Gott v. Walters, s. 82-1159

• Decision Date: 10 June 1985
• Docket Number: Nos. 82-1159,82-1448 and 82-1454,s. 82-1159
• Citation: 756 F.2d 902
• Parties: , 53 USLW 2476 Chris L. GOTT, et al. v. Harry N. WALTERS, Administrator of Veterans' Affairs, Veterans' Administration, et al., Appellants. Chris L. GOTT, et al. v. Harry N. WALTERS, et al., Appellants. Chris L. GOTT, et al. v. Harry N. WALTERS, et al., Appellants.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 902

756 F.2d 902

244 U.S.App.D.C. 193, 53 USLW 2476

Chris L. GOTT, et al. v. Harry N. WALTERS, Administrator of Veterans' Affairs, Veterans' Administration, et al., Appellants.

Chris L. GOTT, et al. v. Harry N. WALTERS, et al., Appellants.

Chris L. GOTT, et al. v. Harry N. WALTERS, et al., Appellants.

Nos. 82-1159, 82-1448 and 82-1454.

United States Court of Appeals District of Columbia Circuit.

Argued Dec. 3, 1982.

Decided March 22, 1985.

Rehearing En Banc Granted June 10, 1985. ^*

Appeals from the United States District Court for the District of Columbia (Civil Action No. 80-0906).

Marc Johnston, Atty. Dept. of Justice, Washington, D.C., for appellants. Stanley S. Harris, U.S. Atty., Washington, D.C., (at the time the brief was filed), William Kanter and Frederick Geilfuss, Attys. Dept. of Justice, Washington, D.C., were on the brief, for appellants.

Lewis M. Milford, Washington, D.C., with whom Ronald Simon, Washington, D.C., was on brief, for appellees.

Before WALD, BORK and SCALIA, Circuit Judges.

Opinion for the Court filed by Circuit Judge SCALIA.

Dissenting opinion filed by Circuit Judge WALD.

SCALIA, Circuit Judge:

This case involves certain documents and methodologies used by the Veterans' Administration ("VA") to help determine claims of injury from exposure to radiation during military service. The complaint is that they were issued and adopted without complying with the rulemaking procedures and publication requirements ¹ of the Administrative Procedure Act ("APA"). ² The Administrator of Veterans' Affairs appeals from the District Court's denial of his motion for summary judgment, and its grant of summary judgment for the plaintiffs. The only issue we find it necessary to resolve is whether the statutory preclusion of judicial review of VA decisions, 38 U.S.C. Sec. 211(a) (1982), applies to this case.

I

American servicemen were exposed to radiation during cleanup operations after the bombing of Hiroshima and Nagasaki, and at a series of above-ground tests of nuclear weapons conducted between 1946 and 1961. At the time, the health effects of exposure to the levels of radiation involved were poorly understood, and to this day are not fully known. Years after their exposure, veterans continue to file claims with the government for health care and compensation for diseases assertedly resulting from the radiation. To succeed, a veteran must establish that his malady was "contracted in line of duty," 38 U.S.C. Secs. 310, 331 (1982)--which is frequently the critical obstacle, since there is usually no dispute concerning the claimant's current medical condition. In order to prevail on this issue of so-called "service connection," a veteran need only raise a reasonable doubt. 38 C.F.R. Sec. 3.102 (1984).

The handling of these radiation claims by the VA and Department of Defense ("DoD") became the subject of a Congressional investigation in June 1979, following which the agencies issued various documents dealing with the subject: a Memorandum of Understanding between the VA and DoD, issued June 15, 1979, a VA Radiation Program Guide issued August 21, 1979, and VA Radiation Claims Procedures issued September 10, 1979. Two revised versions of the Guide have since been issued.

The plaintiffs in this case, a group of veterans, veterans' wives and veterans' organizations, challenged as violations of the APA the failure to provide notice and comment procedures for the Program Guide, Claims Procedures and Memorandum, and the failure to publish the latter two in the Federal Register. ³ On cross-motions for summary judgment, the District Court found that all three documents were rules within the meaning of the APA, and that the VA's failure to conduct an informal rulemaking before issuing them rendered them invalid. It denied summary judgment to the government and granted it to the plaintiffs. Gott v. Cleland, Civil No. 80-0906 (D.D.C. Sept. 30, 1981) (Order). Subsequent rulings by the District Court clarified or extended the scope of that judgment. In denying plaintiffs' request for additional individual relief to those claimants who had been denied benefits on the basis of the documents, the court suggested that the VA was obliged to reconsider any such denial if asked by claimants to do so. Gott v. Cleland, Civil No. 80-0906 (D.D.C. Dec. 15, 1981) (Order). Still later, the plaintiffs moved to hold the VA in contempt for continuing to use radiation data obtained from DoD in accordance with the invalidated Memorandum. In a supplemental opinion and order, the District Court denied the contempt motion without prejudice, explained that the methodologies established by the Memorandum were within the scope of its original order, and required the VA to conduct a rulemaking before using them. It also ordered the VA to submit a timetable for compliance within sixty days and to conduct a rulemaking within ninety days. Gott v. Nimmo, Civil No. 80-0906 (D.D.C. Feb. 17, 1982); see also Gott v. Nimmo, Civil No. 80-0906 (D.D.C. July 21, 1982) (Order modifying dates for compliance). The VA moved for clarification of the order, contending that the methodologies had been improperly included because they were outside the scope of the litigation, and for a stay pending appeal. The court denied the motions on March 26, 1982. Gott v. Nimmo, Civil No. 80-0906 (Order). On May 20, the VA and DoD published proposed radiation rules. They have declared that these will be withdrawn if this appeal succeeds.

