Wayne State University v. Cleland

• Decision Date: 28 September 1977
• Docket Number: Civ. A. No. 7-70973.
• Citation: 440 F. Supp. 811
• Parties: WAYNE STATE UNIVERSITY, a constitutional body corporate and William Burl Thomas Neal and David Wright, Jr., Individually and on behalf of all others similarly situated, Plaintiffs, v. Max CLELAND, Administrator, Veterans Administration, Washington, D. C., A. H. Thornton, Director, Education and Rehabilitation Service, Veterans Administration, Washington, D. C., and Frank J. Kilcullen, Jr., Director, Veterans Administration, Regional Office, Detroit, Michigan, Individually and in their official capacities, Defendants.
• Court: U.S. District Court — Western District of Michigan

440 F. Supp. 811

WAYNE STATE UNIVERSITY, a constitutional body corporate and William Burl Thomas Neal and David Wright, Jr., Individually and on behalf of all others similarly situated, Plaintiffs, v. Max CLELAND, Administrator, Veterans Administration, Washington, D. C., A. H. Thornton, Director, Education and Rehabilitation Service, Veterans Administration, Washington, D. C., and Frank J. Kilcullen, Jr., Director, Veterans Administration, Regional Office, Detroit, Michigan, Individually and in their official capacities, Defendants.

Civ. A. No. 7-70973.

United States District Court, E. D. Michigan, S. D.

September 27, 1977.

As Amended September 28, 1977.

Richard A. Fulton, C. William Tayler and Kenneth Ingram, Sachs, Greenebaum & Tayler, Washington, D. C., and Bryan H. Higgins, Detroit, Mich., for plaintiff Wayne State University.

Gordon A. Gregory, Nancy Jean Van Lopik, Gregory, Van Lopik & Korney, Detroit, Mich., for plaintiffs Neal, Wright, Campbell, Green and Torando.

James K. Robinson, U. S. Atty., and Charles Kalil, Asst. U. S. Atty., Detroit, Mich., for defendants.

Richard E. Verville, Washington, D. C., for American Council on Education amicus curiae.

KEITH, Chief Judge.

This action is brought pursuant to 28 U.S.C. §§ 1331, 1361, 2201, and 2202, and under the First, Fifth and Tenth Amendments to the Constitution. Plaintiffs seek to restrain the defendants from enforcing certain Veterans' Administration regulations and a DVB circular which promulgate measurement standards for full-time courses at institutions of higher learning for veterans who receive educational assistance allowance benefits pursuant to Title 38, United States Code, chapters 31, 34 and 36.

In an Opinion and Order of August 17, 1977, 440 F.Supp. at 806 this court denied defendants' Motion to Dismiss for Lack of Subject Matter Jurisdiction, holding that a federal district court has jurisdiction to decide if the Veterans' Administrator has exceeded his authority or violated plaintiffs' constitutional rights in the promulgation and enforcement of generally applicable regulations. Thereupon the parties, pursuant to agreement, filed Cross-Motions for Summary Judgment. They have also stipulated that this action involves no genuine issue as to any material fact. Upon a review of the pleadings, affidavits, and exhibits filed herein, it does appear that this action is appropriate for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. Briefs having been filed in support of and in response to the Motions for Summary Judgment, the court having heard oral argument in this case on April 27, 1977, and August 8, 1977, and the American Council on Education having filed a brief and appeared as amicus curiae in this action, the court is fully advised in the premises.

The defendants have moved in their Motion for Summary Judgment for an Order dismissing the University and non-veteran plaintiffs as parties to this action. This request will be denied as to the University and granted as to the non-veteran individual plaintiffs. Pursuant to V.A. regulations and a DVB circular, the V.A. notified the University of its decision not to accept the self-certification of the University as to what constitutes a full-time program in the College of Lifelong Learning for the purposes of education assistance allowance benefits. Affidavit of Harold Donaldson, dated April 21, 1977, and letters attached. Such action gives rise to a genuine case or controversy between the University and the defendants within the meaning of Article III of the Constitution. Warth v. Seldin, 422 U.S. 490, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975); Senter v. General Motors Corp., 532 F.2d 511 (6th Cir. 1976). However, there is no controversy between these defendants and the non-veteran plaintiffs—Eleanor Green and Vicki Torando — only a speculative fear on the part of these plaintiffs that if the V.A. implements its regulations, then the veteran students in the Weekend College Program may withdraw, and the Program may cease to exist, at which point these plaintiffs would be injured.¹ But their interest in the educational assistance allowance program cannot even arguably be said to come within the zone of interests protected by veterans' benefits legislation. Association of Data Processing Service Organizations v. Camp, 397 U.S. 150, 90 S.Ct. 827, 25 L.Ed.2d 184 (1970).

