Carter v. Cleland, Civ. A. No. 78-871.

• Decision Date: 14 May 1979
• Docket Number: Civ. A. No. 78-871.
• Citation: 472 F. Supp. 985
• Parties: Estelle CARTER et al., Plaintiffs, v. Max CLELAND, Administrator of Veterans Affairs, Defendant.
• Court: U.S. District Court — District of Columbia

472 F. Supp. 985

Estelle CARTER et al., Plaintiffs, v. Max CLELAND, Administrator of Veterans Affairs, Defendant.

Civ. A. No. 78-871.

United States District Court, District of Columbia.

May 14, 1979.

Gordon S. Berman, Dennis W. Carroll, Jr., Dennis M. Sweeney, Legal Aid Bureau, Inc., Baltimore, Md., Stephen Allen, Edward C. King, Washington, D. C., for plaintiff.

Dennis L. deLeon, Dept. of Justice, Washington, D. C., for defendant.

MEMORANDUM AND ORDER

FLANNERY, District Judge.

This challenge to the Veterans Administration's "birth by another" rule comes before the court on cross-motions for partial summary judgment, and on the defendant's motion, opposed by the plaintiffs, to dismiss for want of subject matter jurisdiction. The court concludes that the nature of the plaintiffs' claims are such that the motion to dismiss must be denied as to the constitutional challenges to the "birth by another" rule, but that the defendant has a persuasive case on the merits. Partial summary judgment will be entered for the defendant.

BACKGROUND

The plaintiffs' cause of action arises from a law that allows the surviving spouse of a deceased veteran to obtain a pension. Section 101(3) of Title 38, United States Code, provides:

The term "surviving spouse" means . . a person of the opposite sex who was the spouse of a veteran at the time of the veteran's death, and who lived with the veteran continuously from the date of marriage to the date of the veteran's death (except where there was a separation which was due to the misconduct of, or procured by, the veteran without the fault of the spouse) and who had not remarried . . ..

(Emphasis added.) The Veterans Administration (VA) has interpreted the "continuous cohabitation" and "fault of the spouse" requirements to mean that even if a separation was initially the fault of the veteran (e. g., through cruelty or drunkenness), a spouse must not take any actions inconsistent with the marital relationship if the spouse is to obtain death benefits:

The requirement that there must be continuous cohabitation from the date of the marriage to the date of death of the veteran will be considered as having been met when the evidence shows there was no separation due to the fault of the surviving spouse. 38 C.F.R. § 3.53 (1978).

Thus, any action by a spouse, even after an initial separation, which disrupts the "continuous cohabitation" requirement, such as seeking and obtaining a divorce, holding oneself out as the spouse of another, or having a child by another, will terminate the spouse's eligibility for benefits.¹ The "birth by another rule" has been set forth as an administrative guideline in VA Manuals:

(4) The birth of a child to the claimant as the result of relations with a person other than the veteran will be accepted as proof of lack of continuous cohabitation within the meaning of the law in the absence of evidence that the veteran condoned the claimant's conduct.

Veterans Administration Department of Veterans Benefits Manual M21-1 § 8.11(c)(4).

The rule operated in the present case as follows: Both plaintiffs were married to veterans of World War II. The veterans subsequently abused them, drank to excess, and deserted them. No divorce was ever obtained. Both of the plaintiffs eventually had children by other men, and applied for veterans' benefits. Neither plaintiff had seen the veteran for many years. Neither plaintiff established that a reconciliation occurred after the birth of children by another man. The Veterans Administration determined that the plaintiffs are not "surviving spouses" within the meaning of the Act, because although the separation was initially procured by the veteran, the spouse was subsequently deemed to be "at fault" in effectively treating the marriage as ended.

It is apparent that the word "fault", as employed in the statute, does not imply a moral judgment about the impropriety of having a child by another.² Rather, the "birth by another" rule appears to reflect a fairly commonsensical proposition: if the spouse has a child by another person after being thrown out by the veteran, she is effectively considering the prior relationship terminated.

