Larrabee by Jones v. Derwinski

• Citation: 968 F.2d 1497
• Decision Date: 26 June 1992
• Docket Number: No. 1648,D,1648
• Parties: John LARRABEE, by his sister, and conservator Judith Burnham JONES, Plaintiff-Appellant, v. Edward DERWINSKI, in his official capacity as Secretary of Veteran's Affairs of the U.S., Robert Perreault, in his official capacity as director of the Veteran's Medical Center in Newington CT, Defendants-Appellees. ocket 92-6059.
• Court: United States Courts of Appeals. United States Court of Appeals (2nd Circuit)

Page 1497

968 F.2d 1497

John LARRABEE, by his sister, and conservator Judith Burnham

JONES, Plaintiff-Appellant, v. Edward DERWINSKI, in his official capacity as Secretary of

Veteran's Affairs of the U.S., Robert Perreault, in his

official capacity as director of the Veteran's Medical

Center in Newington CT, Defendants-Appellees.

No. 1648, Docket 92-6059.

United States Court of Appeals, Second Circuit.

Argued May 4, 1992.

Decided June 26, 1992.

David C. Shaw, Hartford, Conn., for plaintiff-appellant.

Jonathan R. Siegel, Atty., Dept. of Justice, Washington, D.C. (Stuart M. Gerson, Asst. Atty. Gen., Mark B. Stern, Atty., Dept. of Justice, Albert S. Dabrowski, U.S. Atty., Carl J. Shuman, Asst. U.S. Atty., Hartford, Conn., of counsel), for defendants-appellees.

Before PRATT, MAHONEY and McLAUGHLIN, Circuit Judges.

McLAUGHLIN, Circuit Judge:

John Larrabee is a Vietnam veteran, now totally disabled and residing in a psychiatric unit of the Veterans' Hospital in Newington, Connecticut. Through his sister and conservator, Judith Jones, Larrabee sued the Secretary of Veterans Affairs and the Director of the Newington Veterans' Hospital, alleging that they violated his statutory rights and both substantive and procedural due process, as well. The District Court for the District of Connecticut (Jose A. Cabranes, District Judge ) dismissed Larrabee's statutory and substantive due process claims for lack of jurisdiction and failure to state a claim, respectively; and it awarded defendants summary judgment on the procedural due process claim. We now substantially affirm, holding that the district court lacked jurisdiction over all of plaintiff's claims in light of 38 U.S.C.A. § 511 (1991).

BACKGROUND

Larrabee is a forty-nine year old Army veteran of the Vietnam War. In May 1968, he was wounded in combat, sustaining serious injuries to his legs and feet. Four years later Larrabee was discharged and was determined by the Department of Veterans Affairs ("VA") to have a 100% employment-related disability.

Tragically, Larrabee's return to civilian life during this turbulent period was difficult. Besides other personal problems he experienced, Larrabee abused alcohol, necessitating several visits to the VA Hospital in Northhampton, Massachusetts.

In 1976, Larrabee sustained severe head injuries in a motorcycle accident that also required the amputation of his left leg below the knee. He was diagnosed as having a seizure disorder and an acute organic brain disturbance. Larrabee spent five weeks in Hartford Hospital, was transferred to the VA Hospital in Newington, Connecticut, and then discharged, allegedly without receiving treatment for his head injuries.

Larrabee's injuries, which caused memory loss and seizures, deepened his preexisting alcohol and personality problems. Between his discharge in late 1976, and 1988, Larrabee was repeatedly admitted to the VA Hospital in Newington, Connecticut for a variety of alcohol-related medical problems. Finally, in June 1988, Larrabee was admitted to a general psychiatric unit at the Newington VA Hospital, where he remains today.

Larrabee's condition had so deteriorated by May 1990 that the Connecticut Probate Court appointed his sister, Judith Jones, as his conservator. Jones arranged for her brother to be examined by Dr. Stephen Sarfaty, who concluded that Larrabee was suffering from post-traumatic stress disorder, alcoholism, traumatic brain injury and a seizure disorder. Since Jones was appointed Larrabee's conservator she and the VA have been unable to agree on the appropriate placement and treatment for Larrabee. This dispute underlies Larrabee's complaint.

Jones alleges that the VA proposed to discharge Larrabee in June 1990 without arranging for his placement in another suitable medical facility--to dump him, in short. To prevent this, Jones filed an action on Larrabee's behalf on June 5, 1990, asserting procedural due process claims and requesting declaratory and injunctive relief. The complaint was later amended to add statutory and substantive due process claims. The gravamen of the amended complaint is that the VA has failed to provide Larrabee with adequate care.

The defendants (1) moved to dismiss the statutory claims as barred by 38 U.S.C.A. § 511 (1991) [the decisions of the Secretary

"may not be reviewed ... by any court, whether by an action in the nature of mandamus or otherwise"]; (2) moved to dismiss the substantive due process claims for failure to state a claim and as barred by section 511; and (3) moved for summary judgment on the procedural due process claim, arguing that Larrabee received all the process constitutionally due him. Judge Cabranes granted each motion and this appeal followed.

