Petition for Writ of Certiorari — Zuspann v. Brown

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(\ | Supreme. Court, U.g.

J. FILED

No. OB°6 9 6o0cr 5 0 1995

OFFICE OF THE CLERK

In The

Supreme Court of the United States

October Term, 1995

GARY ZUSPANN,

Petitioner,

versus

JESSE BROWN, Secretary of Veterans Affairs,

WALLACE HOPKINS, DR. EDWARD YOUNG,

and DR. SUSAN MATHER,

Respondents.

Petition For Writ Of Certiorari

To The United States Court Of Appeals

For The Fifth Circuit

* —

PETITION FOR WRIT OF CERTIORARI

James E. WrEN Rosert L. McHAaney, Jr.

Laura E. Stitt 6613 Sanger Avenue

C. ALFRED MACKENZIE* Waco, Texas 76710

Harey & Davis, P.C. (817) 776-3611

510 North Valley Mills (817) 776-9217 FAX

Drive, Suite 600

Waco,. Texas 76710

(817) 776-3336

(817) 776-6823 FAX

Attorneys for the Petitioner

* Counsel of Record

COCKLE LAW BRIEF PRINTING CO., (800) 225-6964

OR CALL COLLECT (402) 342-2831

THE QUESTION PRESENTED FOR REVIEW

Whether the Veterans’ Judicial Review Act of 1988

precludes a veteran from challenging, in federal district

court, policies and procedures of the Department of Vet-

erans Affairs that violate the Rehabilitation Act of 1973

and the Due Process Clause of the Fifth Amendment to

the United States Constitution.

TABLE OF CONTENTS

Page

The Question Presented for Review................ i

Table oh COmeentes 6.06 ccdes cece ceiteedswensven eer ves ii

Table of Awthoettles 2. ccccccveseccsscvsatsvewes en Vv

Opinions Below .........cceccccccseccvecccvssecens 1

Statement of Jurisdiction. ....0ccccecvesuesertesses 1

Constitutional Provisions and Statutes Involved.... 1

Statement of Che Caee osc cccavevdveccetssacnyeneae 1

A. Summary of Material Facts.................. 2

1. History of Zuspann’s Illness............. 3

2. The Department’s Refusal to Provide Treat-

ment for Chemical Sensitivity ............. 5

3. Zuspann’s Entitlement to Medical Care..... 7

4. Zuspann Is an Individual With a Dis-

MMERY . . 5c ensviass vena eereneaeeeer ees 8

B. Trial Court Jurisdiction and Proceedings ..... 8

C. Decision of AGRE cn ncikcsdvcuvewedoreseeens 9

Reasons for Granting the Writ..............-..00.- 11

A. The Courts of Appeals Have Failed to Apply

the Standard Adopted by This Court in Traynor

v. Turnage to the Veterans’ Judicial Review Act

OF 1908 ciccicscccecsscan¥eaapeny eee 11

1. The Presumption in Favor of Judicial

BOVIS . 3 cv eccencundenshneeeeeeeeeene 11

2. History of the Judicial Review Preclusion

Provision

TABLE OF CONTENTS - Continued

Page

3. The Veterans’ Judicial Review Act of 1988. .

4. The Courts of Appeals for the Second and

Eighth Circuits Treat the VJRA as a Pre-

sumption Against Judicial Review........

5. The Court of Appeals in this Case Failed to

Consider Traynor v. Turnage..............

B. Zuspann’s Claims Under the Rehabilitation Act

of 1973 and the Due Process Clause of the Fifth

Amendment to the United States Constitution

Are Not Precluded by 38 U.S.C. § 511(a).....

1. Section 511(a) Does Not Bar Zuspann’s

Claims Against the Secretary.............

2. Zuspann’s Bivens Claims Against the Indi-

vidual Defendants Are Not Barred by the

PPh SUGCCh es becdudebencdvceeres ts es

C. The Issue in this Case is of Substantial Impor-

i er en vb et ssc eeewcrededeeens's

ne eeteeken

Appendix

Zuspann v. Brown, 60 F.3d 1156 (5th Cir. 1995). . App.

Zuspann v. Brown, 864 F.Supp. 17 (W.D. Tex.

ee Ceiba yee bide cevreevnesedeees App.

Judgment of Aug. 11, 1995 (Zuspann v. Brown),

No. 94-50698 (5th Cir. 1995) ................. App.

Sc ceyvacverreceervcces App.

PE cas au rhe bis cb ccdeernsnhnewes App.

8 Ee Sinko App.

TABLE OF CONTENTS - Continued

Page

Excerpt from the Explanatory Statement on

Compromise Agreement, 1988 U.S.C.C.A.N.

SG Bk 5 tena oss 0s Senedties hedes edeeeee App. 28

1970 Amendment to former 38 U.S.C. § 211(a),

Pub. L. No. 91-376, § 8(a), 84 Stat. 787, 790

ERar ee SE, UIE: nc 0.00-d uae copdecds doen App. 30

Excerpt from the Veterans’ Judicial Review Act

of 1988, Pub. L. No. 100-687, § 101, 102 Stat.

4105, 4105-06 (1988) (amended 1991)......... App. 31

TABLE OF AUTHORITIES

Page

Cases

Arnolds v. Veterans’ Administration, 507 F.Supp. 128

es PRY - Pri y p oer r iy alter ey 13, 14

Bivens v. Six Unknown Fed. Narcotics Agents, 403

U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971)

-2.Cbrne eres tedden ee URse reso ensetneidsewioes 9, 25, 26

Bush v. Lucas, 462 U.S. 367, 103 S.Ct. 2404, 76

Sn Gt RMR thd vod chs bans ceeeriedenedieen. 26

Consolidated Rail Corp. v. Darrone, 465 U.S. 624, 104

S.Ct. 1248, 79 L.Ed.2d 568 (1984).................. 27

Doe v. Attorney General, 941 F.2d 780 (9th Cir. 1990) .... 28

Dorsey v. United States Department of Labor, 41 F.3d

SOUS Gees Ree SUE 25 oi ve bee eeenei oer 28

Franklin v. Gwinnett County Public Schools, 503 U.S.

60, 112 S.Ct. 1028, 117 L.Ed.2d 208 (1992)......... 28

Guardians Ass'n v. Civil Service Comm’n of New

York, 463 U.S. 582, 103 S.Ct. 3221, 77 L.Ed.2d 866

CEE Sirdurcetissctectsec+i tee 27

Hicks v. Veterans’ Administration, 961 F.2d 1367 (8th

Ge SEE ech cov cect sxcde uote 19, 20, 21, 22

Johnson v. Robison, 415 U.S. 361, 94 S.Ct. 1160, 39

Re gs Re Pree er enn ys 12, 13

Larrabee by Jones v. Derwinski, 968 F.2d 1497 (2nd

Se BE oscintisaioien ee 19, 21, 22

Marozsan v. United States, 852 F.2d 1469 (7th Cir.

AEM ect BN oles OCR ey AL Rete IORL VIE iene: a ee OO

Moreno v. Consolidated Rail Corp., 63 F.3d 1404 (6th

ie YON cca ee 28

TABLE OF AUTHORITIES —- Continued

Starnes v. Schweiker, 715 F.2d 134 (4th Cir. 1983)..... 14

Sugrue v. Derwinski, 26 F.3d 8 (2nd Cir. 1994) ....20, 26

Thunder Basin Coal Co. v. Reich, __ U.S. __, 114

A. Fike Me Cee OU Gin sec scccecceeeunaes 27

Traynor v. Turnage, 485 U.S. 535, 108 S.Ct. 1372, 99

LGD GEE CRIDER, cc ccccccccvssessccennyscess passim

Zuspann v. Brown, 60 F.3d 1156 (5th Cir. 1995)

Scbchassassnnbatciuecikitenee 1, 10, 11, 21, 28

Zuspann v. Brown, 864 F.Supp. 17 (W.D. Tex. 1994) ...1, 9

CONSTITUTIONAL PROVISION

a, Cops, MEINE. FY sc os.c600000000un eee eS et

STATUTES

Be CBA... © IB «oso vdsvecccaduanessseceset eee 1

Be Cr & SIE. oc ccnsctcasniscertsvecsvans eee 9

Br. © TOG cao scces cetvesesndadenexisaneeee 9

De Alen BTR sé once cesessvecuesegninnckee een 8

(Bis Ce 2 Serre re rrr mires a. & 9.42

BP RI, © FOGR . cccscceccesssuandysaeavereeeiel 27, 28

oe WBA BSE) oes esiccscesdevwsdiosunee passim

Oe UA. | FUMG) 2 oc ccccccrescccassesasesensess passim

Se ce BH FG so x cccccccvescsscdvesuasbesesser tae 8

Be ee BE BGO 6 <000000cncevedatekseeuenaee aay ae

SO USL. © WFD... .c0cccceseccacsccncuns ere 8, 23

Vii

TABLE OF AUTHORITIES - Continued

Page

38 U.S.C. § 7101, et Glitheonseuerwesesdutee chase 7, 15

er ae Mae Suns erodes icoec cee 19

Oe ee ie Pe ccc iveers se cuecteleoe eer 20

ee ES Oe PE ea os Seta vale eys dekdccatela ies 19, 20

LEcIsLATIvE History

Explanatory Statement on Compromise Agree-

ment, 134 Conca. Rec. $16650 (daily ed. Oct. 18,

1988), reprinted in 1988 U.S.C.C.A.N. 5834...... 16-17

H.R. 5288, 100th Cong., 2d Sess. (1988), 134 Conc.

Rec. H9253 (daily ed. Oct. 3, 1988) ............ 15, 17

H.R. Rep. No. 963, 100th Cong., 2d Sess. 21 (1988),

reprinted in 1988 U.S.C.C.A.N. 5782............ 16, 20

S. 11, 100th Cong., 2d Sess. (1988), 134 Conc. Rec.

$9181 (daily ed. July 11, 1988).................... 15

S. Rep. No. 418, 100th Cong., 2d Sess. 51 (1988)..... 15

Senate Debate on Veterans’ Judicial Review Act,

134 Conca. Rec. $16632 (daily ed. Oct. 18, 1988) .... 17

Veterans’ Judicial Review Act of 1988, Pub. L. No.

100-687, 102 Stat. 4105 (1988).................. 18, 21

PETITION FOR WRIT OF CERTIORARI

Gary Zuspann, Petitioner, files this Petition for a Writ

of Certiorari to the United States Court of Appeals for the

Fifth Circuit.

OPINIONS BELOW

The opinion of the United States Court of Appeals for

the Fifth Circuit was delivered on August 11, 1995, and is

reported as Zuspann v. Brown, 60 F.3d 1156 (5th Cir. 1995).

(App. 1-11). The opinion of the United States District

Court for the Western District of Texas, Waco Division,

was delivered on September 13, 1994, and is reported as

Zuspann v. Brown, 864 F.Supp. 17 (W.D. Tex. 1994). (App.

12-20).

STATEMENT OF JURISDICTION

The judgment of the United States Court of Appeals

for the Fifth Circuit was entered on August 11, 1995.

(App. 21-22). No petition for rehearing was filed in the

court of appeals by any party. The Supreme Court of the

United States has jurisdiction to review the judgment of

the United States Court of Appeals for the Fifth Circuit

by writ of certiorari pursuant to 28 U.S.C. § 1254.

CONSTITUTIONAL PROVISIONS

AND STATUTES INVOLVED

(a) The Due Process Clause of the Fifth Amendment

to the United States Constitution:

...{[NJor shall any person . . . be deprived

of life, liberty, or property, without due pro-

cess of law;....

U.S. Const. amend V. (App. 23).

(b) The Rehabilitation Act of 1973:

No otherwise qualified individual with

a disability in the United States, as defined

in section 706(8) of this title, shall, solely by

reason of her or his disability, be excluded

from the participation in, be denied the ben-

efits of, or be subjected to discrimination

. under any program or activity con-

ducted by any Executive agency ....

29 U.S.C. § 794(a). (App. 23-26).

The Secretary shall decide all questions

of law and fact necessary to a decision by

the Secretary under a law that affects the

provision of benefits by the Secretary to

veterans or the dependents or survivors of

veterans. Subject to subsection (b), the deci-

sion 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 action in the nature of

mandamus or otherwise.

