Devine v. Cleland

• Decision Date: 21 February 1980
• Docket Number: 77-1430,Nos. 77-1424,s. 77-1424
• Citation: 616 F.2d 1080
• Parties: Robert E. DEVINE et al., and all others similarly situated, Plaintiffs- Appellees, v. Max CLELAND, etc., et al., Defendants-Appellants. Robert E. DEVINE et al., Plaintiffs-Appellees, v. Max CLELAND, etc., et al., Defendants-Appellants.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1080

616 F.2d 1080

Robert E. DEVINE et al., and all others similarly situated,

Plaintiffs- Appellees,

v.

Max CLELAND, etc., et al., Defendants-Appellants.

Robert E. DEVINE et al., Plaintiffs-Appellees, v. Max CLELAND, etc., et al., Defendants-Appellants.

Nos. 77-1424, 77-1430.

United States Court of Appeals, Ninth Circuit.

Feb. 21, 1980.

Charles W. Kircher, Jr., Asst. U. S. Atty., Los Angeles, Cal., argued, Barry J. Trilling, Asst. U. S. Atty., Los Angeles, Cal., on brief, for defendants-appellants.

Scott J. Tepper, Garfield, Tepper & Ashworth, Los Angeles, Cal., for plaintiffs-appellees.

Appeal from the United States District Court for the Central District of California.

Before WALLACE and TANG, Circuit Judges, and BATTIN, ^* District Judge.

WALLACE, Circuit Judge:

The successful class before the district court was made up of student-veterans whose educational allowance assistance benefits were suspended, and in some cases terminated, by the Veterans' Administration (VA). The district court enjoined the Administrator of Veterans' Affairs from "any termination" of these educational benefits unless certain specified procedural requisites were met. The Administrator appeals on two grounds: first, that 38 U.S.C. § 211(a) precludes judicial review of the VA's benefit termination procedures; and second, that the procedural safeguards mandated by the district court unduly exceed the minimum requirements of procedural due process. We conclude that section 211(a) does not foreclose jurisdiction and that the district court's decree was proper. We thus affirm.

I

Pursuant to 38 U.S.C. § 1681(a), "eligible veterans," as defined in 38 U.S.C. § 1652(a)(1), are entitled to receive from the VA "an educational assistance allowance to meet, in part, the expenses of the veteran's subsistence, tuition, fees, supplies, books, equipment, and other educational costs." On or about December 10, 1975, the VA notified approximately 1,000 such veterans attending Citrus College in Azusa, California that their educational benefits were suspended. This notification was the first indication that any of the affected students received concerning suspension of benefits. It informed each student why benefits were being suspended, and in relevant cases, indicated an amount of past overpayments that would be recouped from the student prior to resumption of payments. An enclosure contained details of various available post-termination remedies, including a personal hearing before the VA and an appeal to the Board of Veterans Appeals.

The suspensions were caused by Citrus College's recordkeeping practices. The award of educational assistance payments to an "eligible veteran" can be authorized only if the school which the veteran attends, and the courses he takes there, meet the requirements of the relevant statutes (38 U.S.C. §§ 1671, 1683, 1772, 1790(b)). Schools in which "eligible veterans" are enrolled must certify a veteran's enrollment to the VA, and report changes in enrollment, withdrawals, overall course load, and individual courses taken. 38 U.S.C. §§ 1780, 1784(a). Suspension of a veteran's benefits occurs, as it did in this case, when the evidence supplied by the school causes the Administrator to find that the school has violated the statutory requirements. 38 U.S.C. § 1790(b).

On December 12, 1975, two days after the class members received notification that their benefits were suspended, the VA lifted its suspension of Citrus College's eligibility as a school. Sometime shortly thereafter the VA reinstated the benefits of approximately 600 of the 1,029 affected student-veterans. The remaining 400 either had their payments reinstated subject to a set-off for past overpayments, or were fully terminated.

At the time the district court granted the injunction, neither the statutory scheme embodied in 38 U.S.C. § 1651 et seq., nor the regulations promulgated thereunder by the VA for administration of educational benefits, see generally 38 C.F.R. § 21.4001 et seq., contained any provision regarding pre-termination procedures. ¹

The district court's order was as follows:

(a) At least 30 days advance written notice of an intended termination of educational benefits shall be given to the veteran describing in detail the basis in fact and law for the intended termination as hereinafter provided.

