Kirkhuff v. Nimmo, 81-1770

• Decision Date: 20 July 1982
• Docket Number: No. 81-1770,81-1770
• Citation: 683 F.2d 544
• Parties: Evelyn Elisabeth KIRKHUFF, Appellee, v. Robert P. NIMMO, Administrator, Veterans Affairs, Appellant.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 544

683 F.2d 544

221 U.S.App.D.C. 203

Evelyn Elisabeth KIRKHUFF, Appellee, v. Robert P. NIMMO, Administrator, Veterans Affairs, Appellant.

No. 81-1770.

United States Court of Appeals District of Columbia Circuit.

Argued April 29, 1982.

Decided July 20, 1982.

Appeal from the United States District Court for the District of Columbia (D.C.Civil Action No. 79-02310).

Mark H. Gallant, Atty., Dept. of Justice, Washington, D. C., with whom Charles F. C. Ruff, U. S. Atty., Washington, D. C., at the time the brief was filed, and William Kanter, Atty., Dept. of Justice, Washington, D. C., were on the brief, for appellant. Kenneth M. Raisler, Asst. U. S. Atty., Washington, D. C., entered an appearance for appellant.

Robert M. Morgan, Washington, D. C., for appellee.

Before WILKEY and WALD, Circuit Judges, and McGOWAN, Senior Circuit Judge.

Opinion for the Court filed by Senior Circuit Judge McGOWAN.

McGOWAN, Senior Circuit Judge:

The Administrator of Veterans' Affairs (Administrator) appeals from a judgment by the District Court declaring invalid as ultra vires a Veterans' Administration regulation denying medical benefits for pregnancy and childbirth to financially needy veterans. This appeal raises serious questions about the power of the federal courts to review decisions of the Administrator. Because we find that, even assuming we have such power, the regulation survives appellee's challenges, we reverse and remand.

I

Appellee Evelyn Kirkhuff is an honorably discharged veteran of the Navy. In 1975, after her discharge and during the course of her pregnancy, she inquired of the Veterans' Administration (V.A.) as to her entitlement to free hospital care, she being unable to pay for her own care. The V.A. informed her that the regulations provided for financial benefits only in the event of a pregnancy or parturition complicated by a pathological condition. She subsequently made formal application for hospital coverage, but when a medical examination conducted at the expense of the V.A. revealed no pathology, her application was denied. After the normal birth of her child, Kirkhuff appealed the denial of her application to the Board of Veterans Appeals, and simultaneously petitioned the Administrator to change the regulation and reimburse her for her medical expenses, which totaled $1,017.82. On January 26, 1978, the Administrator denied her petition, stating "that the ability to procreate and the existence of an uncomplicated pregnancy are not in themselves" compensable within the framework of the relevant statute. J.A. at 87. The Board likewise denied her application, finding itself "bound in its decisions by the regulations of the Veterans' Administration." J.A. at 79. Having thus exhausted her administrative remedies, Kirkhuff filed an action against the Administrator in the District Court, contending that the regulation exceeded his statutory authority and the bounds of the Constitution, and seeking declaratory and injunctive relief. ¹ The parties filed cross-motions for summary judgment. On May 8, 1981, the District Court granted Kirkhuff's motion and remanded the case to the V.A. for processing, holding that both of her claims were subject to judicial review, and that the regulation indeed exceeded the scope of the Administrator's statutory authority. ² It is from this decision that the Administrator of Veterans' Affairs appeals.

II

Before reaching the merits of the instant case, we are confronted with a serious argument that the federal courts lack the power to review decisions of the administrator. 38 U.S.C. § 211(a) (1976) 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 ... 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.

Appellant claims that this provision constitutes a barrier to judicial review of his decision not to amend the rule and, as well, of the substance of the rule itself. Appellee, on the other hand, would have us apply the barrier only to review of adjudicative determinations of the Administrator.

Jurisdictional limitations like the one expressed in § 211(a) are to be interpreted narrowly, in the light of a "basic presumption of judicial review" which is to govern absent " 'clear and convincing evidence' " of congressional intent to the contrary. Abbott Laboratories v. Gardner, 387 U.S. 136, 141, 87 S.Ct. 1507, 1511, 18 L.Ed.2d 681 (1967), quoting Rusk v. Cort, 369 U.S. 367, 379-80, 82 S.Ct. 787, 794, 795, 7 L.Ed.2d 809 (1962). See de Magno v. United States, 636 F.2d 714, 721 (D.C.Cir.1980).

