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May 8, 1981

Evelyn E. KIRKHUFF, Plaintiff,
Max CLELAND, Administrator of Veterans Affairs, Defendant

The opinion of the court was delivered by: JOHNSON


On August 30, 1979, plaintiff Evelyn E. Kirkhuff commenced this action for declaratory and injunctive relief. Plaintiff challenges the validity under the Fifth Amendment to the Constitution and 38 U.S.C. §§ 210, 601, and 610 of a Veterans' Administration regulation barring otherwise eligible women veterans from eligibility for hospital care benefits for "uncomplicated" childbirth. *fn1" Defendant Max Cleland, then Administrator of Veterans Affairs, moved for dismissal on the grounds that 38 U.S.C. § 211(a) deprives this court of jurisdiction over plaintiff's claims. The parties, pursuant to agreement, have filed cross-motions for summary judgment, and oral arguments were heard on January 13, 1981.

 The Court has carefully reviewed the pleadings and exhibits filed in this action, as well as the supplemental memoranda filed in support of and in response to the cross-motions for summary judgment, and finds that the absence of any genuine issue of material fact makes this action ripe for summary judgment, pursuant to Rule 56, Federal Rules of Civil Procedure. For the reasons set forth below, the Court denies defendant's motion to dismiss or, alternatively, for summary judgment, and grants summary judgment in favor of plaintiff.


 Evelyn E. Kirkhuff, plaintiff in this action, is an honorably discharged veteran of the Navy who served during 1967-1970. In June 1975, plaintiff and her husband, also an honorably discharged Navy veteran, were enrolled as full-time college students. Plaintiff learned in June 1975 that she was pregnant, and contacted the Veterans' Administration ("VA") to determine her eligibility for medical and hospitalization benefits available to veterans unable to defray the costs of such services. The local VA office informed plaintiff that free medical and hospital care was available to indigent women veterans, but that such benefits would be authorized only where pregnancy and childbirth were complicated by pathological conditions.

 On December 12, 1975, plaintiff submitted a formal application for medical benefits (VA Form 10-10), which included a medical report by her non-VA physician and her oath that she was unable to defray necessary costs. Plaintiff's formal application was disapproved on December 14, 1975, by the chief of the Medical Administration, Wichita, Kansas, VA Center, after his review and determination that no pathological conditions were manifest. As a result of the VA's determination of ineligibility, plaintiff and her husband found it necessary to turn to VA loans as a means of covering plaintiff's medical and hospitalization costs.

 Plaintiff gave birth on January 16, 1976, following a pregnancy unmarked by any incidence of complicating medical conditions. The birth process and plaintiff's recovery from it were also medically uneventful. On February 3, 1976, following the birth of her child, plaintiff filed a Notice of Disagreement appealing the denial of her of benefits. Plaintiff also requested the repeal or revision of VA Reg. 6048(3) (currently codified at 38 C.F.R. § 17.48(e)), the regulation upon which the denial had been based.

 The Board of Veterans Appeals heard plaintiff's appeal of the denial of benefits on August 8, 1977. The Board ruled that 38 C.F.R. § 17.48(e) prohibited reimbursement of medical and hospital care costs for uncomplicated childbirth, and found that plaintiff had been properly denied benefits under that regulation. Plaintiff's request for repeal or amendment of 38 C.F.R. § 17.48(e) to allow provision of benefits in the case of "uncomplicated" pregnancies and parturition was directed to the Administrator, who denied her request on January 26, 1978.

 Defendant concedes that plaintiff has pursued all available administrative remedies in a timely and proper manner and that all administrative remedies were exhausted prior to the commencement of this action. There is also no dispute that plaintiff is otherwise eligible for the free hospital care benefits authorized under 38 U.S.C. § 610(a)(1) and was denied those benefits by defendant solely on the basis of 38 C.F.R. § 17.48(e), which provides:

Women veterans will not be entitled to hospital care for pregnancy and parturition unless it is complicated by a pathological condition.