(b) The opportunity, within such notice period, to question and contest the intended termination decision, which shall include the following rights:

(i) the right of the recipient to see the evidence contained in his VA file which underlies the proposed termination;

(ii) the right of the recipient to submit written materials to the VA contesting the facts and/or law which underlie the intended termination.

(c) An in-person interview with a VA representative, if requested by the recipient, to discuss the matters in controversy, which interview shall take place promptly and during the pre-termination notice period. The said interview need not be in the nature of an adversary hearing, nor need it include an opportunity for the recipient to be represented by counsel or to present live testimony or to rebut and/or confront witnesses and evidence against him (except as hereinabove provided). Further, neither the interviewer nor the person deciding the matter need be an "impartial decision-maker" as defined in Goldberg v. Kelly, (397 U.S. 254, 90 S.Ct. 1011, 25 L.Ed.2d 287 (1969)).

II

We first consider whether the district court had jurisdiction to review the VA's procedures for suspending or terminating student-veterans' educational benefits. The Administrator contends that jurisdiction is barred by 38 U.S.C. § 211(a), which states:

(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.

In Johnson v. Robison, 415 U.S. 361, 366-74, 94 S.Ct. 1160, 1165-1169, 39 L.Ed.2d 389 (1974), the Supreme Court held that section 211(a) does not preclude judicial review of the constitutionality of veterans' benefits legislation. Hernandez v. Veterans' Administration, 415 U.S. 391, 393, 94 S.Ct. 1177, 1178, 39 L.Ed.2d 412 (1974); Moore v. Johnson, 582 F.2d 1228, 1232 (9th Cir. 1978). The Court stated The prohibitions (of § 211(a)) would appear to be aimed at review only of those decisions of law or fact that arise in the administration by the Veterans' Administration of a statute providing benefits for veterans. 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. Appellee's constitutional challenge is not to any such decision of the Administrator, but rather to a decision of Congress to create a statutory class entitled to benefits that does not include I-O conscientious objectors who performed alternative civilian service. Thus, as the District Court stated: "The questions of law presented in these proceedings arise under the Constitution, not under the statute whose validity is challenged."

Johnson v. Robison, supra, 415 U.S. at 367, 94 S.Ct. at 1166 (emphasis in original).

We have interpreted Robison to require an examination of the "substance" of an action, to determine whether it challenges a "decision of the Administrator on a 'question of law or fact concerning a benefit provided by a law administered by the Veterans Administration,' " Moore v. Johnson, supra, 582 F.2d at 1232, or instead challenges the constitutionality of an Act of Congress. Id. Only actions within the latter category are reviewable. Id. at 1232-33. In conducting such an examination, we are assisted by the legislative considerations that prompted the passage of section 211(a). The Court in Robison identified two primary purposes:

(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.

Johnson v. Robison, supra, 415 U.S. at 370, 94 S.Ct. at 1167 (footnotes omitted).

The class asserts that the procedures used by the VA to suspend and in some cases terminate the class members' educational assistance payments violated the Fifth Amendment. The district court found: "No plaintiff herein is challenging a substantive decision by the VA to suspend, reduce, set off or terminate an individual's educational benefits. . . . The sole issue before the Court involves the nature and extent of due process procedural requirements." (Emphasis in original.) Thus, the issue is not whether the Administrator ruled incorrectly on the class' entitlement to benefits, but whether Due Process compels certain procedural safeguards in advance of such rulings. At the time this injunction was issued, neither the congressional statutes, 38 U.S.C. § 1651 et seq., nor the regulations promulgated thereunder by the Administrator, provided any such safeguards. We interpret the "substance" of the class' complaint to be that an Act of Congress lacking such protections, when coupled with an agency's failure pursuant to its delegated administrative powers (see 38 U.S.C. § 210(c)(1)) to institute procedural protections, is unconstitutional. So framed, the action challenges the constitutionality of veterans' benefits legislation and is, according to Robison, reviewable. ²

In Moore v. Johnson, supra, which involved a Due Process challenge to the VA's failure to provide a hearing prior to relocating veterans receiving domiciliary care in VA facilities, we declared:

(I)t is not unreasonable to...