Stephen Marozsan v. The United States of America and the Veterans' Administration, Defendants

1469 opened by of completely ous. Once Benton the door Thus, the court was hearing. character, good fering with- evidence of his denying Benton’s motion justified Williams, right government v. to rebut that hearing. States had out a United (5th Cir.1987). McGuire, evidence. States v. United F.2d (6th Cir), denied, F.2d cert. proof, government’s close of the At the L.Ed.2d for severance his motion renewed Benton view, key In our one of the issues antagonistic defenses ground that on the honesty. He in Benton’s trial was his had Campbell Benton. had made been charges extortion defended the various Gallo, 763 F.2d 1504 v. In United States drugs on conspiracy to distribute denied, Cir.1985), (6th cert. conducting an honest ground that he was we 88 L.Ed.2d investigation drug dealing in Morgan defenses co-defend that different held County. The court was well within district a severance of their require ants do not tending admit evidence its discretion to defend prevail that to We held trials. reputation did not have a show that Benton antagonism be ant must show being an honest law enforcement offi will mislead the co-defendants tween cial. recently We jury. Id. at 1525. confuse heavy carries held the defendant Therefore, Benton’s convictions on all showing of making strong burden are AFFIRMED. counts compelling prejudice factually specific and joint trial. United States resulting from (6th Cir. Davis, 1207-08

v. Swift, 809 F.2d

1987); United States Cir.1987). meeting (6th burden, demon

heavy the defendant must distinguish the inability to jury’s

strate the to each defendant.

evidence relevant further 322. We indicated F.2d at MAROZSAN, Stephen some is able to the defendant show Plaintiff-Appellant, confusion, confusion jury such potential society’s interest must balanced of America The UNITED STATES trials. Because and efficient speedy Administration, the Veterans’ failed, in either oral altogether Benton has Defendants-Appellees. to this argument or in the written brief court, way jury indicate what No. 86-1954. confused, the court committed we hold that Appeals, Court of United States joint with a trial proceeding error in no Circuit. Seventh Benton. Campbell and 6, 1987. Argued Oct. that the

Finally, Benton maintains by permitting court erred district 23, 1988. En Banc Feb. Reargued witnesses present character July Decided reputation for testify Benton’s about defense, however, part his honesty. As testimony character introduced

Benton example, wit For witnesses. three testified Benton Pennington

ness J.W. indi “being an honest reputation

had a

vidual.” evidence, the this character

To rebut Each

government called three witnesses. Benton’s essentially testified that

witness veracity was dubi-

reputation for truth Skodinski,

Philip Bend, Ind., R. South plaintiff-appellant. Koppel, Washington, D.C.,

John S. defendants-appellees. BAUER,

Before Judge, Chief and CUMMINGS, WOOD, Jr., CUDAHY, POSNER, COFFEY, FLAUM, EASTERBROOK, RIPPLE, MANÍON, KANNE, Judges. Circuit FLAUM, Judge, Circuit with whom BAUER, Judge, Chief CUMMINGS, WOOD, HARLINGTON Jr., CUDAHY, POSNER, KANNE, Judges, join. Circuit Stephen complaint Marozsan filed a alleging part district court that the Veterans’ Administration violated his con right process stitutional to due of law. The district court ruled that 38 U.S.C. § hearing “bars a court from reviewing an challenging action a decision of the V.A., plaintiff alleges when a that the decision rights.” violates his constitutional States, Marozsan v. F.Supp. United (N.D.Ill.1986). Because Marozsan challenges constitutionality pro Administrator, cedures used because we pre do not read clude a federal court hearing this challenge, we reverse and remand for fur proceedings ther opin consistent with this ion.

I. injured Marozsan his back duty Navy. while on active He filed his first claim for veterans’ benefits in subsequent 1953. This and claims1 were 3.103, 3.104, 1. Veterans file successive claims for bene- 38 C.F.R. §§ 3.105. previous fits even if their claims were denied. unequivocal Veter- when the Board of was an bar denied until disabled. Appeals process claims, rated Marozsan ans’ 20% of Marozsan’s due and re- petitions to refused Marozsan’s The Board jected merits equal protection on the his rating. August increase challenge statute itself.3 in federal Marozsan filed action court alleging, among things, other that the V.A. II. arbitrary system pro- employed quota an interpreted The district court Mar- cessing process him due claims denied claim as a challenge ozsan’s to his benefit complaint, law. In his Marozsan of essentially level and therefore a claim seek that the court issue a “di- quested district ing money Treasury. from the But is this Agency” “capri- enjoining

rective to the inappropriate characterization arbitrary” He also' cious and decisions. complaint. Although it is not a model that he asserted pleading, reading a of Marozsan’s com judicial the deci- does not seek review of plaint clearly reveals that it establishes a particular in his V.A. sion rendered own alleges claim for more than benefits. He be, action, may as it claim erroneous violations, including serious constitutional constitutionality questioning employs sys claim that the V.A. procedures impossi- quota which make

