HERNANDEZ v. VETERANS' ADMINISTRATION

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Argument of Lawrence L. Curtice

Chief Justice Warren E. Burger: We’ll hear arguments next in Hernandez against Veterans’ Administration, 72-700.

Mr. Curtice, you may proceed whenever you are ready.

Mr. Lawrence L. Curtice: Mr. Chief Justice and may it please the Court.

The issue involved in this case is a jurisdictional one, namely, whether 38 U.S.C. Section 211 (a) bars judicial review of a lawsuit challenging the constitutionality of an Act of Congress concerning veterans’ educational benefits.

In the companion case of Robison versus Johnson, the merits of the claim will be discussed.

The issue here is only whether 38 U.S.C. 211 (a) bars judicial review.

During my 15 minutes, I will discuss the question of the proper statutory construction of 211 (a) and the due process limitations, which we feel are inherent in a contrary construction of 211 (a).

My colleague, Mr. Petranker will discuss the question of whether Congress has a power to sole limit judicial review and the question of the extent to which sovereign immunity is involved in this lawsuit.

The facts are simple and undisputed.

Petitioners here and our conscientious objectors who have performed two years of alternative services as required under Section 456 of 50 U.S.C.

Thereafter, they applied for veterans’ educational benefits with the Veterans’ Administration.

Their claim for benefits was denied under the statute since they did not fall within the definition of those individuals who have served more than 180 days in active duty.

Thereafter, petitioners filed a lawsuit in Federal District Court in California challenging the constitutionality of the Veterans’ Readjustment Benefits Act on the grounds that it was in validation of the First and Fifth Amendments of the Constitution.

Justice Potter Stewart: What’s the jurisdictional basis of the lawsuit?

Mr. Lawrence L. Curtice: Well, there were two main jurisdictional bases, the mandamus 38 U.S.C. Section 1651 and excuse me -- and the $10,000 requirement under 1331, 28 U.S.C. 1361 and 1331.

Justice Potter Stewart: And those are both were cited on the line on the complaint?

Mr. Lawrence L. Curtice: Yes, in both cases.

The District Court --

Justice Potter Stewart: And the relief requested was what?

Mr. Lawrence L. Curtice: The relief requested was declaratory relief, injunctive relief, and affirmative relief, namely, that they received the benefits.

Justice Potter Stewart: A mandamus?

Was a mandamus request?

Mr. Lawrence L. Curtice: Yes.

Yes.

Justice Potter Stewart: Where does the complaint appear here in these papers, can you tell?

Mr. Lawrence L. Curtice: The complaint appears as appendix -- it’s in the record but I am not exactly sure where it is.

Justice Potter Stewart: You don’t know where it is in the papers we have.

Mr. Lawrence L. Curtice: No, I do not.

The District Court dismissed the lawsuit and the Ninth Circuit affirmed on the grounds that 38 U.S.C. Section 211 (a) is a bar to our claim that petitioners are entitled to veterans’ educational benefits.

The first issue that I’d like to address myself to is the proper statutory construction of 211 (a).

We submit that under a proper interpretation of 211 (a), the more difficult constitutional questions involved in a contrary construction of 211 (a) need not be faced.

We submit under the plain meaning of the statute that this case should not be barred by 211 (a).

The statute provides that the decisions of the Administrator, on any question of law or fact, under any law administered by the Veterans’ Administration, shall be final and the courts shall have no power to review any such decision.

By the terms of the language of that statute, this lawsuit is not barred for we are not seeking review of a decision of the Veterans’ Administration.

The Veterans’ Administration has refused to consider petitioner’s constitutional claims, and we contend rightfully so that they don’t have the power to consider our challenge to the constitutionality of the Act which they administer.

Furthermore, under the language of the statute, we are not seeking review of any question of the law administered by the Veterans’ Administration.

We are instead contending that the statute itself is unconstitutional.

So we’re not seeking review on any question of law by the Veterans’ Administration.

The statutory history of Section 211 (a) and particularly the 1970 Amendment support our conclusion.

The Government suggest that 211 (a), the 1970 Amendment of 211 (a) was meant to cut out judicial review even in this type of case where we’re challenging the constitutionality of an Act of Congress.

It’s apparent from the legislative history that the purpose of the 1970 Amendment was merely to overrule certain decisions of the District -- the Circuit Court in the District of Columbia.

Concerning questions involving the termination of benefits, the DC Circuit had held that 211 (a) was not a bar to cases involving determination of benefits in contrast to those cases involving the application for benefits, and we submit that the 1970 Amendment was only meant to overrule this type of case.

There is nothing at all in the legislative history of the 1970 Amendment or the earlier enactments of the predecessors of 211 (a) that indicate that Congress wish to cutoff judicial review in this type of case, namely, where we’re seeking judicial review of the constitutionality of a statute, and --

Justice Thurgood Marshall: The statute is that you claim as unconstitutional?

Mr. Lawrence L. Curtice: The Veterans’ Readjustment Benefits Act.

Justice Thurgood Marshall: Which says what?

Mr. Lawrence L. Curtice: Which says, that veterans who served more than 180 days on active duty are entitled to veterans’ educational benefits.

Justice Thurgood Marshall: And you say that’s unconstitutional?

Mr. Lawrence L. Curtice: Yes?

Justice Thurgood Marshall: Why?

Mr. Lawrence L. Curtice: Well, I would like to defer that to the Robison case.

We’re going to strictly limit ourselves to the jurisdictional question.

