United States Court of Appeals,
Eleventh Circuit.
No. 95-2175.
William Stephen HALL, Plaintiff-Appellant,
v.
U.S. DEPARTMENT VETERANS' AFFAIRS, Defendant-Appellee.
June 13, 1996.
Appeal from the United States District Court for the Middle
District of Florida. (No. 94-1751-CIV-T-21A), Ralph W. Nimmons,
Jr., Judge.
Before HATCHETT, Circuit Judge, HENDERSON, Senior Circuit Judge,
and MILLS*, District Judge.
PER CURIAM:
This is an appeal from the judgment of the United States
District Court for the Middle District of Florida dismissing
William Stephen Hall's complaint against the Department of Veterans
Affairs ("Department") for lack of subject matter jurisdiction. We
affirm.
I. BACKGROUND
Hall is a recipient of veterans' disability benefits and a
Florida state prisoner. On October 3, 1994, he filed this action
pro se. He alleged that on May 10, 1994, he was notified by the
Department that, effective October 21, 1991, his benefits were
reduced to $80.00 per month in compliance with 38 C.F.R. § 3.665,
which requires that disability compensation be diminished during
periods of incarceration for felony convictions in excess of sixty
*
Honorable Richard Mills, U.S. District Judge for the
Central District of Illinois, sitting by designation.
days.1 Hall alleged further that, due to overpayments made to him
during his imprisonment, the Department sought the return of
$15,896.66 previously paid as benefits. He claimed that the
reduction in benefits constituted a tort in violation of numerous
provisions of the constitution. In his prayer for relief he
requested that the court "inform [the Department] that 38 CFR 3.665
is contra to the U.S. Constitution and thus must be repealed and
1
Section 3.665 was promulgated to implement the provisions
of 38 U.S.C. § 5313. See 38 U.S.C. § 501 (authorizing the
Secretary of Veterans Affairs to prescribe rules and regulations
necessary to carry out the laws administered by the Department).
The statute states, in relevant part:
(a)(1) To the extent provided in subsection (d) of
this section, any person who is entitled to
compensation ... and who is incarcerated in a Federal,
State, or local penal institution for a period in
excess of sixty days for conviction of a felony shall
not be paid such compensation ... for the period
beginning on the sixty-first day of such incarceration
and ending on the day such incarceration ends, in an
amount that exceeds—
(A) in the case of a veteran with a
service-connected disability rated at 20 percent
or more, the rate of compensation payable under
section 1114(a) of this title; or
(B) in the case of a veteran with a
service-connected disability not rated at 20
percent or more ... one-half of the rate of
compensation payable under section 1114(a) of this
title.
38 U.S.C. § 5313(a)(1). The regulation provides in part:
(a) General. Any person specified in paragraph
(c) of this section who is incarcerated in a Federal,
State or local penal institution in excess of 60 days
for conviction of a felony shall not be paid
compensation ... in excess of the amount specified in
paragraph (d) of this section beginning on the 61st day
of incarceration.
38 C.F.R. § 3.665(a).
all money owe [sic] plaintiff for his injury's [sic] must be repaid
in full. Thus issue a cease and desist order." (R1-1, Complaint
at 4) (capitalization altered).
Prior to service of process on the defendant, the district
court sua sponte dismissed the complaint for lack of subject matter
jurisdiction under authority of 38 U.S.C. § 511(a), which vests
decisions affecting veterans' benefits in the Secretary of Veterans
Affairs ("Secretary").2 Hall then filed this appeal pro se. This
court subsequently appointed counsel to represent him and the
Department entered an appearance. The case has now been fully
briefed and argued.
II. STANDARD OF REVIEW
The propriety of the district court's dismissal of the
complaint for lack of subject matter jurisdiction is a question of
law which we review de novo. Tapscott v. MS Dealer Serv. Corp.,77
F.3d 1353, 1356 (11th Cir.1996). Because the case was dismissed on
the basis of the complaint, we must look to the face of that
pleading to determine whether subject matter jurisdiction existed,
considering the allegations contained therein as true. Sea Vessel,
Inc. v. Reyes, 23 F.3d 345, 347 (11th Cir.1994).
III. DISCUSSION
2
Section 511(a) specifies:
(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.
Hall urges that subject matter jurisdiction was present
because the complaint raised a constitutional attack on the
validity of 38 U.S.C. § 5313 as well as the implementing
regulation, 38 C.F.R. § 3.665. See supra note 1. He contends that
the statutory challenge was cognizable in the district court,
citing, inter alia, Johnson v. Robison, 415 U.S. 361, 94 S.Ct.
1160, 39 L.Ed.2d 389 (1974). The Department agrees that if Hall
sought to overturn the statute, the district court would have
jurisdiction. The Department maintains, however, that he attacked
only the regulation, not the statute, and that, under 38 U.S.C. §
502, such challenges must be brought in the United States Court of
Appeals for the Federal Circuit,3 or in accordance with the
Veterans' Judicial Review Act, Pub.L. No. 100-687, 102 Stat. 4105
(1988) ("VJRA").
In Johnson, the Court construed the jurisdictional
4
implications of 38 U.S.C. § 211(a), the precursor to § 511(a).
The Court held that while § 211(a) insulated from judicial review
3
Section 502 directs that judicial review of rules and
regulations promulgated by the Secretary "shall be in accordance
with chapter 7 of title 5 and may be sought only in the United
States Court of Appeals for the Federal Circuit." It does not
address court scrutiny of veterans' benefits legislation.