38 U.S.C. § 511(a). (App. 26-27).

STATEMENT OF THE CASE

A. Summary of Material Facts

Zuspann’s claims arise out of the Department's dis-

crimination against him in the provision of medical care

solely on the basis of a disability in violation of the

Rehabilitation Act of 1973 and the Due Process Clause of

the Fifth Amendment to the United States Constitution.

Zuspann was an otherwise qualified veteran eligible for

medical care by virtue of his service in the United States

Navy.

1. History of Zuspann’s Illness

During Operation Desert Storm Zuspann was a mess

cook on board the U.S.S. New Orleans, which was

anchored in the Persian Gulf. During the war Zuspann

and other members of the crew were exposed to smoke

and debris from burning oil wells. They also bathed in

and drank from water that had been pumped from the

Gulf, where large oil slicks were visible. In addition,

exhaust from a diesel-fueled generator permeated the

entire ship for approximately six months during a failure

of the ship’s main power supply. Zuspann’s job as a mess

cook required him to spend long periods of time below

deck, where diesel exhaust and other fumes, including

hydrogen sulfide gas and jet fuel vapors, were trapped as

a result of a ventilation system failure.

Following Zuspann’s tour of duty in the Persian

Gulf, he and other naval personnel on board the U.S:S.

New Orleans disembarked in the Philippines, where they

were ordered to assist in the clean up of ash and debris

from a recent volcanic eruption. Unlike the volunteers

from other organizations assisting with the clean up,

Zuspann and the other naval personnel were not pro-

vided with protective clothing, face masks, respirators, or

gloves to protect them from the volcanic ash that con-

tained dangerous quantities of silica dust. Zuspann was

then flown from the Philippines back to the mainland of

the United States.

Beginning on August 20, 1991, the day after he

returned to Texas, Zuspann sought medical treatment for

complaints of low back and neck pain, weight loss, head-

aches, chills, wheezing, shortness of breath, and cough-

ing. After receiving his formal discharge from the United

States Navy in September 1991, Zuspann took a job with

a company that placed him in its management training

program. Within a few weeks, however, his health deteri-

orated such that he was unable to drive himself to work,

often had to leave work because he was physically ill,

and was taken to an emergency room on several occa-

sions.

In January 1992 Zuspann collapsed and was taken to

an emergency room in Fort Worth, Texas, where he was

diagnosed as suffering from a severe asthma attack.

When his severe respiratory condition persisted, Zuspann

sought treatment from a clinic in Fort Worth that serves

as a Satellite facility of the Department of Veterans

Affairs. The physician at the satellite clinic prescribed

inhalers and steroids for Zuspann’s respiratory condition.

However, Zuspann suffered an allergic reaction to both

types of treatment.

In June 1992, after repeatedly requesting that the

Department evaluate and treat his medical condition,

Zuspann was reactivated for a medical evaluation. On

July 16, 1992, Zuspann was admitted to the Walter Reed

Army Medical Center in Washington D.C., where he

remained for extensive diagnostic evaluation until

August 18, 1992. Upon the recommendation of officials at

Walter Reed, Zuspann was then relieved from active duty

and transferred to Houston, Texas, for additional testing

and treatment in a Department hospital. From August 19,

1992, until October 7, 1992, Zuspann was hospitalized at

the Department of Veterans Affairs Medical Center in

Houston, one of three research centers designated by the

Department to study the conditions and complaints of

Persian Gulf veterans and staffed with physicians spe-

cializing in environmental illnesses, including chemical

sensitivity.

While Zuspann was hospitalized in Houston, the

Department retained Dr. Claudia Miller, a staff physician

employed by the University of Texas Health Science Cen-

ter at San Antonio, as a consultant to examine Zuspann

and evaluate his condition. Dr. Miller, a specialist in

environmental and occupational medicine, determined

that Zuspann’s symptoms were consistent with a disease

known as “chemical sensitivity.” Dr. Miller recommended

that Zuspann be tested in an environmental unit to iden-

tify the particular chemicals that triggered a reaction

from Zuspann and to determine whether exposure to

these chemicals could be eliminated.

Dr. Richard Hamill, the physician responsible for

Zuspann’s care at the Department hospital in Houston,

likewise diagnosed Zuspann as having symptoms consis-

tent with chemical sensitivity. Nevertheless, the Depart-

ment discharged Zuspann from the Houston hospital and

sent him home without treatment and without provisions

for further medical care.

2. The Department’s Refusal to Provide Treatment

for Chemical Sensitivity

The Department admits that there are many Persian

Gulf veterans who are ill and for whom no explanation

can be found for their symptoms, that it cannot rule out

chemical sensitivity as an explanation for the symptoms,

and that it has no recognized medical alternative to treat

these ailing Persian Gulf veterans. Dr. Susan Mather, a

Department physician in the environmental medicine and

public health division who was assigned by the Depart-

ment to the expert scientific panel investigating the com-

plaints of Persian Gulf veterans, reviewed Zuspann’s

medical history and the extensive diagnostic testing con-

ducted by the Department physicians in Houston.

Despite Dr. Miller’s initial diagnosis that Zuspann is

chemically sensitive, Dr. Hamill’s discharge diagnosis

that Zuspann’s symptoms are consistent with chemical

sensitivity, and Dr. Mather’s own concession that chemi-

cal sensitivity “appears to be descriptive of Mr.

Zuspann’s symptoms,” Dr. Mather concluded that chemi-

cal sensitivity “cannot be considered a ‘bona fide disease

entity.’ ” The Department’s subsequent refusal to provide

medical care to Zuspann has been based solely on this

official policy that chemical sensitivity is not a “bona

fide” disease rather than a determination that no treat-

ment is medically necessary to treat Zuspann’s symptoms

and condition. In essence, the Department has diagnosed

Zuspann with chemical sensitivity and then refused to

provide any treatment on the basis of that diagnosis.

That Zuspann’s complaint involves discrimination

rather than merely a medical determination or a disputed

denial of benefits is best exemplified by the actions of Dr.

Edward Young, the Chief of Staff at the Department

hospital in Houston and head of the Department’s medi-

cal referral center organized to investigate and treat Per-

sian Gulf veterans with illnesses similar to Zuspann’s. Dr.

Young publicly criticized Persian Gulf veterans for seek-

ing medical treatment of the symptoms and conditions

associated with chemical sensitivity and accused these

veterans of making “health complaints to get government

compensation.” When interviewed by a Birmingham News

reporter on the subject of illnesses that affected Persian

Gulf veterans, Dr. Young stated, “It really rankles me

when people stand up and call it ‘Persian Gulf Syn-

drome.’ To honor this thing with some name is ridicu-

lous.” Furthermore, Dr. Young told Zuspann that neither

he nor the Department of Veterans Affairs would provide

treatment for Zuspann’s condition.

3. Zuspann’s Entitlement to Medical Care

The Department initially rated Zuspann with a 70%

disability rating. After Zuspann filed his original com-

plaint, however, the Board of Veterans’ Appeals deter-

mined that Zuspann met the criteria for a 100% disability

rating and increased his service connected disability rat-

ing to 100%. See Decision of the Board of Veterans’

Appeals, Docket No. 93-12461 (March 2, 1994). Because

Zuspann has a service connected disability rated at 50%

or more, he is entitled to medical care, both hospital care

and outpatient care, for any disability from which he suf-

fers. 38 U.S.C. §§ 1710(a)(1)(D), 1712(a)(1)(B). Zuspann

has repeatedly requested that the Department provide

medical care for his symptoms and condition. But when

Zuspann has sought care at the Department's regional

hospital in Waco, Texas, he has been turned away without

treatment. For example, in March 1993, when Zuspann

had a severe reaction to talcum powder and requested

emergency medical care from the Department hospital in

Waco, he was told that he was “on his own.” When the

Department has refused to treat Zuspann, he has been

forced to seek medical care at a private hospital. At Tri-

City Hospital, Zuspann was diagnosed with and treated

for chemical sensitivity by physicians specializing in

environmental medicine. Even though Zuspann’s condi-

tion has improved while receiving treatment in an envi-

ronmental unit at Tri-City Hospital, the Department has

persistently refused to provide treatment. Although the

Secretary may contract with non-Department facilities to

furnish medical services when Department facilities are

not capable of furnishing the care or services required,

the Department has refused to issue a Fee Basis Medical

ID Card so that he could obtain his medical care from a

physician specializing in the treatment of environmental

illnesses, including chemical sensitivity, or in a facility

equipped with an environmental unit. See 38 U.S.C.

§ 1703(a)(2)(A). Finally, Zuspann requested, as a last

resort, that the Department provide him with basic treat-

ment for chemical sensitivity on an out-patient basis at

his home, which had been adapted to be as chemical free

as possible. See 38 U.S.C. § 1712. Again, the Department

refused. As a result, Zuspann has incurred more than

$400,000.00 in medical expenses for private health care.

4. Zuspann Is an Individual With a Disability

Zuspann is unable to care for himself, leave his

home, work, or engage in any recreational activity.

Because these impairments associate? with chemical sen-

sitivity have substantially limited’ »ne or more of

Zuspann’s major life activities, he is an “individual with a

disability” as defined by the Rehabilitation Act of 1973.

See 29 U.S.C. § 706(8)(B). Solely on the basis of chemical

sensitivity, which the Department concedes is descriptive

of Zuspann’s condition but which it refuses to recognize

as a disease, the Department has excluded Zuspann from

participation in, denied him the benefits of, and subjected

him to discrimination under its program for providing

medical care to otherwise qualified veterans. See 29

U.S.C. § 794(a).

B. Trial Court Jurisdiction and Proceedings

In February 1994 Zuspann sued Jesse Brown, the

Secretary of Veterans Affairs, Wallace Hopkins, Director

of the Department of Veterans Affairs Medical Center in

Waco, Dr. Edward Young, Chief of Staff at the Depart-

ment of Veterans Affairs Medical Center in Houston, and

Dr. Susan Mather, a Department physician in the office of

the Under Secretary for Health. Zuspann alleged in his

original complaint that the Secretary and the individual

Defendants discriminated against him in the provision of

medical care, to which he is entitled as a United States

veteran, in violation of section 504 of the Rehabilitation

Act of 1973, 29 U.S.C. § 794, and the Due Process Clause

of the Fifth Amendment to the United States Constitu-

tion. U.S. Const. amend. V. Zuspann also brought a Bivens

action against the individual Defendants for deprivation

of Zuspann’s constitutionally protected property interest

in the medical benefits to which he is entitled as an

otherwise qualified veteran. See Bivens v. Six Unknown

Fed. Narcotics Agents, 403 U.S. 388, 91 S.Ct. 1999, 29

L.Ed.2d 619 (1971). Zuspann sought declaratory relief,

compensatory and punitive damages, and attorneys’ fees.

The Secretary and the individual Defendants filed

motions to dismiss Zuspann’s claims. The district court

dismissed the case for lack of subject matter jurisdiction

and entered a final judgment against Zuspann. See

Zuspann v. Brown, 864 F.Supp. 17 (W.D. Tex. 1994). The

basis for federal jurisdiction in the United States District

Court for the Western District of Texas was 28 U.S.C.

§ 1331.

C. Decision on Appeal

Zuspann appealed the judgment of the district court

to the United States Court of Appeals for the Fifth Cir-

cuit. Appellate jurisdiction in the court of appeals was

proper under 28 U.S.C. § 1291. The court of appeals

affirmed the judgment of the district court on August 11,

1995, characterizing Zuspann’s action against the Secre-

tary and the individual Defendants as merely a complaint

“about a denial of benefits.”! By ignoring Zuspann’s

challenge to the Department’s policy of discrimination

against veterans solely on the basis of a disability, the

court of appeals concluded that the district court lacked

jurisdiction over Zuspann’s claims against the Secretary

and that Zuspann failed to state a claim upon which relief

could be granted against the individual Defendants.? See

1 Both the district court and the court of appeals erro-

neously concluded that Zuspann’s complaint “fails to specifi-

cally point to a policy or regulation that prevents [him] from

obtaining medical care.” See Zuspann, 60 F.3d at 1159; Zuspann,

864 F.Supp. at 21. Zuspann’s complaint and his responses to the

motions to dismiss all specifically point to the Department's

official refusal to recognize chemical sensitivity as the policy

that prevents him from obtaining medical care.