Justice William H. Rehnquist: Mr. Curtice, so suppose that your client had sought a benefit and the Veterans’ Administration was denied by the Administrator and then sought to challenge it in the District Court not on the grounds of unconstitutionality of the statute, but on the grounds that the Administrator had unconstitutionally discriminated against him as compared with other similarly situated applicants.

Do you think this 211 would permit that sort of review or not?

Mr. Lawrence L. Curtice: Well, previous cases have held that it would not permit such a review and we do not have that question before us at this time.

Ours is a much narrower issue where there has been absolutely no review by any court or no decision by the Administrator at all on the questions presented.

Ours is a case in which the Administrator has refused to consider the constitutional challenges to the statute.

We’re not seeking review of a factual legal question which the Veterans’ Administration has already resolved.

This construction of the statute would also be in line with this Court’s theory that judicial review of statutes should not be cutoff unless it’s within the plain meaning of the statute and the legislative history supports that interpretation, and we submit there isn’t such here.

Also, this interpretation of the statute would save this Court the necessity of facing the constitutional issues involved in the case which we submit are gray.

Now, I would like to get into the due process limitations which are inherent in the contrary construction.

If 211 (a) were construed not to apply to case like this, we submit that petitioners’ due process rights have been violated.

Namely, they have been denied an opportunity for a meaningful hearing appropriate to the nature of their claim.

They have had absolutely no hearing whatsoever on their constitutional claim which is the one that’s appropriate to the nature of their claim in this case.

And we submit that the protections of the Due Process Clause come within in the meaning of the Board of Regents v. Roth, because there has been a legitimate -- petitioners do have a legitimate claim of entitlement to benefits.

Chief Justice Warren E. Burger: You mean they had a reasonable expectation? Is that the point you’re drawing on the Roth case?

Mr. Lawrence L. Curtice: Well -- I am not, no not the reasonable expectation because under the statute, it’s clear that they didn’t have a reasonable expectation.

But we submit that the statute provides the basis for the claim and the constitution provides a legitimate claim of entitlement to the benefits.

For example, if the statute had said that no blacks were to receive benefits under the statute, we submit that Roth would cover the situation even though that it’s quite clear that they have no reasonable expectation of receiving it.

In other words, the constitution provides a source of legitimate claim of entitlement to these benefits.

Justice William H. Rehnquist: But that’s a substantive constitutional right you’re talking about there, isn’t it?

Mr. Lawrence L. Curtice: Yes.

Justice William H. Rehnquist: The right to be free from denial of equal protection.

I think the Government argues here and to me with some persuasiveness that Mr. Justice Stewart’s opinions in Perry and Sindermann are basically procedural due process types of situations, where you don’t have any substantive claim.

But there, you have to show some sort of property that’s created by a statute but you’re not attacking really.

Mr. Lawrence L. Curtice: I think that the Roth decision should be extended to the extent that covers claims for property interest which but for the constitutional, -- beyond constitutional statute, they would be entitled to receive those benefits.

I would say that if again, if the statute have provided that no -- all veterans are entitled to receive benefits except for black veterans they would have a right -- a due process right, a property right that they should have a meaningful opportunity to present their claim of entitlement to these benefits.

Justice Potter Stewart: But where, in your submission is there a right to a hearing, in the agency?

Mr. Lawrence L. Curtice: No, in this type of case, the only place where there’d be such a right when you’re challenging the constitutionality would be in federal courts.

Justice Potter Stewart: That’s a -- in other words, your argument would cover this situation.

I could go into federal court and attack the constitutionality -- I could go into a federal court and attack the constitutionality of the program for aid to mothers with dependent children saying that while I’m not a mother, and that I don’t have dependent children, I am a father whose children are independent and nonetheless the statute is unconstitutional as to me and there’s some ground of independent jurisdiction based on this kind of a claim that I am entitled to a hearing on that claim?

Mr. Lawrence L. Curtice: We still have standing to sue because we’re seeking the benefits in question.

Justice Potter Stewart: Well, I’d be seeking the benefits that are given to mothers with dependent children on the proposition that the statute is unconstitutional because it doesn’t give it to me who is a father with independent children?

Mr. Lawrence L. Curtice: Well that would get into the question of a legitimate claim of entitlement.

Justice Potter Stewart: Well, that’s -- I would have a good faith claim.

It might be quite wrong but I would be believed in it by hypothesis.

Mr. Lawrence L. Curtice: I would submit that that is distinguishable.

Justice Potter Stewart: How and why?

Mr. Lawrence L. Curtice: In our case, we have a legitimate claim of entitlement.

That’s our contention and --

Justice Potter Stewart: Well, it should be contention too in my lawsuit.

Mr. Lawrence L. Curtice: Well, I would say then that it would come within that.

But it’s a case that would be --

Justice Potter Stewart: That the constitution itself confers jurisdiction upon a District Court and compels the District Court to give me a hearing on that question, is that it?

Mr. Lawrence L. Curtice: No, not the constitution.

Justice Potter Stewart: Well, Roth was a constitutional decision, wasn’t it and you are relying on Roth.

Mr. Lawrence L. Curtice: I’m relying upon Roth but --

Justice Potter Stewart: Not Roth against the United States, but Roth against the --

Mr. Lawrence L. Curtice: I’m relying upon the statute itself.

I’m relying upon the Veterans’ Readjustment Benefits Act.

Justice Potter Stewart: Well, I’d be relying on the legislation that gives aid to mothers with dependent children.

Mr. Lawrence L. Curtice: Then under the writ of mandamus statute, we’re submitting that we are entitled to make the claim for benefits on the grounds that the statute is unconstitutional.

