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February 10, 1981


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


This matter is presently before the Court on defendants' motion to dismiss the complaint for lack of subject matter jurisdiction on the ground that 38 U.S.C. § 211(a) precludes judicial review of all decisions of the Veterans' Administration relating to benefits. Fed.R.Civ.P. 12(b)(1). Arnolds has also moved to strike defendants' first affirmative defense, contained in their amended answer, that this Court "lacks jurisdiction over the subject matter of this action because all decisions relating to benefits are unreviewable by virtue of 38 U.S.C. § 211(a) as amended." Fed.R.Civ.P. 12(f). The issue presented in both motions is thus identical, viz, does section 211(a) oust this Court of jurisdiction in the instant case. For the reasons set forth in this opinion, defendants' motion to dismiss is denied and Arnolds' motion to strike is granted.*fn*


Arnolds is a veteran of the Viet Nam conflict, having served sixty months of active duty, from October 1, 1964, until October 1, 1969, as an officer in the United States Navy. Veterans who serve more than eighteen months of active duty are entitled to receive educational benefits for a period of forty-five months pursuant to 38 U.S.C. § 1661. However, 38 U.S.C. § 1662 provides that educational assistance benefits shall not be provided beyond ten years after the date the veteran is discharged from active duty. Thus, Arnolds was eligible to receive educational assistance benefits through October 1, 1979 (hereinafter referred to as the "delimiting date") since he was discharged ten years earlier on October 1, 1969.

In January, 1979, Arnolds made his first written request for a statement of his eligibility for vocational flight training benefits from the defendants pursuant to 38 U.S.C. § 1677. He allegedly made subsequent written requests in April and May, 1979, along with numerous telephone inquiries, all to no avail. Finally, in August, 1979, Arnolds received a Statement of Eligibility and approval from the defendants indicating that he was entitled to reimbursement for his desired course of study. Arnolds maintains that he began his flight training as soon as he could following his receipt of defendants' approval, and he continued the training until the delimiting date. During that period, Arnolds apparently was able to complete two courses and he was reimbursed for ninety percent of the tuition and fees as required by 38 U.S.C. § 1677(b). He contends, however, that if defendants had been more diligent in processing his application and approved it "even a few weeks earlier," he would have been able to complete several more courses before his delimiting date, the tuition and fees for which would have substantially exhausted his remaining benefits. Plaintiff's Brief in Support of Motion to Strike at 3 n. 1.


Section 211(a) provides, in pertinent part, that:

  the decisions of the Administrator on any question of
  law or fact under any law providing benefits for
  veterans and their dependents or survivors shall be
  final and conclusive and no 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.

In Johnson v. Robison, 415 U.S. 361, 94 S.Ct. 1160, 39 L.Ed.2d 389 (1974), the Supreme Court held that while section 211(a) precludes judicial review of the decisions of the Veterans Administrator, it does not bar review of a constitutional challenge to legislation providing benefits to veterans. 415 U.S. at 367, 94 S.Ct. at 1165. At the outset, the Court noted that a contrary construction of the jurisdictional bar would "raise serious questions concerning the constitutionality of § 211(a)." 415 U.S. at 366, 94 S.Ct. at 1165. In order to avoid dealing with that constitutional question, the Court distinguished between a challenge to a decision of the Administrator, which involves "the interpretation or application of a particular provision of the statute to a particular set of facts," 415 U.S. at 367, 94 S.Ct. at 1165, and a challenge to the constitutional validity of a part of the statute itself. In the latter case, the Court reasoned, the policies underlying the jurisdictional bar embodied in section 211(a) — that veterans' benefits claims not burden the courts with expensive and time-consuming litigation and that technical and complex determinations and applications of Veterans' Administration policy connected with veterans' benefits decisions be adequately and uniformly made — would not be implicated. 415 U.S. at 371, 94 S.Ct. at 1167. Thus, section 211(a) did not bar judicial review of the issues presented in that case.

In the wake of Johnson, lower federal courts have narrowly construed section 211(a) to bar only judicial review of individual benefits claims after a denial or termination of benefits by the Administrator. Section 211(a) has not precluded review of constitutional challenges to the regulations, procedures, or policies promulgated by the Veterans Administration or of charges that the Administrator had exceeded his statutory authority in administering veterans' benefit programs in a particular manner. See University of Maryland v. Cleland, 621 F.2d 98 (4th Cir. 1980) (section 211(a) did not bar review of allegations that the Administrator had exceeded his statutory authority by failing to mail benefit checks in a timely manner); Devine v. Cleland, 616 F.2d 1080 (9th Cir. 1980) (section 211(a) no bar to challenge to the procedures used by the Veterans' Administration to suspend or terminate benefits); Wayne State University v. Cleland, 590 F.2d 627 (6th Cir. 1978) (section 211(a) no bar to suit challenging Administrator's authority to promulgate particular regulations); Carter v. Cleland, 472 F. Supp. 985 (D.D.C. 1979) (section 211(a) no bar to constitutional challenge to administrative guideline or regulation defining eligibility for benefits); Taylor v. United States, 385 F. Supp. 1034 (N.D.Ill. 1974), reversed and remanded on other grounds, 528 F.2d 60 (7th Cir. 1976) (section 211(a) no bar to constitutional challenge to Veterans' Administration regulations). In each of these cases, the courts emphasized that the issue presented was not whether the Administrator's decision granting or denying benefits in a particular case was right or wrong, but rather whether the Administrator had acted consistently with his grant of authority or had exceeded his authority and acted in violation of veterans' rights guaranteed by the fifth amendment.

In the case at bar, Arnolds raises two potential claims for review. First, he alleges that the defendants acted unreasonably in not processing his application for benefits in a timely manner thereby denying him equal protection of the laws and depriving him of property without due process of law in violation of the fifth amendment. Arnolds also appears to challenge the defendants' decision not to extend his benefits after the delimiting date pursuant to his request. Arnolds' latter claim clearly is barred by the terms of section 211(a), however, his claim that the Administrator exceeded his statutory authority by not processing his application for benefits in a timely fashion appears to fit within the exceptions to the jurisdictional bar recognized in Johnson and developed by the lower courts since that decision.

Section 555(b) of the Administrative Procedure Act, 5 U.S.C. § 555(b), provides that "[w]ith due regard for the convenience and necessity of the parties or their representatives and within a reasonable time, each agency shall proceed to conclude a matter presented to it." Where administrative delays have exceeded the bounds of reasonableness, courts have stepped in and required the administrator to meet his or her statutory obligations. Caswell v. Califano, 583 F.2d 9, 15 (1st Cir. 1978); Environmental Defense Fund, Inc. v. Hardin, 428 F.2d 1093, 1099 (D.C.Cir. 1970). It is conceivable that administrative delay might become so egregious as to implicate concerns with due process under the fifth amendment. This is precisely Arnolds' claim in the case at bar, and whether or not Arnolds will ultimately prevail on the merits, it is clear that the section 211(a) bar on judicial review of the decisions of the Veterans Administrator does not extend to preclude review of the procedures employed by the Administrator that are alleged to be in conflict with his statutory authority. University of Maryland v. Cleland, supra, 621 F.2d at 101; Wayne ...

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