stating that “[t]he terror of extreme 16 hypotheticals produces much bad law”
How later courts described this case
- stating that “[t]he terror of extreme 16 hypotheticals produces much bad law”
- stating that “[t]he terror of extreme hypotheticals produces much bad law”
- explaining Supreme Court’s holding in Johnson v. Robison, 415 U.S. 361, 94 S.Ct. 1160, 39 L.Ed.2d 389
- intimating that Marozsan's suit for $5 million and his failure to request a new hearing could amount to waiver
Written by the judges who cited it.
The opinion
RIPPLE, Circuit Judge,
dissenting in part and concurring in part.
I
The jurisdictional issue noted by Judge Posner in his concurring opinion cannot be overlooked. The amended complaint — the operative complaint at this stage of the litigation — requests only damages. The district court does not have jurisdiction to adjudicate the only claim presented by the amended complaint — a claim against the government for five-million dollars in damages. See 28 U.S.C. § 1346 (a)(2). Exclusive jurisdiction for claims against the United States in excess of ten-thousand dollars rests in the Claims Court. See 28 U.S.C. § 1491 .
Moreover, under the circumstances presented here, the amended complaint cannot be construed as requesting injunctive relief. A request for such relief was included in the initial complaint and dropped in this amended complaint. Nor do I believe that, under the circumstances here, we ought to permit an amendment to the complaint to include a claim for injunctive relief. Even if we assume, arguendo, that such amendment can be ordered by an appellate court, there are several reasons why it ought not be undertaken in this case. First, as noted above, the deletion of a claim for injunctive relief was a deliberate choice by the plaintiff. He included such a claim in his first complaint and then removed it in the later complaint. 1 Secondly, the unfocused, rambling presentation of the plaintiff’s submissions up to this point give us little hope that, if amendment is allowed, the plaintiff is able or willing to present to the district court the sort of carefully presented case necessary to permit adjudication of the allegations set out here.
In determining whether it is appropriate to hold that the district court had jurisdiction here, there is one additional factor that must be considered — evenhandedness in the application of jurisdictional standards. This court applies stringently jurisdictional standards. It is essential, I respectfully submit, that we be uniform in our application of those standards. The fact that this case has been heard en banc does not, of *1485 course, alter in any way our obligation to stay within the limits of our authority and to require that the district court do likewise. Accordingly, I would vacate the judgment of the district court and remand the case with instructions to dismiss the complaint.
II
Despite this significant jurisdictional problem, the court has decided to reach the merits of this case. I, therefore, must construe its action as a de facto amendment of the complaint to include a request for in-junctive relief. Under these circumstances, I am constrained to reach the merits. Here, I agree with Judge Posner that
[t]he statute confers finality on decisions by the Veterans’ Administration “on any question of law or fact under any law administered by the Veterans’ Administration providing benefits.” In other words, you cannot bring suit to overturn its decision on the ground that the decision violates or misapplies the Veterans’ Benefits Act. But you can bring suit under 28 U.S.C. § 1331 to set aside the decision on the ground that it violates the Constitution. The district court has no power to award damages or even benefits in such a suit but only to tell the Veterans’ Administration to reconsider its decision, this time in accordance with the Constitution. The supremacy of the Veterans’ Administration in determining the facts and law relating to the veteran’s claim is unimpaired by such an approach, and Rule 11 should deter disappointed claimants from attempting to transmute ordinary procedural challenges into constitutional ones.
Supra at 28-29 (Posner, J., concurring).
Finally, in my view, the majority’s discussion in Parts IV and V of its opinion, concerning the inherent power of the Article III courts to review administrative action, is not necessary to a decision in this case. This case presents no necessity to address broadly such an important constitutional issue. In Part III of the majority opinion, Judge Flaum convincingly demonstrates that neither the plain language of the statute nor its legislative history requires an interpretation that denies veterans any protection against unconstitutional misbehavior by the Veterans’ Administration. We cannot, therefore, presume that Congress meant to preclude such review. See Webster v. Doe, — U.S. -, -, 108 S.Ct. 2047, 2053-54 , 100 L.Ed.2d 632 (1988). If Congress had determined explicitly to treat the veteran in such a manner, we could then address the limits, if any, of Congress’ authority to preclude judicial review. Therefore, assuming arguendo that the court properly reaches the merits, I would join both the disposition ordered by the majority and its essential rationale.
. I agree with Judge Posner that, under the circumstances here, Rule 54(c) offers no solace to the plaintiff. He has considered — and de-dined — to ask for injunctive relief. See 10 C. Wright, A. Miller & M. Kane, Federal Practice and Procedure § 2662 at 131-33 (2d ed. 1983).