Justice Potter Stewart: Of course anybody is entitled to make a claim for anything but the question is whether or not there is a duty of the federal court to grant you a hearing on this claim, as against legislation of the Congress that seems on its face at least to say that the decisions of the Veterans’ Administration are unreviewable in these cases.

Mr. Lawrence L. Curtice: Well, we submit in the case, for example, where again the example of the statute, which says that no black was to receive benefits that that would come under the Roth rational.

In other words, you’d be entitled to a hearing to challenge the statute that it was unconstitutional.

Chief Justice Warren E. Burger: Suppose counsel, that a young man had been in the Peace Corps and he made the same claim for educational benefits that your client is making here, and the Veterans’ Administration presumably would deny that claim administratively, wouldn’t they?

Mr. Lawrence L. Curtice: Yes.

Chief Justice Warren E. Burger: Because he’s not a veteran.

Mr. Lawrence L. Curtice: Yes.

Chief Justice Warren E. Burger: Now, isn’t the Veterans’ Administration administratively saying that they have denied this claim for substantially the same reason, that he is not a veteran?

Mr. Lawrence L. Curtice: They have said that but we submit --

Chief Justice Warren E. Burger: Well but in that sense, procedurally, and set aside the substantive claim, procedurally, he is in the same posture as a Peace Corps -- a former Peace Corps man who wanted veterans’ benefit, isn’t he?

Mr. Lawrence L. Curtice: Yes.

I will yield to Mr. Petranker.

Chief Justice Warren E. Burger: Fine.

Justice Thurgood Marshall: Well maybe, one question here, in your record, I find the complaint from some Peter Miller and Gary Lehn.

Mr. Lawrence L. Curtice: Yes.

Justice Thurgood Marshall: What’s that done in this record?

Mr. Lawrence L. Curtice: There are two cases that were consolidated.

I brought one action and Mr. Petranker brought another and they were consolidated for purposes of appeal to the Ninth Circuit.

Justice William H. Rehnquist: Well, isn’t -- Mr. Curtice, isn’t your argument basically a kind of independent of your Roth contention that --

Mr. Lawrence L. Curtice: Yes.

Justice William H. Rehnquist: -- 1331 confers federal-question jurisdiction, you alleged $10,000 in controversy, you alleged a substantive constitutional claim and that the statute in question deprived your client’s of the equal protection component of their Fifth Amendment due process?

Mr. Lawrence L. Curtice: That’s correct.

Justice William H. Rehnquist: And therefore, the federal court has jurisdiction of the 1331 to at least hear your claim, quite apart from any Roth?

Mr. Lawrence L. Curtice: That’s right.

We’re saying -- we’re also saying that the statute as construed does not apply to a case like this, 211 (a); on its face, it does not apply.

Chief Justice Warren E. Burger: That would be the same claim again going back to the Peace Corps case.

Mr. Lawrence L. Curtice: Yes, it would.

Chief Justice Warren E. Burger: The Peace Corps, former Peace Corps man said this is denial of equal protection or otherwise raise a constitutional question.

You say, he has a right to have a Federal Court decide that constitutional question narrowly.

Mr. Lawrence L. Curtice: Yes.

Justice Potter Stewart: And you claim -- excuse me, that this is the way I understand it.

You say the statute, as properly construed, doesn’t apply this kind of a case.

Mr. Lawrence L. Curtice: That’s right.

It does not --

Justice Potter Stewart: But that if you did construe the statute this way, it would deny you some sort of a constitutional right to a hearing?

Mr. Lawrence L. Curtice: Right and Mr. Petranker will go into other constitutional problems.

Chief Justice Warren E. Burger: Mr. Petranker, we have detained your colleague a little longer and we will enlarge your time by three minutes to compensate for that.

Argument of Jack R. Petranker

Mr. Jack R. Petranker: Thank you, Your Honor. Mr. Chief Justice, and may it please the Court.

At the outset, I would like to turn to a question which Mr. Justice Stewart raised.

I think that Mr. Curtice correctly answered that question but I sense that there may be some confusion left in the minds of the Court.

Mr. Justice Stewart raised the question whether an individual could come into Court and claim a right to a hearing on his claim that he was entitled to benefits under the aid to dependent Children’s Act, even though he was not a mother and does not have dependent children.

I think the distinction between that case and this one is that there would be an independent basis there for denying jurisdiction and that is simply that his claim would be frivolous, whether or not it was brought in good faith.

I think that once the terms of the statute were taken into account and the purposes of the statute, that there simply would be no valid constitutional claim.

In this case, our position is that once the statute is properly considered in light of its purposes, there is a substantial constitutional claim that conscientious objectors who perform alternative service like persons who are in the Armed Forces are entitled to those benefits.

Chief Justice Warren E. Burger: And you say that any time you allege a constitutional claim, the court -- the Federal Court must hear it unless it’s determined that’s insubstantial.

The Court might decide that it’s an insubstantial frivolous claim, not this particular one, but a claim and then not here but otherwise if the constitutional issue is raised, you say it, must be heard.

Mr. Jack R. Petranker: That’s correct Your Honor.

We think that’s fundamental.

Justice Potter Stewart: And was your complaint also grounded on 28 United States Code Section 1331?

Mr. Jack R. Petranker: Yes, 1331.

Also, Section 1361 and in addition in my complaint we raised an additional jurisdictional ground 5 U.S.C. Section 701 and the following sections, which will make the --

Justice Potter Stewart: What Section, declaratory judgment?

Mr. Jack R. Petranker: No, the Administrative Procedure Act, Your Honor, which specifies that a person aggrieved by agency action has the right to go into Federal Court to seek relief.

