Kirkhuff v. Cleland, Civ. A. No. 79-2310.

• Decision Date: 08 May 1981
• Docket Number: Civ. A. No. 79-2310.
• Parties: Evelyn E. KIRKHUFF, Plaintiff, v. Max CLELAND, Administrator of Veterans Affairs, Defendant.
• Court: U.S. District Court — District of Columbia

516 F. Supp. 351

Evelyn E. KIRKHUFF, Plaintiff, v. Max CLELAND, Administrator of Veterans Affairs, Defendant.

Civ. A. No. 79-2310.

United States District Court, District of Columbia.

May 8, 1981.

COPYRIGHT MATERIAL OMITTED

Robert Morgan, Covington & Burling, Washington, D. C., Jim Lawing, Wichita, Kan., Isabelle Katz Pinzler, American Civil Liberties Union Foundation, New York City, for plaintiff.

Kenneth M. Raisler, Asst. U. S. Atty., Washington, D. C., for defendant.

MEMORANDUM OPINION

NORMA HOLLOWAY JOHNSON, District Judge.

On August 30, 1979, plaintiff Evelyn E. Kirkhuff commenced this action for declaratory and injunctive relief. Plaintiff challenges the validity under the Fifth Amendment to the Constitution and 38 U.S.C. §§ 210, 601, and 610 of a Veterans' Administration regulation barring otherwise eligible women veterans from eligibility for hospital care benefits for "uncomplicated" childbirth.¹ Defendant Max Cleland, then Administrator of Veterans Affairs, moved for dismissal on the grounds that 38 U.S.C. § 211(a) deprives this court of jurisdiction over plaintiff's claims. The parties, pursuant to agreement, have filed cross-motions for summary judgment, and oral arguments were heard on January 13, 1981.

The Court has carefully reviewed the pleadings and exhibits filed in this action, as well as the supplemental memoranda filed in support of and in response to the cross-motions for summary judgment, and finds that the absence of any genuine issue of material fact makes this action ripe for summary judgment, pursuant to Rule 56, Federal Rules of Civil Procedure. For the reasons set forth below, the Court denies defendant's motion to dismiss or, alternatively, for summary judgment, and grants summary judgment in favor of plaintiff.

BACKGROUND

Evelyn E. Kirkhuff, plaintiff in this action, is an honorably discharged veteran of the Navy who served during 1967-1970. In June 1975, plaintiff and her husband, also an honorably discharged Navy veteran, were enrolled as full-time college students. Plaintiff learned in June 1975 that she was pregnant, and contacted the Veterans' Administration ("VA") to determine her eligibility for medical and hospitalization benefits available to veterans unable to defray the costs of such services. The local VA office informed plaintiff that free medical and hospital care was available to indigent women veterans, but that such benefits would be authorized only where pregnancy and childbirth were complicated by pathological conditions.

On December 12, 1975, plaintiff submitted a formal application for medical benefits (VA Form 10-10), which included a medical report by her non-VA physician and her oath that she was unable to defray necessary costs. Plaintiff's formal application was disapproved on December 14, 1975, by the chief of the Medical Administration, Wichita, Kansas, VA Center, after his review and determination that no pathological conditions were manifest. As a result of the VA's determination of ineligibility, plaintiff and her husband found it necessary to turn to VA loans as a means of covering plaintiff's medical and hospitalization costs.

Plaintiff gave birth on January 16, 1976, following a pregnancy unmarked by any incidence of complicating medical conditions. The birth process and plaintiff's recovery from it were also medically uneventful. On February 3, 1976, following the birth of her child, plaintiff filed a Notice of Disagreement appealing the denial of her of benefits. Plaintiff also requested the repeal or revision of VA Reg. 6048(3) currently codified at 38 C.F.R. § 17.48(e), the regulation upon which the denial had been based.

The Board of Veterans Appeals heard plaintiff's appeal of the denial of benefits on August 8, 1977. The Board ruled that 38 C.F.R. § 17.48(e) prohibited reimbursement of medical and hospital care costs for uncomplicated childbirth, and found that plaintiff had been properly denied benefits under that regulation. Plaintiff's request for repeal or amendment of 38 C.F.R. § 17.48(e) to allow provision of benefits in the case of "uncomplicated" pregnancies and parturition was directed to the Administrator, who denied her request on January 26, 1978.