There is clear evidence in the plain language of the provision that Congress intended to exempt some decisions of the Administrator from judicial scrutiny. In addition, Congress, reacting to a line of cases in this court construing it narrowly, ³ amended § 211(a) in 1970 to broaden the reach of the provision. H.R.Rep.No.1166 91st Cong., 2d Sess. 8-11 (1970), U.S.Code Cong. & Admin.News 1970, p. 3723. The precise reach of § 211(a), however, remains unclear. Consequently, while allowing that some decision of the Administrator must indeed stand untouched by the judiciary, courts have recognized various exceptions to the statutory limitation on review.

In Johnson v. Robison, 415 U.S. 361, 94 S.Ct. 1160, 39 L.Ed.2d 389 (1974), the Supreme Court held that § 211(a) did permit some judicial review within the context of the veterans' benefits statutes. In that case, a conscientious objector, who had been denied educational benefits under a statute providing such benefits to veterans, challenged the statute itself on first and fifth amendment grounds. The Supreme Court held that such challenges were not barred by § 211(a) because they involved questions of law arising "under the Constitution," rather than "under the statute." Id. at 367, 94 S.Ct. at 1166, quoting the opinion of the district court in that case, 352 F.Supp. 848, 853 (D.Mass.1973). Indeed, the Court implied that such a construction was necessary to render the provision constitutional. 415 U.S. at 366-67, 94 S.Ct. at 1165-1166.

In explaining the policy justifications for allowing review, the Court indicated that Congress had limited judicial review for two principal 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.

Id. at 370, 94 S.Ct. at 1167 (footnotes omitted). The Court determined that such purposes were not disserved by an exercise of jurisdiction in the type of case before it, a constitutional challenge to the statute itself rather than a decision made "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.

Following Johnson, courts of appeals have expanded even further the reach of judicial review of V.A. actions. In several cases courts have held permissible constitutional review of V.A. regulations. ⁴ In addition, some courts have agreed to consider nonconstitutional challenges to V.A. actions. For example, in Wayne State University v. Cleland, 590 F.2d 627 (6th Cir. 1978), the Sixth Circuit considered a claim that the Administrator lacked statutory authority to promulgate a regulation defining full-time study for purposes of determining veterans' educational benefits. The court held that the rationale of Johnson indicated that regulations were indeed reviewable by the courts for consistency with the statute, since such review would neither "involve the federal courts in the day to day operations of the V.A." nor "spawn suits requesting federal courts to second guess the Administrator on the merits of particular claims for benefits or the termination of such benefits." Id. at 631-32 (footnote omitted). Such suits, instead, "seek a determination whether regulations have been promulgated pursuant to a congressional grant of authority." Id. at 632.

In similar cases, several other courts of appeals have followed the reasoning of Wayne State in reviewing challenges to V.A. regulations. See, e.g., Evergreen State College v. Cleland, 621 F.2d 1002 (9th Cir. 1980); University of Maryland v. Cleland, 621 F.2d 98 (4th Cir. 1980); Merged Area X (Education) v. Cleland, 604 F.2d 1075 (8th Cir. 1979). Still others have attempted to limit Johnson to its facts. See, e.g., Anderson v. Veterans Administration, 559 F.2d 935 (5th Cir. 1977); Mulvaney v. Stetson, 470 F.Supp. 725 (N.D.Ill.E.D.1979).

While this court has said that the holding in Johnson "extends beyond its specific facts and that its analysis is appropriate in determining whether a statute precludes judicial review of constitutional challenges to agency procedures," Carter v. Cleland, 643 F.2d 1, 5 (D.C.Cir.1980), it has never broadened that holding beyond the constitutional arena. In Carter, appellants challenged a V.A. interpretive guideline, on the basis of which they had been denied death benefits. The relevant benefit legislation provided death benefits only to surviving spouses who had cohabited with a deceased veteran spouse continuously prior to the latter's death. The challenged guideline indicated that "(t)he birth of a child to the claimant as the result of relations with a person other than the veteran (would) be accepted as proof of lack of continuous cohabitation ...." Veterans Administration Department of Veterans Benefits Manual M21-1 § 8.11(c)(4) (1975), quoted in Carter, 643 F.2d at 3. This court held that in the absence of constitutional challenge, neither a claim that the evidence did not...