dissenting:
I must respectfully dissent from the majority’s ruling that the district court lacked jurisdiction to consider whether the regulations of the Veterans’ Administration (“VA” or “Administrator”) challenged by plaintiff Eugene Traynor violate § 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794 (1982 & Supp. I 1983). For the reasons below, I would conclude that the court had jurisdiction to consider that claim.
Two areas of substantive law are involved in the claim that is principally at issue on this appeal. One, set out in 38 U.S.C. § 1662(a)(1) (1982 & Supp. I 1983) and a combination of VA regulations (“VA alcoholism regulations”) found in 38 C.F.R. § 3.1(n) (1985), id. § 3.301(c)(2), and Administrator’s Decision No. 988 (Aug. 13, 1964), governs the circumstances in which a veteran who at one time was disabled by alcoholism may be provided educational benefits for a period that extends beyond the tenth anniversary of his discharge from the armed services. The other, § 504 of the Rehabilitation Act, forbids the withholding of benefits in, inter alia, a program conducted by a federal agency such as the VA, to “otherwise qualified” handicapped individuals solely by reason of their handicaps.
Two jurisdictional statutes are at issue. First, the Administrative Procedure Act, 5 U.S.C. §§ 701 et seq. (1982 & Supp. II 1984), gives the federal court jurisdiction to hear the claims of a “person suffering legal wrong ... or adversely affected or aggrieved by [final or otherwise renewable] agency action ... within the meaning of a relevant statute,” id. § 702, so long as there are no “statutes precluding] judicial review,” id § 701(a)(1). The other jurisdictional statute is 38 U.S.C. § 211(a) (1982), which the majority concludes is a statute precluding judicial review of the claim that the challenged VA regulations violate § 504 of the Rehabilitation Act. I disagree with this conclusion.
Section 211(a) provides, in pertinent part, that
the decisions of the Administrator on any question of law or fact under any law *232administered by the Veterans’ Administration providing benefits for veterans ... 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....
38 U.S.C. § 211(a). The principal question of law presented here is whether the VA alcoholism regulations denying so-called “primary” alcoholics extended educational benefits violate § 504 of the Rehabilitation Act. For two reasons I conclude that § 211(a) does not deprive the courts of jurisdiction to entertain this question. First, this question is not one that arises under a law that is administered by the VA or that provides benefits for veterans; rather it arises under the Rehabilitation Act, which does not provide veterans’ benefits and is not administered by the VA. Second, the Administrator did not in fact decide this question but rather disclaimed jurisdiction to decide it.
In construing § 211(a) as depriving the court of jurisdiction to entertain Traynor’s challenge to the VA alcoholism regulations as violative of the Rehabilitation Act, the majority apparently focuses only on the statutory phrase “on any question of law or fact” and ignores its ensuing modifier. By its terms, however, the section immunizes from judicial review not all “decisions of the VA ‘on any question of law or fact,”’ see Majority Opinion ante at 229, but only decisions of the VA on a “question of law or fact under any law administered by the Veterans’ Administration providing benefits for veterans,” 38 U.S.C. § 211(a) (emphasis added). Thus, as I read § 211(a), it deprives the courts of jurisdiction to review the Administrator’s rulings of law only if they were made under a law that (a) is administered by the VA and (b) provides benefits for veterans.
At the outset of Traynor’s quest for an extended period of educational benefits there were, of course, many questions before the VA: (1) whether Traynor had been disabled by reason of his alcoholism; (2) whether that alcoholism was “primary” within the meaning of the VA regulations; (3) whether such primary alcoholism constituted “willful” misconduct within the meaning of the VA regulations; and (4) assuming affirmative answers to the first three questions, whether it is permissible under the Rehabilitation Act for the VA regulations to deny the requested educational benefits to those classified under VA regulations as primary alcoholics. The first three of these questions plainly were questions of fact or law arising under the laws that are administered by the VA and that provide benefits for veterans; as to those questions, § 211(a) denies the court jurisdiction to review the Administrator’s decision.