V.A. arbitrarily veterans to a fair and tem which ble for obtain limits the number hearing. impartial granted. procedure, benefits claims This asserts, unconstitutionally deprived he him court all of the de- The district dismissed property of his interest in his veterans’ except the and the fendants United States It benefits.5 evident that Marozsan V.A.,2 motion to converted defendants’ like to obtain increased benefits summary judg- into a motion for dismiss Administrator; ment, in from the were he not a summary judgment entered and seeking their favor. The court found that disabled veteran benefits § (7th Cir.1987), originally sued the States of U.S.C. 2. Marozsan United America, General, Attorney 1346(a)(2) precludes the United States a district court from Walters, Administration, Harry the Veterans’ Administrator, N. hearing United States for claims Regional Hornbarger, V.A. R.L. $10,000. more than We therefore affirm that Indiana, Adjudication Officer of the National dismissing portion opinion the district court’s Legion, Lyngh, American Robert E. Director jurisdic- subject these claims for lack of matter Rehabilitation, & the Na- Veterans' Affairs tion. Legion American Officers. tional Executive Times, D, 19, 1988, February sec. at 4. See N.Y. 3. Marozsan contended that "veterans are denied (witnesses testifying House col. 1 before judicial review of V.A. whereas Social decisions Operations de- Subcommittee Government Security disability general recipi- welfare appeals system’s production quotas nounce V.A. Marozsan, rights.” ents have abuse, arbitrary, subject to for case workers F.Supp. properly con- at 581. district court work); supportive slipshod manipulative and argument equal protection this as an strued challenge Times, col. 6 N.Y. June sec. 211(a). constitutionality of § (V.A. quotas). production announces end of Robison, Johnson v. See agree with the We court, asserting jurisdiction in the district court that bears a rational rela- district may arguing have been Marozsan ensuring tionship legitimate ends of state up a not have intended to set veterans’ could adequate and uniform on veterans’ decisions system in viola- benefits which constitutional burdening courts benefits federal subject to the extent are not review. To tions there- review of these benefits decisions. We Congress’ have intent been portion the district court’s fore affirm opinion granting summary judgment 211(a), challenge enacting to a deci- this is a in favor Cleland, Congress, 616 F.2d see Devine v. sion of equal protection on the defendants Marozsan's 1980), (9th precluded 211(a). is not Cir. challenge to § however, find, 211(a) under Johnson. We compliance asking In addition to for V.A. jurisdiction Mar- court over the district had clause, process sought with the due Marozsan proce- challenge benefits, ozsan’s constitutional proper to his retroactive restoration V.A., ex- employed and therefore damages. dures disability, and million in $5 level of opinion com- press on whether Marozsan’s clearly precludes no review of our Section challenges Congress on plaint also decision to set benefits and the Administrator’s decision disability levels, Walters, grounds. process 815 F.2d due Winslow forum, action giving events rise to this would not and indeed—since the V.A. dis occurred, authority have and Marozsan would not claims to consider constitutional standing challenge pro have V.A.’s claims 6—no forum at all in which to raise grant process cedures. But V.A.’s decision his due claim.7 See Bartlett v. Bowen, deny higher (D.C.Cir.1987). him under the vet 816 F.2d regulations 211(a) deprives erans’ benefits statutes and is Yet if jurisdiction, us of properly not our concern. Marozsan asks implicate profound that statute would long-debated us to review the methods—not the questions deci about the He Congress, III, sion—of the Administrator. claims that consistent with Article agency preclude a federal executive has acted out all review of executive authority by violating agency side its constitutional action. We must construe statutes right process. to due his Marozsan’s ac to avoid such difficult ques constitutional essentially possible. tion therefore is not a suit to tions whenever Edward J. De benefits; recover veterans’ “it is a suit to Corp. Bar tolo v. Bldg, Florida Coast Gulf — part Council, enforce lawful conduct on and Constr. Trades U.S. Schweiker, -, 1392, 1397, 645, Starnes v. 99 L.Ed.2d [administrator].” (4th Cir.1983) (holding (1988); Robison, F.2d 141 715 Johnson v. 415 U.S. Security 366-67, 1160, 1165, that 1395ff of the Social Act did 39 L.Ed.2d 389 § Secretary’s (1974). logical not bar claims that the reim extension of the Su ceilings preme bursement violated the Constitu reasoning Court’s in Johnson and tion). -, When issue is “not whether the Turnage, v. 108 granting deny (1988) Administrator’s decision or S.Ct. 99 L.Ed.2d 618 and the ing particular in right case was structure of our constitutional form of wrong, or but rather whether Adminis dictate that we not read 211(a) consistently grant preclude trator had acted with his all review of a § authority or authority had exceeded his veteran’s serious constitutional claims. To rights preserve and acted in constitutionality, violation veterans’ its in we must guaranteed by amendment,” 211(a) the fifth stead construe to allow substantial § apply. does not challenges8 Arnolds v. Veter to the veterans’ Administration, F.Supp. regulations, ans’ 507 benefits statutes and as well (N.D.Ill.1981). 130-31 procedures as to the established V.A. to administer them. court, having The district Maroz- labeled challenge despite san’s a claim for benefits III. allegations, its constitutional ruled that a federal court could not exercise review. When the district court ruled on Maroz- holding, correct, claim, imply This that would san’s it did not have the benefit of grant narrowly has chosen not to Maroz two decisions this court which judicial remedy against 211(a). san a proce V.A. construed Because the statute is As,a that violate the facially ambiguous, possible dures Constitution. it is to inter- result, judicial pret barring Marozsan would have no it as review of all decisions of Robison, 361, 368, stroying thwarting discovery v. 6. See Johnson 415 U.S. 94 of documents 1160, 1166, (1975). Times, claims); S.Ct. L.Ed.2d 39 389 See relevant to veterans’ N.Y. 749, 765, Weinberger Salfi, also v. 95 29, 1988, (mounting public March col. 1 (consti- (1974) S.Ct. paralysis, delays criticisms of V.A.’s and denials beyond jurisdiction Secretary issues tutional administering process pension pro- of due in its benefits and Act). Security the Social Bell, grams). Ralpho See also v. F.2d (much (D.C.Cir.1977) litigation needless beyond dispute 7. It is that the administrative agencies could be avoided if a mo- show procedures provide of the V.A. do not review as claimants). dicum of consideration for constitutionally meaningful in available Indeed, suggested the courts. it has been 537-42, Lavine, Hagans 8. See v. impartial, the V.A. is not even an deliberative 1379-81, (1974); See, 39 L.Ed.2d Bell body. e.g., National Ass 'n Radiation Sur Hood, (N.D.Cal.1987) Turnage, 90 L.Ed. vivors v. (V.A. 115 F.R.D. willfully recklessly sanctioned for or de- Hornbarger, 439, 440 Mathes v. 821 F.2d (a interpretation), broad the Administrator Cir.1987) holding of (7th we reiterated or under of law fact decisions only those construc- Winslow are not di- “federal courts (a narrower laws V.A. benefits Walters, challenging suits jurisdiction over vested of In Winslow tion).9 proce- constitutionality the VA’s Cir.1987) filed an (7th a veteran 1114, 1117 Due Process Clause of under the constitutionality dures challenging the action inter- The narrow Fifth claiming that Amendment.”10 procedures, the V.A.’s adopted that we hearing pretation of him provide did not agency viable, and Mathes We Winslow it is is not rating. disability changing his before con- to avoid serious required held Winslow not bar order necessarily by a questions raised stitutional procedures of the claims that review of statute.11 broader construction process clause. the due V.A. violate Ringer decisions do The Court’s and narrow of the broad discussion 9. For a Salfi Reisch, 211(a), reading preclude of interpretations see narrow § Veterans’ Administration courts to hear constitutional Progress: Must allows federal Law?, 405(h) 40 Stan.L.Rev. of the Social Comply with Federal that § claims. held Salfi author). (student juris- Security deprived the courts of Act federal on claim for benefits a widow's diction over Mathes, and vir- like Marozsan 10. Winslow marriage. previous child from a behalf of her encoun- the courts tually ter, claimants veteran all “duration of the that The widow the claimed V.A.’s unhappy with the determination were Security relationship” requirement the Social unequivocally held We levels. of their benefits constitutionally impermissible a Act created 211(a) deprives “clearly a § that in Winslow 405(h) § held that The Court classification. to alter determina- the court of federal the jurisdiction despite the fact that precluded disability regarding rat- by the V.A. tions made Constitution. under the Unlike claim also arose Winslow, benefits." ings entitlements and however, statutes, Security the Social V.A. the Marozsan, Winslow, and But at 1117. 815 F.2d provides federal court specifically Act constitutionality of challenged the also Mathes following a final administrative determina- view by the Administrator process afforded them the 405(h) prohibited concluding that § tion. In deciding individual their in the course expressly stated that jurisdiction, the Court now, then, that this we hold as Salfi claims. We held inapposite unlike the So- because 211(a). Johnson was A challenge type § not barred Act, 211(a) constitu- Security review, §“if reached cial of his individual not obtain veteran limitations, statutory then determination, challenges to tional unconstitutional but of claim issue arriving of the absolutely at V.A. in no consideration employed by the methods 762, at at 95 422 S.Ct. be U.S. benefits decision. available.” that "extraordinary” result was unac- 2465. This Weinberger Salfi, 422 U.S. v. that We note 11. 405(h) Further, although bars § ceptable. Id. (1975) 2457, L.Ed.2d S.Ct. constitutionality of the challenges to the Ringer, v. Heckler rem- (until prescribed administrative statute (1984) support asser- do not 80 L.Ed.2d exhausted), that demonstrates Johnson edies are be- unreviewable claim is Marozsan’s tion that reading. 211(a) given a broad be such cannot § The for benefits. of” a claim “arises out cause it respects unlike 405(h) is thus crucial Section 211(a) unequivocal and found court § district sup- 211(a), offers scant therefore § Salfi reading only un- susceptible one viable thus 211(a) must read port § view that judicial review precludes the statute der which of claims that judicial review even preclude In by the Administrator. made of all decisions Ringer the Constitution. violated Administrator case, argues, Marozsan's case the Court similarly inapposite. that In employ methods “decided” Administrator 405(h) initially requires Medi- § that held issue, thereby rendering im- these methods at claims their into to channel care claimants ac- supra 9 and note review. See mune from seeking judicial process before administrative companying text. S.Ct. at 2021. U.S. at review. 466 211(a) unconvincing First, assert it is event, recent decision the Court's V.A. vio- logically whenever the control must -, S.Ct. Turnage, Traynor v. deciding course of Constitution lates the (1988) this debate moots 99 L.Ed.2d begs interpretation claims. This Tray- Ringer. significance of over the Salfi the district question of whether fundamental reading narrow adopted specifically nor 211(a) is constitu- reading § broad court’s only of “deci- precludes review Any of the Con- violation permissible. tionally partic- applying a interpreting or made sions inevitably arise in the by the V.A. will stitution laws] benefit provision of veterans’ [the ular govern- If the benefits. of a claim for context at Traynor, 108 S.Ct. facts.” correct, particular set of veter- no were view of § ment’s issue framed the Court even The 1379. standing challenge such ever have an would "decision” the V.A.’s whether it before violations. interpreted ap- The Johnson decision was based on three Mathes Winslow Robison, plied 94 factors in addition Johnson v. to the Court’s desire to unnecessary 39 L.Ed.2d 389 the semi- avoid an construction 211(a). implicate nal ease on the construction which would constitu First, Supreme held in tional concerns. Court Johnson the statute itself may challenge explicit language barring judi veterans in federal court the contains no constitutionality legis- cial of veterans’ benefits consideration of a veteran’s constitu challenge system; lation. Court held tional to the benefits challenges applies does not bar to the constitution- This factor to Marozsan’s claim as well, ality legislation equally of such because its enact- because the statute is silent Congress, proce a decision not the ment is on review of claims that the Administrator.12 The Court chose to read dures utilized to effectuate the benefits Second, system to allow constitutional review of violate the Constitution. accepted pro veterans’ benefits statutes in order to avoid the Johnson Court V.A.’s questions concerning the “serious constitu- testations that Administrator is not tionality” competent ques of the statute which would be to decide constitutional contrary raised construction. Id. at tions. 415 U.S. at at 749, 761, Weinberger Salfi, 1165. Whatever the stat- See said, precludes, ute the Court in effect (section 211(a) preclude judicial preclude review did not