Justice Potter Stewart: To review again?

Mr. Jack R. Petranker: Yes.

Justice William H. Rehnquist: But doesn’t the Administrative Procedure Act exclude the case where review is precluded by statute?

Justice Potter Stewart: By its term.

Mr. Jack R. Petranker: That’s correct.

Our contention is that since Section 211 (a) doesn’t apply here, the Administrative Procedure Act does.

Justice Potter Stewart: And on what basis did you under 1331 allege an amount of controversy of more than $10,000 excluding interest and cost?

Mr. Jack R. Petranker: Essentially, the value of an education to the individual plaintiffs involved, the benefits that they are seeking would enable them to obtain a college education or higher education, and without those benefits, they might very well not be able to commence or complete a college education and over the course of their lifetimes that certainly would result in an economic deprivation to them in excess of $10,000.

That was the basis of our allegation.

Justice Potter Stewart: You were in the Hernandez case?

Mr. Jack R. Petranker: Yes, that’s right.

Justice Potter Stewart: Representing Mr. Hernandez, and purportedly all those similarly situated?

Mr. Jack R. Petranker: Mr. Hernandez and Thomas Wolf were the two named plaintiffs, and in addition, it was a class action, yes.

Mr. Curtice had already addressed himself to the due process issues involved in this case.

In addition, I’d simply like to point out as the Court already has I believe what the other constitutional problems are in the Government’s position that even though petitioners have raised purely a constitutional claim, a substantive constitutional claim, that nonetheless, they can be denied relief or review of the constitutionality of an Act of Congress in the federal courts, or for that matter in any court.

Essentially, that proposition, of course, runs afoul of the rule recognized in countless decisions of this Court as fundamental to this form of government and that is that the courts must always be open to hear claims that the constitution has been violated by Congress.

Justice Byron R. White: You say, do you think that’s true if the claim was less than $10,000?

Mr. Jack R. Petranker: If there were no other forum, judicial forum, in which that claim could be heard, then I think essentially the same problem would be raised here, yes.

Justice Byron R. White: But you wouldn’t say that it will have to be raisable in the federal court?

Mr. Jack R. Petranker: No, Your Honor.

But under the terms of Section 211 --

Justice Byron R. White: Well, we have got here the Federal Court.

Mr. Jack R. Petranker: But under the terms of Section 211 (a), Congress has apparently sought the cutoff review in every Court, Your Honor.

The statute provides that the decisions of the Administrator shall be final and that would appear to cover state courts as well.

And in addition, --

Justice William J. Brennan: I know, but a region or any court of the United States.

Mr. Jack R. Petranker: Well, that term is ambiguous.

Our position is that there’s really no basis for Congress to decide that the federal courts cannot review decisions by the Veterans’ Administration but state courts can.

That would run contrary to the normal presumption that review of federal agencies should be in the federal courts.

Justice William H. Rehnquist: I suppose that the Administrator were sued in state court he could remove to federal court, couldn’t he, under the removal statute?

Mr. Jack R. Petranker: There might be a problem there, Your Honor, and that the removal statute would seem to conflict with what the Government says Section 211 (a) is since they contend.

Justice Byron R. White: It wouldn’t be removal if federal court didn’t have jurisdiction in the first place?

Mr. Jack R. Petranker: That’s correct Your Honor.

So that there might be a problem there and that’s another reason that it wouldn’t seem to make sense to construe Section 211 (a) to allow suit in the state courts.

There’d be still a further problem in that the ultimate reviewer of state court decisions, the Supreme Court, this Court would seem to be barred from consideration of claims coming from the state courts under that interpretation.

Justice Byron R. White: I take it your position is that if 211 said that the United States Courts shall not have jurisdiction of any action challenging the constitutionality of any provision of this statute that you would be arguing that statute is unconstitutional; that provision is unconstitutional itself, barring -- barring those sort of suits in the federal court.

Mr. Jack R. Petranker: If the state courts were left open, I don’t think there’d be a constitutional problem.

Justice Byron R. White: Well, then let’s assume that this present section is construable that way?

Mr. Jack R. Petranker: Then I don’t think -- I suppose I misspoke myself to some extent.

I think there would be a constitutional issue raised.

I don’t think it would be as difficult as the issue posed here, and I think it would certainly go much further towards protecting the rights of petitioners here since they would at least concede.

Justice Byron R. White: Well, one of the issues in the case is, how do you construe this section?

Mr. Jack R. Petranker: Yes.

Justice Byron R. White: What did Congress intend to preclude litigation about in the federal court?

Now, if let’s assume for the moment that we decided that Congress intended to preclude constitutional challenges to this statute, then your case is much different, is it what you say?

Mr. Jack R. Petranker: On the assumption that, that exclusion was intended to apply in federal courts but not in state courts?

Justice Byron R. White: Well, it’s not -- it's hard to say about the state courts, but at least, let’s assume we’re clear about Congress’ intention with respect to the federal courts.

Because after all, that’s what it does say, Courts of the United States.

Mr. Jack R. Petranker: Well, the term, Courts of the United States has been construed in other statutes to include courts of the states, so that that in itself, I don’t think is a sufficient indicator.

But if that construction were possible, I think we would take the position that unless at the same time appeared that there was a definite right to go into state court, that the constitutional requirements of a hearing on the questions of constitutionality would not have been satisfied.

There will also be an additional problem under Article III which we have addressed ourselves to in the briefs as to whether those questions could be entrusted completely to the state courts without the possibility of review in this Court.

But as I say, that’s a much more narrow question and it’s one that would not pose as serious constitutional problems as are involved here.