The VA appeals from the grant of summary judgment, from the District Court's February 17, 1982 order regarding methodology, and from the order of March 26, 1982.

II

We are confronted at the outset with a jurisdictional problem, raised and argued in the District Court, but not asserted on this appeal ⁴--though addressed briefly in appellees' Supplemental Brief. Since we consider it substantial, and since it pertains to our power to decide this case, we feel compelled to address it on our own.

The appellees brought their suit in district court under 5 U.S.C. Secs. 702-704 (1982). These provisions make "final agency action ... subject to judicial review," 5 U.S.C. Sec. 704, at the behest of "[a] person suffering legal wrong ... or adversely affected or aggrieved ... within the meaning of a relevant statute," 5 U.S.C. Sec. 702. These sections do not apply, however, to the extent that "statutes preclude judicial review." 5 U.S.C. Sec. 701(a)(1). As the Supreme Court has most recently expressed the test for such preclusion: "[W]here substantial doubt about the congressional intent exists, the general presumption favoring judicial review of administrative action is controlling," but that presumption is overcome whenever "congressional intent to preclude judicial review is 'fairly discernible' in the detail of the legislative scheme." Block v. Community Nutrition Institute, --- U.S. ----, 104 S.Ct. 2450, 2457, 81 L.Ed.2d 270 (1984) (quoting Association of Data Processing Service Organizations, Inc. v. Camp, 397 U.S. 150, 157, 90 S.Ct. 827, 832, 25 L.Ed.2d 184 (1970)). Such intent may be found on the basis of "specific language or specific legislative history," "contemporaneous judicial construction barring review and the congressional acquiescence in it," or "inferences of intent drawn from the statutory scheme as a whole." Block v. Community Nutrition Institute, 104 S.Ct. at 2456.

The statute that appears to preclude review here is 38 U.S.C. Sec. 211(a) (1982), which provides (with exceptions not here relevant) 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 the portion of their Supplemental Brief dealing with Sec. 211(a), appellees assert that this provision is inapplicable here by its terms, since the legal question on which the Administrator's decision is challenged--viz., the necessity vel non of rulemaking procedures--"arises under the APA, not 'under the statute' concerning veterans benefits." Supplemental Brief for Appellees at 4. We reject this analysis, which relies upon a lengthy dictum of this court in Kirkhuff v. Nimmo, 683 F.2d 544, 546-48 (D.C.Cir.1982). Central to the reasoning of Kirkhuff was its statement that the Supreme Court, in Johnson v. Robison, 415 U.S. 361, 94 S.Ct. 1160, 39 L.Ed.2d 389 (1974), held that constitutional challenges "were not barred by Sec. 211(a) because they involved questions of law arising 'under the Constitution,' rather than 'under the statute.' " 683 F.2d at 547, quoting 415 U.S. at 367, 94 S.Ct. at 1166. The statement is true, but it does not lead to the conclusion that the Kirkhuff dictum suggests. As our more extended discussion of Robison below will explain, see pages 911 - 12, infra, the consequence of the fact that the case presented a question (concerning the validity of the statute) "under the Constitution" was not that therefore it did not present a "question of law ... under any law administered by the Veterans' Administration" within the meaning of Sec. 211(a); but rather, that therefore there had been no "decision of the Administrator" within the meaning of Sec. 211(a), since the Administrator does not consider the constitutionality of the statutes he is directed to administer (as he does consider the compliance of his regulations with the APA). It was, the Court concluded, a decision of the Congress rather than of the Administrator that was under review. The interpretation of Sec. 211(a) appellees suggest--requiring that the Administrator's decision be challenged specifically on a question of law pertaining to the text of the veterans' benefit statutes--is unthinkable, since it would open up even individual claims...