 The fact that 38 C.F.R. § 17.48(e) embodies a VA policy in effect since at least 1926 is, likewise, undisputed.


 I. Exceptions to Non-Reviewability Under 38 U.S.C. § 211(a)

 Defendant seeks dismissal of this action on the basis that judicial review of plaintiff's claims is precluded by 38 U.S.C. § 211(a) (1976), which insulates from review all "decisions" of the Administrator on veterans' benefits claims. Plaintiff argues in opposition to dismissal that her claims do not present a challenge to a VA "decision" as contemplated under § 211(a) but, instead, present questions of statutory construction and constitutionality outside the scope of the no-review clause.

 Judicial review of veterans' claims has been statutorily barred since 1933. Section 211(a), the current no-review clause, provides in pertinent part that

... decisions of the Administrator on any question of law or fact under any law administered by the Veterans' Administration providing benefits for veterans ... 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.

 In 1974, the Supreme Court engaged in a comprehensive review of the legislative history of § 211(a) in reaching its decision in Johnson v. Robison, 415 U.S. 361, 94 S. Ct. 1160, 39 L. Ed. 2d 389 (1974). The Court gave particular attention to the 1970 amendment of § 211(a), in which Congress expressly overruled a line of cases construing § 211(a) as precluding review only of decisions of the VA denying initial applications for veterans' benefits. The 1970 amendment, the Court concluded, was effected only to maintain the vitality of the two primary purposes of the no-review clause:

(1) To insure that veterans' benefits claims will not burden the courts and the Veterans' Administration with expensive and time-consuming litigation, and
(2) To insure that the technical and complex determinations and applications of Veterans' Administration policy connected with veterans' benefits decisions will be adequately and uniformly made.

 Johnson v. Robison, supra, at 370, 94 S. Ct. at 1167.

 The Johnson court found that in 1970 the Congress was concerned not only with the increase of litigation but with the prospect of judicial intrusion into the "day-to-day determinations and interpretation of Veterans' Administration policy." Id., at 372, 94 S. Ct. at 1168. Noting that nothing in the legislative history of the 1970 amendment to § 211(a) or its predecessor statutes suggested an intent by Congress to preclude judicial review of Constitutional claims, the court found that

Such (constitutional) challenges obviously do not contravene the purposes of the no-review clause, for they cannot be expected to burden the courts by their volume, nor do they involve technical considerations of VA policy.

 Johnson, supra. Further, the court found that the constitutionality of § 211(a) itself would be suspect if it were construed to preclude constitutional challenges to underlying VA statutes such as those presented in Johnson. Id., at 373, 94 S. Ct. at 1169. Thus, the court held:

The provisions of (s 211(a)) would appear to be aimed at review only of ... decision(s) of law or fact "under" a statute ... made by the Administrator in the interpretation or application of a particular provision of the statute to a particular set of facts.

 Id., at 367, 94 S. Ct. at 1166.

 Johnson thus establishes that attacks on the constitutionality of underlying VA statutes were clearly beyond the reach of the no-review clause. Whether and how far the Johnson analysis extends beyond the reviewability of constitutional challenges to VA statutes has been a matter of some dispute. The scope of the Johnson exception to non-reviewability under § 211(a) has recently been considered by this circuit in Carter v. Cleland, 207 U.S. App. D.C. 6, 643 F.2d 1 (D.C.Cir.1980). On appeal, the court in Carter, supra, considered the reviewability under § 211(a) of a challenge to a VA regulation. The regulation at issue operated to exclude from death benefits eligibility a surviving spouse who had been separated from a veteran, where that separation evidenced an intent on the part of the surviving spouse to terminate the marriage. Although the court in Carter held ultimately that appellant's challenge was the very type of action Congress sought to insulate through § 211(a), the court did conclude that the barrier of § 211(a) was not impenetrable, even in the instance of certain non-constitutional claims.

