McKelvey v. Turnage

• Decision Date: 30 May 1986
• Docket Number: No. 84-5910,84-5910
• Citation: 253 U.S.App.D.C. 126,792 F.2d 194
• Parties: , 54 USLW 2640, 32 Ed. Law Rep. 934 James P. McKELVEY v. Thomas K. TURNAGE, Administrator of Veterans' Affairs, and Veterans' Administration, Appellants.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 194

792 F.2d 194

253 U.S.App.D.C. 126, 54 USLW 2640,

32 Ed. Law Rep. 934

James P. McKELVEY v. Thomas K. TURNAGE, Administrator of Veterans' Affairs, and Veterans' Administration, Appellants.

No. 84-5910.

United States Court of Appeals, District of Columbia Circuit.

Argued Nov. 26, 1985.

Decided May 30, 1986.

Robert V. Zener, Atty., U.S. Dept. of Justice, with whom Richard K. Willard, former Acting Asst. Atty. Gen., Joseph E. diGenova, U.S. Atty., and Anthony J. Steinmeyer, Atty., U.S. Dept. of Justice, Washington, D.C., were on brief, for appellants.

Kenneth A. Teel, with whom Douglas E. Winter, Arthur B. Spitzer and Elizabeth Symonds, Washington, D.C., were on brief, for appellee.

Appeal from the United States District Court for the District of Columbia.

Before: GINSBURG, SCALIA and STARR, Circuit Judges.

Opinion concurring in part and dissenting in part filed by Circuit Judge GINSBURG.

Opinion concurring in part and dissenting in part filed by Circuit Judge SCALIA.

PER CURIAM:

Federal law provides honorably discharged veterans with certain educational assistance benefits, see 38 U.S.C. Sec. 1661(a) (1982), which must be used within ten years of discharge from the armed services, see 38 U.S.C. Sec. 1662(a)(1). However, an extension of the limitation period is given to any veteran who is unable to use his educational benefits within ten years "because of a physical or mental disability which was not the result of such veteran's own willful misconduct." Id. Appellee James P. McKelvey successfully argued before the District Court that the Veterans' Administration violated Sec. 504 of the Rehabilitation Act of 1973, 29 U.S.C. Sec. 794 (1982), in determining that his disability of alcoholism was attributable to his own "willful misconduct" and that he was therefore ineligible for an extension of the limitation period. See McKelvey v. Walters, 596 F.Supp. 1317, 1323-24 (D.D.C.1984). Two issues are presented by the VA's appeal: Does 38 U.S.C. Sec. 211(a) (1982) deprive us of jurisdiction to review the VA's decision? If not, has the VA violated the Rehabilitation Act in determining that all alcoholism (except that which is the result of an acquired psychiatric disorder) is caused by "willful misconduct" within the meaning of the exception to the limitation extension?

I

A

The G.I. Bill has for many years granted to each honorably discharged veteran certain educational assistance benefits which must be used in the ten years following the veteran's last discharge or release from active duty. See 38 U.S.C. Secs. 1661(a), 1662(a)(1). In 1977, Congress amended the statute to extend the limitation period for those veterans who were unable to use their educational benefits during that period "because of a physical or mental disability which was not the result of [their] own willful misconduct." Pub.L.No. 95-202, tit. II, Sec. 203(a)(1), 91 Stat. 1433, 1439 (1977) (codified at 38 U.S.C. Sec. 1662(a)(1) (1982) ). The "willful misconduct" qualification was not a new concept; the same limitation was already contained in a number of previously enacted veterans benefit provisions. See The VA regulations and interpretations which the VA applied in the present case are the same as those in effect when the 1977 provision was enacted. The regulations define "willful misconduct" in general as "an act involving conscious wrongdoing or known prohibited action.... It involves deliberate or intentional wrongdoing with knowledge of or wanton and reckless disregard of its probable consequences." 38 C.F.R. Sec. 3.1(n)(l) (1985). With respect to alcoholism in particular the regulations provide:

38 U.S.C. Sec. 105 (definition of injury or disease occurring "in line of duty"); 38 U.S.C. Sec. 310 (disability compensation for injuries suffered or diseases contracted "in line of duty"); 38 U.S.C. Sec. 410 (dependency and indemnity compensation); 38 U.S.C. Sec. 521 (non-service connected disability payments).