The last question, however, called for a decision under the Rehabilitation Act. “A decision of law or fact ‘under’ a statute is made by the Administrator in the interpretation or application of a particular provision of the statute to a particular set of facts.” Johnson v. Robison, 415 U.S. 361, 367, 94 S.Ct. 1160, 1166, 39 L.Ed.2d 389 (1974). Traynor’s Rehabilitation Act challenge involved the facts (1) that 38 U.S.C. § 1662(a)(1) denies extended educational benefits to a veteran whose disability resulted from his own willful misconduct, and (2) that the VA alcoholism regulations provide that primary alcoholism is willful misconduct and that primary alcoholics are ipso facto to be denied extended educational benefits. The challenge required a decision as to whether the Rehabilitation Act prohibits this combination of facts — i.e., a decision under the Rehabilitation Act.
The Rehabilitation Act does not provide benefits to veterans. Nor is it administered by the VA. The majority appears to dispute this, but in so doing it confuses administration with compliance. The fact that the VA is itself required to comply with a statute that governs its operations does not mean that it administers that statute. The VA is also required to comply with the Constitution; it does not thereby “administer” the Constitution. In fact the agency responsible for administering the Rehabilitation Act is HHS. In 1976, the Department of Health, Education, and Wei-*233fare (now HHS) was designated the leading agency to promulgate regulations implementing § 504; other federal agencies were directed to make their rules, regulations, and directives consistent with the standards and procedures established by HHS. See Exec.Order No. 11,914, 3 C.F.R. 117 (1977) (“The Secretary [of HHS] shall establish standards for determining who are handicapped individuals and guidelines for determining what are discriminatory practices, within the meaning of section 504.”). Thus, a decision by the Administrator as to whether VA regulations violate the Rehabilitation Act — i.e., a decision under a law that does not provide veterans’ benefits and is not administered by the VA — is not within the category of decisions that § 211(a) places beyond judicial review.
Further, it appears to me that the Administrator has declined even to render a decision on the question of whether the VA alcoholism regulations violate the Rehabilitation Act. The majority’s statement that “the VA ... has never disclaimed its authority to determine whether its own regulations comply with federal statutes,” Majority Opinion ante at 229, is belied by the record. In Traynor’s appeal to the Board of Veterans Appeals (“Board”), he explicitly contended that the VA alcoholism regulations were forbidden by the Rehabilitation Act. In denying Traynor’s claim on reconsideration, the Board noted that Tray-nor had challenged the validity of the regulations under the Constitution, under 38 U.S.C. § 1662, and under other statutes. The Board concluded, however (consistent with 38 U.S.C. § 4004(c) (1982)), that it was “bound in its decisions not only by instructions of the Administrator of Veterans Affairs but also by the regulations of the Veterans Administration.” This amounted to a disclaimer of authority to determine whether the VA alcoholism regulations violated other federal laws, a disclaimer also made several times in the colloquy at the Board hearing on Traynor’s request for reconsideration of the denial of his claim, which included the following statement by a member of the Board to Traynor’s counsel:
You’ve made a very eloquent argument and — but you’re asking us right now, in certain respects, to judge the regulations, to act as a court and you’re asking us to do a few things that we are incompetent to do. To be under — I don’t mean incompetent, we just don’t have — we’re incompetent in that jurisdiction.
The Board’s decision is the final decision of the Administrator, see 38 U.S.C. §§ 4004(a) and (b) (1982). Thus, the record makes clear that the Administrator refused, on the ground of lack of authority, to decide whether the challenged regulations violated the Rehabilitation Act.
Finally, I would note my disagreement with the majority’s characterization of Traynor’s claim as a narrow one focusing solely on the technical complexities of the veterans’ benefits laws as they apply to his particular claim for benefits. See Majority Opinion ante at 229. The thrust of Tray-nor’s challenge to the validity of the VA alcoholism regulations is a general one, of apparently widespread practical application. Although the suit was not brought as a class action, the complaint requests a declaratory judgment that the VA alcoholism regulations violate the Rehabilitation Act. This is a challenge that, if upheld, would result in changes having general application. And, as a Board member noted at Traynor’s hearing, “this is not an isolated case. It’s a continuing problem.”
In sum, I think it plain that Traynor’s challenge to the VA regulations on alcoholism raised a question under the Rehabilitation Act, a question on which he is entitled to a decision. Both because the Administrator disclaimed jurisdiction to decide it and because a decision would not have been one under a law providing veterans’ benefits and administered by the VA, I would conclude that the district court had jurisdiction to entertain this challenge.
Since the majority reverses the judgment on jurisdictional grounds, I express no view as to the merits of Traynor’s claim under the Rehabilitation Act.