 In Carter, the circuit court found that § 211(a) meets the "clear and convincing evidence" standard necessary to overcome a presumption of reviewability, as enunciated in Abbott Laboratories v. Gardner, 387 U.S. 136, 87 S. Ct. 1507, 18 L. Ed. 2d 681 (1967). Despite this finding, the court noted the narrowing of the scope of § 211(a) by the Johnson court to exclude from preclusion constitutional challenges to underlying VA statutes. The circuit court considered, as well, the further narrowing of the scope of § 211(a) by courts extending the Johnson rationale to exclude from preclusion constitutional challenges to VA procedural policies. Courts extending Johnson to claims directed at the constitutionality of VA policies found that such claims did not necessitate review of fact-specific VA determinations, so that review would not contravene the dual purposes of § 211(a). *fn2"

 In construing a no-review clause similar in effect to § 211(a), this circuit noted that a reading of Johnson, supra, to preclude reviewability of constitutional challenges to agency procedures would raise a question of unconstitutionality similar to that avoided by the Johnson court. Ralpho v. Bell, 186 U.S.App.D.C. 368, 381, 569 F.2d 607, 620 (D.C.Cir.1977). Thus, the court in Ralpho v. Bell, supra, "agreed that the import of Johnson extends beyond its specific facts and that its analysis is appropriate in determining whether a statute precludes judicial review of constitutional challenges to agency procedures." Carter v. Cleland, supra, at 5.

 For guidance on the question of whether non-constitutional challenges to agency policies particularly challenges to policies as ultra vires are precluded under § 211(a), the Carter court turned to the Sixth Circuit's decision in Wayne State University v. Cleland, 590 F.2d 627 (6th Cir. 1978). In Wayne State, supra, the Sixth Circuit considered the reviewability of a challenge to the VA Administrator's statutory authority to promulgate regulations defining "full-time" college-level study for the purposes of educational benefits eligibility. Although a finding for plaintiff on the merits was reversed on appeal, the circuit court upheld the finding that judicial review was not barred by § 211(a). In extending Johnson to challenges to regulations as ultra vires, the Sixth Circuit concluded that a reading of § 211(a) to bar determination of the limits of the Administrator's authority would raise the same spector of unconstitutionality the Supreme Court avoided so scrupulously in Johnson.

 The Sixth Circuit also found:

Suits challenging the authority to promulgate regulations will not involve the federal courts in the day to day operations of the VA. Neither will our construction of § 211(a) (to permit review) spawn suits requesting federal courts to second guess the Administrator on the merits of particular claims for benefits of the termination of such benefits.

 Wayne State University v. Cleland, 590 F.2d 627, 631 (1978). Wayne State thus finds an exception to non-reviewability under § 211(a) in addition to the exception enunciated by the Johnson court.

 Adopting the Wayne State rationale, three other circuits have held to date that review of the limits of the Administrator's authority to promulgate regulations is excepted from the scope of § 211(a). University of Maryland v. Cleland, 621 F.2d 98 (4th Cir. 1980); Merged Area X (Education) v. Cleland, 604 F.2d 1075 (8th Cir. 1979); Evergreen State College v. Cleland, 621 F.2d 1002 (9th Cir. 1980). The court in Evergreen State College, supra, affirmed the lower court's finding that the promulgation of regulations by the Administrator was reviewable, notwithstanding § 211(a). The court found that although

... 38 U.S.C. § 211(a) was designed to prevent judicial review of decisions of the VA on individual claims ... it would not bar judicial review of constitutional challenges to provisions of the veterans' benefits legislation and regulations thereunder, and ... would not preclude judicial review of challenges to the Administrator's authority.

 Id., at 1008.

