Marozsan v. U.S.

• Decision Date: 16 July 1996
• Docket Number: No. 94-1512,94-1512
• Parties: Stephen S. MAROZSAN, Plaintiff-Appellant, v. UNITED STATES of America, et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 1284

90 F.3d 1284

Stephen S. MAROZSAN, Plaintiff-Appellant, v. UNITED STATES of America, et al., Defendants-Appellees.

No. 94-1512.

United States Court of Appeals, Seventh Circuit.

Submitted July 16, 1996 ^*.

Decided July 25, 1996.

Rehearing and Suggestion for Rehearing

En Banc Denied Sept. 6, 1996.

Stephen S. Marozsan (submitted), South Bend, IN, for Stephen S. Marozsan.

J. Philip Klingeberger, Office of U.S. Atty., Dyer, IN, Clifford D. Johnson, Office of U.S. Atty., South Bend, IN, for U.S.

Clifford D. Johnson, Office of U.S. Atty., South Bend, IN, for Veterans Admin., R.L. Hornbarger and J. Higgins.

Before CUMMINGS, COFFEY, and FLAUM, Circuit Judges.

PER CURIAM.

Pro se appellant Stephen Marozsan appeals the district court's judgment in favor of the United States of America, the Veterans Administration, and several individual defendants in this action concerning the determination of Marozsan's veterans' benefits. For the following reasons, we affirm.

This court originally addressed Marozsan's claims in Marozsan v. United States, 852 F.2d 1469 (7th Cir.1988) (en banc) ("Marozsan I" ). Succinctly, Marozsan, who served in the U.S. Navy during and after World War II, challenged the 1981 determination of the Veterans Administration (VA) that he was to be considered twenty percent disabled because of a Naval-connected back injury and compensated accordingly. The en banc court held that 38 U.S.C. § 211(a), ¹ a door-closing statute forbidding judicial review of individual veterans' benefits decisions, did not bar a constitutional challenge to the procedures the VA uses in awarding benefits. Id. at 1472. It remanded for further proceedings on the question of whether the VA's benefits determination procedure denied Marozsan due process. Id. at 1479. On remand, Marozsan was permitted to file a third amended complaint in which he added several Bivens claims against the United States and individual defendants. After an exhaustive and thoughtful review of the case, the magistrate judge recommended dismissing some of Marozsan's claims and granting summary judgment to the defendants on the remaining issues. Marozsan v. United States, 849 F.Supp. 617, 628 (N.D.Ind.1994). The district court adopted the magistrate judge's recommendation and, in its own extensive opinion, entered judgment for the defendants. Id. at 617.

I. Issues foreclosed under Marozsan I

Several of the issues Marozsan raises in this appeal were previously ruled upon in Marozsan I, 852 F.2d at 1471 n. 3. We affirmed summary judgment for defendants on Marozsan's equal protection claim ² and affirmed the dismissal of his claims against the United States for monetary relief exceeding $10,000. ³

Moreover, we have already ruled on the constitutionality of 38 U.S.C. § 211(a): we construed § 211(a) as permitting constitutional challenges expressly to preserve its constitutionality. Marozsan I, 852 F.2d at 1472, 1478; see Johnson v. Robison, 415 U.S. 361, 374, 94 S.Ct. 1160, 1169, 39 L.Ed.2d 389 (1974). We find Marozsan's other constitutional arguments unpersuasive: the statute is not a "punishment" under the terms of the Eighth Amendment, see, e.g., Harmelin v. Michigan, 501 U.S. 957, 111 S.Ct. 2680, 115 L.Ed.2d 836 (1991); it does not qualify as a bill of attainder, see Dehainaut v. Pena, 32 F.3d 1066, 1070-71 (7th Cir.1994), cert. denied, --- U.S. ----, 115 S.Ct. 1427, 131 L.Ed.2d 309 (1995); and the Ex Post Facto Clause is inapplicable, see Dobbert v. Florida, 432 U.S. 282, 292, 97 S.Ct. 2290, 2297-98, 53 L.Ed.2d 344 (1977).

Finally, we previously stated that "[a] veteran may obtain review, not of his individual claim determination, but of unconstitutional methods employed by the VA in arriving at that benefits decision." Marozsan I, 852 F.2d at 1473 n. 10. We reiterate that we cannot evaluate the merits of Marozsan's claim, and that we cannot award him retroactive benefits or direct the VA to assess him at any particular disability level. See Czerkies v. United States Dept. of Labor, 73 F.3d 1435, 1438 (7th Cir.1996).

II. Dismissal under Rule 12(b)

A. Rule 12(b)(1)

The district court dismissed several claims for lack of subject matter jurisdiction. It held that Marozsan lacked standing to assert claims concerning the alleged false testimony of VA officials before the United States Congress ⁴; the VA's violation of an alleged fiduciary duty to veterans through the benefit determination system; a "symbiotic" financial arrangement between the VA and veterans' organizations; preferential treatment of veterans who are constituents of influential Congress members; Congress's failure to pass legislation affording judicial review to veterans' benefits decisions; and the VA's use of the "whole man theory of combining ratings" and "diagnostic codes of ratings." It also held that the doctrine of sovereign immunity barred the court from hearing monetary claims against the United States.

