Plato v. Roudebush, Civ. No. B-74-641.

Citation397 F. Supp. 1295
Decision Date06 May 1975
Docket NumberCiv. No. B-74-641.
PartiesMarion E. PLATO et al. v. Richard L. ROUDEBUSH, etc.
CourtU.S. District Court — District of Maryland




Dennis W. Carroll, C. Christopher Brown and Herbert L. Singleton, Jr., Baltimore, Md., for plaintiffs.

Jervis S. Finney, U. S. Atty., and Parker B. Smith, Asst. U. S. Atty., Baltimore, Md., for defendants.

BLAIR, District Judge.

In this case, Marion Plato and Robert Trail,1 for themselves and others similarly situated, challenge the notice and hearing procedures used by the Veterans Administration (V.A.) in connection with suspending veterans' pension benefits. The request that a class be certified was earlier granted. The first issues to be faced in this case pertain to whether this court has jurisdiction to hear the plaintiffs' claim. The jurisdictional question has two aspects: (1) did Congress, by enacting 38 U.S.C. § 211(a), prohibit review by a federal court of plaintiffs' constitutional attack on the V.A.'s refusal to provide a pre termination hearing?, and (2) assuming that § 211(a) does not bar this action, does this court have jurisdiction under any statutory grant of jurisdiction to federal district courts? After the jurisdictional issues, this court must contend with the substantive constitutional claims of the named plaintiffs and their class.

The Facts

Addressing the class representatives first, the essential facts in this case can be simply stated. Marion Plato, the wife of a World War II veteran, applied for veterans' widows' benefits following her husband's death in 1973. See 38 U. S.C. § 541. Her application was approved, and she began receiving monthly widows benefits, as of July 1, 1973, in the amount of $87.50. These benefits were increased in January 1974 to $96.00 per month.

At some time during the spring of 1974, the Veterans Administration learned, from a form completed by Mrs. Plato, that in 1962 and while separated from her husband she had given birth to a son by a man other than her husband. On the basis of this fact, the Veterans Administration questioned her status as a "widow" within the meaning of the relevant legislation. See 38 U.S.C. §§ 541, 101(3), 103.2 By letter dated May 28, 1974, the V.A. Regional Office in Baltimore informed Mrs. Plato that her benefits had been suspended effective June 1, 1974 pending further investigation of her eligibility. She was informed that to obtain further benefits she would have to submit various certified statements by her and by third persons to support any claim by her for further benefits. The letter of notice made no mention of a right to a hearing.

Since May 1974, Mrs. Plato has received no veterans' benefits. Although with the aid of a lawyer she obtained a hearing concerning the facts in dispute on December 20, 1974, a decision was not rendered until February 1975, more than eight months after her benefits were halted.3 Since she stopped receiving veterans' benefits, Mrs. Plato has been dependent upon public assistance from the Baltimore City Department of Social Services. According to her affidavit, the amount received from that source is insufficient for the support of herself and her son.

Robert H. Trail is a veteran who, through January 1975, was receiving a monthly pension for a non-service-connected disability. According to his affidavit, Mr. Trail was advised in December 1974, by letter from the V.A., that his disability pension would soon be terminated or suspended. The reasons for the termination included the possibilities that he was not married and that he was receiving too large an income from outside sources.4 After receiving the notice which warned of termination, Mr. Trail requested a hearing on his right to continued benefits. Despite his request, he was not accorded a presuspension or pretermination hearing, and he received no benefits check in February 1975.