constitutionality legislation. partially Johnson because “the issue was go beyond Court did need to the statu- one which the Administrator considered to tory challenge beyond jurisdiction”); at issue to consider his Taylor whether challenges States, F.Supp. review of constitutional to the United regulations procedures might V.A.’s (section 211(a) also (N.D.Ill.1974) pre does not required. Rehnquist be Chief Justice later controversy “where the judicial vent review however, suggested, implicit- that Johnson questions beyond constitutional involve[s] 211(a) ly interpreted precisely allow scope authority of of the Veterans’ Ad the challenge the kind of Marozsan makes. ministration”). Traynor, 108 See also S.Ct. “Despite general preclusion judicial the (there is no “reason to believe that at 1379 claims, respect review with to VA benefits any special expertise in as the has [V.A.] this held in Court Johnson ... that the regulations sessing validity of its con jurisdiction courts district have to entertain struing statutes under a veterans’ benefits operation constitutional attacks on the later-passed general applica statute of systems.” the claims v. Walters Nat’l tion”). allegation that the Ad Marozsan’s Survivors, Ass’n Radiation arbitrary quota sys utilizes an ministrator 311 n. 3184 n. analysis requires constitutional tem (1985). L.Ed.2d 220 competence of an inde peculiarly within the pendent judiciary. though explicitly Even Johnson did not challenges resolve the fate of constitutional procedures employed by Finally, 211(a)

