298 F.3d 1350 (Fed. Cir. 2002), 01-7107, Nyeholt v. Secretary of Veterans Affairs

Docket Nº:01-7107.
Citation:298 F.3d 1350
Party Name:Thomas M. NYEHOLT, Petitioner, v. SECRETARY OF VETERANS AFFAIRS, Respondent.
Case Date:August 06, 2002
Court:United States Courts of Appeals, Court of Appeals for the Federal Circuit

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298 F.3d 1350 (Fed. Cir. 2002)

Thomas M. NYEHOLT, Petitioner,



No. 01-7107.

United States Court of Appeals, Federal Circuit

August 6, 2002

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Daniel D. Wedemeyer, Wedemeyer & Prangley, of Santa Ana, CA, argued for petitioner.

James H. Holl, III, Trial Attorney, Commercial Litigation Branch, Civil Division, Department of Justice, argued for respondent. With him on the brief were Robert D. McCallum, Jr., Assistant Attorney General; David M. Cohen, Director; and Franklin E. White, Jr., Assistant Director. Of counsel on the brief were Donald E. Zeglin, Deputy Assistant General Counsel, and Martie Adelman, Attorney, Department of Veterans Affairs, of Washington, DC.

Before MAYER, Chief Judge, LOURIE and LINN, Circuit Judges.

LOURIE, Circuit Judge.

Thomas M. Nyeholt petitions this court under 38 U.S.C. § 502 for review of the recently amended portion of the Schedule for Rating Disabilities in 38 C.F.R. § 4.114 addressing disabilities of the liver, Diagnostic Code ("DC") 7351. Nyeholt asserts that DC 7351 is unconstitutionally vague, and as a result requests that it be declared invalid. Because we conclude that Nyeholt's challenge is without merit, we deny his petition.


On August 7, 2000, the Department of Veterans Affairs ("DVA") issued a notice of proposed rulemaking to amend the portion of the digestive-system rating schedule pertaining to liver disabilities. Schedule for Rating Disabilities: Disabilities of the Liver, 65 Fed.Reg. 48,205 (Aug. 7, 2000). The final rule, which includes DC 7351, was published on May 31, 2001, and became effective on July 2, 2001. Schedule for Rating Disabilities: Disabilities of the Liver, 66 Fed.Reg. 29,486 (May 31, 2001) (codified at 38 C.F.R. § 4.114). DC 7351 reads as follows:

7351 Liver transplant:

For an indefinite period from the date of hospital admission for transplant surgery. . . . . . . . . . . . . . . . 100

Minimum. . . . . . . . . . . . . .30

Note: A rating of 100 percent shall be assigned as of the date of hospital admission for transplant surgery and shall continue. One year following discharge, the appropriate disability rating shall be determined by mandatory VA examination. Any change in evaluation based upon that or any subsequent examination shall be subject to the provisions of § 3.105(e) of this chapter.

38 C.F.R. § 4.114 (2001).

Mr. Nyeholt is currently assigned a one hundred percent evaluation rating for residual conditions resulting from a March 1, 1991, liver transplant. On August 30, 2001, Nyeholt petitioned this court for review of DC 7351 pursuant to 38 U.S.C. § 502, asserting that DC 7351 is unconstitutional under the void-for-vagueness doctrine.


A. Jurisdiction

As a preliminary matter, we must determine whether we have jurisdiction to entertain Nyeholt's petition under 38 U.S.C. § 502. Section 502 provides in relevant part that:

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An action of the Secretary to which section 552(a)(1) or 553 of title 5 (or both) refers (other than an action relating to the adoption or revision of the schedule of ratings for disabilities adopted under section 1155 of this title) is subject to judicial review. Such review shall be in accordance with chapter 7 of title 5 and may be sought only in the United States Court of Appeals for the Federal Circuit. . . .

38 U.S.C. § 502 (2000) (emphasis added).

Nyeholt argues that we have jurisdiction to hear his void-for-vagueness challenge to DC 7351 because, although § 502 excludes "actions relating to the . . . schedule of ratings" from its grant of jurisdiction, it does not specifically preclude constitutional challenges from being brought under that provision. Nyeholt argues that under the Supreme Court's decision in Johnson v. Robison, 415 U.S. 361, 94 S.Ct. 1160, 39 L.Ed.2d 389 (1974), which addressed an earlier statute delineating the scope of review of a decision of the DVA, "clear and convincing evidence" is needed in order to overcome the presumption that judicial review is available for constitutional challenges to the schedule of ratings. Nyeholt contends that neither the language of § 502 nor its legislative history provides such evidence, and further argues that the only relevant legislative history addressing the issue, a statement in a report issued by the House Veterans' Affairs Committee, is directly to the contrary.