4
Like § 511(a), § 211(a) provided that
"the decisions of the Administrator on any question of
law or fact under any law administered 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 by an action
in the nature of mandamus or otherwise."
Johnson, 415 U.S. at 365 n. 5, 94 S.Ct. at 1164 n. 5, 39
L.Ed.2d at 396 n. 5 (quoting § 211(a)).
decisions of the Administrator of Veterans Affairs (now, the
Secretary) in the interpretation or application of a statute
governing veterans' benefits, it did not preclude the district
courts from entertaining facial constitutional challenges to acts
of Congress affecting benefits. Johnson, 415 U.S. at 366-74, 94
S.Ct. at 1165-69, 39 L.Ed.2d at 397-401.
On November 18, 1988, Congress enacted the VJRA. It
stipulates that determinations of the Secretary may be appealed to
the Board of Veterans' Appeals ("Board"), whose ruling becomes the
final decision of the Secretary. 38 U.S.C. § 7104(a). Decisions
of the Board may then be reviewed exclusively by the United States
Court of Veterans Appeals, an Article I court established by the
VJRA.5 38 U.S.C. §§ 7251, 7252(a), 7266(a). Decisions of the
Court of Veterans Appeals are in turn appealable solely to the
United States Court of Appeals for the Federal Circuit, 38 U.S.C.
§ 7292(a), which has "exclusive jurisdiction to review and decide
any challenge to the validity of any statute or regulation or any
interpretation thereof ... and to interpret constitutional and
statutory provisions, to the extent presented and necessary to a
6
decision." 38 U.S.C. § 7292(c). See also Zuspann v. Brown, 60
F.3d 1156, 1158-59 (5th Cir.1995), cert. denied, --- U.S. ----, 116
S.Ct. 909, 133 L.Ed.2d 841 (1996). The judgment of the Federal
Circuit Court of Appeals is then subject to review by the United
States Supreme Court by writ of certiorari. 38 U.S.C. § 7292(c).
5
Only a claimant may seek review of a decision of the Board.
38 U.S.C. § 7252(a).
6
Both the claimant and the Secretary may appeal to the
Federal Circuit Court of Appeals. 38 U.S.C. § 7292(a).
Thus, under the statutory scheme, judicial review of a
particular application of the law made by the Secretary with
respect to a veteran's entitlement to benefits may be had only by
appealing to the Board, then to the Court of Veterans Appeals, the
Federal Circuit Court of Appeals and the Supreme Court. Facial
constitutional attacks on regulations promulgated by the Secretary
may be pursued in one of two ways—either in accordance with the
procedure set forth in the VJRA, or directly in the Federal Circuit
Court of Appeals as permitted by 38 U.S.C. § 502. See Barton F.
Stichman, The Veterans' Judicial Review Act of 1988: Congress
Introduces Courts and Attorneys to Veterans' Benefits Proceedings,
41 Admin.L.Rev. 365, 392-93 (1989).
In the wake of the VJRA, the vitality of the Johnson holding
with respect to the jurisdiction of the district courts to
entertain facial constitutional attacks on veterans' benefits
legislation (as opposed to the implementing rules and regulations)
is debatable. The United States Court of Appeals for the Second
Circuit has squarely held that the jurisdiction of the district
courts continues to extend to such constitutional questions. See
Disabled Am. Veterans v. United States Dep't of Veterans Affairs,
962 F.2d 136, 140-41 (2d Cir.1992); Larrabee v. Derwinski, 968
F.2d 1497, 1501 (2d Cir.1992). In Zuspann, the Fifth Circuit Court
of Appeals also indicated, albeit in dicta, that, despite the VJRA,
facial constitutional challenges may be maintained in the district
courts. Zuspann, 60 F.3d at 1158-59. The Eighth Circuit Court of
Appeals appears to have taken a different view in Hicks v. Veterans
Admin., 961 F.2d 1367 (8th Cir.1992). Although Hicks did not
involve a facial constitutional attack on a statute affecting
veterans' benefits, it did concern a constitutional claim that the
plaintiff's veterans' benefits were reduced in retaliation for
having exercised his First Amendment rights. Id. at 1368. The
appellate court held that the district court lacked jurisdiction
over this constitutional issue, finding that all questions of law
and fact necessary to a decision by the Secretary under a law
affecting veterans' benefits, including constitutional questions,
fall within the purview of the VJRA and its exclusive judicial
review provisions. Id. at 1369-70.
Because the face of the complaint in the present case did not
specify that a statute was under constitutional attack, we need not
decide whether Johnson remains good law after the VJRA. We are
mindful that pro se complaints are held "to less stringent
standards than formal pleadings drafted by lawyers." Haines v.
Kerner, 404 U.S. 519, 520, 92 S.Ct. 594, 596, 30 L.Ed.2d 652, 654
(1972). Nevertheless, there is no question that Hall sought to
overturn 38 C.F.R. § 3.665, a regulation promulgated by the
Secretary. The district court lacked jurisdiction over this
question of law. Aside from the avenue of review made possible by
the VJRA. judicial scrutiny of the regulation is available
exclusively in the Federal Circuit Court of Appeals in accordance
with 38 U.S.C. § 502. Moreover, Hall clearly sought to reverse the
Secretary's application of the law as it affected him. This, he
could do, only by following the procedure required by the VJRA.
IV. CONCLUSION
Accordingly, for the foregoing reasons, we AFFIRM the judgment
of the district court dismissing the complaint for lack of
jurisdiction.