This action will also be dismissed as to Robert B. Campbell. Though a veteran, Mr. Campbell is not now receiving veterans educational assistance allowance benefits, and is enrolled as a part-time student at the Weekend College Program of the CLL. He does not allege any legal wrong as a result of the termination of his educational assistance allowance benefits, and asserts that he will be injured by the V.A.'s actions, if at all, only if large numbers of full-time veteran students withdraw from the CLL if the Weekend College Program is curtailed by Wayne State University. Affidavit of Robert B. Campbell. The court is therefore of the opinion that this plaintiff has not stated an actual case or controversy between himself and the defendants.

In their Complaint the individual plaintiffs sought to bring this action as a class action on behalf of all students in the CLL who have been, are, or will be enrolled in the College of Lifelong Learning. Although neither party has moved pursuant to Rule 23 of the Federal Rules of Civil Procedure for an Order certifying the class, the court has an independent obligation pursuant to Rule 23(c)(1) of the Federal Rules of Civil Procedure to determine "as soon as practicable after the commencement of an action brought as a class action" whether the action may be so maintained. Senter v. General Motors, supra; 7A Wright & Miller, Federal Practice & Procedure: Civil § 1785 n. 47 and cases cited therein (1972, Supp.1976); contra, Yulio v. Moore-McCormack Lines, Inc., 387 F.Supp. 872 (S.D.N.Y.1975). Having dismissed this action as to the non-veteran students in the Weekend College Program of the CLL, the court will not certify the class requested by the plaintiffs in their Complaint. However, the plaintiffs also requested the certification as a sub-class of all full-time veteran students enrolled in the Weekend College Program who are otherwise eligible to receive full-time veterans' educational assistance allowance benefits under Title 38 United States Code, Chapters 31, 34, and 36, of which plaintiffs Neal and Wright are representatives. There are questions of law and fact common to this class, joinder of all members of this class would be impracticable, it appears that the claims of the named plaintiffs are representative of the class, and that the named plaintiffs will adequately represent the interests of the class. In addition, the conduct of the defendants in promulgating and enforcing the challenged regulations and circular are generally applicable to members of the class. Therefore, the court will certify this action as a class action pursuant to Rule 23(b)(2) with respect to this class. Rule 23(c)(3), Fed.R.Civ.Pro.

II

VA Regulation 14272(D) 38 C.F.R. § 21.4272(d), as amended, 41 Fed.Reg. 14398 (1976), provides:

(d) Courses; Measurement Equivalency. Where a term is not a standard semester or quarter as defined in 38 C.F.R. § 21.4200(b), the equivalent for full-time training will be measured by multiplying the credits to be earned in the session by 18 if credit is granted in semester hours, or by 12 if credit is granted in quarters, and dividing the product by the number of whole weeks in the session. The resulting quotient will be the semester hours on which educational assistance allowance will be computed using the criteria of 38 C.F.R. § 21.4270 proper or the criteria of footnote 3 to that section, whichever is appropriate. In determining whole weeks for this formula, 3 days or less will be disregarded and 4 days or more will be considered a full week. In no case will a course be measured as full-time when less than 14 standard class sessions per week (or 12 standard class sessions if 12 credit hours is full time at the school) are required.

VA Regulation 14200(G), 38 C.F.R. § 21.4200(g) (1976), reads as follows:

(g) Standard class session. The term means the amount of time a student is required, in a regular quarter or semester, to spend in class per week for one quarter or one semester hour of credit. Normally a standard class session is not less than 1 hour (or 50-minute period) of academic instruction, 2 hours of laboratory training, or 3 hours of workshop training.

Department of Veterans' Benefits (DVB) Circular 20-77-16, dated February 9, 1977, revised by Change 1, 4-21-77, set out at Footnote 7 of plaintiffs' Motion for Summary Judgment, provides in pertinent part:

1. Effective October 26, 1976, VA Regulation 14272(D) was amended to include: In no case will a course be measured as full time when less than 14 standard class sessions per week (or 12 standard class sessions if 12 credit hours is full time at the school) are required. Likewise, a proportionate number of weekly standard class sessions is required to support an assignment of part-time training. In effect, VA Regulation 14200(g) defines the term `standard class session' as to the amount of time a student is scheduled in the school's standard length term to spend in class per week for one quarter or one semester hour of credit. Normally, but not necessarily, a standard class session is not less than 1 hour (or 50 minute period) of academic instruction, 2 hours of laboratory training or 3 hours of workshop. (It follows that the length of a standard class session is determined by the school's own academic practices which establish a normal length, not an average length, for each type of class session based on the majority of the school's regularly scheduled programs. Generally, special class schedules for independent study programs, so-called accelerated programs, and night programs

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