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November 21, 1980

George FALTER et al., Plaintiffs,

The opinion of the court was delivered by: ACKERMAN

I. Introduction

This is a class action brought on behalf of all patients at the Veterans' Administration Medical Center at Lyons, New Jersey, (Lyons), and all former patients who may in the future be admitted or committed to Lyons. The plaintiffs contend that the Veterans' Administration (V.A.) is not running Lyons in a lawful manner. According to the complaint, various aspects of the Lyons' operation violate the First, Fourth, Fifth, Sixth, Eighth, Ninth, and Tenth Amendments to the United States Constitution, as well as §§ 504 and 505 of the Rehabilitation Act of 1973, 29 U.S.C. §§ 794, 794a; a variety of V.A. legislation, 38 U.S.C. §§ 210(c)(1), 218, 220, 610, 621(1), 623, 4101(a), and 4115; the Administrative Procedure Act, 5 U.S.C. §§ 552 et seq.; and the Developmental Disabilities Assistance and Bill of Rights Act, 42 U.S.C. §§ 6000 et seq. The plaintiffs also suggest in their briefs that the V.A. may also be violating New Jersey law in its treatment of involuntarily committed patients. The defendants have filed two motions for partial dismissal and/or summary judgment on the plaintiffs' claims. These two motions originally sought a decision on nineteen aspects of the complaint. *fn1" Two of these requests were subsequently withdrawn, *fn2" leaving seventeen matters for decision in this opinion. In deciding these issues, I have had the benefit of excellent briefs from the parties. I have decided to dismiss all of the plaintiffs' statutory claims for lack of subject matter jurisdiction pursuant to Fed.R.Civ.P. 12(b) (1) due to the operation of 38 U.S.C. § 211(a). I have also decided that the plaintiffs' equal protection claim survives the defendants' motion and that this conclusion mandates a denial of most of the remaining aspects of the defendants' motion. Finally, I have concluded that the plaintiffs have standing to assert a First Amendment challenge to 38 C.F.R. § 1.218.

 II. The Statutory Claims

 The plaintiffs allege that the Veterans' Administration operates its Lyons hospital in a manner that violates several statutes including § 504 and § 505 of the Rehabilitation Act of 1973, 29 U.S.C. §§ 794, 794a, and the Developmental Disabilities Assistance and Bill of Rights Act, 42 U.S.C. §§ 6000 et seq. In accordance with sound jurisprudential rules, these statutory claims must be decided before any consideration of the plaintiffs' constitutional claims. Siler v. Louisville & Nashville R. R. Co., 213 U.S. 175, 193, 29 S. Ct. 451, 53 L. Ed. 753 (1909); Halderman v. Pennhurst State School & Hospital, 612 F.2d 84, 94 (3d Cir. 1979). The defendants argue, however, that any such review of the plaintiffs' statutory claims is barred by 38 U.S.C. § 211(a). That statute provides, in relevant part:


... the decisions of the Administrator on any question of law or fact under any law administered 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.

 This statute was interpreted by the Supreme Court in Johnson v. Robison, 415 U.S. 361, 94 S. Ct. 1160, 39 L. Ed. 2d 389 (1974), where it was held not to bar judicial review of constitutional challenges to V.A. regulations and actions. 415 U.S. at 373-74, 94 S. Ct. at 1168-69. In that case, Justice Brennan explained in § 211(a):


The prohibitions (of § 211(a)) would appear to be 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 veterans. 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.

 415 U.S. at 367, 94 S. Ct. at 1165. In the present case, the plaintiffs have challenged numerous practices of the Lyons V.A. Hospital, an institution that is unquestionably run pursuant to authority granted by laws "providing benefits for veterans." The defendants' contention is that even if one assumes that the statutes relied upon by the plaintiffs are binding upon the V.A., it is still up to the V.A. to interpret those laws as they may apply to the problems it faces in its day to day operation of Lyons and that the Court is without jurisdiction to review its interpretation.

 The plaintiffs, of course, disagree with the defendants as to the reach of § 211(a). They claim that § 211(a) was only intended to bar review of "adjudicatory" decisions made by the V.A. in determining such matters as the eligibility of people for Veterans' benefits. That is to say, that it bars review of whether the V.A. interpreted the law properly in deciding to deny admission to the Lyons Hospital to an applicant, but that it does not bar review of whether a person is treated in a lawful manner once admission to the hospital is granted.