The “gravamen” of Zuspann’s complaint is not that the

Department denied any specifically requested medical treat-

ment. See Zuspann, 60 F.3d at 1159. Instead, Zuspann’s recitation

of his physical condition as described by Department physi-

cians, the various treatments recommended by the physicians

employed or retained by the Department, and the alternative

courses of action available to the Department merely exemplify

the Department’s incongruous official position that chemical

sensitivity simply is not a bona fide disease. And though

Zuspann’s original complaint may request some specific relief

beyond the scope of the district court’s jurisdiction, such a

request for relief should not divest the district court of jurisdic-

tion to hear Zuspann’s principal complaint — that the Depart-

ment’s policies and procedures, by which veterans whom it has

classified as chemically sensitive are discriminated against in

the provision of medical care, violate the Rehabilitation Act and

the Due Process Clause of the Fifth Amendment.

2 The Respondents’ legal analysis regarding subject matter

jurisdiction has likewise been based upon their mischaracteriza-

tion of Zuspann’s claims. Even the unartfully worded statement

in Zuspann’s response to the Secretary’s motion to dismiss,

cited by the Respondents and relied upon by both lower courts,

implicitly points to the Department's policy of discrimination:

Zuspann v. Brown, 60 F.3d 1156, 1159-61 (5th Cir. 1995).

Because the court of appeals erred in affirming the dis-

trict court’s dismissal of Zuspann’s claims under the

Rehabilitation Act and the Due Process Clause of the

Fifth Amendment, this Court should grant a Writ of Cer-

tiorari to the United States Court of Appeals for the Fifth

Circuit and review the dismissal of claims properly

brought by Zuspann in the United States District Court

for the Western District of Texas, Waco Division.

REASONS FOR GRANTING THE WRIT

A. The Courts of Appeals Have Failed to Apply the

Standard Adopted by This Court in Traynor v. Turn-

age to the Veterans’ Judicial Review Act of 1988

1. The Presumption in Favor of Judicial Review

In Traynor v. Turnage, 485 U.S. 535, 545, 108 S.Ct. 1372,

99 L.Ed.2d 618, 630 (1988), the Supreme Court held that

38 U.S.C. § 211(a) did not preclude judicial review of a

Veterans’ Administration regulation which allegedly vio-

lated section 504 of the Rehabilitation Act of 1973. As

stated by the Court in Traynor, the strong presumption in

Zuspann does not challenge V.A. regulations pertain-

ing to service connection or to service connected dis-

ability ratings. Zuspann does not seek a systematic

change in agency policies or regulations; rather,

Zuspann challenges the Department’s refusal to offi-

cially acknowledge chemical sensitivity and provide

him with the medical care that he is entitled to

receive, in violation of the Rehabilitation Act.

See Zuspann, 60 F.3d at 1159 n.18. In summary, Zuspann’s com-

plaint challenges the lawfulness and constitutionality of a

Department policy or procedure that does not involve a regula-

tion promulgated pursuant to any statute dealing with veterans’

benefits.

favor of judicial review of an administrative action may

be overcome only upon a showing of “clear and convinc-

ing evidence” of a contrary legislative intent. Traynor, 485

U.S. at 542. Therefore, the courts should look to such

evidence as “specific language or specific legislative his-

tory that is a reliable indicator of congressional intent,” or

a specific congressional intent to preclude judicial review

that is “fairly discernible in the detail of the legislative

scheme.” Id.

2. History of the Judicial Review Preclusion Provi-

sion

Throughout the history of the judicial review preclu-

sion provision, the language of section 211(a) has been

anything but unambiguous. In Johnson v. Robison, 415 U.S.

361, 94 S.Ct. 1160, 39 L.Ed.2d 389 (1974), the Supreme

Court concluded that section 211(a) did not explicitly bar

constitutional claims directed at veterans’ benefits legis-

lation. Section 211(a), as amended in 1970, precluded

judicial review of “the decisions of the Administrator on

any question of law or fact under any law administered

by the Veterans’ Administration providing benefits for

veterans.” See 38 U.S.C. § 211(a) (amended 1988). (App.

30). The Court determined that the prohibition of judicial

review was aimed at review only of those decisions of

law or fact that arise in the administration by the Veterans’

Administration of a statute providing benefits for vet-

erans. Johnson, 415 U.S. at 367. According to the Court,

the two primary purposes behind section 211(a) were: (1)

to insure that veterans’ benefits claims would not burden

the courts and the Veterans’ Administration with expen-

sive and time consuming litigation, and (2) to insure that

the technical and complex determinations and applica-

tions of Veterans’ Administration policy connected with

veterans’ benefits decisions would be adequately and

uniformly made. Id. at 370. The Court in Johnson held that

neither amended section 211(a) nor the legislative history

of the 1970 amendment suggested that Congress intended

to preclude judicial review of constitutional challenges to

veterans’ benefits legislation. Id. at 373.

As in Johnson, the Supreme Court in Traynor deter-

mined that section 211(a) insulated from judicial review

decisions of law and fact “under any law administered by

the Veterans’ Administration,” that is, “decisions made in

interpreting or applying a particular provision of that

statute to a particular set of facts.” Traynor, 485 U.S. at 543

(citing Johnson, 415 U.S. at 367). The Court recognized

that the Veterans’ Administration has no special expertise

in assessing the validity of its regulations construing

veterans’ benefits statutes under a statute of general

application such as the Rehabilitation Act. Id. at 544.

Further, the Court held that permitting a judicial chal-

lenge to a Veterans’ Administration regulation which vio-

lates the Rehabilitation Act would not undermine the two

primary purposes of section 211(a) any more than did the

result in Johnson. Id.

In Marozsan v. United States, 852 F.2d 1469 (7th Cir.

1988) (en banc), the Seventh Circuit extended the reason-

ing of Johnson and Traynor, holding that the courts “must

cr astrue section 211(a) to allow substantial constitutional

challenges [footnote omitted] to the veterans’ benefits

statutes and regulations, as well as to the procedures estab-

lished by the V.A. to administer them.” Id. at 1472 (emphasis

added); see also Arnolds v. Veterans’ Administration, 507

F.Supp. 128 (N.D. Ill. 1981) (section 211(a) does not bar

judicial review of constitutional challenges of regulations,

procedures, or policies of the Secretary). In Marozsan a

veteran challenged the constitutionality of procedures

utilized by the Veterans’ Administration in denying him

benefits. The Seventh Circuit noted that Marozsan did not

seek judicial review of the accuracy of the benefits deci-

sions made by the Administrator in his particular claim;

rather, Marozsan challenged the constitutionality of Vet-

erans’ Administration procedure. The court stated:

Marozsan properly asks us to review the

methods - not the decision — of the Administra-

tor. He claims that a federal executive agency

has acted outside its constitutional authority by

violating his right to due process. Marozsan’s

action therefore is not essentially a suit to

recover veterans’ benefits; “it is a suit to enforce

lawful conduct on the part of the [administra-

tor].” Starnes v. Schweiker, 715 F.2d 134, 141 (4th

Cir. 1983) (holding that section 1395ff of the

Social Security Act did not bar claims that the

Secretary’s reimbursement ceilings violated the

Constitution). When the issue is “not whether

the Administrator’s decision granting or deny-

ing benefits in a particular case was right or

wrong, but rather whether the Administrator

has acted consistently with his grant of author-

ity or had exceeded his authority and acted in

violation of veterans’ rights guaranteed by the

fifth amendment,” § 211(a) does not apply.

Arnolds v. Veterans’ Administration, 507 F. Supp.

128, 130-131 (N.D. Ill. 1981).

Marozsan, 852 F.2d at 1472.

Because section 211(a) was facially ambiguous, the

Seventh Circuit noted that it was possible to interpret the

statute in two ways: (1) broadly — as barring review of all

decisions of the Administrator or (2) narrowly —- as bar-

ring only those decisions of law or fact under veterans’

benefits laws. Id. at 1472-73. Relying on the Supreme

Court’s opinion in Traynor, the court held that the narrow

interpretation of section 211(a) is “not only viable, it is

required in order to avoid the serious constitutional ques-

tions necessarily raised by a broader construction of the

statute.” Id. at 1473.

3. The Veterans’ Judicial Review Act of 1988

The Secretary and the individual Defendants contend

that Congress intended to further restrict judicial review

of “decisions concerning veterans’ benefits” when it

enacted the Veterans’ Judicial Review Act of 1988

(“VJRA”), 38 U.S.C. § 7101, ef seq., which established an

adjudicatory procedure for the review of any “decision

by the Secretary under a law that affects the provision of

benefits.”

During the 100th Congress, the Senate Committee on

Veterans’ Affairs published Senate Report No. 100-418 to

express its view that “VA claimants in all parts of the

country should have uniform access to the judicial system

rather than having to litigate before various district

courts and appellate court panels the questions of

whether and to what extent section 211(a) operates as a

bar in a particular case.” S. Rep. No. 418, 100th Cong., 2d

Sess. 51 (1988). The Senate Committee was concerned that

the Supreme Court’s opinion in Traynor did not go far

enough to clarify the jurisdictional issue with regard to

challenges to a Veterans’ Administration regulation

under a law described in section 211. Id. at 52-53. Accord-

ingly, Senate Bill 11, which the Senate passed on July 11,

1988, precluded judicial review only of a disability rating

schedule issued or adopted by the Administrator. See S.

11, 100th Cong., 2d Sess. (1988), 134 Conc. Rec. $9181,

$9208 (daily ed. July 11, 1988).

Meanwhile, a separate bill was under consideration

in the House. See H.R. 5288, 100th Cong., 2d Sess. (1988),

134 Conc. Rec. H9253 (daily ed. Oct. 3, 1988). The report

accompanying House Bill 5288 favored a broader inter-

pretation of the judicial review preclusion provision,

while Senate Bill 11 maintained the narrow interpreta-

tion. See H.R. Rep. No. 963, 100th Cong., 2d Sess. 27

(1988), reprinted in 1988 U.S.C.C.A.N. 5782, 5809 (stating

that the “effect of [the House Amendment] is to broaden

the scope of section 211, so that if, for example, the

Administrator were to make a decision that a law pre-

cluding the provision of benefits to certain veterans did

not conflict with another law prohibiting discrimination

against disabled persons, that decision ‘affects’ the provi-

sion of benefits to such persons and could only be

reviewed in accordance with the provisions of section 223

or chapter 71”).

The Secretary and the individual Defendants would

have the Court's inquiry into the legislative history of the

VJRA begin and end with House Report 963. But as the

100th Congress drew to a close, Senator Cranston and

Representative Montgomery worked out a compromise

between Senate Bill 11 and House Bill 5288. The compro-

mise agreement submitted by the chairmen of the House

and Senate committees on Veterans’ Affairs in lieu of a

conference report did not adopt the broad view proposed

by House Bill 5288 as addressed in House Report 963. The

Explanatory Statement on Compromise Agreement

explains the provisions of the compromise agreement

which led to the enactment of the VJRA of 1988:

Compromise agreement: The compromise

agreement (section 101) contains the House pro-

vision with amendments (a) to clarify that the

requirement to make decisions and the general pre-

clusion of judicial review apply only to a decision by

the Administrator under a law that affects the provi-

sion of benefits by the Administrator; and (b) to

simile "alts

delete the amendment relating to the Attorney

General’s opinion.

134 Conca. Rec. $16650, $16651 (daily ed. Oct. 18, 1988),

reprinted in 1988 U.S.C.C.A.N. 5834, 5834 (emphasis

added). (App. 28-30).

