# James P. McKelvey v. Thomas K. Turnage, Administrator of Veterans' Affairs, and Veterans' Administration

> Court of Appeals for the D.C. Circuit · May 30, 1986 · 792 F.2d 194

URL: https://www.frixlaw.com/law-library/cases/9474918

## Case

- **Full name:** James P. McKELVEY v. Thomas K. TURNAGE, Administrator of Veterans’ Affairs, and Veterans’ Administration, Appellants
- **Court:** Court of Appeals for the D.C. Circuit
- **Decided:** May 30, 1986
- **Citations:** 792 F.2d 194; 253 U.S. App. D.C. 126; 1986 U.S. App. LEXIS 25292
- **Precedential status:** Published
- **Opinion:** Concurring in part by Scalia
- **Judges:** Ginsburg, Scalia, Starr
- **Cited by:** 22 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9474918

## How later opinions describe it (automated extraction)

- holding that the Veteran Administration's irrebuttable presumption that all veterans suffering from alcoholism did so as a result of their own misconduct was not discriminatory even though it resulted in veterans suffering from alcoholism being unable to obtain extensions of e…

## Opinion text

SCALIA, Circuit Judge,
concurring in part and dissenting in part:
While I am as eager as my colleagues are (and, evidently, as the Veterans’ Administration initially was) to avoid enmeshing this court once again in the issue of determining the proper scope of § 211(a), see Gott v. Walters, 756 F.2d 902 (D.C.Cir.1985), vacated and reh’g granted, 791 F.2d 172 (D.C.Cir.1985), remanded with instructions to dismiss as moot, 791 F.2d 172 (D.C. Cir.1985); and while there is a wicked attractiveness to letting the VA lie in the bed that counsel has made for it, I do not agree with our assertion of jurisdiction in the present case. An administrative officer necessarily “decides” all issues within his *210 competence upon which the lawfulness of his action depends, whether or not he specif-estimation of congressional intent, and one with troublesome policy consequences, that the Administrator should be able to control the scope of judicial review of his determinations by simply designating which underlying issues he chooses not to decide, Since there is no conceivable reason why the Administrator was unauthorized, or indeed anything less than obliged, to decide how the Rehabilitation Act affected the present adjudication — regardless of whether his decision had to be made with deference, or even with absolute subservience, to the views of another executive official— it seems to me that in addressing that point we are reviewing a decision of the Adminisrator, in violation of § 211(a). I would therefore dispose of this case, as the Second Circuit has recently disposed of a virtually identical appeal, by dismissing for lack of jurisdiction. See Traynor v. Walters, 791 F.2d 226 (2d Cir. 1986), rev’g Traynor v. Walters, 606 F.Supp. 391 (S.D.N.Y.1985). ically adverts to, or is even aware of them— just as a court necessarily “decides” all issues logically essential to the validity of its holding, whether or not it explicitly addresses or considers them. See, e.g., Illinois State Bd. of Elections v. Socialist Workers Party, 440 U.S. 173, 182-83 , 99 S.Ct. 983, 989 , 59 L.Ed.2d 230 (1979). I think § 211(a) uses the phrase “decisions of the Administrator” in this sense. It is a most unlikely
Since, however, the majority of the court has determined otherwise, I have joined in the court’s consideration of the merits, and concur in Parts I and III of the opinion.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9474918. Public record. Not legal advice.