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October 19, 1984

JAMES P. McKELVEY, Plaintiff,
HARRY N. WALTERS, Administrator of Veterans Affairs, et al., Defendants

Barrington D. Parker, United States District Judge.

The opinion of the court was delivered by: PARKER


 The issue now presented for determination by the Court is whether the regulation is arbitrary, irrational and exceeds the agency's statutory authority by denying lawful benefits to veterans who suffer from alcoholism. The plaintiff's challenge arises under the Administrative Procedure Act, 5 U.S.C. § 706(2)(A), and the due process and equal protection prongs of the Fifth Amendment. The plaintiff's challenge also calls for consideration of his claim that in denying his request for relief, his rights under the Rehabilitation Act of 1973, 29 U.S.C. § 794, which prohibits discrimination against alcoholics, were violated.

 This matter comes before the Court on cross motions for summary judgment filed by the parties and the defendants' motion to dismiss. The Court determines that the V.A. regulation, 38 C.F.R. § 3.301(c)(2), discriminates against alcoholics in violation of the Rehabilitation Act. Summary judgment is therefore granted to the plaintiff on this claim.


 The facts in this case are essentially undisputed. In 1977, Mr. McKelvey applied for veterans' education benefits pursuant to 38 U.S.C. § 1661. As the result of his service in the United States Army, he was entitled to thirty-six months of benefits, id., so long as he utilized them within ten years of his discharge from active duty. 38 U.S.C. § 1662(a)(1). He was honorably discharged from the Army on September 9, 1966. Thus, he was required to utilize his benefits prior to September 10, 1976, unless he "was prevented from initiating or completing [his] education . . . because of a physical or mental disability which was not the result of [his] own willful misconduct." Id. In his 1977 application for such benefits, he sought an extension of the September 1976 deadline on the grounds that his alcoholism had prevented him from using the benefits earlier. *fn1"

 On May 1, 1978, the regional office of the Veterans Administration denied Mr. McKelvey's request for an extension. That office informed him that an extension was unwarranted because his alcoholism constituted "willful misconduct." Under the governing law, any disease which follows from an individual's "willful misconduct" precludes an extension of the ten-year delimiting date. The regional office accepted McKelvey's admission that he was an alcoholic, but made no additional findings of fact. The plaintiff appealed this decision to the Board of Veterans Appeals ("Board"), and after a hearing, the appeal was denied on August 6, 1980.

 The Board found that the plaintiff did not suffer from an underlying psychiatric problem which gave rise to his alcoholism, and that his alcoholism did not cause a separate disability which by itself would support an extension. In reaching this decision, the Chairman of the Board stated that 38 C.F.R. § 3.301(c)(2) *fn2" precluded consideration of any evidence concerning the plaintiff's alcoholism other than:

evidence that the alcoholism may have been secondary to a psychiatric or organic condition of some kind . . . or alternatively, [evidence] that there were other conditions either psychiatric or organic which in themselves would have precluded [him] from pursuing a course of education during the relevant period.

 Memorandum of Law in Support of Defendants' Motion to Dismiss or, in the Alternative, for Summary Judgment ("Defendants' Memorandum"), Ex. 6, Tab I at 15-16. In essence, the Board found that the plaintiff suffered from primary alcoholism, and concluded that his request for an extension must be denied. Id., Tab H at 6.

 On February 23, 1982, the Board affirmed its earlier decision on reconsideration, and on July 20, 1983, the plaintiff filed this complaint challenging the denial of his request for an extension.




 Initially, the Court must resolve the defendants' contention that 38 U.S.C. § 211(a) *fn3" bars judicial review of the Board's decision, and deprives this Court of jurisdiction over the statutory issues raised in the plaintiff's complaint. Here, the plaintiff does not seek review of any factual findings of the Veterans Administration; instead, he seeks a judicial determination that a regulation promulgated by the V.A. is contrary to Section 504 of the Rehabilitation Act, 29 U.S.C. § 794 and exceeds the agency's statutory authority. *fn4" Thus, the issue presented is a narrow one: whether section 211(a) deprives a federal court of jurisdiction over a purely legal challenge to a V.A. regulation which asserts that the regulation is contrary to other federal statutes.

 Although the issue is narrowly circumscribed, it is by no means simple. In Kirkhuff v. Nimmo, 221 U.S. App. D.C. 203, 683 F.2d 544, 548 (D.C. Cir. 1982), the Court reversed the lower court's finding that a V.A. regulation was arbitrary and capricious. In deciding the case on the merits, the Court deftly avoided deciding what it termed the "difficult question" of "the extent to which Veterans Administration decisions are exempt from [judicial] review." Id.5 Thus, the Court avoided confronting the lower court's determination that section 211(a) did not bar jurisdiction over the plaintiff's statutory challenges. Kirkhuff v. Cleland, 516 F. Supp. 351, 360 (D.D.C. 1981).

 A number of other circuits have considered whether section 211(a) divests federal courts of jurisdiction over nonconstitutional challenges to V.A. regulations, and a majority have held this section does not prevent judicial review of challenges to the V.A.'s authority to promulgate regulations. See, e.g., Evergreen State College v. Cleland, 621 F.2d 1002, 1008 (9th Cir. 1980); University of Maryland v. Cleland, 621 F.2d 98, 100-01 (4th Cir. 1980); Merged Area X (Education) v. Cleland, 604 F.2d 1075, 1078 (8th Cir. 1979); Wayne State University v. Cleland, 590 F.2d 627, 631 (6th Cir. 1978). Contra Anderson v. Veterans Administration, 559 F.2d 935, 936 (5th Cir. 1977). The seminal case upholding jurisdiction is Wayne State, where the Sixth Circuit explicitly found that it had the power to consider a claim that a V.A. regulation governing veterans' education benefits was promulgated without statutory authority. 590 F.2d at 629-31.

 This Court adopts the reasoning of the Wayne State decision and its progeny, and finds that it has jurisdiction over the plaintiff's statutory challenges. The specific Wayne State holding that a court has jurisdiction to consider whether the V.A. has exceeded its statutory authority applies with equal force in this case. Moreover, the court's rationale for exercising jurisdiction over the Administrative Procedure Act claim provides even stronger support for jurisdiction over the Rehabilitation Act claim in this case. Under Wayne State, judicial review is permissible where it would neither "involve the courts in the complex and technical niceties of V.A. policy," 590 F.2d at 632 (emphasis added), nor "spawn suits requesting federal courts to second guess the Administrator on the merits of particular claims for benefits or the termination of such benefits." Id. at 631 (emphasis added).

 Here, the plaintiff's challenge is not limited to a particular claim for benefits, but instead, raises the broader legal issue of whether a V.A. regulation of general application violates a federal statute. Moreover, the federal statute in question is completely independent of the complex statutory and regulatory scheme for dispersing veterans' benefits. This means that the Veterans Administration has no special expertise in measuring the validity of its regulations against the Rehabilitation Act. Accordingly, this ...

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