Ziviak v. United States

• Decision Date: 05 March 1976
• Docket Number: Civ. A. No. 74-1062-F.
• Citation: 411 F. Supp. 416
• Parties: Max ZIVIAK, Administrator, v. UNITED STATES of America.
• Court: U.S. District Court — District of Massachusetts

411 F. Supp. 416

Max ZIVIAK, Administrator, v. UNITED STATES of America.

Civ. A. No. 74-1062-F.

United States District Court, D. Massachusetts.

March 5, 1976.

Louis Kerlinsky, Springfield, Mass., for plaintiff.

Richard D. Glovsky, Asst. U. S. Atty., Boston, Mass., for defendant.

Before McENTEE, Circuit Judge, and SKINNER and FREEDMAN, District Judges.

OPINION

FREEDMAN, District Judge.

This is an action in which the plaintiff seeks to have the Court declare unconstitutional subsection (b) of 38 U.S.C. § 3203, entitled "Hospitalized veterans and estates of incompetent institutionalized veterans," on the ground that it discriminates against parents of incompetent veterans. It is alleged that the section "prohibits parents of incompetent veterans from obtaining the benefits which would have been paid to them had their child died competent," thereby violating the Due Process Clause of the Fifth Amendment. It is further alleged that the interpretation of the section in question by the Veterans' Administration is erroneous in that it causes an unconstitutional effect. Plaintiff purports to represent a class consisting of all others similarly situated. He further asks the Court to grant plaintiff and the members of the purported class payment of all monies that would be due them had their children died competent, and costs pursuant to Rule 54(d) of the Federal Rules of Civil Procedure. The convening of a three-judge district court, pursuant to 28 U.S.C. §§ 2282 and 2284, has also been requested by plaintiff. The matter is currently before the Court on defendant's motion to dismiss and plaintiff's motion for summary judgment.

Class Action

In addition to himself, plaintiff seeks to represent a class consisting of those parents of deceased incompetent veterans who would be entitled to veterans' benefits but for the language in 38 U.S.C. § 3203 dealing with survivors of such veterans. It is alleged that all the prerequisites necessary to maintain a class action under Rule 23(b)(2) of the Federal Rules of Civil Procedure are present. Pursuant to subsection (c)(1) of Rule 23, the Court determines and orders that this action is properly maintainable as a class action. The Court orders that plaintiff Ziviak may sue as a representative party on behalf of all surviving parents of deceased incompetent veterans who would be entitled to accumulated veterans' benefits but for the language in 38 U.S.C. § 3203 barring payment.

The Court finds that the class is so numerous that joinder of all members is impracticable, that there are questions of law or fact common to the class, that the claims of the representative party here are typical of the claims of the class he represents, and that the representative party will fairly and adequately protect the interests of the class. In addition, the Court finds that the opposing party has refused to act on grounds generally applicable to the class. That is, it has utilized the challenged statute in such a manner as to deny plaintiff payment of veterans' benefits to which he is allegedly entitled. The Court finds the class action to be maintainable under Rule 23(b)(2).

Facts

The material facts do not appear to be at issue. Herbert Ziviak, a veteran, had died on January 9, 1972, while a patient in a Veterans' Administration hospital. The deceased had been rated incompetent by the Veterans' Administration since November, 1946, due to a service connected psychiatric disorder and had been hospitalized by the Veterans' Administration from 1946 until his death. Ziviak had never married and had no children. His father, Max Ziviak, the plaintiff in this case, is the sole surviving parent and had been classified as a needy dependent parent for the purpose of apportionment of benefits not paid his son while hospitalized. At the time of his death, Herbert Ziviak's estate exceeded $1,500.

Subsequent to his son's death, plaintiff applied for payment of the lump sum disability benefits that would have been payable to his son on account of his disability had he died while competent. This application was denied throughout the administrative process, culminating in a decision by the Board of Veterans Appeals dated January 30, 1974. That decision again denied benefits sought by plaintiff, finding that 38 U.S.C. § 3203 barred such payment. Plaintiff thereupon filed this suit on March 25, 1974. On April 18, 1974, a three-judge court was designated by order of the Chief Judge of the United States Court of Appeals for the First Circuit.

Motion to Dismiss

Defendant's motion to dismiss is based on three grounds: that the Court lacks jurisdiction of the subject matter of the complaint; that the administrative ruling by the Veterans' Administration is not subject to judicial review; and that the complaint fails to state a claim upon which relief may be granted.