Although the Explanatory Statement does not explain

exactly what is intended by the words, “under a law that

affects the provision of benefits by the Administrator,”

the final version of the Bill proposed by the compromise

agreement was narrower than that under the House ver-

sion. See id. As evidenced by the comments of Senator

Cranston when the compromise agreement was intro-

duced on the floor of the Senate, the Court of Veterans

Appeals would have exclusive jurisdiction of cases

involving decisions by the Administrator under a law

that affects the provision of benefits by the Veterans’

Administration. But because the new court's jurisdiction

was limited by the scope of section 211(a), “the establish-

ment of the new court would not affect an individual's

ability to bring any other type of challenge —- such as a

challenge to the lawfulness or constitutionality of VA action or

procedure not involving a VA rule or regulation or a chal-

lenge under the Freedom of Information Act or the Pri-

vacy Act or an equal opportunity challenge, to name a

few — through any judicial forum or process currently

available to an aggrieved party.” 134 Conc. Rec. $16632,

S16647 (daily ed. Oct. 18, 1988) (emphasis added).

Both houses passed the Veterans’ Judicial Review

Act, as proposed by the compromise agreement, and sec-

tion 211(a) was amended to read as follows:

(a)(1) The Administrator shall decide all

questions of law and fact necessary to a decision

by the Administrator under a law that affects

the provision of benefits by the Administrator to

——_Ea en

veterans or the dependents or survivors of vet-

erans. Subject to paragraph (2) of this subsec-

tion, the decision of the Administrator 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 otherwise.

Veterans’ Judicial Review Act of 1988, Pub. L. No.

100-687, 102 Stat. 4105, 4105-06 (1988) (amended 1991).

(App. 31-32).

Passage of the VJRA only after a compromise was

reached to resolve the differences between Senate Bill 11

and House Bill 5288 indicates that Congress rejected the

broad interpretation suggested by House Report 963 in

favor of the narrow interpretation described by the

Explanatory Statement on Compromise Agreement. Con-

gress’s adoption of a narrow construction of section

211(a) is consistent with the Supreme Court’s holding in

Traynor that the judicial review preclusion provision

applies only to “decisions made in interpreting or apply-

ing a particular provision of [the veterans’ benefits laws]

to a particular set of facts.” Traynor, 485 U.S. at 543;

Marozsan, 852 F.2d at 1473, n.11. Because neither the text

nor the legislative history of section 211(a) provides the

“clear and convincing evidence” of congressional intent

necessary to overcome the presumption in favor of judi-

cial review of administrative action, section 211(a), and

its successor, section 511(a),2 should not be construed to

preclude judicial review of Department policies and pro-

cedures that violate the Rehabilitation Act and the Due

3 38 U.S.C. § 211(a) was recodified in 1991 as 38 U.S.C.

§ 511. See Department of Veterans Affairs Codification Act, Pub.

L. No. 102-83, § 2(a), 105 Stat. 378, 388-89 (1991).

Process Clause of the Fifth Amendment. See Traynor, 485

U.S. at 542.

4. The Courts of Appeals for the Second and

Eighth Circuits Treat the VJRA as a Presump-

tion Against Judicial Review

The Secretary and the individual Defendants rely

upon Hicks v. Veterans’ Administration, 961 F.2d 1367 (8th

Cir. 1992), and Larrabee by Jones v. Derwinski, 968 F.2d 1497

(2nd Cir. 1992), in support of their argument that Con-

gress intended the broader interpretation of section

511(a). In Hicks the Eighth Circuit held that section 511(a)

precluded a constitutional claim in the district courts

Hicks, 961 F.2d at 1370. The court based its conclusion on

the grant of exclusive jurisdiction in 38 U.S.C. § 7292(c) to

the Federal Circuit “to interpret constitutional and statu-

tory provisions, to the extent presented and necessary to a

decision” and the provision in section 7292(d)(1) that the

Federal Circuit “shall decide all relevant questions of law,

including interpreting constitutional and statutory provi-

sions.” See Hicks, 961 F.2d at 1369 (emphasis added). The

court’s conclusion, however, begs the question of whether

a constitutional claim involves a question that is “neces-

sary to a decision by the Secretary under a law that

affects the provision of benefits by the Secretary to vet-

erans.” See 38 U.S.C. § 511(a). If a claim does not fall!

within the Secretary’s exclusive authority to decide “all

questions of law or fact necessary to a decision by the

Secretary under a law that affects the provision of bene-

fits,” neither the Board of Veterans’ Appeals, the Court of

Veterans Appeals, nor the Court of Appeals for the Fed-

eral Circuit has any jurisdiction to review such a claim.

See 38 U.S.C. § 7104(a) (the Board of Veterans’ Appeals

has jurisdiction to review all questions in a matter which

under section 511(a) is subject to decision by the Secre-

tary); 38 U.S.C. § 7252(a) (the Court of Veterans Appeals

shall have exclusive jurisdiction to review decisions of

the Board of Veterans’ Appeals); 38 U.S.C. § 7292(a) (the

Federal Circuit may review decisions of the Court of

Veterans Appeals). The court in Hicks completely ignored

the Supreme Court’s opinion in Traynor and never

addressed the effect of the 1988 amendment on the scope

of judicial review. See Hicks, 961 F.2d 1369-70. As a result,

the Eighth Circuit failed to apply the presumption in

favor of judicial review of administrative action. See

Traynor, 485 U.S. at 542.

In concluding that the VJRA broadened the judicial

review preclusion provision, the Second Circuit erro-

neously relied upon House Report 963 instead of the

Explanatory Statement on Compromise Agreement. See

Jones, 968 F.2d at 1500-01 (citing H.R. Rep. No. 963 as

evidencing Congress’ concern that “the Court’s opinion

in Traynor would inevitably lead to increased involve-

ment of the judiciary in technical VA decision-making”).

The court in Jones concluded that Congress intended to

preclude judicial review of the substantive and pro-

cedural due process claims raised in that case despite its

characterization of the 1970 version of section 211(a) as

substantially similar to the current section 511(a). Id. at

1500; see also Sugrue v. Derwinski, 26 F.3d 8, 11 n.2 (2nd

Cir. 1994), cert. denied, __ U.S. __, 115 S.Ct. 2245, 132

L.Ed.2d 254 (1995).

5. The Court of Appeals in this Case Failed to

Consider Traynor v. Turnage

The Secretary and the individual Defendants argue

that the district court has no jurisdiction to entertain

cases such as this because section 511(a) requires all

questions of law or fact, regardless of whether they arise

under a law that affects the provision of benefits, to be

decided by the Secretary, with any appeal to be pursued

according to the procedures established by the VJRA.

And the court of appeals in this case, without any refer-

ence to this Court’s opinion in Traynor, concluded that the

district court lacked subject matter jurisdiction to con-

sider Zuspann’s complaints against the Secretary. See

Zuspann, 60 F.3d at 1159-60 (citing Sugrue, 26 F.3d at

10-11; Jones, 968 F.2d at 1499-1501; Hicks, 961 F.2d at 1369).

But because neither the text nor the legislative history of

the VJRA provides clear and convincing evidence that

Congress intended to preclude judicial review of the

Department's discrimination against veterans solely on

the basis of a disability in violation of the Rehabilitation

Act and the Due Process Clause of the Fifth Amendment,

the court of appeals erred in concluding that section

511(a) bars Zuspann’s claims against the Secretary and

the individual Defendants.

The failure of the court of appeals to properly exam-

ine the text and legislative history of the Veterans’ Judi-

cial Review Act of 1988 for “clear and convincing

evidence” that Congress intended to further restrict the

district court’s jurisdiction to hear challenges to the law-

fulness or constitutionality of the Department's policies

or procedures, particularly claims which do not involve a

regulation promulgated pursuant to any statute dealing

with veterans’ benefits, makes this an appropriate case to

review the scope of the current judicial review preclusion

provision.

B. Zuspann’s Claims Under the Rehabilitation Act of

1973 and the Due Process Clause of the Fifth

Amendment to the United States Constitution Are

Not Precluded by 38 U.S.C. § 511(a)

The Secretary and the individual Defendants argue

that 38 U.S.C. § 511(a) gives the Secretary exclusive juris-

diction to decide all questions of law and fact necessary

to a decision by the Secretary, regardless of whether they

arise under a law that affects the provision of benefits by

the Secretary to veterans.

1. Section 511(a) Does Not Bar Zuspann’s Claims

Against the Secretary

Section 511(a) provides:

(a) The Secretary shall decide all questions of

law and fact necessary to a decision by the

Secretary under a law that affects the provision

of benefits by the Secretary to veterans or the

dependents or survivors of veterans. Subject to

subsection (b), 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 otherwise.

38 U.S.C. § 511(a). (App. 26).

None of the exceptions in section 511(b) gives the

district court jurisdiction in this case. The crucial inquiry,

consequently, is whether Zuspann’s complaint challenges

“a decision by the Secretary under a law that affects the

provision of benefits by the Secretary to veterans... .”

See Jones, 968 F.2d at 1499; Hicks, 961 F.2d at 1369-70.

Zuspann does not challenge a decision by the Secretary

“under a law that affects the provision of benefits by the

Secretary to veterans.” Based upon “the decision by the

Secretary” that Zuspann has a service connected disabil-

ity rated at 50% or more, there is no dispute that Zuspann

is entitled to medical care for any disability from which

he suffers under the “law that affects the provision of

benefits.” See 38 U.S.C. §§ 1710(a)(1)(D), 1712(a)(1)(B).

And Zuspann does not dispute the Department's diag-

nosis of his condition. Instead, Zuspann complains that,

solely on the basis of a disability covered by the Reha-

bilitation Act, the Department has excluded him from

participation in, denied him the benefits of, and subjected

him to discrimination under its program for providing

medical care to otherwise qualified veterans. See 29

U.S.C. § 794. (App. 23-26). Furthermore, Zuspann com-

plains that such discrimination has arbitrarily and capri-

ciously denied him of a constitutionally protected

property interest in violation of the Due Process Clause of

the Fifth Amendment. U.S. Const. amend V. (App. 23).

Section 504 of the Rehabilitation Act prohibits an

executive department of the United States government

from discriminating against an otherwise qualified indi-

vidual solely on the basis of a disability. 29 U.S.C.

§ 794(a). Specifically, the Department of Veterans Affairs

may not discriminate against an otherwise qualified vet-

eran in the provision of medical care solely on the basis

of a disability covered by the Rehabilitation Act. The

Secretary’s and the individual Defendants’ discrimination

against Zuspann in the provision of medical care solely

on the basis of its diagnosis of Zuspann as chemically

sensitive violates the Rehabilitation Act. In addition, such

discrimination has arbitrarily and capriciously denied

Zuspann of a constitutionally protected property interest

in violation of the Due Process Clause of the Fifth

Amendment.

Zuspann’s complaint, challenging the Department's

discrimination against him solely on the basis of a dis-

ability covered by the Rehabilitation Act and in violation

of the Due Process Clause of the Fifth Amendment, fits

squarely within the narrow interpretation followed by the

Supreme Court in Traynor and expressed by Congress in

its passage of the VJRA following the compromise agree-

ment. Zuspann does not scek review of the statutes or

regulations that entitle him to medical care necessary to

treat any condition from which he suffers or the Secre-

tary’s decision regarding his service connected disability

rating. Instead, Zuspann challenges, as did the veterans

in Traynor and Marozsan, the Secretary’s and the individ-

ual Defendants’ policies and procedures that discriminate

against him in violation of the Rehabilitation Act and the

Due Process Clause of the Fifth Amendment.