Now, the Government has relied on two basic arguments for their view that the courts can indeed be deprived of jurisdiction to hear constitutional claims.

First, they point to the fact that Congress can, of course, control the jurisdiction of the federal courts, and I suppose, at least within limits the state courts as well.

But they failed the point to any case which is held that Congress can remove the jurisdiction of the courts to consider constitutional claims where the result would be that no court could consider a constitutional claim.

And that’s what’s involved here and that is the rule that we believe the decisions of this Court and in fact the entire theory of this government requires that some court must be able to hear constitutional claim.

In addition, the Government relies on an application of the sovereign immunity doctrine.

They contend that since in the normal case, Congress must give its consent before the United States can be sued.

But then in this case, since Congress appears to under the Government’s construction have withdrawn its consent to be sued that sovereign immunity doctrine does bar consideration of petitioners’ claims.

But, of course, again, there is a clear exception in the sovereign immunity doctrine when it is alleged that an officer of the United States is acting pursuant to an unconstitutional statute, and that is the situation that we have here, so that again, the position that the Government has taken is unsupported by the decisions of this Court and by the --

Justice Byron R. White: Plaintiff -- do you think there’s any difference between asking for a declaratory judgment and an order to an officer to payoff funds of the United States?

Mr. Jack R. Petranker: Well, in asking for declaratory judgment, the Court does not impose an affirmative duty on Congress or an officer of the United States and it does give Congress the option in this particular Act, for example, if the Court declared that the Veterans’ Readjustment Benefits Act was unconstitutional, Congress would have the option of enacting a new law terminating the law or proceeding to include conscientious objectors within the terms of the Act, so that there is not as direct an interference.

Justice Byron R. White: So again, I ask you, do you think that in terms of sovereign immunity that there is a difference between asking for an order for benefits as distinguished from the declaration that the statute is unconstitutional?

Mr. Jack R. Petranker: I think there is that difference to which I just tried to address myself.

Justice Byron R. White: Well, so do you think if you do ask for an order that actually for an order to pay money that you are barred by sovereign immunity?

Mr. Jack R. Petranker: If that were the only kind of relief that could satisfy the claims of petitioner --

Justice Byron R. White: But the veterans are asking in terms of the complaint in this case, to enter an injunction required to seize refusing to grant plaintiff’s benefits?

Mr. Jack R. Petranker: Well, I believe that the second paragraph of the prayer for relief does also request declaratory relief.

Justice Byron R. White: Is that?

Mr. Jack R. Petranker: But focusing on the first, there was a suggestion in Larson versus Domestic & Foreign Finance Corporation that even in the case involving an allegation of unconstitutionality where affirmative relief would be required in order to effectuate an order of the Court, that sovereign immunity might operate as a bar.

I think the correct interpretation of that suggestion is that in a case where affirmative relief would cause a substantial interference with the function of the Government.

In other words, a variant of the compelling interest test, if you will.

If the Government could come in and show with compelling interest which would lead to the conclusion that it should not be required to enter a -- or to make affirmative relief, then it might be that despite the allegation of unconstitutionality, the Court would not have jurisdiction because of the Sovereign Immunity Doctrine.

But in the case where affirmative relief could be granted without any substantial interference and that was the question -- that is a question, I submit, before the Court, then the Government would not or the Court rather would not be barred by sovereign immunity doctrine.

Chief Justice Warren E. Burger: Thank you Mr. Petranker.

Mr. Norton.

Argument of Gerald P. Norton

Mr. Gerald P. Norton: Mr. Chief Justice, and may it please the Court.

I have lost my voice to a cold over the weekend.

And if I don’t come across loudly often times, let me know, I’ll try to speak out.

There are two consolidated cases before the Court in Hernandez presenting the same issues on the merits and on jurisdiction as would be considered also in the Robison case next on the calendar.

We don’t have an extensive factual record below because the case went off in a motion to dismiss.

And the allegations of the complaint do not provide substantial background about the plaintiffs here.

We do know that they did, as alleged, serve two years of alternative service and were denied benefits when they applied to the VA for educational benefits provided by the 1966 Veterans Readjustments Benefits Act.

I think I will start by turning directly to the question of whether Section 211 applies here.

By its terms it says that a decision of the Administrator of the VA under any of the laws administered by the VA with certain exceptions for contractual benefits, not involved here, shall be final and conclusive and no other official or any Court of the United States shall have jurisdiction or power to review such a decision.

Now, we think this statute clearly covers this case by its terms.

If plaintiffs are seeking here to review a decision of the Administrator namely that they are not entitled to benefits, their effort to get out of the terms of the statute really involves an assertion that there are reasons why he should -- the Administrator should have come to a contrary decision.

They say, he should have decided that they were entitled to benefits for reasons that he did not consider namely the constitutionality of the statute.

But you cannot avoid the fact that these cases seek to review a decision of the Administrator to the fact that they were not entitled the benefits, and therefore the cases are squarely within the terms of 211.

Now to appreciate the scope of preclusion of review that Congress intended, I think it is important to trace the background of the statute.

A forerunner of 211 was enacted in 1921 which provided that the Director of the Veterans’ Bureau, then administering the Veterans’ Benefits Laws, adopted after World War I, shall decide all questions arising under the Act.

Now in the Silver Shine case and a series of decisions in the 1920s, this Court decided that while any questions of fact were not subject to judicial review under that statute that a question of law, or the question whether the Administrator’s decision was arbitrary or whether there was any evidence whatever to support the decision might not be subject to the preclusion.

Then in 1933 Congress enacted the Economy Act.