DISCUSSION

We pause to address two procedural matters. First, although the defendants did not challenge the district court's subject matter jurisdiction over Larrabee's procedural due process claim until this appeal was taken, this argument is properly before us because such jurisdictional claims may be raised in federal court at any stage of the proceeding. See Insurance Corp. of Ireland, Ltd. v. Compagnie des Bauxites de Guinee, 456 U.S. 694, 702, 102 S.Ct. 2099, 2104, 72 L.Ed.2d 492 (1982); Promisel v. First Am. Artificial Flowers, Inc., 943 F.2d 251, 254 (2d Cir.1991), cert. denied, --- U.S. ----, 112 S.Ct. 939, 117 L.Ed.2d 110 (1992). Second, Larrabee now concedes that section 511(a) deprived the district court of jurisdiction over his statutory claims. Accordingly, we address only the question of jurisdiction over Larrabee's substantive and procedural due process claims.

The fulcrum of this controversy is 38 U.S.C. § 511, precluding judicial review of veterans' benefits determinations. We therefore "begin with the familiar canon of statutory construction that the starting point for interpreting a statute is the language of the statute itself." Consumer Prod. Safety Comm'n v. GTE Sylvania, Inc., 447 U.S. 102, 108, 100 S.Ct. 2051, 2056, 64 L.Ed.2d 766 (1980). Section 511 provides:

(a) The Secretary shall decide all questions of law and fact necessary to a decision by the Secretary under a law that affects the provision of benefits by the Secretary to veterans or the dependents or survivors of veterans. Subject to [exceptions set forth in] subsection (b), the decision of the Secretary as to any such question shall be final and conclusive and may not be reviewed by any other official or by any court, whether by an action in the nature of mandamus or otherwise.

38 U.S.C.A. § 511(a) (1991).

All parties agree that none of the exceptions in section 511(b) give the district court jurisdiction in this case. The crucial inquiry, consequently, is whether plaintiff's complaint challenges "a decision by the Secretary under a law that affects the provision of benefits by the Secretary to veterans...." Id. We conclude that it does. We do not make this judgment in a vacuum, however, because this statute has a long and rich history.

Since Congress first legislated in the area of veterans' benefits over fifty years ago, it has consistently precluded judicial review of veterans' benefits determinations. See Note, Judicial Review of Allegedly Ultra Vires Actions of the Veterans' Administration: Does 38 U.S.C. § 211(a) Preclude Review?, 55 Fordham L.Rev. 579, 594 (1987), cited with approval in H.R.Rep. No. 963, 100th Cong., 2d Sess. passim (1988), reprinted in 1988 U.S.C.C.A.N. 5782; see, e.g., World War Veterans' Act, ch. 320, § 5, 43 Stat. 607, 608, 609 (1924) (current version at 38 U.S.C.A. § 511(a) (1991)); Economy Act of 1933, ch. 3, § 5, 48 Stat. 8, 9 (current version at 38 U.S.C.A. § 511(a) (1991)); Act of October 17, 1940, ch. 893, § 11, 54 Stat. 1193, 1197 (current version at 38 U.S.C.A. § 511(a) (1991)). Section 211(a) ¹ of the Veterans' Benefits Act of 1957, Pub.L. No. 85-56, 71 Stat. 83, 92 (current version at 38 U.S.C.A. § 511(a) (1991)), which consolidated and simplified veterans' benefits law, prohibited review of "any question of law A procession of decisions by the D.C. Circuit, however, "significantly narrow[ed] the preclusion statute." Note, supra, 55 Fordham L.Rev. at 596; see, e.g., Tracy v. Gleason, 379 F.2d 469, 472-73 (D.C.Cir.1967); Thompson v. Gleason, 317 F.2d 901, 907 (D.C.Cir.1962); Wellman v. Whittier, 259 F.2d 163, 168-69 (D.C.Cir.1958). In 1970, Congress responded to the D.C. Circuit's "fairly tortured construction [of section 211]", H.R.Rep. No. 1166, 91st Cong., 2d Sess. 8-11 (1970), reprinted in 1970 U.S.C.C.A.N. 3723, 3731, by amending the statute to overrule that court's grudging interpretation of the preclusion provision. See Act of Aug. 12, 1970, Pub.L. No. 91-376, § 8(a), 84 Stat. 787, 790 (current version at 38 U.S.C.A. § 511(a) (1991)); Note, supra, 55 Fordham L.Rev. at 596. The 1970 version of section 211(a), which is substantially similar to current section 511(a), provided that

                or fact concerning a claim for benefits or payments."   Id.;  see also Act of Sept. 2, 1958, Pub.L. No. 85-857, § 211(a), 72 Stat. 1105, 1115 (same) (current version at 38 U.S.C.A. § 511(a) (1991))
                

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.

38 U.S.C. § 211(a) (current version codified at 38 U.S.C.A. § 511 (1991)), quoted in Johnson v. Robison, 415 U.S. 361, 365 n. 5, 94 S.Ct. 1160, 1164 n. 5, 39 L.Ed.2d 389 (1974).

In 1974, the Supreme Court had its first opportunity to review the 1970 amendments, and it held that section 211(a) insulated from judicial review decisions "made by the Administrator in the interpretation or application of a particular provision of the statute to a particular set of facts."...