The Secretary and the individual Defendants charac-

terize Zuspann’s claims as involving a determination of

veterans’ benefits. Zuspann’s complaint, however, does

not necessitate a review of the statutory benefits scheme

or of his service connected disability rating because the

Secretary has already determined that Zuspann is entitled

to benefits. An attempt to characterize the Department's

refusal to recognize chemical sensitivity as a medical

determination likewise begs the question raised by

Zuspann’s complaint. Three physicians, either employed

or retained by the Department of Veterans Affairs, exam-

ined Zuspann and determined that his condition is con-

sistent with a diagnosis of chemical sensitivity. The

Secretary does not dispute the diagnosis by the Depart-

ment physicians. Instead, the Department refuses to rec-

ognize chemical sensitivity as a bona fide disease. But

because Zuspann is an otherwise qualified veteran with a

disability rated at 50% or more by the Secretary, how the

Department chooses to describe Zuspann’s condition is of

no consequence. Under the statutes governing veterans’

benefits, Zuspann is entitled to medical treatment for any

condition from which he suffers. While Zuspann is not

entitled to second-guess the diagnosis of Department

physicians, to choose the appropriate medication, or even

to demand treatment in a particular type of facility, he

does retain the right, notwithstanding section 511(a), to

complain in federal district court that the Secretary has

unlawfully discriminated against him by adopting a pol-

icy that the Department does not recognize the condition

which its physicians have diagnosed him with. It is the

Department’s procedure by which it arbitrarily excludes

veterans whom it has classified as having symptoms

associated with chemical sensitivity from participation in

its program of providing medical care, rather than a

decision to deny a particular medical treatment to

Zuspann, that constitutes a reviewable violation of the

Rehabilitation Act and the Due Process Clause of the

Fifth Amendment. See Marozsan, 852 F.2d at 1472 (holding

that a suit seeking review of the methods - rather than

the decision -— of the Administrator is not essentially a

suit to recover veterans’ benefits). Because Zuspann’s

complaint raises questions of law and fact, not under “a

law that affects the provision of benefits,” but under the

Rehabilitation Act and the Due Process Clause of the

Fifth Amendment, section 511(a) does not preclude the

district court from assuming jurisdiction over this case.

2. Zuspann’s Bivens Claims Against the Individual

Defendants Are Not Barred by the VJRA

Although the district court failed to exercise its sub-

ject matter jurisdiction to determine whether Zuspann

had a constitutional claim against the individual Defen-

dants, the court of appeals held that Zuspann failed to

state a claim upon which relief could be granted against

the individual Defendants. Bivens v. Six Unknown Fed.

Narcotics Agents, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d

619 (1971). Because Zuspann’s claims do not fall within

the scope of section 511(a) or the “exclusive review pro-

cedure for decisions involving veterans’ benefits deter-

minations,” there is no “congressional determination

foreclosing” Zuspann’s Bivens action. See Bush v. Lucas,

462 U.S. 367, 377-78, 103 S.Ct. 2404, 76 L.Ed.2d 648 (1983).

Unlike the claims raised in Sugrue, Zuspann’s complaint

against the individual Defendants is not based upon their

acts or omissions concerning the assignment of a disabil-

ity rating or the level of benefits to which he is entitled.

See Sugrue, 26 F.3d at 12. And because there are no

“special factors counselling hesitation” against recogni-

tion of Zuspann’s Bivens action, the lower courts erred in

dismissing his complaint against the individual Defen-

dants. See Bivens, 403 U.S. at 396.

C. The Issue in this Case is of Substantial Importance

to All Veterans

As in Traynor v. Turnage, this Court is being asked to

consider the district court’s jurisdiction to determine

whether a Department policy or procedure, which does

not involve a question of law or fact arising under a

veterans’ benefits statute or a regulation promulgated

pursuant to such a statute, violates section 504 of the

Rehabilitation Act of 1973. This issue is of substantial

importance to all veterans because the Secretary con-

tinues to take the position that all challenges to the

Department's actions, regardless of whether they arise

under a law that affects the provision of benefits, must be

pursued according to the procedures established by the

Veterans’ Judicial Review Act of 1988.

As the Supreme Court recognized in Thunder Basin

Coal Co. v. Reich, __ U.S. __, 114 S.Ct. 771, 779, 127

L.Ed.2d 29 (1994), the district court retains jurisdiction

over claims considered “wholly collateral” to a statute’s

judicial review preclusion provisions and outside the

agency’s expertise, particularly where a finding of preclu-

sion could foreclose all meaningful judicial review. In

addition to declaratory relief, Zuspann is seeking com-

pensation for his medical expenses, damages for his pain

and suffering, punitive damages, and attorneys’ fees.

Even if Zuspann’s complaint challenged a decision by the

Secretary under a law that affects the provision of bene-

fits, an administrative appeal under the procedures estab-

lished by the VJRA would entitle Zuspann only to a

judicial declaration that the Department's refusal to rec-

ognize chemical sensitivity was unlawful or unconstitu-

tional.

Under the Rehabilitation Act, the remedies, pro-

cedures, and rights set forth in Title VI of the Civil Rights

Act of 1964 are available to any person aggrieved by any

act or failure to act by any Federal provider of assistance

under section 794. See 29 U.S.C. § 794a. In Consolidated

Rail Corp. v. Darrone, 465 U.S. 624, 630-31, 104 S.Ct. 1248,

79 L.Ed.2d 568 (1984), the Court held that the 1978

amendment to the Rehabilitation Act of 1973, which

expressly incorporated the remedies set forth in Title VI,

authorizes an award of backpay. Likewise, a majority of

the Court in Guardians Ass’n v. Civil Service Comm'n of

New York, 463 U.S. 582, 103 S.Ct. 3221, 77 L.Ed.2d 866

(1983), agreed that retroactive relief is available to private

plaintiffs for all discrimination, whether intentional or

unintentional, that is actionable under Title VI. See also

Franklin v. Gwinnett County Public Schools, 503 U.S. 60, 112

S.Ct. 1028, 117 L.Ed.2d 208 (1992). And in Doe v. Attorney

General, 941 F.2d 780, 789 (9th Cir. 1990), the Ninth Circuit

recognized a private right of action for monetary dam-

ages against the federal government for violating section

504 of the Rehabilitation Act. Contra Dorsey v. United

States Department of Labor, 41 F.3d 1551 (D.C. Cir. 1994).

Furthermore, the Sixth Circuit recently held that punitive

damages are an available remedy under section 504 of the

Rehabilitation Act. Moreno v. Consolidated Rail Corp., 63

F.3d 1404, 1418 (6th Cir. 1995). Finally, 29 U.S.C. § 794a(b)

expressly authorizes the court to award reasonable attor-

neys’ fees to the prevailing party (other than the United

States) in any action or proceeding to enforce or charge a

violation of the Rehabilitation Act. In light of the dam-

ages caused by the Department’s unlawful and uncon-

stitutional discrimination against Zuspann and the

remedies available under the Rehabilitation Act, an

administrative appeal would afford no meaningful

review to Zuspann.

Although the Secretary and the individual Defen-

dants have produced no “clear and convincing evidence”

that Congress intended to preclude judicial review of the

Department’s unlawful and unconstitutional discrimina-

tion against otherwise qualified veterans, the lower

courts continue to characterize veterans’ complaints

against the Department of Veterans Affairs, regardless of

whether they involve questions of law or fact arising

under a law that affects the provision of benefits, as

merely benefits determination cases over which the dis-

trict courts have no jurisdiction. See Zuspann, 60 F.3d at

1158-59. In this case, despite the Department’s favorable

benefits determination that Zuspann has a service-con-

nected disability rated at 50% or more and is thus entitled

to medical care for any disability from which he suffers,

the Secretary and the individual Defendants have inten-

tionally discriminated against Zuspann in the provision

of benefits to which he is entitled as an otherwise quali-

fied veteran.

The scope of the current judicial review preclusion

provision has not been settled by this Court since Con-

gress enacted the Veterans’ Judicial Review Act of 1988.

Because the district court’s jurisdiction to hear claims that

Congress did not intend to preclude is of substantial

importance to all veterans, the scope of section 511(a) is

an important question of feceral law that should be set-

tled by the Supreme Court.

CONCLUSION

Zuspann’s petition for writ of certiorari should be

granted because the court of appeals erred in concluding

that his claims under the Rehabilitation Act and the Due

Process Clause of the Fifth Amendment were precluded

by 38 U.S.C. § 511(a). Neither the text nor the legislative

history of the Veterans’ Judicial Review Act of 1988 pro-

vides the “clear and convincing” evidence of congres-

sional intent required by this Court before a statute will

be construed to restrict access to judicial review of

administrative action. See Traynor, 485 U.S. at 542.

Accordingly, Zuspann’s claims that the Secretary and the

individual Defendants have discriminated against him in

the provision of medical care solely on the basis of a

disability in violation of the Rehabilitation Act of 1973

and denied him of a constitutionally protected property

interest in violation of the Due Process Clause of the Fifth

Amendment to the United States Constitution are not

precluded from judicial review in the district court by 38

U.S.C. § 511(a). Because the court of appeals in this case

erred in concluding that the Veterans’ Judicial Review Act

of 1988 precludes Zuspann from challenging, in federal

district court, policies and procedures of the Department

of Veterans Affairs that violate the Rehabilitation Act of

1973 and the Due Process Clause of the Fifth Amendment

to the United States Constitution, and because the scope

of the judicial review preclusion provision of section

511(a) is of substantial importance to all veterans,

Zuspann respectfully prays that this Court grant this

petition for writ of certiorari.

Respectfully submitted,

James E. Wren

State Bar of Texas No. 22018200

Laura E. Stitt

State Bar of Texas No. 19238320

C. ALFRED MACKENZzIE*

State Bar of Texas No. 12761550

Harey & Davis, P.C.

510 North Valley Mills Drive,

Suite 600

Waco, Texas 76710

(817) 776-3336

(817) 776-6823 FAX

and

Rosert L. McHAney, Jr.

State Bar of Texas No. 13670200

6613 Sanger Avenue

Waco, Texas 76710

(817) 776-3611

(817) 776-9217 FAX

Attorneys for the Petitioner,

Gary Zuspann

*Counsel of Record

App. 1

Gary ZUSPANN, Plaintiff-Appellant,

Vv.

Jesse BROWN, Secretary of the

Department of Veterans Affairs,

et al., Defendants-Appellees.

No. 94-50698.

United States Court of Appeals,

Fifth Circuit.

Aug. 11, 1995.

Appeal from the United States District Court for the

Western District of Texas.

Before WISDOM, GARWOOD and DAVIS, Circuit

Judges.

WISDOM, Circuit Judge:

The plaintiff/appellant, Gary Zuspann, appeals from

the district court’s dismissal of his cause of action. We

affirm.

Gary Zuspann served as a Navy cook on the U.S.S.

New Orleans during the war in the Persian Gulf. While

the ship was anchored in the Persian Gulf, Zuspann was

exposed to a variety of pollutants: smoke and debris from

oil wells burning nearby, oil-contaminated water from the

Gulf, and exhaust fumes from the ship’s generator. After

his tour of duty in the Persian Gulf, Zuspann went to the

Philippines, where he came into contact with silica-con-

taining volcanic ash while helping to clean up after a

volcanic eruption.

App. 2

When Zuspann returned to the United States, he

began to suffer neck and back pain, weight loss, head-

aches, and respiratory problems. He has been unable to

hold a civilian job due to his ailments. After treatment

failed at two Veterans’ Administration (VA) facilities,

Zuspann was transferred to a research center in Houston

that specializes in the complaints of Persian Gulf vet-

erans. Having been given a 70 percent disability rating,

Zuspann qualified for treatment.

Two private physicians in Houston concluded that

Zuspann’s symptoms were consistent with a condition

called “chemical sensitivity”. One recommended that

Zuspann be tested in an “environmental unit” to deter-

mine which chemicals caused Zuspann difficulty. Dr.

Susan Mather, the Department physician in charge of

investigating complaints of Persian Gulf veterans, con-

cluded that “chemical sensitivity” was not the correct

diagnosis for Zuspann’s condition. In Dr. Mather’s opin-

ion, “chemical sensitivity” is not a true medical condi-

tion. Based on Dr. Mather’s diagnosis, the Department

decided to deny Zuspann treatment in an environmental

unit. The VA discharged Zuspann and refused him addi-

tional treatment. Since his discharge, Zuspann has

amassed $400,000 in medical bills.

Zuspann brought suit in federal district court against

four defendants in their capacities as VA officials: Jesse

Brown, Wallace Hopkins, Dr. Susan Mather, and Dr.

Edward Young. Zuspann alleged that the defendants

denied him adequate medical care in violation of the

ee ————————— <<

App. 3

Rehabilitation Act of 1972! and the Due Process Clause of

the Fifth Amendment. Zuspann also brought a Bivens?

action against three of the defendants in their individual

capacities, Hopkins, Mather, and Young, alleging that

they denied him a constitutionally protected property

| interest in his medical benefits as a veteran. The defen-

dants filed motions to dismiss the complaint for failure to

state a claim upon which relief can be granted and for

lack of subject matter jurisdiction under 38 U.S.C.