It’s part of the effort to reduce Government expenditures, and made various changes in the Veterans’ Benefits Program, and in that statute there was another preclusion provision which provided that all decisions of the Administrator under the provisions of law for non-contractual benefits shall be conclusive on all questions of law and fact and no official or Court of the United States shall have jurisdiction to review those decisions by mandamus or otherwise.

In Lynch against United States in the unanimous opinion by Mr. Justice Brandeis, this Court observed that the 1933 provision was obviously intended by Congress to eliminate even the scope of review that the Court have previously said was available under the 1921 Act.

And there was no intimation that any constitutional program was presented by that action.

Indeed, in Lynch, the Court discussed at some length the enormous power that Congress has to grant or withdraw benefits fortuitous or non-contractual benefits and the enormous power that Congress has to grant or withdraw a forum in which to press for relief under a statute granting such benefits.

In 1957, the 1933 provision and a similar provision adopted in 1940 were combined into the immediate predecessor of 211.

At that statute, included the language to the effect that the Administrator’s decision on any question of law or fact concerning a claim for benefits under these non-contractual provision was conclusive and not subject to judicial review.

A series of decisions in the District of Columbia Circuit construed 211 as not precluding review of a decision concerning termination or reduction of benefits distinguishing between claim and termination.

Now, this led Congress in 1970 to amend the statute retroactive to 1940 to make it perfectly clear that Congress intended that all decisions of the Administrator under the provisions of the statutes providing for non-contractual benefits were not subject to judicial review.

I think it’s --

Justice Byron R. White: What about -- go ahead.

Justice Thurgood Marshall: Is there anything in the legislative history that gave to the Veterans’ Administration the right to determine constitutional questions, finally?

Mr. Gerald P. Norton: There is not.

There is some indication --

Justice Thurgood Marshall: Well, isn’t that this case?

Mr. Gerald P. Norton: I would not say that is this case because the -- well before we contend that the VA has decided the constitutional question --

Justice Thurgood Marshall: Well, suppose the VA decided that nobody who didn’t go overseas shouldn’t feel to like -- how would you touch that?

Mr. Gerald P. Norton: I am sorry.

I couldn’t hear.

Justice Thurgood Marshall: The VA says, you can’t get veterans’ benefits because you didn’t go overseas, you stayed and can’t meet.

What would be done with that?

Mr. Gerald P. Norton: Well, under the statute that makes that distinction or on --

Justice Thurgood Marshall: No, no under this present statute.

Mr. Gerald P. Norton: Well, the --

Justice Thurgood Marshall: How would you get to that?

Mr. Gerald P. Norton: The cases construing the present statute in Roth against United States in the Ninth Circuit is an example, say that 211 precludes review of any decision even where it is claimed that the Administrator committed an error of law or if constitutional dimension in applying the statute.

Justice Thurgood Marshall: Roth said constitutional dimension?

Mr. Gerald P. Norton: It was claimed in the Roth case that the decision of the Administrator was based on either a lack of evidence or in which the claim was treated resulted in a denial of due process to the claimant.

Justice Thurgood Marshall: And because of the treatment of the evidence, the factual evidence?

Mr. Gerald P. Norton: Well, that is the nature of that case.

Justice Thurgood Marshall: Well, that’s not a constitutional point.

Mr. Gerald P. Norton: Well, that was the allegation and the Court said even without allegation of the denial of the --

Justice Thurgood Marshall: So in this case, if the Administrator just deliberately violates the Constitution of the United States, he is the only man in the Government who goes cut free?

Mr. Gerald P. Norton: There’s nothing in the terms of 211 that makes any exception for that situation and the observation of the Court in the Lynch case where they said that the similar statute eliminated review of an arbitrary decision by the Administrator would lead in that direction.

Justice Thurgood Marshall: Lynch said it ain’t constitutional; it’s an arbitrary.

Mr. Gerald P. Norton: Well, I think you can enlarge measure or acquaint that to because of the way that the question of due process has developed to the often interchangeable with arbitrary action.

There is another indication of the Congress’ intent in the 1933 Economy Act and that under a separate provision of that statute involving a not contractual benefits but reduction of pay to certain people.

Congress had another provision precluding judicial review but except in cases where a constitutional issue was presented.

So Congress knew how to make the distinction when it wanted to and in none of the statutes leading up to 211 has it as it done so.

Justice William H. Rehnquist: Mr. Norton, what if the petitioners here instead of having presented a claim to the Administrator, had simply gone into the District Court under 1331 and 1361 and challenged the constitutionality of the statute, could the Government have asserted the provision of 211 (a) as a defense to that action?

Mr. Gerald P. Norton: Well, 211 (a) would not seem to apply on its face because it would not be -- if the Administrator have taken no action whatever on this issue, it would not seem that there would be a decision of the Administrator under review.

There would be other questions raised in such a suit as to whether it was premature, whether there have been exhaustion of administrative remedies, and of course sovereign immunity or another basis for jurisdiction would be additional issue that would have to be confronted. That of course is not this case.

The desire of Congress to preclude judicial review in this area seems amply justified by the potentially enormous burden that review of VA decisions would place on the Court it’s in that.

VA takes about 15 million adjudicative actions annually and the Board of Veterans Appeals alone disposes of some 30,000 cases, the vast majority of these involve claims under the various non-contractual benefit programs that are the subject of Section 211 (a).

Now, the plaintiffs claim that if the suit is barred that they are denied their due process rights, but the critical provision of the Fifth Amendment that they never really face up to is that the Fifth Amendment protects against a denial of life, liberty, or property without due process of law.

