Donald Johnson v. United States Congress

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[PUBLISH]

In the

United States Court of Appeals

For the Eleventh Circuit

____________________

No. 23-10682

____________________

FLOYD D. JOHNSON,

a.k.a Donald F. Johnson,

Plaintiff-Appellant,

versus

UNITED STATES CONGRESS,

Defendant-Appellee.

____________________

Appeal from the United States District Court

for the Middle District of Florida

D.C. Docket No. 6:22-cv-00504-WWB-DAB

____________________

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2 Opinion of the Court 23-10682

Before WILLIAM PRYOR, Chief Judge, and LUCK and BRASHER, Cir-

cuit Judges.

WILLIAM PRYOR, Chief Judge:

This appeal requires us to decide whether an incarcerated

veteran may sue the United States Congress to challenge the con-

stitutionality of a veterans’ benefits statute, 38 U.S.C. § 5313, and,

if not, whether he should be granted leave to amend his complaint

to name a proper defendant. Floyd D. Johnson sued Congress after

the Veterans Benefits Administration reduced his monthly disabil-

ity compensation under section 5313, which limits disability pay-

ments for certain incarcerated veterans. See id.; 38 C.F.R. § 3.665.

Johnson alleged that section 5313 violated both the Bill of Attainder

Clause, U.S. CONST. art. I, § 9, cl. 3, and the Equal Protection com-

ponent of the Fifth Amendment, id. amend. V. The district court

assumed, without deciding, that it had jurisdiction and dismissed

Johnson’s complaint as frivolous. Because sovereign immunity

bars Johnson’s complaint against Congress, and any amendment

would be futile in the light of the exclusive review scheme estab-

lished by the Veterans’ Judicial Review Act, Pub. L. No. 100-687,

102 Stat. 4105 (1988), we vacate and remand with instructions to

dismiss without prejudice for lack of jurisdiction.

I. BACKGROUND

Floyd D. Johnson, a United States Army veteran, was con-

victed of several state felonies and sentenced to 40 years of impris-

onment in a Florida prison. During his incarceration, Johnson ap-

plied for disability benefits based on service-related post-traumatic

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23-10682 Opinion of the Court 3

stress disorder. The Veterans Benefits Administration initially ap-

proved Johnson’s application at a 70 percent rate and later increased

it to 80 percent following an administrative appeal. But the Admin-

istration later reduced Johnson’s monthly benefits to a 10 percent

rate under section 5313 of the Veterans’ Benefits Act, which limits

disability benefits to veterans incarcerated for more than 60 days

due to a felony conviction. See 38 U.S.C. §§ 1114(a), 5313; 38 C.F.R.

§ 3.665.

Johnson filed a pro se complaint against the United States

Congress challenging his reduction in benefits. He alleged that sec-

tion 5313 violated both the Bill of Attainder Clause, U.S. CONST.

art. I, § 9, cl. 3 and the Equal Protection component of the Fifth

Amendment, id. amend. V. Johnson sought an order directing the

Administration “to immediately cease compensating incarcerated

veterans at the reduced 10 [percent] rate and to retroactively com-

pensate incarcerated veterans” for alleged underpayment.

A magistrate judge recommended dismissal of Johnson’s

complaint. See 28 U.S.C. § 1915A. The magistrate judge assumed,

without deciding, that “the [c]ourt may have jurisdiction over

[Johnson’s] claim for veterans benefits to the extent he alleges only

facial constitutional challenges.” But the magistrate judge con-

cluded that Johnson’s claims were frivolous because he “failed to

provide any persuasive allegation, argument, or citation that would

lead the [magistrate judge] to conclude that he can present an ar-

guable basis in law.”

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4 Opinion of the Court 23-10682

Over Johnson’s objection, the district court adopted the

magistrate judge’s report and recommendation and dismissed his

complaint. It declined to consider Johnson’s “general and conclu-

sory objections” to the report. It dismissed his complaint because

“numerous courts ha[d] upheld the law” and Johnson failed “to set

forth a sufficient legal basis to challenge such precedent.”