§ 511(a). The district court dismissed Zuspann’s suit

without prejudice, and Zuspann appeals.

Zuspann’s first argument on appeal challenges the

district court’s dismissal under § 511(a) of his actions

under the Fifth Amendment and the Rehabilitation Act.

We review de novo the district court’s dismissal for lack

of subject matter jurisdiction.

To determine whether the district court correctly dis-

missed this case under § 511(a), we ask one question:

whether the plaintiff is alleging a facial attack on the

constitutionality of an act of Congress, or whether the

plaintiff is challenging the VA's decision to deny him

benefits. If Zuspann makes a facial challenge to a statute,

1 29 U.S.C. §§ 701-797(b) (1985).

2 In Bivens v. Six Unknown Named Federal Narcotics Agents,

403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971), the Supreme

Court established that the Constitution, in some circumstances,

may support private causes of action against federal officials for

constitutional torts.

3 Herbert v. United States, 53 F.3d 720, 722 (5th Cir.1995).

App. 4

then the district court has jurisdiction to hear his case. If,

on the other hand, Zuspann challenges the VA’s decision

to deny him benefits, the district court does not have

jurisdiction and properly dismissed his complaint. We

hold that the district court has no jurisdiction over

Zuspann’s action against the defendants in their official

capacities for alleged violations of the Rehabilitation Act

and the Fifth Amendment.

Federal courts are courts of limited jurisdiction. Sec-

tion 511 of Title 38, formerly § 211, precludes judicial

review of veterans’ benefits determinations. The 1970

version of § 211(a) provided that:

the decisions of the Administrator on any ques-

tion of law or fact under any law administered

by the Veteran’s Administration providing bene-

fits for veterans and their dependents or sur-

vivors 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 Johnson v. Robinson,5 the Supreme Court held that

§ 211(a) precluded judicial review of decisions “made by

the Administrator in the interpretation or application of a

particular provision of the statute to a particular set of

facts”, but did not preclude review of the very statute

itself.6 Under Johnson, this Court has held that § 211 does

4 38 U.S.C. § 211(a), (quoted in Johnson v. Robison, 415 U.S.

361, 365 n. 5, 94 S.Ct. 1160, 1165 n. 5, 39 L.Ed.2d 389 (1974)).

5 415 U.S. 361, 94 S.Ct. 1160, 39 L.Ed.2d 389 (1974).

6 Id. at 367, 94 S.Ct. at 1165-66.

App. 5

not bar suits in federal district court challenging the

constitutionality of the statutes underlying the veterans’

benefits program, but that § 211 does bar challenges to

individual benefits determinations.”

The current version of § 511 provides:

The Secretary shall decide all questions of law

and fact necessary to a decision by the Secretary

under a law that affects the provision of benefits

by the Secretary to veterans or the dependents

or survivors of veterans. Subject to [the excep-

tions listed in] subsection (b), 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 otherwise.®

In 1988, Congress passed the Veterans’ Judicial

Review Act (“VJRA”),? which clearly announced the

intent of Congress to preclude review of benefits deter-

minations in federal district courts. The VJRA also cre-

ated an exclusive review procedure by which veterans

may resolve their disagreements with the Department of

Veterans Affairs. The VJRA allows veterans to appeal

benefits determinations to the Board of Veterans’

Appeals.'° Jurisdiction to review the Board’s decisions is

conferred exclusively on the Court of Veterans Appeals.!!

” Anderson v. Veterans Administration, 559 F.2d 935, 936 (5th

Cir.1977).

8 38 U.S.C. § 511(a) (1991).

9 38 U.S.C. § 7251 (1991).

10 38 U.S.C. § 7104(a) (1995).

11 38 U.S.C. §§ 7252(a), 7266(a) (1995).

App. 6

The United States Court of Appeals for the Federal Cir-

cuit has exclusive jurisdiction to review the decisions of

the Court of Veterans Appeals.!2 Congress expressly gave

the Federal Circuit Court of Appeals “exclusive jurisdic-

tion” to “interpret constitutional and statutory provi-

sions, to the extent presented and necessary to a

decision” .13

Since the enactment of the VJRA, federal courts have

refused to entertain constitutional claims if they are

based on the VA’s actions in a particular case.!4

Our inquiry in this case focuses on whether

Zuspann’s complaint challenges the VA’s decision to

deny him benefits, or whether it makes a facial challenge

to an act of Congress. The district court concluded that

Zuspann did not make a facial attack, but instead merely

was “complaining about a denial of benefits”.15 We agree

with the district court.

Although Zuspann attempts to fashion his complaint

in constitutional terms, his complaint is an individualized

challenge to the VA’s decision to deny him benefits. The

gravamen of Zuspann’s complaint is that he requested a

chemical free living area, but the VA decided not to

12 38 U.S.C. § 7292 (1991).

13 38 U.S.C. § 7292(c) (1991).

14 Sugrue v. Derwinski, 26 F.3d 8, 10-11 (2d Cir.1994), cert.

denied, ___ ~U.S. __, 115 S.Ct. 2245, 132 L.Ed.2d 254 (1995);

Larrabee by Jones v. Derwinski, 968 F.2d 1497, 1499-1501 (2d

Cir.1992); Hicks v. Veterans Administration, 961 F.2d 1367, 1369

(8th Cir.1992).

15 Zuspann v. Brown, 864 F.Supp. 17, 21 (W.D.Tex.1994).

App. 7

provide one. Zuspann’s complaint seeks a judicial decla-

ration that he is handicapped by chemical sensitivity and

that the VA is required to provide him with a chemical

free living environment. Based on the VA's allegedly erro-

neous decision to deny him benefits, Zuspann seeks com-

pensation for his medical bills, damages for his pain and

suffering, punitive damages, and attorney’s fees.

Zuspann’s complaint frames his contentions as violations

of the Rehabilitation Act and the Fifth Amendment, but

federal district courts “do not acquire jurisdiction to hear

challenges to benefits determinations merely because

those challenges are cloaked in constitutional terms”.16

Zuspann also asserts in his complaint that he is chal-

lenging the policies and regulations of the secretary, but

we agree with the district court that he “fails to speci-

fically point to a policy or regulation that prevents [him]

from obtaining medical care”.!7 Indeed, Zuspann

responded to the defendants’ motion to dismiss the com-

plaint by arguing that he “[did] not seek a systematic

change in agency, policies or regulations”.18 Instead,

Zuspann challenged the individual denial of benefits in

his case. That Zuspann couches his challenge to the bene-

fits determination in constitutional terms does not

16 Sugrue, 26 F.3d at 11.

17 Zuspann, 864 F.Supp. at 21.

8 Zuspann argued that he “[did] not seek a systematic

change in agency policies or regulations; rather, Zuspann chal-

lenges the Department's refusal to officially acknowledge chem-

ical sensitivity and provide him the medical care he is entitled to

receive, in violation of the Rehabilitation Act”. Record at 263.

App. 8

remove it from § 511’s preclusion of judicial review of

benefits decisions.!9

Whether the benefits determination made in this case

was right or wrong is not the issue in this case. The issue

in whether the plaintiff may bring this case in federal

district court. We express no opinion about the merits of

Zuspann’s case, and hold that federal district court is not

the correct forum in which to bring this case. Congress

has set up an exclusive review procedure for decisions

involving veterans’ benefits determinations, and the dis-

trict court in this case correctly concluded that it lacked

subject matter jurisdiction to hear Zuspann’s challenge to

the VA’s decision to deny him benefits.

Ill

Zuspann’s second argument on appeal challenges the

dismissal of his Bivens action against the defendants Hop-

kins, Mather, and Young.

The defendants filed a motion to dismiss the Bivens

action, arguing that the district court lacked jurisdiction

to hear the contention and that the plaintiff failed to state

a claim upon which relief could be granted. The district

court found it lacked jurisdiction to hear the Bivens

action. We are free to uphold the district court’s judgment

on any basis that is supported by the record;?° no cause of

19 See, e.g., Sugrue, 26 F.3d at 11; Anderson, 559 F.2d at 936.

20 Clanton v. Orleans Parish School Board, 649 F.2d 1084, 1094

n. 12 (5th Cir.1981). See also Stegmaier v. Trammell, 597 F.2d 1027,

1038 (5th Cir.1979); Raven v. Panama Canal Co., 583 F.2d 169, 171

(5th Cir.1978), cert. denied, 440 U.S. 980, 99 S.Ct. 1787, 60 L.Ed.2d

240 (1979).

App. 9

action lies against the VA employees in their individual

capacities. Because the plaintiff fails to state a claim upon

which relief can be granted, we affirm the dismissal of

the plaintiff’s Bivens action.?}

In Bivens v. Six Unknown Named Agents of the Federal

Bureau of Narcotics, the Supreme Court established that

the Constitution may support a private cause of action

against federal officials for constitutional torts and

allowed the victims of a Fourth Amendment violation by

federal officers to bring suit against the officers for

money damages in federal court.?? In Bivens, there were

“no special factors counselling hesitation in the absence

of affirmative action by Congress”,?3 and the absence of a

federal statutory basis for the cause of action was not an

obstacle to the award of damages. The Supreme Court

has allowed Bivens actions in situations where, as in

Bivens itself, there were no “special factors counselling

hesitation in the absence of affirmative action by Con-

gress”, no statutory prohibition against the relief sought,

and no exclusive statutory remedy.?4

Where there are “special factors counselling hesita-

tion”, however, the Supreme Court has been reluctant to

21 We do not reach the question of whether Zuspann had

federal jurisdiction for this claim.

22 Bivens, 403 U.S. 388, 394, 91 S.Ct. 1999, 2005, 29 L.Ed.2d

619 (1983).

23 Id. at 396, 91 S.Ct. at 2004-05.

24 Schweiker v. Chilicky, 487 U.S. 412, 421, 108 S.Ct. 2460,

2466-67, 101 L.Ed.2d 370 (1988) (citing Carlson v. Green, 446 U.S.

14, 100 S.Ct. 1468, 64 L.Ed.2d 15 (1980) and Davis v. Passman, 442

U.S. 228, 99 S.Ct. 2264, 60 L.Ed.2d 846 (1979)).

App. 10

extend Bivens remedies to new contexts. In Bush v. Lucas,

the Supreme Court declined to find that an employee of

the National Aeronautics and Space Administration had a

private right of action against the director of the George

C. Marshall Space Center for alleged violations of the

employee’s First Amendment rights. No Bivens right of

action exists, the Court concluded, in a situation in which

federal legislation had already set up “an elaborate reme-

dial system that ha[d] been constructed step by step, with

careful attention to conflicting policy considerations” .?5

Similarly, in Chappell v. Wallace the Supreme Court

declined to find Bivens remedy for military personnel

who were injured by the allegedly unconstitutional

actions of superior officers.”°

In Schweiker v. Chilicky,?”7 the Supreme Court consid-

ered whether a Bivens remedy existed for alleged due

process violations in the denial of social security disabil-

ity benefits. The Court remarked that the remedial

scheme Congress created to safeguard the rights of social

security recipients was “considerably more elaborate than

the civil service system considered in Bush”, and declined

to recognize a Bivens remedy against the state and federal

officials who administered the benefits program. Finally,

the Supreme Court held last Term in FDIC v. Meyer that

no Bivens action lies against federal agencies.”®

25 Bush v. Lucas, 462 U.S. 367, 388, 103 S.Ct. 2404, 2416-17, 76

L.Ed.2d 648 (1983).

26 462 U.S. 296, 103 S.Ct. 2362, 76 L.Ed.2d 586 (1983).

27 487 U.S. 412, 108 S.Ct. 2460, 101 L.Ed.2d 370 (1988).

2 US. __, __, 114 S.Ct. 996, 1006, 127 L.Ed.2d 308

(1994).

