Tietjen v. US Veteran's Admin.

• Citation: 692 F. Supp. 1106
• Decision Date: 18 August 1988
• Docket Number: No. CIV 87-1789 PHX CAM.,CIV 87-1789 PHX CAM.
• Parties: William H. TIETJEN, Plaintiff, v. UNITED STATES VETERAN'S ADMINISTRATION, et al., Defendants.
• Court: U.S. District Court — District of Arizona

692 F. Supp. 1106

William H. TIETJEN, Plaintiff, v. UNITED STATES VETERAN'S ADMINISTRATION, et al., Defendants.

No. CIV 87-1789 PHX CAM.

United States District Court, D. Arizona.

August 18, 1988.

Eugene A. Burdick, Phoenix, Ariz., for plaintiff.

Michael R Arkfeld, U.S. Atty., Phoenix, Ariz., for defendants.

ORDER

MUECKE, District Judge.

Having considered Defendants' Motion To Dismiss/Motion For Summary Judgment, filed February 1, 1988; the response and reply thereto; and the parties supplemental briefs,¹ this Court finds and concludes as follows:

In this case plaintiff alleges that the Veterans Administration (VA) deprived him of due process by reducing his benefits. Plaintiff argues that the VA violated its regulations in applying Circular 21-80-7. According to plaintiff, these infractions violate the due process clause of the fifth amendment. Thus, plaintiff requests injunctive relief; restoration of his former disability status; damages, including back benefits; and attorneys fees. The Government contends that 38 U.S.C. § 211(a) precludes this Court from reviewing the VA's decision and therefore requests that the case be dismissed or that summary judgment be granted in its favor.

BACKGROUND

From March, 1956 to January, 1958, plaintiff was a member of the United States Navy. On November 9, 1971, the VA awarded plaintiff a ten percent disability rating because of a service-connected duodenal ulcer. The VA first increased the rating to forty percent and then to sixty percent. Because of the sixty percent disability rating, plaintiff was deemed to be 100 percent unemployable. In a letter dated June 17, 1975, an adjudications officer of the VA informed plaintiff that due to the lack of change in his service-connected disability for a duodenal ulcer, the VA was continuing its sixty percent disability rating for the ulcer and his 100 percent evaluation for unemployability. Thus, the VA considered plaintiff's disabilities as having "reached a static level." See Exhibit E to Plaintiff's Response.

On September 9, 1980, the Chief Benefits Director for the VA issued DVB Circular 21-80-7. DVB Circular 21-80-7 was issued because of a high incidence of cases in which the proper control of unemployability review had not been maintained. See Exhibit E to Motion to Dismiss, Exhibit H to Response at 1. According to the Circular, a sampling disclosed that many questionable or erroneous grants of individual unemployability had been made. The Circular applied to all recipients deemed unemployable and under the age of sixty. The recipient was to be sent a form notifying them of review. No person whose ratings had been in effect for over twenty years was subject to review. See 38 U.S.C. § 110; 38 C.F.R. § 3.951 (1987) (persons with rating for over twenty years will not have their ratings reduced except upon a showing of fraud). The people conducting the reviews were instructed not to be reluctant to review "unprotected cases" if their review indicates that an erroneous decision was made. Reductions were subject to the provisions of VAR 1105(E).

In January of 1981, plaintiff was ordered to report to the VA Hospital in Des Moines, Iowa for an examination. On January 23, 1981, plaintiff was given a chest X-ray and an upper gastrointestinal (upper GI) series. The upper GI series showed that the stomach had a "normal mucosa without evidence of ulcer crater defect." The doctor also noted that "there is deformity of the duodenal bulb ..., which is most likely secondary to previous duodenal ulcer. The duodenal loop and proximal were small and normal." The doctor opined that the deformed duodenal bulb was due to a healed ulcer. The VA Ratings Board then determined that plaintiff only had a forty percent disability due to his duodenal ulcer. Because plaintiff's disability was rated at only forty percent, he was no longer considered unemployable. This decision was deemed effective as of May 1, 1981.

Plaintiff appealed the decision of the Ratings Board. In support of his appeal, plaintiff presented the following evidence: a report from his personal physician since 1977; a report from the Broadlawn Medical Center; copies of medical treatises on psychiatry; reports from Iowa Methodist Hospital concerning the treatments plaintiff received from 1960-67; a statement from Roger Dagel, a person who worked in a clinic where plaintiff had been treated for emotional instability; and a report from Dr. L.A. Utterback. In July of 1981, plaintiff underwent a second examination. Once again, an upper GI series was done. The second test also showed that there were no obstructive lesions, deformities or ulcerations.