We appointed Patrick Fagan and Jeffrey Chen as counsel to

represent Johnson on appeal. We thank them for accepting the ap-

pointment and for ably representing Johnson in keeping with the

highest traditions of the legal profession. After the briefs were filed,

we asked the parties to be prepared to address at oral argument

“whether [we] should vacate the district court’s judgment and re-

mand with instructions to dismiss without prejudice because Con-

gress has not waived its sovereign immunity for constitutional

claims arising from its enactment of legislation.” In response, John-

son moved for us to treat the Administration as the named defend-

ant or, in the alternative, to grant him leave to amend his complaint

to name a proper defendant.

II. STANDARD OF REVIEW

We review our subject-matter jurisdiction de novo, “even

when it is raised for the first time on appeal.” Dupree v. Owens, 92

F.4th 999, 1004 (11th Cir. 2024).

III. DISCUSSION

Article III of the Constitution provides that the judicial

power “shall extend” to certain “Cases” and “Controversies.” U.S.

CONST. art. III, § 2. As a result, “[f ]ederal courts are courts of

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23-10682 Opinion of the Court 5

limited jurisdiction” that “possess only that power authorized by

the Constitution and statute.” United States v. Rivera, 613 F.3d 1046,

1049 (11th Cir. 2010) (alteration adopted) (citation and internal

quotation marks omitted). For this reason, “federal courts have an

independent obligation to ensure that they do not exceed the scope

of their jurisdiction” and to “raise and decide jurisdictional ques-

tions that the parties either overlook or elect not to press.” Hender-

son ex rel. Henderson v. Shinseki, 562 U.S. 428, 434 (2011). Because

“[j]urisdiction is power to declare the law, . . . when it ceases to ex-

ist, the only function remaining to the court is that of announcing

the fact and dismissing the cause.” Ex parte McCardle, 74 U.S. (7

Wall.) 506, 514 (1869). “Without jurisdiction,” federal courts “can-

not proceed at all in any cause.” Id.

The district court erred when it assumed jurisdiction with-

out deciding it. A federal court “cannot exercise hypothetical juris-

diction any more than [it] can issue a hypothetical judgment.”

Friends of the Everglades v. EPA, 699 F.3d 1280, 1289 (11th Cir. 2012).

That is, federal courts may not “assum[e] jurisdiction for the pur-

pose of deciding the merits.” Steel Co. v. Citizens for a Better Env’t,

523 U.S. 83, 94 (1998) (citation and internal quotation marks omit-

ted). Because “[h]ypothetical jurisdiction produces nothing more

than a hypothetical judgment—which comes to the same thing as

an advisory opinion,” the practice is “beyond the bounds of author-

ized judicial action.” Id. at 94, 101.

We address whether the district court had subject-matter ju-

risdiction in two parts. First, we explain that sovereign immunity

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6 Opinion of the Court 23-10682

bars Johnson’s complaint against the United States Congress. Sec-

ond, we explain that granting Johnson leave to amend his com-

plaint would be futile because the district court would still lack ju-

risdiction under the exclusive review scheme established by the Vet-

erans’ Judicial Review Act.

A. Sovereign Immunity Bars Johnson’s Suit

Against the United States Congress.

“It is elementary that the United States, as sovereign, is im-

mune from suit save as it consents to be sued, and the terms of its

consent to be sued in any court define that court’s jurisdiction to

entertain the suit.” United States v. Mitchell, 445 U.S. 535, 538 (1980)

(alterations adopted) (citation and internal quotation marks omit-

ted). “Sovereign immunity is jurisdictional,” so “the existence of

consent is a prerequisite for [subject-matter] jurisdiction.” FDIC v.

Meyer, 510 U.S. 471, 475 (1994) (citation and internal quotation

marks omitted). “[E]xcept as Congress has consented to a cause of

action against the United States, there is no jurisdiction in the

Court of Claims” or “in any other court to entertain suits against

the United States.” United States v. Testan, 424 U.S. 392, 399 (1976)

(citation and internal quotation marks omitted). A “waiver of . . .

sovereign immunity ‘cannot be implied but must be unequivocally

expressed,’” id. (citation omitted), and is “strictly construed, in

terms of its scope, in favor of the sovereign,” Dep’t of the Army v.

Blue Fox, Inc., 525 U.S. 255, 261 (1999); see also William Baude &

Samuel L. Bray, Proper Parties, Proper Relief, 137 HARV. L. REV. 153,

156 (2023) (explaining that federal courts may not “issue judgments

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23-10682 Opinion of the Court 7

against nonconsenting sovereigns” because Article III requires

“proper parties against whom proper relief could be issued”).