And it’s this Court’s decision in the Roth case indicates every person who seeks some benefit or is disappointed by the action taken by Government concerning him does not have the basis for a claim under the Fifth Amendment.

There must be a property interest of some sort created either by statute, contract, practice, or common law.

The plaintiffs concede that under the statute on its face, they have no property interest in these benefits.

They try to construe or contend that the statute has to be read as unconstitutional if it does not extend benefits to them, and therefore, by combining the constitution and the statute, they have a property interest but the Court indicated in Roth that the Constitution does not create property interest.

And that approach does not have any merit, we believe.

In addition, there is a problem that if the claim is made is that a statute unconstitutionally distinguishes between the groups by giving something to one and taking away or not giving to someone else, all the plaintiffs can really claim is that that distinction is invalid.

It doesn’t necessarily follow that they are entitled to get what someone else got.

It maybe that the answer is that the Court or the benefit should not have been extended to either group either it was to everyone or to none, so that the Constitution itself, even in conjunction for the statute does not give them a right to benefits.

The plaintiffs have contended that they have a right to a court hearing because of Article III of the Constitution, which they say, basically requires that a federal court be available to hear any and all constitutional questions that may be raised.

Now, just in last term in the Palmore case, this Court rejected the proposition that Congress was obliged under Article III to vest in the federal courts all of the judicial power authorized by Article III, and it is still the law and has been throughout our history that to have jurisdiction in a Court, there has to be a statute extending that jurisdiction, and Congress has the power to grant jurisdiction and has power to limit jurisdiction.

And as the Court said in Lynch, the power knows virtually no limits.

We would -- on the question whether 211 applies to state court proceeding if that has not previously been raised in this case as this case arose in a federal court, the question of state court jurisdiction over a case like this is one that, I think, would require additional consideration.

It is certainly not the position of the Veterans’ Administration that all these cases should be litigated in the state courts and if a case were filed in the state court, there would be a question of sovereign immunity just as there is a question of sovereign immunity in the federal courts.

To determine whether there would be state court jurisdiction you would have to know the nature of the proceeding, the nature of the state law, and the relief sought and other matters that I do not think can be decided in the abstract.

But on the question of sovereign immunity, this is a suit against the Veterans’ Administration by name, its administrator and the regional administrator concerning the actions of these officials in the course of their duties.

The relief sought would require the affirmative action of these officials in turning over to the plaintiffs’ funds, property, money that is unquestionably belonging to the United States.

Now we feel that this brings -- it makes the case squarely one against the United States in substance even if in form against its officials and under the --

Justice Byron R. White: But what if there was no request for an injunction of any kind?

Mr. Gerald P. Norton: Well, in the Larson case, I assume you made just a declaratory judgment request?

Justice Byron R. White: Yes, against only the officials.

Mr. Gerald P. Norton: In the Larson case, the Court indicated that even if only declaratory relief had been sought, there would still be a sovereign immunity problem.

Indeed, it suggested that there might be a greater one because there would be a -- could be a binding declaration of rights.

It is always been said in these sovereign immunity cases is that the action can precede against the officer but it is not binding against the Government, it’s not --

Justice Byron R. White: This would be an interesting decision in the light of some of the welfare cases, wouldn’t it?

Mr. Gerald P. Norton: Well, I would not attempt here to try to square those cases with all of the sovereign immunity doctrine which the Court has recognized as not an area of perfect logical symmetry.

But in the cases where the courts have entertained suits against officials where they -- where officials of the United States, they have tended to involve property either land or coal or something tangible which there was a claim that the property really belong to the plaintiff and that this officer was retaining it against the rights of the plaintiff and the question of possession could be determined as between the two with the question to ultimate title vis-a-vis the United States left to another forum.

Justice Thurgood Marshall: Well, that if we go with you on the sovereign immunity, we don’t need to bother with 211 then, do we?

And let me just waste it, definitely.

Mr. Gerald P. Norton: If the Court will hold the sovereign immunity --

Justice Thurgood Marshall: If sovereign immunity is a good defense, you don’t need 211. So Congress has wasted its time.

Mr. Gerald P. Norton: Well, I wouldn’t say the Congress has wasted its time because there maybe suits that would be subject to 211 that would not necessary be subject to the sovereign immunity doctrine.

But in this case, given the nature of the relief sought and the nature of the parties, we say that it is barred both by sovereign immunity and 211.

The Court could, if it so chose, resolve this case on the basis of whether the statute that is constitutional without necessarily reaching the merits.

This was the approach taken in Brooks against Doe where a difficult question was raised concerning a jurisdiction of a state court to grant relief against the federal official in the performance of his duties. The Court said that where the plaintiffs’ claim was lacking in substance, it wasn’t essential to reach that difficult jurisdictional issue, because they could affirm on the merits.

That is the position we would take here and that the Court can affirm in this case on either ground.

Of course if the Court is going to reject our position in the Robison case on the merits, it’s essential that it resolve both jurisdiction and the question on the merits.

Now --

Justice William H. Rehnquist: Well, the ultimate question in this Ninth Circuit case, if we come to the merits at all, is not the constitutionality fell on the Act, but whether the question that’s constitutional is sufficiently substantial to warrant the convening of the three-judge court, isn’t it?

Mr. Gerald P. Norton: Well, yes, that’s exactly my next point that the alternative or the second point decided by the District Court in Hernandez was that after holding that 211 barred jurisdiction, the Court also denied the request for a three-judge court holding that no substantial constitutional question had been raised.

Now, if that was a correct determination then the Court can affirm the action of the District Court on the jurisdictional rule and because it was properly made by a single judge as we contend.