 The distinction made by the plaintiffs is certainly not one made either in the language of the statute or in Justice Brennan's opinion in Johnson v. Robison. To the contrary, such questions as whether the Rehabilitation Act of 1973 is applicable to Veterans' hospitals and what that statute requires in the context of such hospitals seem to precisely fit the statutory language in that they are questions of law and they arise in relation to the V.A."s administration of laws providing hospital benefits for veterans. Moreover, the distinction drawn by the plaintiffs between adjudicatory decisions and other decisions made by the V.A. would, if followed, "involve the courts in day-to-day determination and interpretation of Veterans' Administration policy," which, according to Johnson v. Robison, § 211(a) prohibits. Id. at 372, 94 S. Ct. at 1168.

 The plaintiffs have cited such recent cases as Wayne State University v. Cleland, 440 F. Supp. 806 (E.D.Mich.1977) affirmed in part and reversed in part 590 F.2d 627 (6th Cir. 1978), and Evergreen State College v. Cleland, 621 F.2d 1002 (9th Cir. 1980), for the proposition that § 211(a) should be narrowly construed as a bar to this Court's jurisdiction. These cases held


that 38 U.S.C. § 211(a) was designed to prevent judicial review of decisions of the V.A. on individual claims, but that it would not bar judicial review of constitutional challenges to provisions of the veterans benefits legislation and regulations issued thereunder, and that the statute would not preclude judicial review of challenges to the Administrator's authority to issue regulations.

 Evergreen State College v. Cleland, 621 F.2d at 1008. The present case is distinguishable from these cases because no challenge is being made to the V.A."s authority to promulgate rules, rather the plaintiffs contend that the V.A. at Lyons is failing to live up to its statutory obligations. Such an argument is no different from the clearly non-reviewable situation where a veteran claims that the V.A. failed to extend benefits that it has a statutory obligation to provide to that veteran. In both cases the veteran is claiming that he or she is not getting his or her statutory entitlement.

 It is true that Congress' primary purpose in enacting § 211(a) was to bar review of adjudicatory-type determinations made by the V.A. in determining whether to grant or continue benefits. See Johnson v. Robison, 415 U.S. at 361 at 368-374, 94 S. Ct. 1160, 1166-1169, 39 L. Ed. 2d 389; House Report No. 91-1166, 1970 U.S.Code Cong. & Admin.News, pp. 3723, 3729-31. Nevertheless, the language that it chose to employ in barring judicial review is far broader than that narrow purpose would require. Indeed, the House Report sets forth a broader purpose in its description of the effect of the statute: "The restated section 211(a) will make it perfectly clear that the Congress intends to exclude from judicial review all determinations with respect to noncontractual benefits provided for veterans and their dependents and survivors." 1970 U.S.Code Cong. & Admin.News, p. 3731.

 The plaintiffs are, of course, correct in their assertion that courts should be reluctant to conclude that Congress has barred review of administrative actions. See Barlow v. Collins, 397 U.S. 159, 165, 90 S. Ct. 832, 836, 25 L. Ed. 2d 192 (1970); Abbott Laboratories v. Gardner, 387 U.S. 136, 140-41, 87 S. Ct. 1507, 1510-11, 18 L. Ed. 2d 681 (1967); Pollard v. Romney, 512 F.2d 295, 298 (3d Cir. 1975); Hoffmaster v. Veterans Administration, 444 F.2d 192 (3d Cir. 1971). Nevertheless, the same cases stand for the proposition that when Congress has expressly or impliedly barred judicial review then the courts must decline review and dismiss the claims for lack of jurisdiction. I have concluded that the broad language of § 211(a) requires me to do so in this case and grant the defendants' motion insofar as it seeks dismissal of all of the plaintiffs' statutory claims for lack of subject matter jurisdiction. *fn3" Johnson v. Robison makes it clear, however, that the plaintiffs' constitutional claims must each be examined on their merits. The remainder of this opinion will discuss those constitutional claims that are put in issue by the defendants' motion.