Moreover, as a jurisdictional limitation, sovereign immunity

cannot be waived by federal officials. See United States v. U.S. Fid. &

Guar. Co., 309 U.S. 506, 513 (1940) (“[I]t is said that there was a

waiver of immunity by a failure to object to the jurisdiction . . . . It

is a corollary to immunity from suit on the part of the United

States . . . that this immunity cannot be waived by officials. If the

contrary were true, it would subject the Government to suit in any

court in the discretion of its responsible officers.”). And because

subject-matter jurisdiction “can never be forfeited or waived,” we

“have an independent obligation to determine” our own jurisdic-

tion, “even in the absence of a challenge from any party.” Dupree,

92 F.4th at 1004–05 (citation and internal quotation marks omitted).

At oral argument, both parties acknowledged that Congress

has not waived sovereign immunity for constitutional challenges to

section 5313. We agree. So Johnson cannot sue Congress.

B. Granting Leave to Amend Would be Futile.

Because Congress is not a proper defendant, Johnson asks us

to construe his complaint as naming a proper defendant or to grant

him leave to amend on appeal to substitute a proper party. But any

amendment would be futile because Congress has vested exclusive

jurisdiction to review challenges to the constitutionality of veter-

ans’ benefits laws in the Court of Appeals for Veterans Claims and

in the United States Court of Appeals for the Federal Circuit.

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8 Opinion of the Court 23-10682

We begin, as always, with the statutory text. See Harris v. Gar-

ner, 216 F.3d 970, 972 (11th Cir. 2000) (en banc). Section 511 pro-

vides that “[t]he Secretary [of Veterans Affairs] shall decide all ques-

tions of law and fact necessary to a decision by the Secretary under

a law that affects the provision of benefits by the Secretary to vet-

erans.” 38 U.S.C. § 511(a). Unless a statutory exception applies, “the

decision of the Secretary as to any such question shall be final and

conclusive and may not be reviewed by any other official or by any

court, whether by an action in the nature of mandamus or other-

wise.” Id.

The Veterans’ Judicial Review Act provides an exclusive

scheme of judicial review for all questions arising from veterans’

benefits decisions. First, “[a]ll questions . . . subject to decision by

the Secretary” under section 511(a) are “subject to one review on

appeal” to the Board of Veterans’ Appeals, and its decision becomes

the “[f ]inal decision[]” of the Secretary. Id. § 7104(a). After the

Board decides the appeal, “[t]he Court of Appeals for Veterans

Claims [has] exclusive jurisdiction to review decisions of the Board”

and “to affirm, modify, or reverse a decision of the Board or to re-

mand the matter.” Id. § 7252(a) (emphasis added). It must “decide

all relevant questions of law, interpret constitutional, statutory, and

regulatory provisions” and “hold unlawful and set aside decisions”

“contrary to constitutional right, power, privilege, or immunity” or

“in violation of a statutory right.” Id. § 7261(a)(1), (3). After the

Court of Appeals for Veterans Claims decides an appeal, any party

may appeal to the Federal Circuit “with respect to the validity of a

decision of the Court on a rule of law or of any statute or

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regulation . . . or any interpretation thereof . . . that was relied on

by the Court in making the decision.” Id. § 7292(a).

“[T]he Federal Circuit [has] exclusive jurisdiction to . . . inter-

pret constitutional and statutory provisions, to the extent presented

and necessary to a decision.” Id. § 7292(c) (emphasis added). It must

“decide all relevant questions of law, including interpreting consti-

tutional and statutory provisions,” and “hold unlawful and set aside

any regulation or any interpretation thereof ” that it finds to be

“contrary to constitutional right, power, privilege, or immunity.”

Id. § 7292(d)(1)(B). Although factual findings and applications of

law to fact typically fall outside its scope of review, the Federal Cir-

cuit may review these issues to the extent they present constitu-

tional questions. Id. § 7292(d)(2). Its judgments are final, subject

only to review by the Supreme Court by writ of certiorari. Id.

§ 7292(c).

