Traynor v. Walters

• Decision Date: 16 May 1986
• Docket Number: D,No. 422,422
• Citation: 791 F.2d 226
• Parties: Eugene TRAYNOR, Plaintiff-Appellee, v. Harry W. WALTERS, Administrator of the Veterans Administration, Defendants- Appellants. ocket 85-6208.
• Court: U.S. Court of Appeals — Second Circuit

Page 226

791 F.2d 226

54 USLW 2609

Eugene TRAYNOR, Plaintiff-Appellee, v. Harry W. WALTERS, Administrator of the Veterans Administration, Defendants- Appellants.

No. 422, Docket 85-6208.

United States Court of Appeals Second Circuit.

Argued Nov. 12, 1985.

Decided May 16, 1986.

Beverly Sherman Nash, Asst. U.S. Atty. for S.D.N.Y. (Rudolph W. Giuliani, U.S. Atty. for S.D.N.Y., Jane E. Booth, Asst Catherine Hart O'Neill, New York City (Margaret K. Brooks, Legal Action Center of the City of New York, Inc., New York City, of counsel), for plaintiff-appellee.

U.S. Atty. for S.D.N.Y., of counsel), for defendants-appellants.

Before TIMBERS, KEARSE, and PRATT, Circuit Judges.

GEORGE C. PRATT, Circuit Judge:

Defendants, the Veterans' Administration ("VA") and the VA administrator, raise two questions on appeal: (1) Did the district court have jurisdiction to review the VA's denial of plaintiff Traynor's claim for extension of his period of eligibility for veterans' educational benefits? (2) Does VA regulation 38 C.F.R. Sec. 3.301(c)(2), which, as interpreted and applied by the VA, treats primary alcoholism as "willful misconduct" barring extension of the period of eligibility for veterans' educational benefits, violate section 504 of the Rehabilitation Act of 1973, as amended, 29 U.S.C. Sec. 794? The district court answered both questions affirmatively. 606 F.Supp. 391. Since we hold on the first question that the district court lacked jurisdiction to review the VA's denial of Traynor's claim, we do not reach the second question.

BACKGROUND

Plaintiff Eugene Traynor, a 44 year old veteran of the United States Army, suffered from alcoholism over approximately a fifteen year period ending in 1974. During that time, he served on active duty in the army for an 18-month period ending on August 27, 1969, when he was honorably discharged. Since February 1974, when he began to attend Alcoholics Anonymous meetings daily, Traynor has apparently not had a drink.

When Traynor entered college in 1977, he applied for and received veterans' education assistance benefits. Although entitled to 24 months of those benefits based upon his military service, he had used only nine and one-half months of benefits when they were terminated on August 27, 1979.

Traynor's benefits were terminated pursuant to 38 U.S.C. Sec. 1662(a)(1), which, with one exception, limits a veteran's educational assistance to a period of ten years beginning with his discharge from the service. Under the exception, however, a veteran will be granted an extension of his eligibility period if he was prevented from pursuing his educational program due to a physical or mental disability "which was not the result of such veteran's own willful misconduct". 38 U.S.C. Sec. 1662(a)(1).

VA regulations implicitly provide that alcoholism may be considered willful misconduct:

(2) Alcoholism. The simple drinking of alcoholic beverage is not of itself willful misconduct. The deliberate drinking of a known poisonous substance or under conditions which would raise a presumption to that effect will be considered willful misconduct. * * * Organic diseases and disabilities which are a secondary result of the chronic use of alcohol as a beverage, whether out of compulsion or otherwise, will not be considered of willful misconduct origin.

38 C.F.R. Sec. 3.301(c)(2).

In practice, the VA interprets this regulation to provide a distinction between "primary" alcoholism, which does not result from an underlying psychiatric disorder, and "secondary" alcoholism, which does not result from such a disorder. The former is presumptively considered to be willful misconduct, while the latter is not.

Traynor applied to the VA for an extension of his benefit period on the ground that his alcoholism had prevented him from pursuing his education until he first applied to college. The VA denied his claim, stating in part that his "periods of hospitalization because of alcoholism are not for consideration, since they are a result of the veteran's own willful misconduct."