"[T]he core component of standing is an essential and unchanging part of the case-or-controversy requirement of Article III." Lujan v. Defenders of Wildlife, 504 U.S. 555, 560, 112 S.Ct. 2130, 2136, 119 L.Ed.2d 351 (1992). To establish standing, the plaintiff must: 1) have suffered an "injury in fact," defined as "an invasion of a legally-protected interest" that is "concrete and particularized" and "actual or imminent, not conjectural or hypothetical"; 2) establish a causal connection between the conduct at issue and the injury; and 3) show that a favorable judicial decision would likely, rather than speculatively, redress the injury. Id. (citations and internal quotations omitted). Further, "a plaintiff raising only a generally available grievance about government--claiming only harm to his and every citizen's interest in proper application of the Constitution and laws, and seeking relief that no more directly and tangibly benefits him than it does the public at large--does not state an Article III case or controversy." Id. at 573-74, 112 S.Ct. at 2143.

Marozsan's contentions are hypothetical; his accusations are insufficient to conclude even that the events he alleges occurred, much less that they are connected to a specific injury he has suffered; and he does not establish how a favorable court decision would redress any such injury. Additionally, there is no indication that the "diagnostic code of ratings," a procedural numbering system, or the "whole man" methodology, a system to rank the effect of multiple disabilities, affected Marozsan's claim in any way. These claims were properly dismissed.

The remaining jurisdictional question concerns Marozsan's Bivens actions and his invocation of a respondeat superior theory to request monetary damages against the United States. This claim was properly dismissed under the doctrine of sovereign immunity. See Czerkies, 73 F.3d at 1437-38; Robinson v. Overseas Military Sales Corp., 21 F.3d 502, 510 (2nd Cir.1994). Additionally, as we previously stated, under 28 U.S.C. § 1346(a)(2), the district court may not hear claims for more than $10,000. Marozsan I, 852 F.2d at 1471 n. 3.

B. Rule 12(b)(6)

Several of Marozsan's allegations fail to state a cognizable cause of action. He believes that § 211(a) violates his right of access to the courts, but there is no constitutional requirement that the federal courts hear any and every case; rather, it is within the power of Congress to limit the jurisdiction of the lower federal courts. Sheldon v. Sill, 49 U.S. 441, 449, 8 How. 441, 12 L.Ed. 1147 (1850) ("[H]aving a right to prescribe, Congress may withhold from any court of its creation jurisdiction of any of the enumerated controversies. Courts created by statute can have no jurisdiction but such as the statute confers."); see U.S. Const. Art. I, § 8, Art. III § 2. This claim was properly dismissed.

Further, Marozsan claims to have suffered a denial of his right to the assistance of counsel because of the $10 attorney fee cap previously imposed by 38 U.S.C. § 3404(c). ⁵ Marozsan makes no showing that he has a right to counsel in these veterans' benefits proceedings, however, or that the statute prohibits him from obtaining legal advice. Moreover, the Supreme Court has found this cap constitutional. Walters v. National Ass'n of Radiation Survivors, 473 U.S. 305, 334, 105 S.Ct. 3180, 3196, 87 L.Ed.2d 220 (1985). This claim too was properly dismissed.

III. Summary Judgment

A. Procedures Employed in Determining Benefits

Marozsan I was remanded to determine whether the VA's benefits determination procedure violates Marozsan's constitutional right to due process. ⁶ Marozsan points to several alleged practices that violate his due process rights, including a four-tiered quota system, a practice of discrimination against certain non-apparent injuries such as his back problem, and the VA's refusal to follow its own rules.

The district court granted summary judgment on these claims because Marozsan either failed to produce admissible evidence that such practices existed or merely continued to complain about the VA's actions in his own case, rather than focusing on its general procedures. We affirm this decision. The district court correctly chose not to consider inadmissible hearsay. Hong v. Children's Memorial Hosp., 993 F.2d 1257, 1265 (7th Cir.1993), cert. denied, --- U.S. ----, 114 S.Ct. 1372, 128 L.Ed.2d 48 (1994). Without such inadmissible material, Marozsan was left with no support for his claims of unconstitutional procedures. ⁷

Additionally, Marozsan himself was granted adequate process under the factors described in Mathews v. Eldridge, 424 U.S. 319, 335, 96 S.Ct. 893, 903, 47 L.Ed.2d 18 (1976). After the VA determined that Marozsan should be considered twenty percent disabled, he was able to appeal the decision to the Rating Board. He was afforded a hearing at which he was able to testify and present evidence and at which he had an accredited representative from the Veterans of Foreign Wars. Individual defendant Higgins,...