 While recognizing that the dual purposes of § 211(a) are not contravened by judicial "consideration of a single, non-factual and strictly legal, constitutional issue", the D.C. Circuit had never decided the question of whether constitutional challenges to VA policies are shielded from review. Carter v. Cleland, supra. The question of whether § 211(a) bars judicial review of the Administrator's authority to promulgate regulations also remains undecided. The appellants in Carter, the court found, had failed to support their due process claims with a prima facie showing that the challenged regulation created an irrebuttable presumption of ineligibility. In the absence of such a showing, appellants' constitutional claims amounted merely to a request for judicial review of the merits of the Administrator's decision.

 Additionally, the court in Carter found the appellants' non-constitutional claim non-reviewable under § 211(a). The court concluded that appellants' non-constitutional claim amounted not to a challenge of a binding, "legislative" rule, but to a challenge of an interpretive, non-binding guideline. Since administrative discretion was not entirely precluded by the guideline, the court concluded that its review of appellants' claim would result in its becoming "inextricably involved in review of fact-specific questions that Congress left to the Administrator and shielded from judicial scrutiny" through § 211(a). Carter, supra, at 9. Judicial review of non-binding guidelines would not, the court found, involve "a one-time question of statutory interpretation regarding the scope of the Administrator's authority, as was the case in Wayne State." Id., at 9. The court thus concluded that appellants' claims fell under neither of the "two possible exceptions to non-reviewability for constitutional claims and for challenges to the Administrator's authority to promulgate regulations..." Id., at 9.

 Plaintiff urges this court to read Carter, supra, as strongly supporting the reviewability of her constitutional claims. She argues that unlike the constitutional claims examined and found non-reviewable in Carter the constitutional claims presented here would not involve review of the basis for evidentiary "decisions" of the VA.

 Plaintiff contends first that 38 C.F.R. § 17.48(e) violates her due process rights under the Fifth Amendment to the Constitution by creating an irrebuttable presumption that women veterans experiencing labor and delivery without complications are not "disabled" for the purposes of hospital care benefits eligibility under 38 U.S.C. § 601 et seq.

 In Carter, the challenged rule was found to create a conclusive presumption of fault foreclosing eligibility at the initial determination level. The rule at issue was not, however, found to be binding upon the Board of Veterans Appeals. Since individuals exercising their statutory right of appeal would be afforded an opportunity to overcome a presumption resulting in ineligibility, that presumption would not be uniformly conclusive, and thus irrebuttable. The court found that in the absence of a showing of irreputability, appellants' due process claims in Carter amounted only to challenges to factual determinations by the Board of Veterans Appeals, the very type of agency decision-making foreclosed from review by § 211(a).

 The question here, therefore, is whether 38 C.F.R. § 17.48(e) effectively creates an irrebuttable presumption which operates at all levels of agency decisionmaking to exclude from eligibility all women veterans experiencing "normal" childbirth. Defendant does not dispute that plaintiff's formal application for hospital care benefits was denied solely on the basis of 38 C.F.R. § 17.48(e), after the local VA Center had determined that plaintiff's pregnancy was uncomplicated. Neither does defendant dispute that the regulation is binding upon the Board of Veterans Appeals as well. *fn3"

 Despite defendant's concession that § 17.48(e) is binding upon the Board of Veterans Appeals, defendant argues that a veteran denied benefits solely on the basis of § 17.48(e) may later seek and be awarded those benefits in the event that complications do occur. Defendant argues, in essence, that since veterans experiencing "uncomplicated" pregnancy and parturition can overcome a presumption which forecloses eligibility by developing such complications, no irrebuttable presumption is created by § 17.48(e). This argument is, obviously, not responsive to the question of whether § 17.48(e) operates to foreclose eligibility in all cases to otherwise eligible veterans who cannot show the presence of "pathological complications".

 Since the Appeals Board is bound by 38 C.F.R. § 17.48(e), and will not engage in any fact-finding where, as here, the absence of complications is uncontested, plaintiff's claim cannot be characterized fairly as one disputing sufficiency of evidence. Plaintiff's due process claim is thus distinguishable from the one ...

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