Plaintiff appealed the VA's decision to the Board of Veterans Appeals ("board"), contending that the VA's presumptive characterization of his primary alcoholism as "willful misconduct" was "wrong in fact Having exhausted his administrative remedies, Traynor filed this action in the district court seeking monetary and injunctive relief as well as a declaratory judgment that as interpreted and applied the regulation violated the Rehabilitation Act of 1973 and the fifth amendment to the United States Constitution. The district court held (1) that it had jurisdiction over the action, and (2) that while the regulation withstood constitutional scrutiny, it violated the Rehabilitation Act's prohibition against discrimination based on an individual's handicap, 29 U.S.C. Sec. 794. The district court therefore remanded Traynor's application for an extension of time to the VA. The VA and the VA administrator appealed.

and in law". After a hearing, the board affirmed the initial decision, and on reconsideration, confirmed its own determination.

DISCUSSION

The VA asserts that 38 U.S.C. Sec. 211(a) bars any judicial review of the board's decision and deprives this court of jurisdiction over the statutory issues presented. Section 211(a) provides, in relevant part, that:

the 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 * * *.

The VA interprets this section broadly to preclude judicial review of all nonconstitutional challenges relating to its decisions on benefits. See Walters v. National Association of Radiation Survivors, --- U.S. ----, 105 S.Ct. 3180, 3182, 87 L.Ed.2d 220 (1985) ("[j]udicial review of VA decisions is precluded by statute"); Pappanikoloaou v. Administrator of the Veterans Administration, 762 F.2d 8, 9 (2d Cir.) ("[o]ne may not circumvent Sec. 211(a) by seeking damages on a constitutional claim arising out of a denial of benefits"), cert. denied, --- U.S. ----, 106 S.Ct. 150, 88 L.Ed.2d 124 (1985); accord Rosen v. Walters, 719 F.2d 1422, 1424-25 (9th Cir.1983); Anderson v. Veterans Administration, 559 F.2d 935, 936 (5th Cir.1977); Ross v. United States, 462 F.2d 618, 619 (9th Cir.), cert. denied, 409 U.S. 984, 93 S.Ct. 326, 34 L.Ed.2d 249 (1972); Milliken v. Gleason, 332 F.2d 122, 123 (1st Cir.1964), cert. denied, 379 U.S. 1002, 85 S.Ct. 723, 13 L.Ed.2d 703 (1965).

Relying primarily on Johnson v. Robison, 415 U.S. 361, 94 S.Ct. 1160, 39 L.Ed.2d 389 (1974), Traynor contends that the jurisdictional limitation of section 211(a) should be interpreted narrowly in light of a basic presumption that judicial review is available absent clear and convincing evidence of congressional intent to the contrary. Id. at 373-74, 94 S.Ct. at 1168-69. In Johnson, the Supreme Court held that judicial review of the constitutionality of veterans' benefits regulations was not barred by section 211(a), id. at 361, 94 S.Ct. at 1160, and supported its conclusion with four reasons, id. at 366-68, 94 S.Ct. at 1165-66. First, construing section 211(a) to bar judicial review of constitutional claims would raise serious questions concerning the section's own constitutionality. Second, no explicit provision of section 211(a) bars judicial consideration of a veteran's constitutional claim. Third, the Court's construction of section 211(a) was supported by the VA's administrative practice, since the VA had previously expressly disclaimed authority to decide constitutional claims.

Fourth, the legislative history of section 211(a) did not demonstrate a congressional intent to bar judicial review of constitutional questions. Rather, that history revealed two primary purposes for the section: "(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 Johnson Court, neither of these purposes Plaintiff seeks to extend Johnson to authorize statutory as well as constitutional challenges of VA decisions. His attempt, however, is misguided because, when viewed against the factors outlined by the Johnson Court, the circumstances in this case present "clear and convincing evidence" in favor of precluding judicial review of the VA's regulation and its application, in light of the Rehabilitation Act, to Traynor's alcoholism.

                would be thwarted by giving the courts jurisdiction to review constitutional challenges to veterans' benefits decisions.  Faced with these factors, the Court found, as to constitutional issues, an absence of "clear and convincing" evidence to overcome the presumption in favor of judicial review.   Id. at 373-74, 94 S.Ct. at 1168-69
                

First, unlike the constitutional issue in Johnson, there is no inherent constitutional problem involved in congress's denying judicial review to the VA's refusal of an extension to plaintiff based on its interpretation and application of the alcoholism regulation. See Gott v. Walters, 756 F.2d 902, 912 n. 10 (D.C.Cir.), vacated in banc, 791 F.2d 172 (1985). The problem was simply one of applying the statute, through regulation and factfinding, to Traynor's particular case.

Second, while section 211(a) makes no reference to constitutional issues, it does purport to immunize from judicial review all decisions of the VA "on any question of law or fact", a phrase patently broad enough to encompass plaintiff's argument that the alcoholism regulation was unreasonably applied to his situation. In Briscoe...