to the the Admin- legislative history of § “operation sys- istrator his of the claims contains no indication that intend- tems,” reasoning compels of that case ed to bar review of constitutional federal court questions.13 review of Marozsan’s claim. As the Court in Johnson review, Administrator; subject thereby implicitly id. at is not a decision of the under construction, rejecting government’s every view that ac- the narrow it is not a decision of tion of the Administrator is an unreviewable the Administrator under the veterans' benefits Reisch, challenges supra laws. See note "decision." Marozsan the constitu- 338 n. 81. tionality procedures, of the Administrator’s 211(a) amended 1970 in reac- 13. accuracy of his decision under the veterans’ tion to three decisions of the D.C. Circuit. benefits laws. These decisions 211(a) 12. Both constructions of reach this re- held that certain individual claims determina- construction, subject despite sult. Under the broad the statute tions were found, history clearly evinc- form administration of benefits legislative veterans’ interpretations the technical focuses ... on in- purposes. Section was es two entitlements, granting par- of the statutes burdening the courts with tended to avoid ticularly degrees on the definitions and individual claims requests for review of recognized application disabilities and Although it is clear determinations. graduated benefit schedules.” Rose the courts would Congress feared that be Rose, (1987). John- fact-specific required to review inundated prohibitions noted that “the son [of decisions, is not even a hint there benefits appear aimed at re- ] Congress intended to exclude consider- only view of those decisions of law that claims, constitutional ation substantial arise in the the Veter- administration marginal on the whatever burden providing ans’ Administration of Further, Judge points Posner courts. A benefits for veterans. decision of law or concurrence, post-Johnson out in his fact ‘under’ a statute is made the Ad- Federal Rule of Civil Procedure advent of interpretation applica- ministrator in the federal courts from a flood protects particular provision tion of a of the statute or their claims. Veterans insubstantial facts_” particular set 415 U.S. at claims, counsel who file frivolous whether Rose, 94 S.Ct. at 1166. See allege of the Consti- or not violations implicitly recog- at 2035. The Court thus tution, sanctioned under Rule will now nized that was intended to bar addition, it is not clear what incen- challenge those actions that the V.A.’s lawyers would have to file frivolous tive application specific fact benefits laws challenges when courts have Walters, 756 F.2d situations. See Gott v. jurisdiction to hear related meritorious no 902, 918-19, vacated and dismissed as Fallon, Legisla- claims. On See (D.C.Cir.1985)(Wald, J., moot, 791 F.2d 172 Courts, Agencies, Administrative tive dissenting). III, 101 Harv. L. Rev. and Article Supreme recent decision Court’s n. 328 -, Traynor Turnage, also intended to ensure The statute was confirms adjudication of indi- expert reading and uniform -of Johnson.15 had honorably discharged Yet this “interest uni- an veteran who vidual claims.14 judi- preclusion by reading 14. We note that the of federal the term "claim” section produced high a level of cial review has not very narrowly. [Specifically, a held that decisionmaking. uniformity in benefits See not create a “claim” forfeiture of benefits did Reisch, supra & n. 160. note at 353 benefits, thus V.A. decisions that veter to and their benefits were held re ans had forfeited reading confirmed Our of Johnson further Tracy v. Glea viewable in federal See court.] Doe, - U.S. -, by Webster v. son, (D.C.Cir.1967); Thompson F.2d 469 (1988), in which the Court Gleason, (D.C.Cir.1962); F.2d Well 102(c) of the National Securi refused to read § Whittier, (D.C.Cir.1958). F.2d man v. ty of constitution Act 1947 to exclude review accompanying Report The House the 1970 discharged employee. Sec CIA by al claims language clearly states that the amendments 403(c), 102(c), gives codified at 50 U.S.C. tion designed reject “fairly change the tor Intelligence of Central discretion the Director by adopted court of tured construction the employees he deems whose termination fire "necessary Wellman, Tracy appeals Thompson, interests of the or advisable in the Cong., holdings.” H.R.Rep. 2d No. 91st held that this lan United States.” The court Cong. U.S. Code & Admin. enough Sess. guage a clear intent did not evince p. particular, 3731. In News preclude review of constitutional federal court might Writing that review be extended challenges feared action. to the Director’s Rehnquist majority, those decisions to "millions of deci Justice under Chief a six Justice reducing many types terminating or sions stated: provided under laws administered 102(c) persuades Nothing us that Con- in § Administration.” the Veterans’ gress preclude meant consideration Walters, (D.C.Cir. arising 924-25 Gott v. out of constitutional claims colorable J., (Wald, 1985) dissenting). pursuant Thus to that of the Director the actions section; fact-specific simply benefits de claim reaffirmed that we believe that a constitutional discharge may be re- benefits laws are an individual terminations under veterans’ based on the District Court. review. viewed immune from federal He cannot be assumed that the availabili- benefits. his educational [i]t not exhausted ty of the federal courts to decide whether after receiving benefits continue sought to inconsistency there is some fundamental ten-year lim- applicable expiration the Veterans’ between Administration’s disabled had been that he ground it on construction veterans’ benefits stat- period. of that during much by alcoholism utes, regulation in as reflected alcoholism that found administrator here, issue and the admonitions of the reg- under a V.A. misconduct” was “willful Act will Rehabilitation enmesh courts benefits. requested and denied ulation complex “the technical determina- the Veterans’ review of sought “Traynor application tions and of Veterans’ Admin- case, id. at in his decision” Adminstration’s policy istration connected with veterans’ 504 of the violated claimed which he or benefits decisions” “burden courts Act. Rehabilitation and the Veterans’ Administration with expensive time-consuming litiga- 211(a) did not bar The Court found tion.” Seven Traynor’s claim. judicial review Johnson, (quoting Id. at 1379 415 U.S. at “[sjection concluded Justices16 1167). 94 S.Ct. at See also id. at 1379 of law decisions from review insulates (noting n. 9 that in the four circuits allow- by the administered ‘under law fact “judicial statutory challenges ing review of Administration,’ is, decisions Veterans’ regulations, only eight such chal- [V.A.] particu- applying interpreting made filed”). lenges have been Concern that the particular ato of that statute provision lar floodgates opened would be challenge at 1379. set of facts.” Id. not bar claims that the V.A. violated a challenge, did like Marozsan’s Traynor, generally applicable federal statute was in- any particular application of involve the deny jurisdiction Traynor, sufficient specific ato the V.A. statute provision of similarly deprive and is insufficient to us of alleged that a facts; rather set of challenge. jurisdiction to hear Marozsan’s gener- statute of regulation violated V.A. reasoning Tray- Johnson observed, the Court applicability. As al decisions mandates federal court re- nor “challenge ... did not Traynor’s claim type challenge to the V.A.’s view of construction Administration’s Veterans’ presents. procedures that Marozsan It is benefits, dealing with veterans’ any statute would insist on hard to see how Court construction extent that its except to the constitutionality right to review Act.” by the Rehabilitation may be affected legislation, but hold immune Id. administrative actions all unconstitutional pursuant legislation.17 to that See taken concluding did not de- Reisch, Progress: 211 in Must the Veter- Tray- prive jurisdiction to hear Court Comply with ans’ Administration Feder- challenge, specifically re- nor’s the Court 323, (1987) Law?, 40 343 al Stan.L.Rev. allowing jected argument review author). (student Similarly, because courts congres- of such a claim would contravene compliance can review V.A. action for with by opening “floodgates” intent statutes, sional anomalous non-V.A. it would be to seeking disgruntled to veterans benefits. actions in suggest that the violation V.A.’s are immune from scruti- reasoned that of the Constitution Court at -, (footnote omitted). Kennedy part Scalia and took no Id. S.Ct. at 2054 16. Justices 108 preclud or decision of the case. read the consideration The Court refused to the statute ing part constitutional claims in "to avoid the question' interpret Many ‘serious constitutional that would arise courts have therefore lower deny any were construed to federal statute ed Johnson to mean that does not bar judicial constitutionality judicial forum for a colorable constitutional of the review of the (citing Michigan Academy policies regulations, procedures of the Ad claim.” Id. Bowen 12, 667, Family Physicians, U.S. 12, n. Arnolds v. Veterans’ Adminis 476 681 ministrator. See of 128, (N.D.Ill.1981) (list tration, F.Supp. 2141 n. 90 L.Ed.2d 623 cases). (1986)). ing authority agencies to executive reasoned Ral to do so. As the D.C. Circuit ny. Furthermore, (1977): Congress cannot insist that Bell, pho v. judicial the executive be immune from purporting to by Congress legislation [I]f requiring view it to act in a constitutional constitu- judicial review of the prevent manner. It is the essential of function itself con- tionality of its own actions is judiciary enjoin illegal to review and such legislation that stitutionally suspect, Schwartz, action. B. Administrative See judi- agency from administrative frees an (2d 1984) (“The responsibility Law 436 ed. to the dic- scrutiny of its adherence cial enforcing statutory grants the limits of pose grave must tates of Constitution burden_ authority judicial With- as well. Not questions review, statutory out limits would suggest that Con- daring it words.”); Note, naught empty be Con- subject to the checks and gress, though gressional Preclusion Judicial Review Constitution, may create of the balances Federal Disbursement: Reas- Benefit body free from those con- a subordinate Powers, serting Separation 97 Harv.L. straints; imagination beggars also it Rev. See also Northern might suggest Pipeline Pipe- Co. v. Marathon Constr. assuring integrity of less crucial Co., 70 n. line it is to make action than administrative 2870 n. operate within certain that will (where Congress adjudicative creates sphere. If the courts are dis- proper its agencies, for executive the Su- schemes requiring administrative offi- abled from “suggested preme Court has constitutionally, it is difficult cials act review”). III required provide for Article function, perform that to see who would sovereign the Administrator lacks au- Since (citations omitted). Constitution, thority to contravene the he to look into properly Courts are reluctant sovereign immunity from lia- cannot assert bound, discretionary determi- complex, fact bility century Half a for such acts. agency’s decisionmaking pro- nations of an agency adjudica- burgeoning administrative equally at 622. But must be cess. Id. vitality tion has not