Now the District Court’s determination that there was no substantial question, constitutional question was made in view of what the Court thought of the manifest differences between alternative service and military service and the reasonableness of providing this fringe benefit to veterans of military service in the absence of any cognizable burden on the free exercise of religion and also the lack of any establishment or religion in the statutory scheme.

The substance of that ruling really requires a consideration of the merits which is presented in the Robison case and has not been touched on in the arguments here, so that I think it would be appropriate for me to defer that for further discussion until that case, and if I were to begin it here, I would be unfair to the other side, although I would not want to give up my time here and not be able to continue.

So I think I would rest at this time but defer the constitutional question to Robison.

Chief Justice Warren E. Burger: I take it you agree with Mr. Curtice’s response to the hypothetical question I gave about the Peace Corps Veteran who came in and made the same claim that’s being made here.

Do you agree that the District Court could say that claim is so insubstantial for constitutional claim and that I will not convene a three-judge district court?

Mr. Gerald P. Norton: Yes, I think that is precisely what happened in this case.

Chief Justice Warren E. Burger: Well, and you think that’s true here too, but that’s because you think both cases attend to equate to each other that is the Peace Corps Veteran and the petitioners here?

Mr. Gerald P. Norton: That’s true, we would say that there is no greater constitutional question presented there than here, and in either case, the District Court could properly dismiss both for lack of jurisdiction and the lack of a need to convene a three-judge court because of the insubstantiality of the question presented.

If there are no further questions --

Justice Potter Stewart: Well, that would, of course, the dismissal was squarely, as I understand it upon the basis of Section 211 (a), wasn’t it?

Mr. Gerald P. Norton: That’s correct.

Justice Potter Stewart: We have a footnote in the Court of Appeals’ Per Curiam affirmance that there might be something so egregiously unconstitutional that the constitutionality of 211 (a) itself might have to be reconsidered but this dismissal wasn’t on the basis that it was an insubstantial question, was it?

Mr. Gerald P. Norton: Well, the District Judge denied a request for a three-judge court, but then --

Justice Potter Stewart: Right.

Well, because of 211 (a), didn’t he?

Mr. Gerald P. Norton: No, because you said there were no substantial constitutional questions presented.

He may have felt that he had to do that in order to be authorized to as a single judge grant the motion to dismiss.

Justice Potter Stewart: I have, as you know, there’s no appendix in this case and I have before me, except for the Page 16 of the petition for writ of certiorari the Court of Appeals characterization of what the District Court did saying the District Court dismissed the plaintiff’s complaint for lack of jurisdiction under 211 (a).

Mr. Gerald P. Norton: Well, that is true, but the Court also denied the request for a three-judge Court.

On the ground that --

Justice Potter Stewart: This can be any court that 211 (a) is valid, couldn’t it, could there?

Three-judge court, one-judge court, or 10-man judge Court, 211 (a) says, there should be no judicial review.

Mr. Gerald P. Norton: Well, that is true, and we’re not saying that he had to convene a three-judge court to determine whether he could dismiss under 211, he may have felt that it was appropriate to consider both of those issues in order to make his dismissal proper as a single judge.

Justice William H. Rehnquist: I take it, what you’re referring to is the 339 Fed. Supp. Xerox in the very back of the petition, which has Judge Carter’s opinion.

Mr. Gerald P. Norton: That’s right.

Chief Justice Warren E. Burger: Well, conceivably to -- Excuse me.

Justice Potter Stewart: Excuse me.

Chief Justice Warren E. Burger: Justice Marshall put a question to you or perhaps to one of your friends awhile ago, saying that if the Veterans’ Administration can find educational benefits to those veterans who had served overseas that that might conceivably raise a constitutional question and the three-judge court or a single district judge might conceivably, I take it, decided to call or convene a three-judge court for that purpose, you would not agree with it perhaps?

But I am trying to distinguish that kind of the case, raising what would appear to be a significant constitutional question from the one which you considered insubstantial here.

In short, you wouldn’t say it was an insubstantial claim if the Veterans’ Administration was denying benefits to all veterans except those who went overseas when the statute obviously gives no such authority.

Mr. Gerald P. Norton: Well, we say that 211 bars any review of a decision of the Administrator and on 211 alone, the District Court properly dismissed the case.

We don’t think it was necessary for him to address the three-judge court question, a motion was before him, he may have felt an appropriate thing to do to not to leave it unresolved in order to make it clear that his action on the motion to dismiss was properly taken as a single judge.

Chief Justice Warren E. Burger: Let’s take an extreme case then, that the Veterans’ Administration Administrator decides that because of the shortage of funds, rate inflation, and a lot of factors, he is not going to pay any education benefits to anyone.

He is just going to nullify that section of the Act of Congress, would say that that would not be open to mandamus under 211?

Mr. Gerald P. Norton: Well, we believe that 211 supersedes whatever jurisdiction is otherwise available under one of the general jurisdictional statutes whether it be 1361 the mandamus statute or 1331 the General Federal Question Statute.

Chief Justice Warren E. Burger: I suppose you might also answer that the same for the Veterans’ Administration did that, he would be fired by the President throughout --

Mr. Gerald P. Norton: Well, exactly there are --

Chief Justice Warren E. Burger: -- a follow up to Congress and the problem would solve itself politically.

Mr. Gerald P. Norton: There are other remedies and restrains on --

Chief Justice Warren E. Burger: But you’re saying that there is only a political remedy on that situation.

Mr. Gerald P. Norton: Under 211.

Chief Justice Warren E. Burger: Thank you gentlemen.

The case is submitted.