Carter v. Cleland, 79-1843

• Decision Date: 17 October 1980
• Docket Number: No. 79-1843,79-1843
• Parties: Estelle CARTER, Individually and on behalf of all others similarly situated, Glossie Middleton, Appellants, v. Max CLELAND, Administrator of Veterans Affairs, Individually and in his official capacity.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 1

643 F.2d 1

207 U.S.App.D.C. 6

Estelle CARTER, Individually and on behalf of all others

similarly situated, Glossie Middleton, Appellants, v. Max CLELAND, Administrator of Veterans Affairs, Individually

and in his official capacity.

No. 79-1843.

United States Court of Appeals, District of Columbia Circuit.

Argued May 22, 1980.

Decided Oct. 17, 1980.

Gordon Berman, Baltimore, Md., and Dennis W. Carroll, Washington, D. C., with whom Edward C. King, Washington, D. C., was on brief, for appellants.

Alfred Mollin, Atty., Civ. Div., Dept. of Justice, Washington, D. C., with whom Alice Daniel, Asst. Atty. Gen., Carl S. Rauh, U. S. Atty., William G. Kanter, Atty., Civ. Div., Dept. of Justice, Washington, D. C., were on brief, for appellee.

Before WALD and MIKVA, Circuit Judges, and HOWARD T. MARKEY, ^* Chief Judge, United States Court of Customs and Patent Appeals.

Opinion for the Court filed by Circuit Judge MIKVA.

MIKVA, Circuit Judge:

Appellants, Estelle Carter and Glossie Middleton, challenge the Veterans Administration's "birth by another rule," on the basis of which they were deemed ineligible for death pension benefits. Both women were married to World War II veterans, who drank to excess and physically abused them. As a result of this mistreatment, they were separated from their husbands. Thereafter appellants had almost no personal contact with their husbands, and each eventually had children by other men. ¹ No divorce was obtained in either case. When the veterans died, the women applied for death pension benefits. Benefits were denied on the ground that the widows did not qualify as "surviving spouses" under 38 U.S.C. § 101(3) (1976). ² The Administrator reasoned that the births of children by other men indicated that appellants intended to terminate their marital relationships. See App. at 66, 82.

Appellants argue that the Administrator's "birth by another rule" is invalid because its use was not authorized by statute and because it operated to deny them due process of law by creating an irrebuttable presumption. We are sympathetic to the plight of appellants, who were forced from their homes by abusive husbands and then denied benefits on the ground that they were partly to blame for the separations. But because appellants' claims are in substance challenges to the sufficiency of the evidence supporting the Administrator's determination, we must direct them and others similarly situated to the policymakers for relief. The questions appellants present are outside the narrow scope of review permitted by the veterans' benefits legislation, and we must dismiss for want of jurisdiction.

I. BACKGROUND

Any discussion of Veterans Administration decisions must be prefaced with the recognition of the severely limited review that Congress has decreed for such cases (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.

38 U.S.C. § 211(a) (1976).

Pension benefits are available to those surviving spouses of veterans who meet certain eligibility requirements not contested here. See 38 U.S.C. § 541 (1976). Appellants were denied benefits on another ground-that they were not "surviving spouses" within the terms of the statute:

(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 has not remarried or (in cases not involving marriage) has not since the death of the veteran, and after September 19, 1962, lived with another person and held himself or herself out openly to the public to be the spouse of such other person.

38 U.S.C. § 101(3) (1976) (emphasis supplied). It is the continuous cohabitation component of the definition that is at issue here. The Administrator has interpreted the exception to that requirement to mean that the surviving spouse must be without fault both at the time of the initial separation and for its duration:

The requirement that there must be continuous cohabitation from the date of 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(a) (1979) (emphasis supplied). At no time during the separation must the spouse evidence "an intent ... to desert the veteran." Id. § 3.53(b). One indication of a woman's intent to terminate a marital relationship is birth of a child by another man. The "birth by another rule" is set forth as an administrative guideline in the Veterans Administration's (VA) manual:

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) (1975), reprinted in App. at 86.

Appellants argue that this guideline is invalid on two related grounds. First, they claim that its promulgation exceeded the Administrator's authority. According to appellants, Congress intended that the Administrator make case-by-case determinations of a surviving spouse's fault and did not contemplate that certain conduct act as a complete bar to payment of benefits. Second, appellants maintain, the guideline is violative of due process because it creates an irrebuttable presumption of fault and therefore of ineligibility for benefits.

The court below held that section 211(a) precluded review of appellants' nonconstitutional claims. The district court found this provision inapplicable to appellants' constitutional challenges but rejected them on the merits. ³ 472 F.Supp. 985 (D.D.C.1979). This appeal followed.

II. JURISDICTION

Jurisdictional limitations such as section 211(a) that shield agency actions from review are interpreted narrowly: a "basic presumption of judicial review" is followed absent "clear and convincing evidence" of congressional intent to the contrary. Abbott Laboratories v. Gardner, 387 U.S. 136, 140, 141, 87 S.Ct. 1507, 1511, 18 L.Ed.2d 681 (1967); see De Magno v. United States, 636 F.2d 714, 721 (D.C. Cir. 1980). That evidence does exist here. The provision is written in no uncertain terms: "the decisions of the Administrator on any question of law or fact ... 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." Moreover, Congress amended the section in 1970 for the specific purpose of overruling a line of cases from this court that in Congress' view had given too limited a reading to the no-review clause. ⁴ See H.R.Rep. No. 1166, 91st Cong., 2d Sess. 8-11, 19-24 (1970); see also Johnson v. Robison, 415 U.S. 361, 371-73, 94 S.Ct. 1160, 1168, 39 L.Ed.2d 389 (1974); de Rodulfa v. United States, 461 F.2d 1240, 1244-50 (D.C.Cir.), cert. denied, 409 U.S. 949, 93 S.Ct. 270, 34 L.Ed.2d 220 (1972). The D.C. Circuit had interpreted the statute's bar on review of VA decisions "concerning a claim for benefits or payments," 38 U.S.C. § 211(a) (1964) (amended 1970), as applying only to the Administrator's action on initial applications for benefits. Once a claimant had been granted benefits, judicial scrutiny of subsequent decisions by the Administrator affecting those benefits was permissible. In order to restore vitality to the no-review clause, Congress amended it in 1970 to its present form-barring review of any "decision( ) of the Administrator ... under any law" providing veterans' benefits. Congress, then, has made clear its concern that the Administrator's disposition of claims for veterans' benefits not lightly be disturbed.

A. Reviewability of Constitutional Claims Generally

Despite Congress' undeniable intent to insulate VA decisions from judicial review, the courts have found that there must be some limit to the reach of section 211(a). For example, the Supreme Court held in Johnson v. Robison, 415 U.S. 361, 94 S.Ct. 1160, 39 L.Ed.2d 389 (1974), that section 211(a) does not bar judicial consideration of challenges to the constitutionality of a veterans' benefits statute. The Court, noting that a contrary reading would raise serious questions regarding the constitutionality of the provision, turned first to its language, which prohibits review only of "decisions ... on any question of law or fact under any law." That clause, held the Court, was aimed at review of decisions that arise in the VA's administration of veterans' benefits legislation: "(a) decision of law or fact 'under' a statute is made by the Administrator in the interpretation or application of a particular provision of the statute to a particular set of facts." Id. at 367, 94 S.Ct. at 1165.

The Court then reviewed the legislative history and identified two primary congressional purposes behind section 211(a):

(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). These policies were not threatened, held the Court, by permitting judicial consideration of challenges to the constitutionality of a statute. Such claims would...