diminished “free-wheeling agencies reluctant to license Hughes: Justice words Chief justice.” their out own brand [to mete] recognition utility and conve- (quoting Id. Oestereich Selective agencies for the nience of administrative Bd. No. Sys. Serv. Local investigation finding of facts within L.Ed.2d support and the province, their proper (1968)). sup- thus Johnson action, require their authorized are port the conclusion that federal courts that there is no limitation the conclusion obligated empowered and to review sub- use, that the could of their agency stantial claims of unconstitutional of all determi- completely oust the courts action, imposition of an such as the arbi- vesting authority fact nations of trary quota system. finality in its own make them in the Executive De- instrumentalities or IV. sap judi- partment. That would be to Federal as it exists under the cial Maroz emphasize that because We Constitution, govern- and to establish a constitutional Veterans’ Ad san demands alien to character ment of a bureaucratic procedures merely mon ministration —not fundamental system, wherever our Treasury aspect of sover ey from the —no infrequently they not rights depend, as eign immunity can bar his claim. Bart Cf. facts, finality as depend, upon the do (D.C.Cir. Bowen, 816 F.2d lett v. finality in effect law. to facts becomes an 1987) (Bork, J., dissenting). We are asked 22, 56-57, Benson, allegedly govern unlawful here to consider Crowell action, It simply request for mon 76 L.Ed. 598 ment not profoundly trou- may surprising and ey. Congress that not would be It is axiomatic jurisdiction bling if courts had no unconstitutionally, may delegate nor it federal act agency only July violated to those veterans born on 4th or consider whether a federal Fallon, A to white veterans. statute which Harv.L. Constitution. See precludes obviously review of such (“No uncon case holds Rev. at modern ... just stitutional decisions must be as uncon may judicial all Congress cut off underlying stitutional as action of the of an entitle- view of the administration Bowen, Administrator. Gunther, See Bartlett v. program.”); Congressional ment (D.C. Cir.1987). Power to Federal Court Jurisdic- Curtail Ongo- to the Opinionated tion: An Guide government argu- conceded at oral Debate, 921 n. 113 ing 36 Stan.L.Rev. interpretation ment its broad (1984)(commentators “agree Congress 211(a) bars review even of such abhor- § enforcing for feder- cannot bar all remedies this, practices. rent It must concede be- rights”). al constitutional distinguishing, cause there is no basis for review, purposes judicial for between V. process, equal protection due or other con- accept government’s If we were to by stitutional violation the Administrator.20 of Mar- position that bars review may This untenable distinction not be claim, face a difficult by trivializing pro- ozsan’s we would avoided Marozsan’s due scope judicial power challenge to curb cess claim as a to mere details of issue—the taking. alleged arbitrary quo- evidence An agency action—which lies unconstitutional system ta that obviates the Administrator’s conception govern- of a at the core of our 211(a) need to consider evidence is no mere If separated powers.18 ment of question detail but a serious of constitu- review, judi- precluded subvert the procedures tional dimension. V.A.’s providing a “check ciary’s function of high may degree not be scrutinized for a self-aggrandize- arbitrariness accuracy, comport but must with the executive, and their by Congress, ment requirements process. minimum of due Fallon, agents.” 101 Harv. administrative Only finally the federal courts can ensure (footnote omitted). To L.Rev. at 975-76 compliance, and cannot re- deny jurisdiction to claimants like Maroz- Congress to do so. move their could simply san would be to find that veterans (nor to) not do we think it intended so pursue a claim have no forum which requirements blithely circumvent the the V.A. violated the Constitution. Constitution. necessary implication of such a hold- by ing, candidly conceded reading A that bars review of argument, at oral that the V.A. is claims is thus Marozsan’s constitutional be called to account for method it uses suspect unnecessary. We must con- administering the veterans’ benefits strue so as to render it constitu- laws, egregious.19 Surely no matter how presume tional. Courts review un- deny hearings employ preclude fairly the V.A. could less intent to review is dis- review, arbitrary quotas legislative from the scheme. without cernable here, grant Academy Family alleged Michigan it could also benefits Bowen v. underlying conception arguments retaining ers the Article III 18.The guarantors agency fidelity governmental power must be courts as to law. that wielders of law, Fallon, (citations subject appli- at to the limits of and that the 101 Harv.L.Rev. omit- determined, ted). cable limits should authority ques- institutions whose is in those tion, could not have intended the V.A. to 19. impartial judiciary. As Profes- engage "politically itself free to mo- it, consider proposition pithily puts sor Sunstein infidelity requirements tivated guard that foxes should not henhouses is as Fallon, law.” 101 Harv.L.Rev. applicable agencies as it is to administrative Indeed, or the executive. concurring safeguards against Judge opinion arbi- 20. See Posner’s at 26- absence of electoral trary Rabin, 27 and Preclusion Judicial Review in and self-interested bureaucratic deci- agen- Processing sionmaking the documented risk of Claims Veterans’ Benefits: Analysis, cy susceptibility by private Preliminary A Stan.L.Rev. influence (1975). groups compelling separation-of-pow- furnish review, could circumvent the Constitution 476 U.S. Physicians, (1986). Hart, generally As Power 90 L.Ed.2d at will. See indicates, ambigu the statute is Congress to Limit the Jurisdiction Fed Johnson history legislative Dialectic, on its face and ous eral Courts: An Exercise in 211(a) pre that provides (1953). no indication § Harv.L.Rev. Since statute ope constitutional claims. review of cludes ambiguous and there is not itself is preclude re truly Congress Had wished legislative history in the shred evidence challenges to of constitutional view even Congress preclude ever meant to re that benefits of the veterans’ the administration procedures that view of V.A. violate laws, clearly specified could have § Constitution, certainly should not we strain against the are claims V.A. that even these to find such intent. court. in federal See Web unreviewable — U.S. -, Doe, ster VI. 211(a), Unlike 100 L.Ed.2d in This court’s decisions Winslow v. Wal- however, constitutionality of such a (7th Cir.1987), ters, 815 F.2d by canons of could not be saved (7th Hornbarger, 821 F.2d 439 Mathes v. statutory construction. Cir.1987), proper reflect construction Congress did not affirma- It is true that 211(a); application remain constitutional claims tively state the law of this circuit. Marozsan’s com- procedures are reviewa- against the V.A.’s substantial, plaint on its face makes a non- argument, questioned at oral When ble. assertion, Lavine, Hagans frivolous see however, for the counsel 528, 537-42, 94 1379- point single to a státute which unable to (1974); Hood, 81, 39 L.Ed.2d 577 Bell v. affirmatively jurisdiction asserts 90 L.Ed. 939 entertain constitutional federal courts to his constitu- that the V.A. violated administration. challenges to a statute’s by employing arbitrary meth- rights tional presumption in surely This is because determining which claims to ods of just guideline of review is not favor deprive a does not grant. Section statutes, very interpreting part of the jurisdiction to entertain federal court of as we— of our constitutional scheme fabric challenge. The type of constitutional Congress it. —understand fed- court should therefore assume district initially that the V.A. may have assumed jurisdiction over Marozsan’s question eral mandate; carrying in out its would be fair claims under 28 U.S.C. process due perform their that federal officials will part, Accordingly, we affirm 1331.22 consistent with the Constitution duties remand this case to the part, reverse every congressional enact- presumed further, proceedings con- district court likely that Con- ment.21 It is at least as opinion. with this sistent issue, or as- gress failed to address questions, of constitutional sumed review POSNER, Judge, whom Circuit sought preclude as it is CUDAHY, Judge, joins, Circuit Bartlett, altogether. See such judgment concurring opinion judiciary’s federal F.2d at 708. The of the court. chal- to review constitutional sponsibility interpretation majority’s agree I with the indeed federal lenges would be hollow 211(a), and shall note some immune from of 38 U.S.C. agencies, executive "Congress the district court erred exec- 22. We remand because presume that intends the 21. We and, statutory obey holding ac- consid- its commands barred it from utive to cordingly, grant expects the courts to process ering claim. It Marozsan’s due agency violates such a relief when an executive true, however, proper con- that even under Michigan Academy Bowen v. command." Marozsan has not made of § struction Family Physicians, showing adequate a motion for sum- to survive (1986). Congress must mary judgment. This determination should agencies expect to be no less faithful executive court in the first instance. made the district the Constitution. moment, pleadings,” provi in this but first I want ed such relief his why reasons in a argument there is an for point empower out that courts to sion was not intended question avoiding interpretive on the upon party. a force relief See unwanted jurisdic- is outside the ground that the case Kane, Federal Practice Wright, Miller & even if section of the district court tion (2d 2662, pp. 132-33 ed. and Procedure § jurisdiction. Sup- bar to that not a 1983). plaintiff Nor does it entitle a entitled to have the pose Marozsan was limitations, jurisdictional by as circumvent claim the denial of his district court review $10,- diversity less than bringing a suit for to the extent neces- to veterans’ benefits that, arguing 000 and should the evidence his constitution- sary to determine whether 54(c) more, that he is entitled to Rule show violated; then if he rights had al been the court to award more. Never will allow he would be enti- proved a violation such theless, giving the benefit of the Marozsan directing the Veterans’ tled to an order bearing in mind that he wants doubt hearing. give him new Administration by get them first benefits and can hearing only new But he did not ask for a — hearing obtaining a new before Veter damages and an order in for million $5 Administration, I that his ans’ conclude of veterans’ bene- granting him the amount complaint interpreted asking should be emphatic He is about fits that he claims. be or the Veterans’ Administration (And seeking. relief he is the nature of the give hearing. him a new See dered to by counsel represented he has been States, supra, 757 F.2d at Hahn v. United As stated in throughout proceeding.) this 587; Secretary Massachusetts v. Health court, in the district “the one of his briefs Services, (1st F.2d Human of & Plaintiff not seek Cir.1987), aff’d, Massachusetts, particular in own the decision rendered his Bowen v. action_” original U.S. -, His com- 101 L.Ed.2d VA claim passing reference to an in- plaint makes complaint does not.

