Winslow v. Walters

• Citation: 815 F.2d 1114
• Decision Date: 31 March 1987
• Docket Number: No. 85-1316,85-1316
• Parties: , 7 Fed.R.Serv.3d 967 Alex E. WINSLOW, Plaintiff-Appellant, v. Harry N. WALTERS, Administrator of Veterans Affairs, Defendant-Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (7th Circuit)

Page 1114

815 F.2d 1114

55 USLW 2563, 7 Fed.R.Serv.3d 967

Alex E. WINSLOW, Plaintiff-Appellant, v. Harry N. WALTERS, Administrator of Veterans Affairs Defendant-Appellee.

No. 85-1316.

United States Court of Appeals Seventh Circuit.

Argued Nov. 7, 1986.

Decided March 31, 1987.

Adrian Cohen, Milwaukee, Wis., for plaintiff-appellant.

Melvin K. Washington, Asst. U.S. Atty., Joseph P. Stadmueller, U.S. Atty., Milwaukee, Wis., for defendant-appellee.

Before BAUER, Chief Judge, CUMMINGS and FLAUM, Circuit Judges.

FLAUM, Circuit Judge.

The appellant, Alex Winslow, filed suit against the Veterans Administration ("VA"). Winslow claimed that certain determinations that the VA made regarding his eligibility for a service-connected pension were incorrect. He also asserted that the VA's failure to provide him with hearings prior to making these determinations violated his right to due process. The VA moved for summary judgment, asserting both that 38 U.S.C. Sec. 211(a) deprived the court of subject matter jurisdiction, and that Winslow had failed to state a claim on which relief could be granted. The district court, although discussing only the jurisdictional issue, granted the entire motion. On appeal, Winslow contests only the dismissal of his constitutional claim. We conclude that Winslow has stated a claim that arises under the Constitution. We therefore reverse in part, vacate in part, and remand the case to the district court.

I.

Alex Winslow is a veteran of World War II. At the time of his discharge in 1945, Winslow applied to the Veterans Administration for a service-connected disability pension. Winslow claimed that his ears had been physically injured while he was in the service, and that as a result he had lost a portion of his hearing. Based on this physiological damage, the VA rated Winslow 10% disabled and awarded him a pension of $11.50 per month. In 1948, the VA raised Winslow's disability rating to 20%, and increased his benefits to $15.75 per month. Five years later, however, the VA determined that it had misrated Winslow. The agency therefore informed him that it was reducing his disability rating to 10% and decreasing his benefits accordingly. Although the agency told Winslow that he had one year to contest this reduction through the VA's administrative appeals system, Winslow did not appeal.

In 1958, Winslow requested the VA to reevaluate his disability. The VA initially informed Winslow that his disability rating would remain at 10%. However, the agency subsequently informed Winslow that his rating would be reduced to zero and that it would eliminate his pension. Winslow appealed this decision within the VA's administrative structure. This appeal, however, was unsuccessful.

In 1961 Winslow submitted additional medical evidence to substantiate his claim that he had suffered a partial hearing loss as a result of a service-connected ear injury. The VA concluded that Winslow was 30% disabled, but that his hearing loss was the result of a service-connected psychoneurosis. Winslow, who had never claimed to be psychologically impaired, appealed this diagnosis. The VA affirmed its decision.

Not deterred, Winslow sought reconsideration of the VA's psychoneurosis diagnosis in 1963, 1965, 1974, and 1980. Each time, the VA found that Winslow's hearing loss was the result of a psychoneurosis rather than physiological damage. These determinations were upheld in administrative appeals.

In August, 1982, Winslow filed suit in federal district court against the VA, alleging that the determinations made by the agency were so erroneous that they violated due process. The VA subsequently reconsidered its decisions, concluding that Winslow's hearing loss was the result of physiological damage rather than psychological problems. The VA maintained the 30% disability rating.

In December, 1983, Winslow amended his complaint. He alleged that the VA had violated his due process rights because it had not provided him with a hearing prior to each change in his diagnosis and disability rating. The amended complaint requested that the court: reinstate his physiological disability diagnosis retroactively to 1958; award him retroactive disability benefits; purge his VA record of any reference to a psychoneurosis; and order the VA to provide him with a hearing should it subsequently alter his diagnosis or disability rating.

The VA moved for summary judgment under Federal Rule of Civil Procedure 56(b). The motion asserted that the district court lacked subject matter jurisdiction because 38 U.S.C. Sec. 211(a) divested the court of authority to review an administrative decision of the VA. The motion also alleged that Winslow had failed to state a claim on which relief could be granted.