Although somewhat better off than Mrs. Plato, like her, Mr. Trail is a low income individual. Without his pension, Mr. Trail and his wife have a combined annual income of approximately $4,464 and, at present, they have $400 in unpaid medical expenses. At the time his benefits were terminated, Mr. Trail was receiving $143 per month, and his attorneys believe that he is now entitled to $106 per month. Following a mid-March hearing, the V.A. fixed Trail's benefits at $34.56 per month based upon the assumption Trail is not legally married. A ruling upon the question of the legality of Trail's marriage, and, thus, whether he is entitled to an additional $72 per month, has been deferred pending the resolution of a civil domestic action in the State of Washington.5

The V.A.'s policy regarding procedures for suspensions and terminations is governed by 38 C.F.R. § 3.103. Section 3.103(a) makes the general statement of policy:

Statement of policy. Proceedings before the Veterans Administration are ex parte in nature. It is the obligation of the Veterans Administration to assist a claimant in developing the facts pertinent to his claim and to render a decision which grants him every benefit that can be supported in law while protecting the interests of the Government. This principle and the other provisions of this section apply to all claims for benefits and relief and decisions thereon within the purview of this part.

Section 3.103(b) indicates that any evidence, "whether documentary, testimonial, or in other form," which is offered by the claimant, is to be made part of the administrative record.

Section 3.103(c) states "Upon request a claimant is entitled to a hearing at any time on any issue involved in a claim within the purview of this part." That subsection goes on to state how the hearing is to be conducted and financed, and it explains that the purpose of the hearing is to permit the claimant to produce evidence.

Finally, § 3.103(e) provides for "Notification of decisions." It states,

The claimant will be notified of any decision affecting the payment of benefits or granting relief. Notice will include the reason for the decision and the date it will be effectuated as well as the right to a hearing subject to paragraph (c) of this section. The notification will also advise the claimant of his right to initiate an appeal by filing a Notice of Disagreement. . . . Further the notice will advise him of the periods in which an appeal must be initiated and perfected.

From the regulations and the cases of Mrs. Plato and Mr. Trail, the defendant's policies regarding the suspension of benefits appear. In a given case, the V.A. makes its initial decision to suspend or to reduce benefits by a procedure which is "ex parte in nature." See 38 CFR § 3.103(a). Following the making of that decision, the recipient is notified of the fact of the decision, of the reason for the decision, and of "the date it will be effectuated." 38 CFR § 3.103(e). Although the regulations provide for that notice to alert the claimant to the right to a hearing, it appears from the letter of notice to Mrs. Plato that the right to a hearing is not always mentioned.

As to the timing of the hearing, 38 CFR § 3.103(c) provides that "upon request a claimant is entitled to a hearing at any time." However, since the first notice to the pensioner that there is a problem warranting a hearing follows the making of the decision to suspend the pension, the right to a hearing "at any time" means, as a practical matter, the right to a post-suspension hearing. This conclusion is borne out by the cases of the named plaintiffs who, despite prompt requests for hearings, were without benefits for substantial periods of time before obtaining hearings and decisions. Also, in the case of Mrs. Plato, so little advance warning was given that she could not possibly have obtained a hearing prior to the effective date of the suspension — a letter dated May 28, 1974 was the first notice that the check which she expected on June 1, 1974 would not arrive.

Thus, it appears from the regulations and the cases of the named plaintiffs, that the defendant does not accord a pension recipient a right to a meaningful hearing prior to the suspension or reduction of pension benefits.

As stated in this court's Order of February 21, 1975 (with one limiting modification here added), the class consists of all persons whose individual V.A. monthly pension benefits have been or may in the future be administratively reduced, terminated or suspended without first being afforded adequate advance notice and the opportunity for a hearing prior to the change in monthly pension benefits.

38 U.S.C. § 211(a)

To the extent relevant here, § 211 (a) of Title 38, provides:

On and after October 17, 1940, . . . 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.

This section, the defendant argues, precludes any review by a court of the United States of plaintiffs' constitutional claims in this case. That is, the defendant would have this court hold, not only that § 211(a) deprives it of jurisdiction to review the merits of the Administrator's decision, but also that § 211(a) exempts the Administrator's procedural policies from any constitutional review by federal courts. The plaintiffs, on the other hand, while conceding that they are not entitled to review of the merits of their requests for continued benefits argue that Congress did not intend to insulate the V.A.'s procedures from judicial review for unconstitutionality. For the reasons stated below, this court agrees with the plaintiffs that their narrow constitutional claims are not sheltered from judicial scrutiny. See ...

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