junction; his amended relief, prospective mode of char This by damages is barred The claim acter, money judgment not involve a would which, 1346(a)(2), immaterial U.S.C. § States, is, believe, I against the United district courts exceptions, denies federal of the district court. within against the United jurisdiction over claims enough if section That would be clear $10,000. See, e.g., States excess Although no statute did not exist. States, 586- Hahn v. United explicitly authorizes review of deci (3d Cir.1985). claims must be filed Such de sions the Veterans’ Administration in the Claims Court instead. See U.S.C. benefits, ordinarily nying applications for claim to bene- 1491. As for Marozsan’s agency a deci makes when fits, process proof of a denial of due would alleged sion to violate the Constitution a federal court order entitle him not to has laws of the United States merely to an granting him benefits but obtaining specify failed to the method Administration order that the Veterans’ decision, person judicial review of the hearing. For if the give him a new even bring harmed the decision can suit processed his Veterans’ Administration under 28 federal district court U.S.C. that denied him due claim a manner See, e.g., aside. 1331 to set the decision law, process not follow that his 704; Abbott Laboratories v. 5 U.S.C. good claim was a one under Veterans’ Gardner, Only Benefits Act. the Veterans’ Adminis- determination; (1967); can

tration make that Finance General 211(a) makes clear. (7th much section FTC, 700 F.2d rp. Co Cir.1983). prove his con If Marozsan can 54(c) Although of the Federal Rules Rule claim, the decision of the Veter stitutional “every fi- provides Procedure Civil denying application his ans’ Administration grant the relief to which judgment nal shall will set aside and the Ad for benefits party in whose favor it is rendered is entitled, ap- to reconsider the party not demand- ministration directed has Such a distinction permissible judicial review. would constitutionally using plication compliance promote with the Constitu- procedures. tion; merely encourage it the Veter- would in fully explained the more reasons For codifying ans’ Administration to avoid un- 38 U.S.C. I do not think majority opinion, practices. limited as 211(a) relief as bars though statute regulation the The fact a was described involved just Adminis provides decision of the for provides Traynor regarding that “the in no basis fact under question suits) of law or in any (actually on the suit that case trator as Veterans’, Ad by the any independent administered of the Veterans’ law somehow veter benefits for providing present way ministration Benefits Act a that the suit in shall dependents or survivors their ans and not. In that case and this one is both the Turnage, Traynor and conclusive.” seeking be final plaintiffs persons are- veterans’ - -, not, they they -If were benefits. dispositive. seems L.Ed.2d 618 challenge standing have no the conduct Marozsan, the had asked like plaintiffs, If some- of the Veterans’ Administration. disability ben Administration Veterans’ necessarily one who makes wants plain The Administration turned efits. Benefits a claim under Veterans’ Act regula its in on one of tiffs down reliance or constitutional and not under sought judicial review tions, provision that he contends the Veterans’ dis action federal the Administration’s violating, Traynor is Administration court, regulation contending that the trict incorrectly; Traynor was such decided vio had relied the Administration on which person, just like Marozsan. a Act Rehabilitation lated the light Traynor can held Supreme Court U.S.C. § mileage from decisions which get little 211(a) a was not bar that section has enforced statutes Supreme Court the distinction be- emphasized It review. of the federal courts to that close the doors interpreting made in “decisions tween money against claims the fed persons with provision Vet- particular a applying [the See, e.g., United government. eral States particular set of to a Benefits erans’ Act] -, Fausto, facts,” the Act on whether and decisions question is wheth (or Ad- interpretation by the Veterans’ its precisely what sense section and in er ministration) light another is valid in Certainly Maroz- a statute. is such law, or the the Rehabilitation Act such as judgment money a from cannot san obtain Constitution, “whose enforcement demonstrating by the United States Ad- of the Veterans’ domain exclusive Administration committed a the Veterans’ (footnote ministration.” denying his claim legal error or factual judi- omitted). implies that That distinction suggests that But for benefits. present case permitted' cial review enjoining the judgment a he can obtain strange regula- if as well. It would processing his claim Administration al- Administration the Veterans’ tion of the Constitu procedures that violate under Act the Rehabilitation leged to violate tion, directing Administration to court not- challenged federal could hearing under constitution him give a new withstanding supposedly words clear doors extent the procedures. To that al practices of the Adminis- but section ajar. courts remain the federal alleged to violate Constitution tration level, I matters at our Though hardly if the imply that not be. That would could correctly decided Traynor was think regula- adopts a Administration Veterans’ judi- not foreclose that section adminis- fixing quota of successful tion Ad- by actions the Veterans’ cial review of of benefits appeals from denials trative laws alleged to violate that are court, ministration challenged in regulation can be Act it- other than the Veterans’.Benefits quota is established identical that 5 not mean this does self. Of course practice a matter of informal followed judicial re- authorizes from U.S.C. (as charges) it is immune Marozsan except political race or beliefs. The veteran would agency action where view federal kind, statute, remedy section have no legal unravels since forbidden the Veter had and allows decisions suit officials who denied challenged even (in to be ans' Administration his claim contrast to a suit an solely challenged for non they are nonadjudicative when a official who had made Benefits conformity the Veterans’ decision, fire as a decision to hire or such judicial review of deci Act. could mean It employee agency, the see of Forrester — provisions of alleged violate the sions White, U.S. -, gov that Administrative Procedure Act the general L.Ed.2d or had issued a see, e.g., 5 proceedings, ern administrative policy adjudicators) to the would directive appears the Veter but that U.S.C. § immunity by barred of ad be the absolute subject to those is not ans’ Administration Economou, judicators. See Butz v. Ad provisions. Cf. Colorado Veterans 2894, 57 L.Ed.2d 895 (10th ministration, Cir. 602 F.2d 1979). acknowledges that there review in judicial The issue of history of purchase language is no in the or illustra- present case is a textbook and the proce- the statute for a distinction between literalism as a deficiencies of tion of the dural and substantive constitutional claims. interpretation. The idea style statutory of drawn, (And distinction, a if would such unambiguous semantically sentences that 211(a) be only show that section cannot their clear “on face”—sen- —sentences literally.) read The distinction lacks meaning “plain” be tences whose —can a appeal intuitive unless one contrasts purpose interpreted reference to without pro- a strong claim with weak substantive Take context is fallacious. inferred from admittedly comparison that cedural a one— “Keep off the that clearest of directives: complaint invites. Marozsan’s threadbare literally it the grass.” Read forbids that a differ- Compare a contention instead grass. No one groundskeeper to mow the of veterans’ benefits based ence level literally, Read literally. read it would participated in a the veteran on whether 211(a) preclude judicial re- would U.S.C. § in an declared rather than undeclared war by the Ad- view decision Veterans’ of of arbitrary, and hence a denial war is ministration, plac- yet this would result (which read equal protection has been back by judicial a decision the ing beyond review Amendment to the from the Fourteenth blacks, not to hire Luther- Administration Amendment), Fifth with a contention socialists, ans, provided or Administra- denies a vet- the Veterans’ Administration on a “law adminis- tion based the decision by submitting his process eran due of law pro- by tered the Veterans’ Administration pack. by Ouija board or claim to trial Tarot and their de- viding benefits for veterans arbitrary suggest It would be I For as read the pendents or survivors.” ground a federal first contention could statute, provide need not bene- the decision only suit not the second. court fits, the decision is only the law on which of for a decision principled ground favor based; encompassed decisions would government in this case providing by decisions were section judicial correction unconstitutional benefits, applica- have no would claims is forbid- denials of veterans’ benefit case, a denial of which involves tion this con- what the nature den no matter benefits. infirmity. stitutional reading that barred Even a of section that immun- reading A denied, for what- any decision that view of of the Veterans’ Adminis- ized decisions reason, a claim for veterans' benefits ever alle- judicial review based on tration from government— reading urged —the racial, religious, or dis- gations sexual consequences that extreme would have crimination, infringement of freedom or intend: it certainly did not almost implausible. I know that speech, denial would insulate yesterday. not enacted on the veteran’s section that was based section; that a we believe constitution imagine that in find it hard to But I amended, discharge on an or even claim based al it was last individual when enacted, majority District Court.” first be reviewed it was when (footnote at -, at 2054 Congress, with concurrence agreed extinguish President, omitted). nothing Similarly, would have in 38 U.S.C. against the Vet- specific pre remedies all constitutional reflects a intent might that veterans Administration erans’ constitutional review of the denial clude ' acquire by vir- might possess, otherwise benefits—and without veterans’ ques- subsequent enactments. tue of intent, showing” legislative “heightened in 1933 or whether tion is not requires part “in showing that the Court remedies but any such conferred ques avoid the ‘serious constitutional all preclude meant to forever whether it arise a federal statute that would tion’ would if the result such remedies any judicial forum deny construed to were discrepancy between someday a bizarre be claim,” consti a colorable constitutional for of veterans position constitutional the At -, precluded. review is tutional were If the statute other citizens. that of at 2053. believes, we government the as clear as concerned It is natural to be lest speculating about it without interpret could with run-of-the- courts be inundated federal have answered Congress would how up. as procedural challenges dressed mine it. But presented to actually question not claims. suit Marozsan’s constitutional clear, one would were that if the statute one to danger, it is not illustrate suit based expected have —a age staggering of lightly taken in an be Act,' and not merely on the Rehabilitation However, feder judicial caseloads. federal in favor decided on the Constitution—to only empowered but di courts are not al government. 11 of Federal Rules of by Rule rected is based on Marozsan’s suit The fact that per on levy sanctions Procedure Civil signifi- additional assumes the Constitution sons, If the friv file frivolous suits. who —Doe, light cance Webster apparent from the the suit is olousness -, 100 L.Ed.2d not even invoke the suit does pleadings, recently than more decided even see, e.g., Levering & jurisdiction, federal by the CIA fired Doe had been Traynor. Morrin, Garrigues homosexual, brought and he being a for (1933); Hagans v. La L.Ed. 1062 variety of Agency on a against the suit 537-38, vine, Agency ar- grounds. The constitutional (1974); Crowley Cut dismissal review of Doe’s gued judicial States, lery Co. v. United 102(c)of the Nation- by section was barred Cir.1988). has 276-77, (7th This circuit provides that Security al Act efforts to in the forefront been Intelligence “may, Director of Central The rule con vigorously. Rule enforce discretion, employment terminate in his veterans. exception for tains no Agency employee of the any officer Mar- not take the weakness We should termination shall such he deem whenever process all due proof as ozsan’s suit interests of necessary or advisable for disappointed claimants challenges by 403(c). 50 U.S.C. the United States.” laughable. And must be veterans’ benefits provision that this Supreme Court held reading the statute between the Admin- under judicial review foreclosed the correc- allow would Act, not under the but Procedure istrative procedural vio- but not tion of substantive Congress intends “where Constitution: and one that of the Constitution lations of constitutional preclude judicial review correction of judicial review for allows clear.... to do must be claims its intent so violation, the former type of either 102(c) us that Con- persuades Nothing diffi- arbitrary also more only consideration preclude meant to gress language square with statute’s cult to arising out claims colorable finality confers purpose. pursuant to the Director the actions of complaint Administra- overlooked. The amended on the Veterans’ decisions —the or fact under any question of law complaint stage tion “on operative at this Ad- by the Veterans’ law administered only damages. litigation requests In other providing benefits.” ministration jurisdiction not have district court does words, bring to overturn its you cannot suit presented by adjudicate the claim decision ground that decision on the complaint against claim amended —a misapplies the Veterans’ Bene- violates or five-milliondollars in dam- bring suit under 28 you fits Act. But can 1346(a)(2). ages. 28 U.S.C. Exclu- See on aside the decision U.S.C. 1331 to set jurisdiction for claims sive ground that it violates the Constitution. States in excess of ten-thousand United award court has no The district dollars in the Claims Court. rests See in such a suit but damages or even benefits U.S.C. only to tell the Veterans’ Administration decision, its this time accord- reconsider Moreover, circumstances under suprema- the Constitution. The ance with here, presented complaint the amended can- in deter- cy of the Veterans’ Administration requesting injunctive not be construed as relating to the mining the facts and law request relief in- relief. A for such unimpaired by such an veteran’s claim is complaint dropped cluded in the initial and dis- approach, Rule 11 should deter complaint. Nor do I this amended be- attempting to appointed claimants from that, here, lieve under the circumstances ordinary procedural challenges transmute permit ought to an amendment to the we ones. into constitutional injunctive complaint to include a claim for Maybe, panacea. review is no Judicial assume, if arguendo, relief. Even we strength of the veterans’ because by ap- such amendment can be ordered an reasons, lobby the Veterans’ Ad- or other court, pellate there are several reasons always obey can be trusted to ministration why ought undertaken in this not be judicial prodding, without Constitution above, First, case. as noted the deletion not, prod- maybe and if the costs of such injunctive a claim for relief was a deliber- might It ding will exceed the benefits. by plaintiff. He included ate choice Administration best to leave the Veterans' complaint such a claim in his first and then alone, 211(a) could completely and section complaint.1 removed it in the later Second- doing just read as that. But such unfocused, rambling presentation of ly, the reading policy-based rather than would be up point plaintiff’s to this submissions in- by “plain meaning,” would be dictated that, hope if Webster, give us little amendment consistent with strong allowed, willing plaintiff counter to the modern is able or to would run legislative) (judicial trend well as toward as present to the district court the sort of for constitution- providing judicial remedies carefully presented necessary per- case violations, impute to al and would allegations set out adjudication mit any le- implausible purpose denying here. wronged a result gal remedy to veterans determining appropriate it is whether egre- of constitutional violations—however jurisdic- to hold that the district court had by very agency es- gious —committed here, tion there is one additional factor that help veterans. tablished must be considered—evenhandedness application jurisdictional standards. RIPPLE, Judge, dissenting in Circuit stringently jurisdictional applies This court concurring in part part. essential, respectfully I standards. It is I submit, applica- be uniform our we The fact that this tion of those standards. Judge jurisdictional by issue noted not, en concurring opinion cannot be case has been heard banc Posner in his that, injunctive agree Judge relief. See 10 C. I with Posner under the dined —to ask Kane, here, 54(c) Wright, M. no solace A. Miller & Federal Practice circumstances Rule offers (2d 1983). plaintiff. de- and Procedure 2662 at 131-33 ed. to the He has considered—and course, any way obligation legislative history requires our ute nor its alter interpretation authority any pro limits of our that denies stay within the veterans require the district court do like- tection unconstitutional misbe Accordingly, by I would vacate havior the Veterans’ wise. Administration. cannot, therefore, remand judgment presume of the district court and We that Con gress preclude the case with instructions to dismiss meant to such review. See —Doe, complaint. U.S. -, -, Webster v. 2047, 2053-54, II explic If had determined manner, itly to treat the veteran in such a Despite significant jurisdictional limits, any, we could then address the problem, the court has decided to reach Congress’ authority preclude judicial re I, therefore, must con- merits of this case. Therefore, assuming view. arguendo amendment of strue its action as a de facto merits, properly the court reaches the I complaint request include a for in- join disposition by both the ordered circumstances, junctive these relief. Under majority and its essential rationale. I to reach the merits. am constrained Here, agree Judge I with Posner that EASTERBROOK, Judge, Circuit finality confers on decisions [t]he MANION, whom COFFEY Circuit any Administration “on by the Veterans’ Judges, join, dissenting. any question of or fact under law law decisions of the Administrator on “[T]he