The Court denies summarily defendant's motion to dismiss for failure to state a claim upon which relief can be granted. The complaint presents a substantial federal question and is not considered frivolous.

The Court also denies dismissal on the ground that the administrative ruling is not subject to judicial review. In this assertion, defendant relies primarily on 38 U.S.C. § 211(a), which provides in pertinent part that

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.

If defendant's argument were to be accepted, section 211(a) would in effect preclude the federal courts from passing on the constitutionality of veterans' benefits legislation. This position has been rejected, however, by the United States Supreme Court in Johnson v. Robison, 415 U.S. 361, 94 S.Ct. 1160, 39 L.Ed.2d 389 (1974). Discussing the prohibition in section 211(a), the Court stated that those prohibitions

would appear to be aimed at review only of those decisions of law or fact that arise in the administration by the Veterans' Administration of a statute providing benefits for veterans. A decision of law or fact "under" a statute is made by the Administrator in the interpretation or application of a particular provision of the statute to a particular set of facts.

415 U.S. at 367, 94 S.Ct. at 1166, 39 L.Ed.2d at 398 (emphasis by the Court). Noting that the plaintiff's constitutional challenge was not to a "decision of the Administrator, but rather to a decision of Congress to create a statutory class," Id., the Court agreed with the District Court that "`The questions of law presented in these proceedings arise under the Constitution, not under the statute whose validity is challenged.'" Id. (quoting from Johnson v. Robison, 352 F.Supp. 848, 853 (D.Mass.1973)). The Court concluded that the prohibitions of section 211(a) do "not extend . . . to actions challenging the constitutionality of laws providing benefits for veterans." 415 U.S. at 373, 94 S.Ct. at 1169, 39 L.Ed.2d at 401.

As in Robison, the gravamen of the complaint in the instant case is the constitutionality of 38 U.S.C. § 3203. Section 211(a) cannot therefore act to bar access to judicial review by this Court.

The parties have filed a number of motions and supporting memoranda which relate to the question of subject matter jurisdiction in this case. Plaintiff's original complaint asserted jurisdiction pursuant to 28 U.S.C. §§ 2282 and 2284. Thereafter, plaintiff filed two motions to amend its complaint, asserting that the suit was also brought pursuant to 28 U.S.C. §§ 2201 and 2202, and 28 U.S.C. §§ 1331 and 1336, respectively. Both motions were allowed. Defendant's memoranda in support of its motion to dismiss challenge the ability of any of these statutes to confer jurisdiction. Subsequent to their filing, plaintiff moved to further amend his complaint in such a manner as to indicate that the suit was also being brought pursuant to 28 U.S.C. § 1346(a)(2), and that a previous motion to amend the complaint had inadvertently referred to 28 U.S.C. § 1336 instead of section 1346. Defendant thereupon filed opposition and a supporting memorandum to this recent amendment by plaintiff.

In order that the question of subject matter jurisdiction may be settled, the Court allows both parties to file all motions, oppositions to motions, and memoranda relating to subject matter jurisdiction that were offered subsequent to oral argument.

There appears to be a question as to what monetary amount plaintiff would be entitled to should he prevail in his suit. Plaintiff alleges that the amount in controversy is approximately $55,000.00, and therefore jurisdiction exists under 28 U.S.C. § 1331, which requires that the amount exceed the sum or value of $10,000.00. Defendant, on the other hand, asserts that, if successful in his case, plaintiff would be entitled only to $3,579.50. To arrive at this figure, defendant claims that 38 U.S.C. § 3021 is applicable in determining how much money plaintiff might be entitled to, and that by reason of that statute, plaintiff's recovery would be limited to the amount accumulated "for a period not to exceed one year" prior to the veteran's death. Defendant then indicates, by way of an affidavit from the Adjudication Officer of the Veterans' Administration Regional Office in Boston, Massachusetts, that in the year prior to the death of plaintiff's son, the Veterans' Administration withheld from the son $3,579.50.

If section 3021 does apply to the situation in this case, plaintiff would apparently be precluded from bringing his suit pursuant to 28 U.S.C. § 1331. As plaintiff correctly points out in response to this argument, however, defendant did not fully quote the relevant portions of section 3021. That section provided in pertinent part, at the...