(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. If, in the drinking of a beverage to enjoy its intoxicating effects, intoxication results approximately [sic ] and immediately in disability or death, the disability or death will be considered the result of the person's 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) (1985). The VA's longstanding interpretation of these provisions is that the disease of alcoholism is a result of willful misconduct unless it is "secondary to and a manifestation of an acquired psychiatric disorder." Administrator's Decision, Veterans' Administration No. 988, Interpretation of the Term "Willful Misconduct" as Related to the Residuals of Chronic Alcoholism at 1 (Aug. 13, 1964). The type of alcoholism regarded by the VA as not the result of willful misconduct is referred to as "secondary," while willful alcoholism is labeled "primary." See id. The VA treats drug addiction substantially the same as alcoholism. See 38 C.F.R. Sec. 3.301(c)(3).

B

McKelvey served on active duty with the United States Army from September 1963 to September 1966. In the nine-year period following his discharge, McKelvey was hospitalized repeatedly for alcoholism and associated problems. He has not had a drink since May 10, 1975.

In November of 1977, more than ten years after his discharge, McKelvey applied for educational assistance benefits, asserting that his alcoholism had prevented him from using the benefits earlier. The VA denied the application. On review before the Board of Veterans Appeals, McKelvey attempted to prove that his alcoholism was "secondary," but the Board found "no evidence that an acquired psychiatric disease preceded [McKelvey's] alcoholism." In the Appeal of James P. McKelvey, No. 79-04 991, Findings and Decision at 6 (Aug. 6, 1980) ("1980 Decision"). As the VA regulations required it to do in the absence of such evidence, the Board sustained the determination that McKelvey's alcoholism was "willful" and that McKelvey was therefore not entitled to an extension.

McKelvey filed suit in the District Court for the District of Columbia, asserting that the willful misconduct regulation (38 C.F.R. Sec. 3.301(c)(2) ) was arbitrary and outside of the VA's statutory authority; that the VA's treatment of alcoholism was illegal under Sec. 504 of the Rehabilitation Act; and that he had been denied his rights under the due process and equal protection clauses of the fifth amendment. The District Court, after concluding that 38 U.S.C. Sec. 211(a) did not bar review of the VA's action, see McKelvey, 596 F.Supp. at 1320-21, held that Sec. 3.301(c)(2) represented an entirely reasonable construction of the "willful misconduct" provision of 38 U.S.C. Sec. 1662(a)(1), see id. at 1321-23, but that it violated Sec. 504 of the Rehabilitation Act by discriminating on the basis of the handicap

of primary alcoholism. The regulation would be lawful, it said, if the government could show a "substantial justification" for the discrimination. Id. at 1324. The court found the government's asserted justification that primary alcoholism "is a voluntary handicap" to be "superficially plausible," but rejected it on the belief that under Sec. 3.301(c)(2) primary alcoholism is deemed involuntary (i.e., is classified as secondary alcoholism) once it results in further disability. Id. The Court invalidated 38 C.F.R. Sec. 3.301(c)(2) and ordered the VA to determine anew whether McKelvey suffered a disability attributable to his own willful misconduct within the meaning of 38 U.S.C. Sec. 1662(a)(1). Id. at 1325. The VA appeals.

II

38 U.S.C. 211(a), in pertinent part, provides:

[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 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.

This court has not yet reached a definitive decision on the breadth of this no-review provision. ¹ Because of the unusual, perhaps sui generis, posture of this case, we need not and do not essay such a decision today. Rather, we hold that Sec. 211(a) does not preclude review in the unusual situation present here: the VA itself had never decided the question McKelvey's Rehabilitation Act plea raises until that question was posed for adjudication before this court.

Section 211(a)'s preclusion of review depends, at a minimum, on the satisfaction of this condition: the petitioner's claim must have been resolved by an actual "decision of the Administrator." See Johnson v. Robison, 415 U.S. 361, 367, 94 S.Ct. 1160, 1165, 39 L.Ed.2d 389 (1974). At the time of the initiation of this suit, the Administrator had made no decision concerning the impact of the Rehabilitation Act on McKelvey's time extension application. Therefore, in its initial brief on appeal to this court, the VA maintained that Sec. 211 did not block review. Specifically, the VA told us:

McKelvey did not make a Rehabilitation Act claim before the Board of Veterans Appeals; and it is not clear that the Board would have had authority to consider such a claim had he made it. We do not read 38 U.S.C. Sec. 211(a) to preclude judicial review of a point that the Veterans Administration never considered and, under existing regulations, probably had no authority to consider.

Brief for Appellants at 9-10 n. 1.

At oral argument this court, on its own motion, invited the parties to submit supplemental briefs on three...