In December of 1981, a hearing was held before the Board of Veterans Appeals. Plaintiff testified and was represented by the Disabled American Veterans. Subsequent to the December hearing, the Board received the report of Dr. A.E. Zachow, who had performed an upper GI series on plaintiff, and a report from Dr. Harold R. Deal. In its June 2, 1982 decision, the Board assigned plaintiff a forty percent disability rating for his moderate post gastrectomy syndromes. The Board also upheld the decision that plaintiff did not meet the criteria for an award of unemployability due to his service-connected disability.

Plaintiff appealed the Board's decision to a larger panel. The Board stated that was reconsidering the issues because of letters received from the plaintiff through his congressman. The congressman took exception to the Board's decision and requested reconsideration. At this hearing, plaintiff was represented by an attorney, Stephen W. Connors. The second panel considered the evidence submitted to the first panel and affirmed the decision of the original panel and the Ratings Board. See Exhibit D to Defendants' Motion.

Despite the fact that the decisions of the Board are final, see 38 U.S.C. § 4003; 38 C.F.R. § 19.185(a), plaintiff filed a complaint in this Court alleging that the actions of the Veterans Administration deprived him of his fifth amendment right to due process. Based on 38 U.S.C. § 211 and several cases interpreting that statute, the defendants have filed the instant motion to dismiss/motion for summary judgment.

ANALYSIS

A. Suing the VA as an Agency

This Court must initially address the propriety of naming the Veterans Administration as a defendant. In the Ninth Circuit, it is inappropriate to bring an action against the VA as an agency. See ESP Fidelity Corp. v. HUD, 512 F.2d 887, 890 (9th Cir.1975). Therefore, the VA is dismissed as a party defendant. Thus, the Court must determine whether the Administrator is entitled to have his motion to dismiss granted.

B. Dismissal Under § 211(a)

Congress enacted § 211(a) in an attempt to insure that the technical and complex determinations and applications of VA policy would be adequately and uniformly made, and to insure that VA claims would not burden the federal courts by limiting court review of VA administrative decisions. See Johnson v. Robison, 415 U.S. 361, 370, 94 S.Ct. 1160, 1167, 39 L.Ed.2d 389 (1974). Section 211(a) provides that

the decisions of the Administrator on any question of law or fact under any law administered by the Veterans' Administration ... 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 of mandamus or otherwise. (emphasis added).

Section 211(a) applies to judicial review of "decisions of law or fact that arise in the administration by the Veterans' Administration of a statute providing benefits for veterans." Johnson, 415 U.S. at 367, 94 S.Ct. at 1166 (emphasis in original). A decision of law or fact falls under a statute when a court becomes involved in the interpretation or application of a particular provision of the statute to a particular set of facts. Id.; see also Devine v. Cleland, 616 F.2d 1080, 1084 (9th Cir.1980) (challenges to the decision of the Administrator on questions of law or fact concerning benefits provided by law and administered by the VA are not reviewable). Section 211(a) does not, however, prohibit judicial consideration of a constitutional challenge to laws providing benefits to veterans. Johnson, 415 U.S. at 373, 94 S.Ct. at 1169; Devine, 616 F.2d at 1084 n. 2. In order to determine whether a case involves a challenge to the constitutionality of the laws or involves the interpretation of a particular provision of the laws to a particular set of facts, the courts must examine the substance of the claims. See Devine, 616 F.2d at 1084.

In his complaint, plaintiff alleges that defendants' misinterpretations of 38 C.F.R. §§ 3.327, 3.343 and 3.344 denied him his constitutional right to due process of law. Plaintiff alleges two violations of 38 C.F.R. § 3.327. First, plaintiff alleges that because of the 1975 letter, which stated that his condition had become static, he could not be reexamined. See 38 C.F.R. § 3.327(b)(2)(i) ("In service-connected cases, no reexamination will be scheduled ... when the disability is established as static...."). Accordingly, plaintiff argues that his reexamination was in clear violation of § 3.327(b)(2)(i).

In order for Circular 21-80-7 to have affected a person, someone within the ratings department of the VA first had to determine that plaintiff's file warranted a reevaluation, i.e., that the initial benefits decision was erroneous. Thus, not all persons in plaintiff's category (persons considered static with sixty percent disability and 100 percent unemployability) would necessarily be reevaluated. Second, the reevaluations were to apply only to "unprotected" persons. The VA therefore had to interpret its regulations and determine whether a given beneficiary was protected. Third, the review specifically stated that certain persons protected by statute and regulations were not to be reviewed. The circular also stated that reviews were to be governed by the provisions...