administered the Veterans’ Adminis- any question of law or fact under law providing In other tration benefits.” administered the Veterans’ Administra- words, you bring suit to overturn cannot providing for veterans tion benefits ... ground its decision on the that the deci- final and conclusive and no other shall be misapplies sion violates or the Veterans’ any or court of the United official States you bring Benefits Act. But can suit power jurisdiction have to review shall under 28 U.S.C. 1331 to set aside the in any such decision an action the na- ground decision on the that it violates the ture of mandamus or otherwise.” 38 U.S. no Constitution. The district court has 211(a). of the C. This is bold assertion power damages to or even bene- award sovereign immunity of the United States. fits in such a suit but to tell the Decisions of the Administrator are “final Veterans’ Administration to reconsider “decision”, not the and conclusive”. The decision, in its this time accordance with it, might influence is off legal issues supremacy of the Constitution. Supreme Court has limits. No wonder determining Administration in Veterans’ as the model of lan- described this statute relating the facts and law to the veter- guage Congress uses when it wants to ap- unimpaired by an’s claim is such an altogether”. judicial review Lindahl “bar proach, and Rule should deter dis- OPM, 768, 779-80 & n. v. 470 U.S. appointed attempting claimants n. 84 L.Ed.2d 674 S.Ct. 1627 & ordinary procedural chal- transmute lenges into constitutional ones. (Posner, J., Supra concurring). at 28-29 I view, Finally, my majority’s in discus- 211(a). at the core of opinion, and V of its con- Our case lies sion Parts IV any not contend that stat cerning power the inherent of the Article Marozsan does action, is un governing III administrative ute the award courts regu necessary decision in this case. constitutional or that VA’s is not to a v. Ro presents necessity illegal. no to address lations is Contrast Johnson This case bison, 361, 366-74, 94 S.Ct. broadly important such an 1165-69, (1974) (constitu majority opinion, III 39 L.Ed.2d 389 issue. Part statutory eligibility cri Judge convincingly challenge tional Flaum demonstrates — U.S. -, teria); plain language Turnage, v. that neither the stat- 1378-80, gratuities. purpose are regulation gen- (contention appears that a section to have been to remove with a sub- eral is inconsistent in that applicability possibility relief statute). wants Marozsan sequent special even under class of cases him to rate the decision 20% review of Crouch v. suggested circumstances complaint His rather than disabled. 100% States, United S.Ct. [45 Plaintiff to asks the to “restore court v. United 233]; Silberschein 69 L.Ed. the date retroactive to proper disability, his States, [45 million give him disability” $5 Williams, States v. 256]; United L.Ed. pro- seek does not damages. Marozsan 314]; 73 L.Ed. 278 U.S. 255 [49 class; money he wants spective relief for States, F.(2d) 998 Smith United theory current for himself. Marozsan’s Cir.1932) [(4th ]. case why should review his about the court suggested “special circumstances” the VA used violated procedures is that the Silberschein, Crouch, and Williams— the fifth amend- the Due Process Clause held the courts without three cases that distinguish ment. Section to review administrative deci jurisdiction believing the VA’s deci- among reasons concerning re sions benefits —were erroneous; the “deci- protects sion to be might possible when the decision view say that Other courts sion” from review. wholly arbitrary or without colorable was veterans’ of individual bars review support; Lynch seems to say that contends that cases the veteran even when “special circumstances” there could these the VA violated the Constitution cases. be no review of veterans’ benefit E.g., Hig resolving his claim. course of years A in the statute some modification (8th Cir.1987); gins Kelley, F.2d 690 Lynch after led the D.C. Circuit assert Administrator Vet Pappanikoloaou v. limited of review. Administration, 762 F.2d 8 (2d Cir. erans unwilling accept even a small erosion of Walters, 1985); 719 F.2d Rosen v. finality, passed so in 1970 it administrative Anderson v. Veterans Cir.1983); (9th giving amendment its current Administration, (5th 559 F.2d 935 Cir. States, Report, H.R.Rep. language. The House 1977); F.2d 618 Ross v. United 91-1166, (1970), Cong., v. United (9th Cir.1972); No. 91st 2d Sess. de Rodulfa States, (D.C.Cir. 1970, 1240, p. Cong. 1257-58 & Admin.News 461 F.2d U.S.Code Gleason, v. 1972); 3723, Milliken 332 F.2d the three decisions to be identifies Cleland, Devine v. (1st Cir.1964). these, 616 F.2d rejected by the amendment. One of (9th Cir.1980), Gleason, 1080, disagrees, but (D.C. 1083-85 Thompson v. 317 F.2d 901 Devine conflicts with Ninth Circuit cases Cir.1962), challenge a constitutional to (Rosen). (Ross) since We before and Congress cer deny benefits. a decision declining in among alone the circuits stand tainly any possibility cut off wanted to 211(a) meaning.1 ordinary give its § judicial review of individual veteran’s bene decisions, and it was aware —to the fits 211(a) history shows that has of § can be “aware” —that extent institutions language portends. Versions scope its 211(a) chal would block constitutional to 1933. John- § date of this statute back lenges. still so aware. Since 1970 It is son, 371-73, at 1167- at 94 S.Ct. 415 U.S. many have favored Members 68, version history. traces earliest Bills v. judicial review of the VA’s decisions. Lynch United in quickly was invoked 840, States, 571, 587, have cleared commit provide for review 292 U.S. 97-466, (1934), tee, Cong., S.Rep. in Justice Bran- No. 97th 2d e.g., 78 L.Ed. 1434 as a rule that déis described the statute but have not become Sess. 37-49 law. One bill that has attracted substan grants veterans and their concerns ... in 100th support tial dependents pensions, compensation al- — strictly constitutional and privileges, all of create review of special lowances and Cir.1985), 211(a) Walters, (3d challenge to the Rescigno does not bar a § v. 773 F.2d 47 Devine, validity may support likely itself. but more holds preserving admin- other reason than that “legal” questions, while are not deci- finality ones. No one concerning on factual istrative sions “benefits for veterans” ongoing in be- participating debate scope within the of the statute.2 211(a) already provides for lieves that § reviewing The line between decisions in claims in judicial review of constitutional reviewing cases and rules is familiar in individual eases. governmental criteria, law. Substantive rea- Congress enacted for two in a in regulation, may whether statute or sons: litigation seeking prospec be reviewed (1) benefits to insure that veterans’ tive relief. Such suits are authorized the courts and the claims will not burden (waiving sovereign immunity U.S.C. 702 expensive Administration with Veterans’ injunctive cases), and are common litigation, time-consuming states, against despite the eleventh complex the technical and insure Jordan, amendment. Edelman v. U.S. applications of Veter- determinations (1974). 94 S.Ct. 39 L.Ed.2d 662 policy Administration connected ans’ seeking money particular Suits for a claim decisions with veterans’ benefits will something again, permissi ant are else uniformly adequately and made. against ble the states because of elev Johnson, 94 S.Ct. at 1167 amendment, enth the federal (footnote omitted). Traynor, See also 108 government sovereign because of immuni assessment); (adhering at 1379 to this ty. money Because shall be drawn “[n]o Rose, U.S. -, 107 S.Ct. Rose v. Treasury, Consequence from the (1987)(identifying the (Art. I, 9, Appropriations made Law” purposes). part The statute is of a same 7), only unambiguous permits cl. waiver system decision-making de monetary awards. v. King, United States signed operate outside the adversarial 89 S.Ct. 23 L.Ed. process. Ra Walters v. National Ass’n (1969); Testan, 2d 52 United States Survivors, 473 U.S. diation 392, 399-403, 948, 953-55, (1985). L.Ed.2d 220 It is hard to (1976); Army L.Ed.2d & Air Force proce have a non-adversarial administrative Sheehan, Exchange Service stop parties’ dure if the next is a court. 728, 738-41, 2118, 2124-25, Everyone will want to build the record for Section is an review. unambiguous The line non-waiver. drawn that liti- concluded Johnson Traynor respects the na Johnson constitutionality gation about the ture of as an assertion of sover benefits, statutory criteria used to award eign immunity, limiting judicial review to legality regulations, and the of the VA’s prospective relief that courts the kind of 211(a) prevent achieving would not § government. may award the purposes. line any of its The Court drew a reviewing reviewing cases and between II adopted in rules. The line the Court John- I Perhaps majority it seems that the and only accords not son and with discussing are different cases. The court 211(a) also with its lan- functions § Marozsan has asked for class- insists that guage. The statute forbids review of a wide, relief, prospective not for a review of Administrator”, and it is “decision of the disability rating. It affirms the district his natural to read this as a decision in a case. may not court’s conclusion that Marozsan Hiring employees, leasing space, office disposition particular of his case. choices come to mind as “decisions” attack similar Majority op. 211(a), at 1471n. 3. scope outside the if for no If Marozsan were § 211(a) "except provided specter as in sections § 784, 2. The that a literal construction of 211(a) arising chapter Rights under nullifies Title VII of the Civil and as to matters § permits additional extended to the of this review of some Act of title” — concurring op. see is therefore in- Sections and 784 deal with veter- matters. insurance, chapter introductory with home loans. The clause ans’ life substantial. along lines of campaign John- that the statute must be unconstitutional. waging a little would have Here is his recitation: Traynor, son § my But I fear that col- the case. to do with (1) requirement for the There is no VA inventive with Marozsan’s leagues are as evidence and as a to confront Veteran’s 211(a). they are with complaint result, may decisions be rendered with- addressing any out of the Veteran’s con- describing by complaint starts tentions, and when the Veteran continues grumbles, case. It handling Marozsan’s repetitive- protest this he is accused of Foreign “the VA’s asi- example, for about ness. (M.D.), could practitioner who general atic (2) stages Decisions are rendered at write a concise medi- grammically process affording without VA assistance from the report out cal with opportunity hearing. for a Veteran (Here, throughout, I omit Plaintiff”. [Citation omitted.] concerned [sic]s.) complaint is (3) A conflict of interest in that by treatment. It ends Marozsan’s about rating personnel originally de- same who disability rating, asking of the for a review may hearing appeal. nied the claim disability, proper ret- “to his restoration A further conflict exists between the var- disability”, roactive to the date organizations ious service and the VA peep about class-wide million. Not a $5 being with the crux the use of VA facili- injunctive re- request no practices, and space by organizations, ties service with (The complaint, by filed lief. amended provided free.... counsel, request injunc- for an deleted the (4) making original complaint, Rating personnel the deci- tion that had been present are often not for the hear- sion by personally.) Marozsan When filed ing. dismiss under moved to defendants 211(a), reply did not that he (5) Marozsan per- Informed discussion VA practices general appli- Veteran, challenging denied, leaving sonnel is rules,