To decide whether the Veterans’ Judicial Review Act bars

Johnson’s complaint from being filed in the district court, we “ask[]

only whether Congress’ intent to preclude district court jurisdic-

tion [is] ‘fairly discernible in the statutory scheme.’” Elgin v. Dep’t

of the Treasury, 567 U.S. 1, 9–10 (2012) (citation omitted). To be sure,

the Supreme Court has cautioned that “where Congress intends to

preclude judicial review of constitutional claims its intent to do so

must be clear” so as “to avoid the ‘serious constitutional question’

that would arise if a federal statute were construed to deny any ju-

dicial forum for a colorable constitutional claim.” Webster v. Doe,

486 U.S. 592, 603 (1988) (citation omitted). But as Elgin clarified, the

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10 Opinion of the Court 23-10682

“heightened standard” applies only when a statute “purports to

‘deny any judicial forum for a colorable constitutional claim.’” 567

U.S. at 9 (emphasis added) (quoting Webster, 486 U.S. at 603). No

heightened standard applies “where Congress simply channels ju-

dicial review of a constitutional claim to a particular court.” Id.

The Act does not eliminate judicial review; it instead chan-

nels review exclusively to the Court of Appeals for Veterans Claims

and then to the Federal Circuit. Congress’s intent to exclude dis-

trict-court jurisdiction is “fairly discernible” from the Act. Id. at 9–

10 (citation and internal quotation marks omitted). By vesting in

the Federal Circuit “exclusive jurisdiction” to interpret constitu-

tional provisions “necessary to a decision” and empowering that

federal court to set aside any regulation or interpretation found

“contrary to constitutional right,” 38 U.S.C. § 7292(c), (d)(1), Con-

gress clearly barred district courts from exercising jurisdiction over

constitutional claims related to veterans’ benefits decisions.

Johnson concedes that the Act strips district courts of juris-

diction over as-applied constitutional challenges to statutes affect-

ing individual benefits decisions. And each of our sister circuits that

has considered the question agrees that a veteran cannot circum-

vent the statutory scheme by recasting his benefit decision in con-

stitutional terms. See, e.g., Sugrue v. Derwinski, 26 F.3d 8, 11 (2d Cir.

1994) (“[C]ourts do not acquire jurisdiction to hear challenges to

benefits determinations merely because those challenges are

cloaked in constitutional terms.”); Zuspann v. Brown, 60 F.3d 1156,

1159 (5th Cir. 1995) (“Since the enactment of the [Act], federal

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courts have refused to entertain constitutional claims if they are

based on the [Administration’s] actions in a particular case.”); Hicks

v. Veterans Admin., 961 F.2d 1367, 1370 (8th Cir. 1992) (concluding

that veteran’s “claim that unconstitutional retaliatory conduct was

the cause of the reduction of his disability rating and benefits is

essentially a challenge to the reduction of benefits on a constitu-

tional basis” and that “[a]s a challenge to a decision affecting bene-

fits, it is encompassed by [section] 511 and is not reviewable”); Vet-

erans for Common Sense v. Shinseki, 678 F.3d 1013, 1025 (9th Cir. 2012)

(en banc) (concluding that the jurisdictional limitation in sec-

tion 511(a) “extends not only to cases where adjudicating veterans’

claims requires the district court to determine whether the [Admin-

istration] acted properly in handling a veteran’s request for benefits,

but also to those decisions that may affect such cases”); see also

Weaver v. United States, 98 F.3d 518, 520 (10th Cir. 1996) (holding that

a district court lacked jurisdiction to consider a litigant’s allegations

against Administration officials because he sought “review of ac-

tions taken in connection with the denial of [his] administrative

claim for benefits” and presented “nothing more than a challenge

to the underlying benefits decision”); Blue Water Navy Viet. Veterans

Ass’n v. McDonald, 830 F.3d 570, 574 (D.C. Cir. 2016) (explaining that

section 511 bars district court review of a claim “when ‘underlying

the claim is an allegation that the [Administration] unjustifiably de-

nied . . . a veterans’ benefit’” (citation omitted)).