The district court granted the motion, observing that Winslow's "conclusory allegations of due process violations are insufficient to support jurisdiction.... The plaintiff is really seeking judicial review of the merits of the VA decisions.... The plaintiff cannot avoid the effect of Sec. 211 by simply including an allegation of due process violations." Winslow v. Walters, No. 82 C 971, at 3 (E.D.Wis. Jan. 30, 1985) (decision and order). On appeal, Winslow does not challenge the dismissal of that portion of his complaint contesting the accuracy of the VA's determination as to the cause and extent of his disability. Winslow contests only the dismissal of his due process claim.

II.

This case comes to us in an awkward procedural posture. The Veterans Administration sought dismissal on two distinct grounds: that the district court lacked subject matter jurisdiction and that the plaintiff had failed to state a claim on which relief could be granted. However, the VA combined both grounds in a Rule 56(b) motion for summary judgment. This was incorrect.

A party may move to dismiss for failure to state a claim under either Rule 12(b)(6) or, where the movant asks the court to consider materials outside the pleadings, under Rule 56. However, a party may move to dismiss for lack of subject matter jurisdiction only under Rule 12(b)(1). There is good reason for requiring parties to plead these motions differently. A ruling that a party has failed to state a claim on which relief may be granted is a decision on the merits with full res judicata effect. A party may therefore seek summary judgment, which is on the merits, on this issue. In contrast, a ruling granting a motion to dismiss for lack of subject matter jurisdiction is not on the merits; its res judicata effect is limited to the question of jurisdiction. See Baldwin v. Iowa State Traveling Men's Association, 283 U.S. 522, 51 S.Ct. 517, 75 L.Ed. 1244 (1931). Seeking summary judgment on a jurisdictional issue, therefore, is the equivalent of asking a court to hold that because it has no jurisdiction the plaintiff has lost on the merits. This is a nonsequitur. See generally Exchange National Bank v. Touche Ross, 544 F.2d 1126, 1130-31 (2d Cir.1976) (discussing the relationship among Rules 12(b)(6), and 56).

In this case, summary judgment was incorrectly granted against the plaintiff on the issue of whether the court had jurisdiction. The error was compounded by the granting of summary judgment on the remainder of the VA's motion, including the question of whether Winslow had stated a claim on which relief could be granted, even though the court apparently did not consider this issue.

The VA should have moved for dismissal for want of jurisdiction under 12(b)(1) and, in the alternative, for failure to state a claim under 12(b)(6). See Fed.R.Civ.P. 12(g) (consolidation of defenses in a motion). The district court would then have first considered whether it had jurisdiction. Had the court found that it had jurisdiction, it would then have considered the VA's motion asserting that the plaintiff had failed to state a claim. If the court found that Winslow had not stated a claim, it could have granted summary judgment. For the purposes of our review, we will treat the VA's motion as if it had been properly pleaded and assess the two grounds for dismissal.

III.

Winslow contests the district court's ruling that it lacked subject matter jurisdiction to consider his request for an order requiring the VA to provide a hearing before further altering his disability rating. We conclude that the district court erred in holding that it had no jurisdiction over this claim.

A.

Congress has provided that "no court of the United States shall have power or jurisdiction to review" any decision of the "Administrator on any question of law or fact under any law administered by the Veterans Administration providing benefits for veterans." 38 U.S.C. Sec. 211(a) (1982). Section 211(a) clearly deprives a federal court of the power to alter determinations made by the VA regarding disability ratings and entitlements to benefits. See Devine v. Cleland, 616 F.2d 1080, 1088 (9th Cir.1980). Nonetheless, "[j]urisdictional considerations like the one expressed in Sec. 211(a) are to be interpreted narrowly." Kirkhuff v. Nimmo, 683 F.2d 544, 546 (D.C.Cir.1982). We must bear in mind the "presumption in favor of judicial review of agency actions." Clarke v. Securities Industry Association, --- U.S. ----, 107 S.Ct. 750, 757, 93 L.Ed.2d 757 (1987).

In assessing whether Sec. 211(a) deprived it of jurisdiction, the district court looked at Winslow's complaint as a whole. The court believed that Winslow's "real" motive was to recoup his benefits. However, instead of dismissing only those claims that challenged the determinations of the VA regarding Winslow's diagnosis and benefits, the district court seems to have concluded that these impermissible claims vitiated the complaint as a whole. The court therefore dismissed the entire complaint.

The district court should have considered each of Winslow's claims separately. The fact that a court does not have jurisdiction over some of the claims in a complaint--even if the court be...