relief on March 26, 1974. At that time Judge Tone declared § 2.08(b) to be unconstitutional and issued a temporary restraining order against the defendant Veterans Administration enjoining it from enforcing § 2.08(b) against James L. Taylor, and set a hearing for a preliminary injunction for a future date before this Court.

Judge Tone's findings of fact were as follows:

  "3. It is undisputed that plaintiff has been
  denied admission to a Veterans Administration
  Hospital solely because he has been accused of a
  crime and defendants regard section 2.08 above as
  binding upon them.
  4. Section 2.08 is not authorized by any statute
  and operates to deny plaintiff due process of law
  in violation of the Fifth Amendment. Since a
  person is presumed to be innocent until proven
  guilty the pendency of a criminal charge, without
  conviction, cannot lawfully be the basis for
  depriving him of substantial rights. Section 2.08
  is hereby declared to be invalid as depriving
  plaintiff James L. Taylor of his rights to
  veterans' benefits without due process of law."

Secondly, the Court is of the opinion that 38 U.S.C. § 211 is not applicable in this case because there is no decision of an Administrator on a question of law or fact pertaining to the administration of benefits. In addition § 211 has never prevented judicial review where the controversy involved constitutional questions beyond the scope of authority of the Veterans Administration.

Thirdly, plaintiff has made an initial showing that the matter in controversy exceeds $10,000 exclusive of interests and costs. Plaintiff was repeatedly denied admission by the defendant over a period of months. Given the fact that once admitted to the VA Hospital under Judge Tone's Order Taylor did actually remain confined as an inpatient for approximately 85 days, it is clear that the denial ...

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