Nevertheless, Johnson contends—and some of our sister cir-

cuits have agreed—that district courts retain jurisdiction over facial

constitutional challenges, despite no textual support in the Act

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12 Opinion of the Court 23-10682

distinguishing between facial and as-applied claims. See, e.g., Disa-

bled Am. Veterans v. U.S. Dep’t of Veterans Affs., 962 F.2d 136, 141 (2d

Cir. 1992) (“[S]ince the Veterans neither make a claim for benefits

nor challenge the denial of such a claim, but rather challenge the

constitutionality of a statutory classification drawn by Congress,

the district court had jurisdiction . . . .”); Gila River Indian Cmty. v.

U.S. Dep’t of Veterans Affs., 899 F.3d 1076, 1079 (9th Cir. 2018) (“[Sec-

tion] 511(a) allows the exercise of jurisdiction over certain facial

constitutional challenges that require only a ‘consideration of the

constitutionality of the procedures in place,’ rather than ‘a consid-

eration of the decisions that emanate through the course of the

presentation of those claims.’” (quoting Veterans for Common Sense,

678 F.3d at 1034)); Beamon v. Brown, 125 F.3d 965, 972–73, 973 n.4

(6th Cir. 1997) (holding that “district court jurisdiction over facial

challenges to acts of Congress survived [section 511],” yet conclud-

ing that “Congress . . . effectively stripp[ed] district courts of any

such jurisdiction” over “constitutional attacks on the operation of

the claims system” (citation and internal quotation marks omit-

ted)).

We see no textual basis for interpreting the language vesting

“exclusive jurisdiction” in reviewing courts to “interpret constitu-

tional . . . provisions,” 38 U.S.C. § 7292(c), and “set aside decisions”

found “contrary to constitutional right,” id. § 7261(a)(3), as being

limited only to as-applied constitutional challenges to individual

benefits decisions. “Without some indication to the contrary,” we

will not “arbitrarily limit[]” the Act’s jurisdictional scheme by carv-

ing out facial constitutional challenges, because doing so would

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deny the statutory text its “full and fair scope.” ANTONIN SCALIA &

BRYAN A. GARNER, READING LAW: THE INTERPRETATION OF LEGAL

TEXTS § 9, at 101 (2012).

Our sister circuits’ decisions largely predate Elgin, and none

of their later precedents address whether Elgin requires a different

result. See, e.g., Disabled Am. Veterans, 962 F.2d 136 (predating Elgin);

Gila River Indian Cmty., 899 F.3d 1076 (not citing Elgin); Beamon, 125

F.3d 965 (predating Elgin). There the Supreme Court rejected a pro-

posed distinction between facial and as-applied constitutional chal-

lenges as “hazy at best and incoherent at worst.” Elgin, 567 U.S. at

15. The Court instead held that a comprehensive administrative-

review scheme for terminations of civil servants’ employment, cul-

minating in review by the Federal Circuit, barred a district court

from exercising jurisdiction over constitutional claims. Id. at 5, 15.

And it rejected the attempt to “carve[] out for district court adjudi-

cation only facial constitutional challenges,” because “‘the distinc-

tion between facial and as-applied challenges is not so well defined

that it has some automatic effect or that it must always control the

pleadings and disposition in every case involving a constitutional

challenge.’” Id. at 15 (quoting Citizens United v. Fed. Election Comm’n,

558 U.S. 310, 331 (2010)).

Johnson responds by pointing to an earlier decision, Johnson

v. Robison, 415 U.S. 361 (1974), which held that section 211(a)—the

predecessor to section 511(a)—did not preclude the district courts

from entertaining facial constitutional challenges to acts of Con-

gress affecting benefits. See Act of August 12, 1970, § 8, 84 Stat. 787,

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14 Opinion of the Court 23-10682

790 (current version at 38 U.S.C. § 511). But Robison involved a ma-

terially different statutory scheme that has since been amended. In

Robison, the Administration argued that section 211(a) “bar[red]

federal courts from deciding the constitutionality of veterans’ ben-

efits legislation.” Id. at 366. Because that construction would have

left “a veteran whose claim was rejected by the [Administration]

. . . unable to obtain further review” in any court, Henderson, 562

U.S. at 432, the Supreme Court explained that “[s]uch a construc-

tion would . . . raise serious questions concerning the constitution-

ality of [section] 211(a),” Robison, 415 U.S. at 366. So it applied the

canon of constitutional avoidance to “ascertain whether a con-

struction of the statute is fairly possible by which the constitutional

questions may be avoided.” Id. at 367 (alterations adopted) (citation

and internal quotation marks omitted).