 III. The Equal Protection Claims

 The complaint in this case raises a large number of constitutional claims, several of which have been put in issue by the defendants' motions. Among the claims put in issue by the defendants are those contained in the plaintiffs' "Tenth Cause of Action: Equal Protection of the Laws." The relevant portion of the complaint reads as follows.


150. Plaintiffs incorporate by reference paragraphs 1 through 125 as fully as though the same were set forth herein at length.


151. The rules, practices, procedures and conditions set forth herein are established and permitted by defendants solely on account of the psychiatric disabilities and histories of plaintiffs and their class.


152. Such rules, practices, procedures and conditions are not established or permitted for veteran inpatients in V.A. non-psychiatric hospitals.


153. By depriving Lyons patients of numerous rights, privileges and freedoms not denied to veterans in V.A. general hospitals, defendants have discriminated and continue to discriminate against them solely on account of their mental or emotional illness or handicap, in violation of the equal protection clause of the Fifth Amendment to the Constitution, as well as §§ 504 and 505 of the Rehabilitation Act of 1973, 29 U.S.C. §§ 794, 794a.

 The defendants have moved to dismiss this claim for failure to state a claim upon which relief may be granted because the complaint also contains a paragraph which alleges that psychiatric and non-psychiatric patients at Lyons "are equally subjected to rules and conditions set forth in this complaint." Complaint P 49. According to the defendants, this latter allegation is fatal to the plaintiffs' equal protection claim because it admits that there is no disparity between the treatment of psychiatric patients and non-psychiatric patients, i. e., it admits that all Lyons patients are treated equally by the V.A.

 The plaintiffs' principal response to this argument is that the defendants have misread the complaint. According to the plaintiffs, the claim is not that patients are subjected to disparate treatment within Lyons Hospital, but that Lyons patients are treated in a disparate manner in comparison with patients at other V.A. hospitals. The plaintiffs also argue that their allegations and proofs on the equal protection claims are sufficient to withstand a motion to dismiss or for summary judgment whether they are analyzed using strict scrutiny or rational basis equal protection standards. I have concluded that the plaintiffs are correct in their assertion that the equal protection claims are sufficient to survive the present motion.

 At the outset, I would like to note that in deciding this question I have considered matters outside of the pleadings and have, therefore, considered the defendants' motion as one for summary judgment. Fed.R.Civ.P. 12(b) and 56. Accordingly, I have taken that view of the evidence most favorable to the plaintiffs as the parties opposing the motion, and I have given the plaintiffs the benefit of all favorable inferences that might reasonably be drawn from the evidence. Sanford v. O'Neill, 616 F.2d 92, 96 (3d Cir. 1980); Janek v. Celebrezze, 336 F.2d 828, 834 (3d Cir. 1964).

 Even applying summary judgment standards, however, it is necessary to identify the nature of the claim made by the plaintiffs. The language chosen by the plaintiffs is susceptible to several readings, but I believe that it can be read to support the interpretation pressed by the plaintiffs. Certainly paragraph 153 of the complaint draws the comparison between Lyons and other V.A. hospitals and makes this comparison the basis of the equal protection claim. See also Complaint P 152. This claim can be reconciled with the portion of the complaint that the defendants find contradictory since paragraph 153 speaks of all Lyons patients and not just psychiatric ones. It is true that the plaintiffs generally seem to be alleging that the source of the V.A."s disparate treatment of Lyons patients is invidious discrimination against psychiatric patients. But as I understand the plaintiffs' claims they are contending that all Lyons patients, psychiatric or otherwise, are being tarred with the same brush. It seems to me that for purposes of the initial analysis of the equal protection claim the disputes between the parties as to how many psychiatric patients are at Lyons, whether Lyons is properly categorized as a psychiatric hospital, a general hospital, or one that is in transition between a psychiatric hospital and a general hospital, and whether the alleged discrimination against Lyons patients stems from the psychiatric label can be ignored. The plaintiffs' equal protection claim can, at least for purposes of initial analysis, be boiled down to two basic contentions:


1) Patients are treated in a substantially different manner at Lyons from the way patients are treated at other V.A. hospitals.


2) The defendants do not have a constitutionally sufficient reason for this unequal treatment.