App. 11

We agree with the Second Circuit Court of Appeals

that the reasoning of Bush and Chilicky applies in the

context of veterans’ benefits, and that no Bivens remedy

exists against VA employees.?? Special factors counsel

hesitation to create a Bivens remedy in this case. This is a

situation in which Congress has set up an elaborate reme-

dial structure; the administrative process created by Con-

gress provides for a comprehensive review of veterans’

benefits disputes. Further, Congress has explicitly pre-

cluded judicial review of veterans’ benefits disputes,

which suggests that Congress’ failure to create a remedy

against individual VA employees was “not an over-

sight” 9°

We hold that no Bivens remedy lies against the indi-

vidual employees of the VA. The district court properly

dismissed both Zuspann’s Bivens action and his challenge

to the VA’s denial of benefits.

The judgment of the district court is affirmed.

29 Sugrue v. Derwinski, 26 F.3d 8, 12-13 (2d Cir.1994).

30 Id. at 12.

App. 12

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF TEXAS

WACO DIVISION

GARY ZUSPANN,

Plaintiff, Civil No.

v. W-94-CA-058

JESSE BROWN, Secretary of the

Department of Veteran Affairs,

WALLACE HOPKINS, DR.

EDWARD YOUNG, and DR.

SUSAN MATHER,

Defendants.

MMMM MmMmMmMm MM

ORDER

(Filed Sept. 13, 1994)

Came on to be considered the Motion to Dismiss of

Defendants Hopkins, Mather and Young, and the Secre-

tary’s Motion to Dismiss.

I. Background

This is a civil action filed by Gary Zuspann, a hand-

icapped veteran of the United States Navy, against the

Secretary of the Department of Veteran Affairs; Dr.

Edward Young, Chief of Staff at the Department of Vet-

erans Affairs Hospital in Houston; Dr. Susan Mather, a

Department physician in the office of the Undersecretary

of Health; and Wallace Hopkins, Director of the Depart-

ment of Veteran Affairs in Waco.

App. 13

Plaintiff claims that he has been denied medical care,

including life-sustaining medical treatment, to which he

is entitled as a United States Veteran. Plaintiff claims that

this denial of medical care violates the Rehabilitation Act

of 1973, 29 U.S.C. § 701, et seq., and the Fifth Amendment

of the United States Constitution. Plaintiff also brings a

Bivens action against Defendants Young, Mather, and

Hopkins for deprivation of Plaintiff’s constitutionally

protected property interest in his disability benefits.

Plaintiff seeks declaratory relief, compensatory and puni-

tive damages.

Plaintiff’s claims arise out of his service with the

Navy in Operation Desert Storm. Plaintiff was a mess

cook on board the surface vessel, the U.S.S. New Orleans.

While anchored in the Persian Gulf during the war, the

crew of the U.S.S. New Orleans could see burning oil

wells from Iraq, and Plaintiff was exposed to smoke and

debris from these fires. Oil slicks were also visible on the

surface of the Persian Gulf, and the U.S.S. New Orleans

relied on the Gulf for its water supply. In March of 1991,

the main power supply of the U.S.S. New Orleans failed,

and a portable diesel fuel generator was used for power.

The exhaust from this equipment permeated the entire

ship for about six months. This was especially a problem

because the ventilation system on board the ship was

inoperable. The smell of hydrogen sulfide was often pre-

sent on the ship, and reservoirs of diesel fuel directly

above the Plaintiff’s sleeping area were opened on

numerous occasions.

After his service on board the U.S.S. New Orleans,

the Plaintiff and other crewmembers disembarked in the

Philippines and were ordered to assist in the clean up of

App. 14

ash and debris from a recent volcanic eruption. Unlike

the volunteers from organizations assisting with the

cleanup, the Plaintiff and crew were not given protective

clothing and respirators to protect them from the dan-

gerous volcanic ash (which contained quantities of silica).

The Plaintiff was then flown from the Philippines

back to the mainland of the United States. After returning

to Texas, the Plaintiff’s health began to quickly deterio-

rate. After numerous examinations by V.A. doctors, the

Plaintiff was examined by Dr. Claudia Miller, a physician

specializing in environmental and occupational medicine.

Dr. Miller concluded that Plaintiff's symptoms were com-

patible with the disease known as chemical sensitivity

and recommended that he be sent to an environmental

unit for diagnosis, and that various allergy tests be con-

ducted. Dr. Hamill, the Plaintiff’s attending physician in

Houston, likewise diagnosed the Plaintiff with having

symptoms compatible with chemical sensitivity. Finally,

even Dr. Susan Mather concluded that chemical sensi-

tivity was descriptive of Plaintiff’s conditions.

Despite this diagnosis, the Plaintiff contends that the

Department has refused to provide treatment for chemi-

cal sensitivity. In fact, the Department refuses to recog-

nize chemical sensitivity as a valid illness, despite the fact

that numerous Persian Gulf veterans have suffered simi-

lar symptoms. The Plaintiff has been hospitalized several

times in private hospitals for treatment since the Depart-

ment’s refusal to recognize his illness, but the Plaintiff is

unable to pay such large hospital bills.

a ee

App. 15

II. Motion to Dismiss

A motion to dismiss for lack of subject matter juris-

diction under Federal Rule of Civil Procedure 12(b)(1)

may be based on the complaint alone, the complaint

supplemented by undisputed facts evidenced in the

record, or the complaint supplemented by undisputed

facts plus the court’s resolution of disputed facts. Ynclan

v. Department of Air Force, 943 F.2d 1388, 1390 (5th Cir.

1991). However, a motion that constitutes an attack on the

subject matter jurisdiction of the court occurs when the

motion refers to matters outside the pleadings, such as

affidavits or testimony. Oaxaca v. Roscoe, 641 F.2d 386, 389

(Sth Cir. 1981). A court may consider affidavits and/or

testimony when a party is making an attack on the court’s

jurisdiction. Id. at 389.

Ill. Discussion

In order to properly file a suit in federal court, the

plaintiff must establish that the court has jurisdiction to

hear the case. A federal court’s jurisdiction can be based

on either diversity of citizenship or a federal question.

Diversity of citizenship creates federal jurisdiction when

a suit is between “citizens of a State, and foreign states or

citizens or subjects thereof.” 28 U.S.C. § 1332(a)(2); Jones

v. Petty-Ray Geophysical Geosource, Inc., 954 F.2d 1061, 1064

(5th Cir. 1992). Federal jurisdiction based on a federal

question exists when either: 1) some substantial, disputed

question of law is a necessary element of one of the well-

pleaded state claims; or, 2) one of the claims is effectively

one of federal law. NGS American, Inc. v. Barnes, 805

F.Supp. 462, 464 (W.D.Tex. 1992). The plaintiff in this case

App. 16

maintains that the court’s jurisdiction is based on a fed-

eral question.

Congress, however, may limit the jurisdiction of a

federal court, and has done so in this case. Through 38

U.S.C. § 511, Congress has expressly indicated that a

federal court’s jurisdiction to hear disputes involving

veteran’s benefits is to be of a limited nature.

This Act, § 511, creates a specific appellate review

structure for disputes involving veterans and the Depart-

ment of Veteran Affairs. The process begins with a deci-

sion being made at the Department level. If the veteran

disagrees with the Department's decision, the veteran

may appeal within the VA by filing a notice of disagree-

ment with the Board of Veterans Appeals. 38 U.S.C. 7105.

The Board’s decision is the final decision of the Secretary.

38 U.S.C. 7104.1 Review of the Secretary’s final decision is

governed by Chapter 72 of Title 38 of the United States

Code. A veteran desiring to appeal the Secretary’s deci-

sion must file a notice of appeal. 38 U.S.C. § 7266(a). The

Court of Veterans Appeals has “exclusive jurisdiction” to

review the decisions of the Board of Veterans Appeals. 38

1 The present Act, the Veterans Judicial Review Act of 1988,

located at 38 USC § 511 provides the following:

“(a) The Secretary shall decide all questions of law

and fact necessary to a decision by the Secretary

under a law that affects the provision of benefits by

the Secretary to veterans . . . Subject to subsection (b),

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

action in the nature of mandamus or otherwise.” 38

U.S.C. § 511.

App. 17

U.S.C. § 7252(a); Strott v. Derwinski, 964 F.2d 1124, 1126

(Fed Cir. 1992)(stating that “Congress created the Vet-

erans Court in part to provide judicial review of veteran’s

benefits decisions [,and that] [p]rior to the Act, there

existed a statutory bar to such judicial review.”). Any

appeals from the Court of Veteran Appeals must be filed

with the Court of Appeals for the Federal Circuit. 38

U.S.C. § 7292. The detailed nature of the procedural and

appellate structure contained within the Veterans’ Judi-

cial Review Act clearly indicate Congress’ intent to con-

fine decisions affecting veteran’s benefits within this

structure.

In cases involving veteran’s benefits, many courts

have held that § 511, and its precursor § 211(a), limits the

federal judiciary’s ability to exercise jurisdiction over

suits involving veteran benefits. The key determinant in

whether the federal court lacks jurisdiction to decide the

dispute is dependant upon whether the veteran is chal-

lenging the day-to-day determination and interpretation

of VA policy or making a constitutional attack on a stat-

ute.

For instance in Ryan v. Cleland, the court dismissed

the plaintiff’s claims for lack of jurisdiction because the

plaintiff was challenging the day-to-day determination of

VA policy. 531 F. Supp. 724 (E.D.N.Y 1982). In that case, a

group of Vietnam veterans sought to force the V.A. to

recognize and treat veterans for injuries they allegedly

suffered from exposure to dioxin. The court held that the

veterans’ claims of entitlement to medical benefits did

not rise to the level of a constitutional violation. Id. at

732. Thus, § 211(a) was a complete bar to the court

App. 18

asserting jurisdiction over the veterans’ claims. Com-

plaints about the quality and type of care provided was

precisely the disputes Congress intended to preclude

from judicial review with the passage of § 211(a). Id. at

732.

Since Ryan, the Second and Eighth Circuits have

addressed the issue of when federal courts have the juris-

diction to resolve disputes involving veteran benefits. In

Larrabee By Jones v. Derwinski, the Second Circuit distin-

guished constitutional claims that attack the statute as

drafted from claims that attack the statute as applied. 968

F.2d 1497, 1500 (2nd Cir. 1992). Section 211(a) precludes

judicial review of non-constitutional claims, and a plain-

tiff may not circumvent the jurisdictional limitations

imposed by § 211(a) by alleging damages for a constitu-

tional violation arising out of a denial of benefits. Id. at

1500; Pappanikoloaou v. Administrator of the Veterans

Admin., 762 F.2d 8, 9 (2nd Cir.) (per curiam), cert. denied,

474 U.S. 851, 106 S.Ct. 150, 88 L.Ed.2d 124 (1985); Tietjen v.

United States Veterans Admin., 884 F.2d 514, 515 (9th Cir.

1989); Higgins v. Kelley, 824 F.2d 690, 691 (8th Cir. 1987);

Hiljer v. Waters, 749 F.2d 1553 (11th Cir. (per curiam), cert.

denied, 472 U.S. 1029, 105 S.Ct. 3506, 87 L.Ed. 637 (1985);

Anderson v. Veterans Admin., 559 F.2d 935, 936 (5th Cir.

1977) (per curiam); Hartman v. United States, 615 F.Supp.

446, 449 (E.D.N.Y. 1985). Thus, § 211(a) precludes a fed-

eral court from exercising jurisdiction over claims seeking

a particular type or level of care for veterans even when

the claim is cloaked in constitutional terms. Congress’

amendment to § 211 in 1988 foreclosed any possibility

that federal courts could decide claims made by veterans

that involved a denial of benefits or a level of care. The

App. 19

statutory language and scheme of § 211 clearly indicate

Congress intended to exclude all issues affecting veterans

benefits, even constitutional issues, from the federal judi-

cial system. Larrabee By Jones, 968 F.2d at 1501; Hicks v.

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

ing that the statute applies to “all questions of law and

fact.” 38 U.S.C. 511(a) emphasis added in original). (“The

statute includes all claims, whatever their bases, as long

as the claim is “necessary to a decision by the Secretary

under a law that affects the provision of benefits by the

Secretary to veterans.”) Id. at 1369.

Plaintiff in this case is not alleging a facial attack on

the constitutionality of an Act of Congress. Instead, Plain-

tiff is merely complaining about a denial of benefits.