The Court ruled that district courts retained jurisdiction to

hear facial constitutional challenges to veterans’ benefits statutes

because “no explicit provision of [section] 211(a) bar[red] judicial

consideration of appellee’s constitutional claims” and there was no

“‘clear and convincing’ evidence of [Congress’s] intent . . . to re-

strict access to judicial review.” Id. at 367, 373–74. Central to that

holding was the reasoning that the former section 211(a) stripped

the jurisdiction of a district court to review a decision of “the Ad-

ministrator on any question of law or fact under any law adminis-

tered by the Veterans’ Administration providing benefits for veter-

ans.” 84 Stat. at 790 (emphasis added). The Court explained the dis-

tinction between, on the one hand, “[a] decision of law or fact ‘un-

der’ a statute [that] is made by the Administrator in the

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23-10682 Opinion of the Court 15

interpretation or application of a particular provision of the stat-

ute,” and, on the other, a “constitutional challenge . . . to a decision

of Congress.” Robison, 415 U.S. at 367 (emphasis omitted). Because

facial constitutional challenges “arise under the Constitution,” not

the statutes whose validity they contest, the Court held that sec-

tion 211(a) did not deprive district courts of jurisdiction to hear fa-

cial challenges. Id. (citation and internal quotation marks omitted).

When Congress amended the statute a decade after Robison,

it adopted materially different language that resolved the concerns

expressed by the Supreme Court. Unlike its predecessor, sec-

tion 511(a) does not restrict the Administrator’s authority over

questions arising “under any law administered by the Veterans’ Ad-

ministration.” 84 Stat. at 790 (emphasis added). Instead, it instructs

the Secretary to decide “all questions of law and fact necessary to

a decision by the Secretary under a law that affects the provision of

benefits.” 38 U.S.C. § 511(a) (emphasis added). The constitutional-

ity of an underlying benefits statute unquestionably presents a

“question[] of law . . . that affects the provision of benefits.” Id. (em-

phasis added). By replacing the narrower phrase “administered by,”

84 Stat. at 790, with the broader term “affects,” 38 U.S.C. § 511(a),

Congress expanded the statute’s reach and foreclosed the very dis-

tinction on which Robison rested.

Moreover, Robison invoked the canon of constitutional

avoidance because the Administration’s interpretation of the for-

mer section 211(a) would have foreclosed all judicial review of con-

stitutional claims. “[I]f a federal statute were construed to deny any

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16 Opinion of the Court 23-10682

judicial forum for a colorable constitutional claim,” it would raise

a “‘serious constitutional question.’” Webster, 486 U.S. at 603 (cita-

tion omitted). But this concern applies only to statutes that “deny

any judicial forum for a colorable constitutional claim,” not to

those that only “channel[] judicial review of a constitutional claim

to a particular court.” Elgin, 567 U.S. at 9 (citation and internal quo-

tation marks omitted).

Section 511(a), like the statute in Elgin, does not foreclose all

judicial review; it instead directs that judicial review occur exclu-

sively in the Court of Appeals for Veterans Claims and then in the

Federal Circuit. Because the Federal Circuit, an Article III court, is

fully capable of providing meaningful review, section 511(a) does

not raise the “serious constitutional question” posed by the former

statute in Robison. We need not strain to adopt a statutory construc-

tion that avoids a constitutional question; we need only apply the

statute as written.

Even if Johnson were to remove Congress as a defendant

and assert only a facial constitutional challenge to section 5313, the

district court would still lack jurisdiction. Section 511(a) requires

the Secretary to address all constitutional questions “necessary” to

deciding veterans’ benefits claims, and the Act establishes an exclu-

sive process of judicial review for those decisions. Because the con-

stitutionality of a governing statute plainly raises a “question[] of

law” that “affects the provision of benefits,” 38 U.S.C. § 511(a), and

Congress vested the Federal Circuit with “exclusive jurisdiction” to

decide constitutional questions “necessary to” the Secretary’s

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decision, id. § 7292(c), we end where we began: with the words of

the statutory text. That text makes clear that any amendment of

Johnson’s complaint would be futile.

IV. CONCLUSION

We VACATE and REMAND with instructions to dismiss

without prejudice for lack of jurisdiction.