The Secretary of Veterans Affairs responds that the statutory scheme created by the text and legislative history of § 502, when read in conjunction with those of 38 U.S.C. § 7252(a)1 and 38 U.S.C. § 7292(b)2 , clearly establishes that Congress has foreclosed all judicial review of matters pertaining to the rating schedule and thus overcomes the presumption that judicial review of constitutional challenges is available. The Secretary also argues that there is no indication in § 502 that Congress intended to exempt constitutional challenges from its blanket prohibition on judicial review, contrary to the express provision for review of constitutional challenges in §§ 7292(c) and (d)(1).3 The Secretary further contends that because the

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House Veterans' Affairs Committee statement relied upon by Nyeholt appears nowhere in the corresponding Senate report, there is no indication that the full Congress adopted that statement. Finally, the Secretary argues that Nyeholt's reliance on Johnson is misplaced because that case addressed a different jurisdictional statute and involved a challenge to a legislative enactment, rather than an administrative enactment such as DC 7351.

We conclude that we have jurisdiction to review constitutional challenges to the schedule of ratings under § 502. Only upon a showing of "clear and convincing evidence" of congressional intent may access to judicial review be restricted. Abbott Labs. v. Gardner, 387 U.S. 136, 141, 87 S.Ct. 1507, 18 L.Ed.2d 681 (1967). The evidence relied upon by the Secretary in arguing that we lack jurisdiction under § 502 over constitutional challenges relating to the schedule of ratings falls short of that standard.

Although § 502 plainly excepts from appealability "actions relating to the . . . schedule of ratings" from its jurisdictional grant, nowhere in the text of that provision are constitutional challenges mentioned. The Secretary acknowledges that fact, but argues that the express provision for review of constitutional challenges in 38 U.S.C. § 7292(c) and (d)(1), and the absence of any corresponding reference in § 502, demonstrates that Congress did not intend to provide this court with the power to review such challenges under § 502. He thus in effect argues that the implication created by the presence of a provision in one portion of a statute (here, § 7292) and the absence of that provision in another (here, § 502) can constitute the clear and convincing evidence of jurisdictional restriction needed to arrive at the conclusion that Congress intended to preclude this court from reviewing constitutional challenges. However, aside from the fact that adopting the Secretary's argument would act to reverse the presumption that review of constitutional challenges is available under § 502, the only relevant legislative history is directly to the contrary.

As noted by Nyeholt, the House Veterans' Affairs Committee's report made clear that it intended to "expressly preclude[ ] review of the schedule in the bill (except for challenges to the constitutionality of the schedule)." H.R.Rep. No. 100-963, at 28 (1988), reprinted in 1988 U.S.C.C.A.N. 5782, 5810 (emphasis added). This statement, although not conclusive of the intent of Congress, indicates that review of constitutional challenges to the schedule of ratings was to be preserved. Furthermore, the fact that the corresponding Senate report does not include a similar statement cannot be interpreted as evidence sufficient to overcome the presumption that judicial review of constitutional challenges is available. Rather, absent an express provision that such review is prohibited, we read the legislative history, such as it is, as confirming our view that Congress did not intend to preclude constitutional challenges from review under § 502. Cf. Griffith v. Fed. Labor Relations Auth., 842 F.2d 487, 495 (D.C. Cir. 1988) (holding that a conference committee's deletion of a provision in the original Senate bill expressly providing for review of constitutional claims did not support an inference strong enough to satisfy the "clear and convincing evidence" standard for precluding constitutional challenges).

Furthermore, our conclusion that we have jurisdiction to hear constitutional

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challenges under § 502 is on all fours with the Supreme Court's analysis in Johnson. Johnson involved the identical issue presented in this case, albeit in the context of an earlier, now-defunct statute, 38 U.S.C. § 211(a), which governed appeals from decisions of the Veterans' Administration, the predecessor to the DVA. That provision read in relevant part as follows:

[T]he decisions of the Administrator on any question of law or fact under any law administered by the Veterans' Administration providing benefits for veterans . . . 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.

38 U.S.C. § 211(a) (1972). The veteran in Johnson was a Class I 0 conscientious objector whose application for educational assistance under the Veterans' Readjustment Benefits Act of 1966 was denied as a result of his objector status. 415 U.S. at 363, 94 S.Ct. 1160. The veteran sought a declaratory judgment that the statutory provisions precluding him from obtaining educational assistance on account of his conscientious objector status violated his First Amendment right to religious freedom and his right...

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