Defendant concedes that plaintiff has pursued all available administrative remedies in a timely and proper manner and that all administrative remedies were exhausted prior to the commencement of this action. There is also no dispute that plaintiff is otherwise eligible for the free hospital care benefits authorized under 38 U.S.C. § 610(a)(1) and was denied those benefits by defendant solely on the basis of 38 C.F.R. § 17.48(e), which provides:

Women veterans will not be entitled to hospital care for pregnancy and parturition unless it is complicated by a pathological condition.

The fact that 38 C.F.R. § 17.48(e) embodies a VA policy in effect since at least 1926 is, likewise, undisputed.

DISCUSSION

I. Exceptions to Non-Reviewability Under 38 U.S.C. § 211(a)

Defendant seeks dismissal of this action on the basis that judicial review of plaintiff's claims is precluded by 38 U.S.C. § 211(a) (1976), which insulates from review all "decisions" of the Administrator on veterans' benefits claims. Plaintiff argues in opposition to dismissal that her claims do not present a challenge to a VA "decision" as contemplated under § 211(a) but, instead, present questions of statutory construction and constitutionality outside the scope of the no-review clause.

Judicial review of veterans' claims has been statutorily barred since 1933. Section 211(a), the current no-review clause, provides in pertinent part that

... 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 1974, the Supreme Court engaged in a comprehensive review of the legislative history of § 211(a) in reaching its decision in Johnson v. Robison, 415 U.S. 361, 94 S.Ct. 1160, 39 L.Ed.2d 389 (1974). The Court gave particular attention to the 1970 amendment of § 211(a), in which Congress expressly overruled a line of cases construing § 211(a) as precluding review only of decisions of the VA denying initial applications for veterans' benefits. The 1970 amendment, the Court concluded, was effected only to maintain the vitality of the two primary purposes of the no-review clause:

(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, at 370, 94 S.Ct. at 1167.

The Johnson court found that in 1970 the Congress was concerned not only with the increase of litigation but with the prospect of judicial intrusion into the "day-to-day determinations and interpretation of Veterans' Administration policy." Id., at 372, 94 S.Ct. at 1168. Noting that nothing in the legislative history of the 1970 amendment to § 211(a) or its predecessor statutes suggested an intent by Congress to preclude judicial review of Constitutional claims, the court found that

Such constitutional challenges obviously do not contravene the purposes of the no-review clause, for they cannot be expected to burden the courts by their volume, nor do they involve technical considerations of VA policy.

Johnson, supra. Further, the court found that the constitutionality of § 211(a) itself would be suspect if it were construed to preclude constitutional challenges to underlying VA statutes such as those presented in Johnson. Id., at 373, 94 S.Ct. at 1169. Thus, the court held:

The provisions of § 211(a) would appear to be aimed at review only of ... decision(s) of law or fact "under" a statute ... 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 1166.

Johnson thus establishes that attacks on the constitutionality of underlying VA statutes were clearly beyond the reach of the no-review clause. Whether — and how far — the Johnson analysis extends beyond the reviewability of constitutional challenges to VA statutes has been a matter of some dispute. The scope of the Johnson exception to non-reviewability under § 211(a) has recently been considered by this circuit in Carter v. Cleland, 643 F.2d 1 (D.C.Cir.1980). On appeal, the court in Carter, supra, considered the reviewability under § 211(a) of a challenge to a VA regulation. The regulation at issue operated to exclude from death benefits eligibility a surviving spouse who had been separated from a veteran, where that separation evidenced an intent on the part of the surviving spouse to terminate the marriage. Although the court in Carter held ultimately that appellant's challenge was the very type of action Congress sought to insulate through § 211(a), the court did conclude that the barrier of § 211(a) was not impenetrable, even in the instance of certain non-constitutional claims.

In Carter, the circuit court found that § 211(a) meets the "clear and convincing evidence" standard necessary to overcome a presumption of reviewability, as enunciated in Abbott Laboratories v. Gardner, 387 U.S. 136, 87 S.Ct. 1507, 18 L.Ed.2d 681 (1967). Despite this finding, the court noted the narrowing of the scope of § 211(a) by the Johnson court to exclude from preclusion constitutional challenges to underlying VA statutes. The circuit court considered, as well, the further narrowing of the scope of § 211(a) by courts extending the Johnson rationale to exclude from preclusion constitutional challenges to...