 In considering the sufficiency of the plaintiffs' showing as to these contentions I have employed the rational relationship model of equal protection analysis, not because I have rejected plaintiffs' arguments as to the applicability of stricter standards of equal protection review, but because if the plaintiffs can survive summary judgment on that standard of review it follows a fortiori that summary judgment would be survived on any stricter standard that may be applicable.

 When every factual inference is drawn in favor of the plaintiffs it can be concluded that they have established their first basic contention that patients at Lyons are treated in a substantially different manner from patients at other V.A. hospitals. This conclusion may be drawn from several of the affidavits that they have submitted. These affidavits contain, inter alia, the following remarks:


I have spent time in a V.A. hospital in the Los Angeles area-named, as I recall, the Wadsworth V.A. Hospital, on Wilshire Boulevard. They have separate buildings for psychiatric and medical patients, and I was in the medical hospital. The conditions are much different there (from the conditions existing at Lyons)-it's just like a regular hospital. Two patients are assigned to a room. They have a cart that brings the telephone to your bed if you need it, instead of having a phone outside of the ward door which is frequently locked. There is no such thing as a privilege card. Visiting between wards is permitted. The staff treat you the way patients are treated in civilian hospitals-with respect.

 Affidavit of Allen Whitlock, filed June 6, 1980, P 17.


Mr. Hilbert tried to organize a patients' government similar to the one he had learned about at Coatesville V.A. hospital, known as the Patients' Forum. Each ward would designate one patient to meet monthly together with representatives of the hospital staff. He wrote a letter to the hospital director but received no response. He asked the doctor on the ARU to help, but he said it was not needed. He tried to see the hospital director, but was diverted to the assistant director's office and then ordered to leave by his secretary.

 Plaintiffs' response to the defendants' interrogatory No. 29, Part I, incorporated in affidavit of William Hilbert, filed June 6, 1980, P 18.


1. I am a patient at Lyons Hospital, Ward 53C east, a psychiatric ward. Previously, I was a patient at San Francisco Medical Center, Menlo Park, Palo Alto Medical Center in California, as well as the V.A. Hospital in Tucson, Arizona.


2. I have experienced the rules, procedures and conditions at these various hospitals, and compared to the others, Lyons is low on dignity for the patients.


3. In the other hospitals, the doctors sought out the patients to give them one-half hour of individual therapy each day. You received more attention from the doctors than you do here. Here I have received no individual attention from them. Generally, the staff here have less time in which to give you attention. On this ward, there is definitely not enough staff.


4. Here, the staff treat patients like incorrigible children. I have seen many more instances of patients being strapped down here than in any other place I've been. There is also more fighting and abusive language here.


7. My locker was changed two days ago, but I haven't received a key yet. As a result, I have to carry my toothbrush and valuables around with me. There is more theft at Lyons than at the other hospitals. On 53c west, I lost a shirt and pants, but I was sure the staff would do nothing about it, so I didn't report it.


8. I wanted to write a letter, but when I asked, there was no stamp and no place to mail it. They gave me a scrap of paper to write on, but no envelope. At other V.A. hospitals, there is a mail box right on the ward and pens, writing paper, stamps and envelopes are supplied to the patients for free.

 Affidavit of Charles Gaffney, filed July 16, 1980, PP 1-4, 7 & 8.

 In addition to the affidavits submitted, the plaintiffs have referred the Court to several studies which reveal significant differences between Lyons and other V.A. hospitals. The most important of these was prepared by the V.A. and submitted to the Senate Committee of Veterans' Affairs as a statistical report on V.A. activities. Veterans' Administration Activities (Fourth Quarter of Fiscal Year 1979 and cumulative), Senate Committee Print No. 19, 96th Cong., 1st Sess. (1979). The following chart can be derived from Tables 1A and 2A of that report: Facility Hospital Admissions Average Daily Census in-patient (10/78/79) (10/78-9/79) Full Time Hospital-bed Section Hospital-bed Section Equivalent Employment Total Psychiatric Total Psychiatric Lyons (NJ) 1,497 2,974 2,128 1,039 577 East Orange (N.J.) 1,722 15,459 1,204 780 100 Birmingham 936 12,846 0 293 0 (Ala.) Palo Alto 2,023 12,022 3,923 1,019 789 All V.A. 142,027 1,162,566 159,771 69,821 21,633 Hospitals (Totals) /////////--


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