JURISDICTION

With certain exceptions not relevant here, 38 U.S.C. § 211(a) provides 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 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 interpreted this statute as allowing challenges to the constitutionality of a statute but as prohibiting review of decisions of law or fact made in the administration of the VA statutes. Johnson involved a challenge to provisions in the Veterans' Readjustment Benefits Act of 1966 which made conscientious objectors ineligible for educational benefits. The Supreme Court rejected an argument that it lacked jurisdiction over the challenge, noting that a challenge to the legislation was not an attack on a "decision of the Administrator . . . under any law," 415 U.S. at 361, 94 S.Ct. at 1161 (emphasis in opinion), but rather a challenge to the law itself. Thus it was reviewable, although decisions concerning benefits made in the administration of the Act are not. Id.; see Hernandez v. Veterans Administration, 415 U.S. 391, 94 S.Ct. 1177, 39 L.Ed.2d 412 (1974). Since the Johnson decision, some courts have repeatedly rejected attempts to challenge decisions of the Administrator. E. g., Moore v. Johnson, 582 F.2d 1228, 1232 (9th Cir. 1978) (challenge to relocation of disabled veterans; unreviewable even if discretion abused); Anderson v. Veterans Administration, 559 F.2d 935, 936 (5th Cir. 1977) (per curiam) (challenge to denial of benefits on constitutional grounds; fact that suit "assumes the posture of constitutional attack" does not remove pall of § 211(a)); Ross v. United States, 462 F.2d 618, 619 (9th Cir. 1972) (per curiam) (suit for damages because of denial of benefits barred by § 211(a) although denial of due process was alleged); Wexler v. Roudebush, 443 F.Supp. 31 (E.D.Pa.1977) (federal courts have only as much jurisdiction as Congress chooses to confer). But see Wayne State University v. Cleland, 590 F.2d 627 (6th Cir. 1978) (challenge to authority to promulgate regulations not barred by Section 211(a)).

In the present case, both Estelle Carter and Glossie Middleton filed an application with the Veterans Administration for death benefits because of their prior relationships with veterans. The Administrator made certain factual findings, and certain legal findings, and denied the claims. This would seem to be a "decision" within the jurisdictional bar of Section 211(a).

The plaintiffs nonetheless assert that they are not challenging a "decision" of the Administrator, but "rather seek a judicial declaration that a specific rule uniformly employed by the agency is unauthorized by the statute the defendant is charged with administering." The construction urged by the plaintiffs, if carried to its logical conclusion, would have the following result: a decision would be unreviewable if it was wholly fact-specific or unique, or if the Administrator studiously avoided a policy on certain issues, leaving every decision to the caprice of individual hearing examiners. As soon as the Administrator noted a recurring factual situation, however, and attempted to formulate a policy or guideline for hearing officers to use, it would be a "specific rule uniformly employed by the agency" which, under plaintiffs' interpretation of Section 211(a), would be reviewable. This would promote caprice, rather than consistency, defeating one of the two explicit legislative goals of Section 211(a). See Johnson v. Robison, 415 U.S. 361, 370-71, 94 S.Ct. 1160, 39 L.Ed.2d 389 (1974) (no-review clause designed to ensure that technical and complex determinations of VA policy will be adequately and uniformly made). Moreover, the contention that the "rule" followed by the Veterans Administration "finds no support in the statute," Plaintiffs' Reply Memorandum, at 4, is one that could be made in a boilerplate fashion about any policy. The court has no way of evaluating the validity of this allegation without delving into the merits, a procedure which would defeat the other explicit purpose of Section 211(a). See id. (clause designed to ensure that veterans' benefits claims will not burden the courts with expensive and time consuming litigation).

It appears to the court that Section 211(a) on its face contains the "clear and convincing" intent of Congress to preclude review of VA decisions, even when the decisions are based on "uniformly employed" rules. Section 211(a) bars a review of any decision "on any question of law or fact under any law administered by the Veterans Administration . . ." The court concludes that the Veterans Administration's interpretation of the continuous cohabitation requirement involved a "question of law" in the "decisions" involving the plaintiffs, and that these decisions are non-reviewable by the court insofar as they are challenged on nonconstitutional grounds.³

The plaintiffs' constitutional challenges to the "birth by another" rule present a more difficult question. These challenges include (1) a due process argument that the birth by another rule constitutes an irrebuttable presumption in violation of the Due Process Clause of the Fifth Amendment; (2) an inchoate equal protection argument which seems to argue that the birth by another rule bears no relation to its statutory framework and that it singles out a subclass of widows for discriminatory treatment; and (3) a claim that the rule violates equal protection by...