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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 *fn1" Two of these requests were subsequently withdrawn, *fn2" leaving seventeen matters for decision in this opinion.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 ...

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