Plaintiff asserts within his complaint that he is challeng-

ing the policies and regulations of the Secretary, but the

Plaintiff fails to specifically point to a policy or regulation

that prevents plaintiff from obtaining medical care. In

fact, plaintiff later denies that he is seeking change in

agency policy or regulations at all. See Plaintiff’s

Response to Secretary’s Motion to dismiss plaintiff’s com-

plaint at 19.

The gravamen of plaintiff's complaint is that he

requires a particular level of care, i.e., chemical free living

area. And that because he is not being provided with a

specific level and type of care, his constitutional rights

are being violated.

Other courts that have addressed this issue have held

that a veteran cannot escape Congress’ intent to confine

decisions involving veteran’s benefits and level of care to

the Department of Veterans Affairs by couching their

App. 20

arguments in constitutional terms. Furthermore, given

the complexity of the health problems experienced by the

Persian Gulf War Veterans and the variance of opinion

inherent in medical diagnoses and treatment, this is the

very type of case that would enmesh the courts in expen-

sive, time-consuming litigation (involving a battle of

experts) that § 511’s judicial bar was constructed to avoid.

Congress intends that such decisions be made by the

Veterans Administration in the first instance, with exclu-

sive review, if any, in the recently-created Court of Vet-

erans’ Appeals. The plaintiff cannot be allowed to

circumvent Congress’ purpose in enacting § 511.

Therefore, this court lacks the jurisdiction to hear

plaintiff’s claims.

IV. Conclusion

Accordingly, it is

ORDERED that Defendant’s Hopkins, Matter [sic],

Young, and the Secretary’s Motion to Dismiss is

GRANTED. It is further

ORDERED that this case be DISMISSED without

prejudice. It is further

ORDERED that any pending motions be DENIED as

moot.

SIGNED this 13th day of September, 1994.

/s/ Walter S. Smith, Jr.

WALTER S. SMITH, JR.

UNITED STATES

DISTRICT JUDGE

ee Te eT

App. 21

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 94-50698

D.C. Docket No. W-94-CA-58

GARY ZUSPANN,

Plaintiff-Appellant,

versus

JESSE BROWN, SECRETARY

OF THE DEPARTMENT OF

VETERANS AFFAIRS, ET AL.,

Defendants-Appellees.

Appeal from the United States District Court for the

Western District of Texas

Before WISDOM, GARWOOD, and DAVIS, Circuit

Judges.

JUDGMENT

(Filed Aug. 11, 1995)

This cause came on to be heard on the record on

appeal and was argued by counsel.

ON CONSIDERATION WHEREOF, it is now here

ordered and adjudged by this Court that the judgment of

the district court in this cause is affirmed.

App. 22

IT IS FURTHER ORDERED that plaintiff-appellant

pay to defendants-appellees the costs on appeal to be

taxed by the Clerk of this Court.

August 11, 1995

ISSUED AS MANDATE:

App. 23

U.S. Const. amend. V

AMENDMENT V - GRAND JURY INDICTMENT FOR

CAPITAL CRIMES; DOUBLE JEOPARDY; SELF-

INCRIMINATION; DUE PROCESS OF LAW; JUST

COMPENSATION FOR PROPERTY

No person shall be held to answer for a capital, or

otherwise infamous crime, unless on a presentment or

indictment of a Grand Jury, except in cases arising in the

land or naval forces, or in the Militia, when in actual

service in time of War or public danger; nor shall any

person be subject for the same offence to be twice put in

jeopardy of life or limb; nor shall be compelled in any

criminal case to be a witness against himself, nor be

deprived of life, liberty, or property, without due process

of law; nor shall private property be taken for public use,

without just compensation.

————

29 U.S.C. § 794

§ 794. Nondiscrimination under federal grants and

programs

(a) Promulgation of rules and regulations

No otherwise qualified individual with a disability in

the United States, as defined in section 706(8) of this title,

shall, solely by reason of her or his disability, be excluded

from the participation in, be denied the benefits of, or be

subjected to discrimination under any program or activ-

ity receiving Federal financial assistance or under any

App. 24

program or activity conducted by any Executive agency

or by the United States Postal Service. The head of each

such agency shall promulgate such regulations as may be

necessary to carry out the amendments to this section

made by the Rehabilitation, Comprehensive Services, and

Developmental Disabilities Act of 1978. Copies of any

proposed regulation shall be submitted to appropriate

authorizing committees of the Congress, and such regula-

tion may take effect no earlier than the thirtieth day after

the date on which such regulation is so submitted to such

committees.

(b) “Program or activity” defined

For the purposes of this section, the term “program

or activity” means all of the operations of -

(1)(A) a department, agency, special pur-

pose district, or other instrumentality of a State

or of a local government; or

(B) the entity of such State or local govern-

ment that distributes such assistance and each

such department or agency (and each other

State or local government entity) to which the

assistance is extended, in the case of assistance

to a State or local government;

(2)(A) a college, university, or other post-

secondary institution, or a public system of

higher education; or

(B) a local educational agency (as defined

in section 8801 of Title 20) system of vocational

education, or other school system;

(3)(A) an entire corporation, partnership,

or other private organization, or an entire sole

proprietorship —

App. 25

(i) if assistance is extended to such

corporation, partnership, private organiza-

tion, or sole proprietorship as a whole; or

(ii) which is principally engaged in

the business of providing education, health

care, housing, social services, or parks and

recreation; or

(B) the entire plant or other comparable,

geographically separate facility to which Federal

financial assistance is extended, in the case of

any other corporation, partnership, private

organization, or sole proprietorship; or

(4) any other entity which is established

by two or more of the entities described in para-

graph (1), (2), or (3);

any part of which is extended Federal financial assis-

tance.

viders; exception

Small providers are not required by subsection (a) of

this section to make significant structural alterations to

their existing facilities for the purpose of assuring pro-

gram accessibility, if alternative means of providing the

services are available. The terms used in this subsection

shall be construed with reference to the regulations exis-

ting on March 22, 1988.

App. 26

(d) Standards used in determining violation of section

The standards used to determine whether this section

has been violated in a complaint alleging employment

discrimination under this section shall be the standards

applied under title I of the Americans with Disabilities

Act of 1990 (42 U.S.C. 12111 et seq.) and the provisions of

sections 501 through 504, and 510, of the American with

Disabilities Act of 1990 (42 U.S.C. 12201-12204 and 12210),

as such sections relate to employment.

(As amended Pub.L. 99-506, Title I, § 103(d)(2)(B), Title X,

§ 1002(e)(4), Oct. 21, 1986, 100 Stat. 1810, 1844; Pub.L.

100-259, § 4, Mar. 22, 1988, 102 Stat. 29; Pub.L. 100-630,

Title Il, § 206(d), Nov. 7, 1988, 102 Stat. 3312; Pub.L.

102-569, Title I, § 102(p)(32), Title V, § 506, Oct. 29, 1992,

106 Stat. 4360, 4428; Pub.L. 103-382, Title III, § 394(i)(2),

Oct. 20, 1994, 108 Stat. 4029.)

38 U.S.C. § 511

§ 511. Decisions of the Secretary; finality

(a) The Secretary shall decide all questions of law

and fact necessary to a decision by the Secretary under a

law that affects the provision of benefits by the Secretary

to veterans or the dependents or survivors of veterans.

Subject to subsection (b), 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

otherwise.

App. 27

(b) The second sentence of subsection (a) does not

apply to -

(1) matters subject to section 502 of this

title;

(2) matters covered by sections 1975 and

1984 of this title;

(3) matters arising under chapter 37 of this

title; and

(4) matters covered by chapter 72 of this

title.

(Added Pub.L. 102-83, § 2(a), Aug. 6, 1991, 105 Stat. 388.)

App. 28

Excerpt from the Explanatory Statement on

Compromise Agreement,

1988 U.S.C.C.A.N. 5834, 5834

EXPLANATORY STATEMENT ON COMPROMISE

AGREEMENT ON DIVISION A

134 Congressional Record S 16650, October 18, 1988

This document explains the provisions of S. 11, the

proposed “Veterans’ Administration Adjudication Pro-

cedure and Judicial Review Act”, as passed by the Senate

on July 11, 1988; H.R. 5288, the proposed “Veterans’ Judi-

cial Review Act”, as passed by the House of Representa-

tives on October 3, 1988, as a substitute for the text of S.

11 (hereinafter referred to as the “House amendment”);

and the provisions of a compromise agreement between

the Senate and House Committees on Veterans’ Affairs on

those provisions, which will be offered as a proposed

Senate amendment to the House amendment to S. 11 as

so amended and passed by the Senate. The difference

between these various measures and the provisions of the

compromise agreement are noted below, except for cleri-

cal corrections, conforming changes made necessary by

the compromise agreement, and minor drafting, techni-

cal, and clarifying changes.

TITLE I - ADJUDICATIVE AND RULEMAKING

AUTHORITY OF THE VETERANS’ ADMINISTRATION

Decisions by Administrator

Senate bill: The Senate bill (section 301) would

amend section 211(a) of title 38, relating to decisions of

the Administrator, to expand the present categories of

exceptions to the general preclusion of judicial review of

App. 29

such decisions by referencing new subchapter II of chap-

ter 71, the new judicial review subchapter added by title

III of the Senate bill.

House amendment: The House amendment (section

2) would amend section 211 to -

(a)(1) specify that the administrator must resolve all

questions of law and fact - not only those arising under

laws administered by the VA as under present section

211(a) — that are necessary to a decision under a law

affecting the provision of benefits to veterans and the

dependents and survivors of veterans, and (2) to expand

the general preclusion of judicial review to the same

extent;

(b) expand the present categories of exceptions to

the general preclusion by making reference to section 223

of title 38 (as proposed to be added by section 3 of the

House bill, discussed below), regarding rulemaking, and

to matters covered by new chapter 71, the new judicial

review subchapter added by title III of the bill;

is to provide the Administrator with advice regarding

any question of law arising under either the Constitution

or any law other than a law providing benefits for vet-

erans and the survivors and dependents of veterans.

Compromise agreement: The compromise agree-

ment (section 101) contains the House provision with

amendments (a) to clarify that the requirement to make

decisions and the general preclusion of judicial review

apply only to a decision by the Administrator under a

App. 30

law that affects the provision of benefits by the Adminis-

trator; and (b) to delete the amendment relating to the

Attorney General’s opinion.

1970 amendment to former 38 U.S.C. § 211(a),

Pub. L. No. 91-376, § 8(a),

84 Stat. 787, 790 (1970) (amended 1988)

Sec. 8. (a) Subsection 211(a) of title 38, United

States Code, is amended to read as follows:

“(a) On and after October 17, 1940, except as pro-

vided in sections 775, 784, and as to matters arising under

chapter 37 of this title, the decisions of the Administrator

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

tered by the Veterans’ Administration providing benefits

for veterans and their dependents or survivors 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.”

App. 31

Excerpt from the Veterans’ Judicial Review Act of 1988,

Pub. L. No. 100-687, § 101,

102 Stat. 4105, 4105-06 (1988) (amended 1991)

sec. 101. DECISIONS BY ADMINISTRATOR.

(a) Matters To Be Decipep sy ADMINISTRATOR. — Sub-

section (a) of section 211 is amended to read as follows:

“(a)(1) The Administrator shall decide all questions

of law and fact necessary to a decision by the Administra-

tor under a law that affects the provision of benefits by

the Administrator to veterans or the dependents or sur-

vivors of veterans. Subject to paragraph (2) of this subsec-

tion, the decision of the Administrator 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 otherwise.

“(2) The second sentence of paragraph (1) of this

subsection does not apply to -

“(A) matters subject to section 223 of this

title;

“(B) matters covered by sections 775 and

784 of this title;

“(C) matters arising under chapter 37 of

this title; and

“(D) matters covered by chapter 72 of this

title.”.

(b) CONFORMING AMENDMENT. — Section 4004(a) is

amended by striking out. “All questions on claims involv-

ing benefits under laws administered by the Veterans’

App. 32

Administration” and inserting in lieu thereof “All ques-

tions in a matter which under section 211(a) of this title is

subject to decision by the Administrator”.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.