cability. He instead said that does not understand the at a who unconstitutional, equal pursue a violation loss to the case.

protection component of the Due Process (6) Expert opinions in behalf Veter- of the fifth amendment. The dis- Clause disregarded opin- an’s are in favor of the rejected court that contention. trict general practitioners are ion of the who specialization, without medical and no at- original argu on the Marozsan’s briefs tempt is made to reconcile differences of reargument say things: ment and the two opinion. medical unconstitutional, (7) investigative The VA acts as the particular him on his true entitles to relief arm, judge, jury attorney for both claim, and that the court en banc should sides, using subpoena power only in their Walters, follow Winslow their behalf and not for the Veteran. Cir.1987), (7th and Mathes v. 1116-18 (8) rep- Although the Veteran is denied (7th 441-42 Hornbarger, 821 F.2d Cir. attorney, attorneys resentation 1987). despite These cases hold that every stage. the VA dominate review in a veteran obtain his case, legal imposition quota system of a provided theory his individual Again percentages he as demonstrated rests on the Constitution. did not appeals successful which varies less than prospective (except relief to the ask for years. the over holding extent' of unconstitution 1% § al), argument he and at oral disclaimed impossible figure It is to out which of these request. such him, happened Marozsan thinks to happens frequently to others and is uncon- opening explains why His brief he be- stitutional, (in why and which illustrates equal protection the lieves violates view) his is undesirable. component of the Due Process It Clause. 211(a), however, by these, and it con- lists claims cut off None of as a is stated sufficiently ground injunctive tends that these are serious relief the VA. Marozsan, every case Under Winslow Mathes reason, according to Each is to see the may be reviewed whether VA held unconstitution- why should in the course of violated the Constitution litigate case may al, so that veterans say To that a “veter- reaching a decision. moreover, assertions, of his None case. review, not of his individual may obtain defend- in the record. support finds determination, unconstitution- claim but of dismiss, and the district moved to ants employed by in arriv- al methods the V.A. sum- to one the motion for converted court (maj. op. at decision” ing benefits at that summary judg- To avoid judgment. mary may 10) say that veteran n. is to the evidence, or put to had ment Marozsan case. Re- in his individual review obtain under Fed.R.Civ.P. an affidavit at least file agency employed” by an “methods view was unavail- 56(f) why evidence explain to of the individ- is review make a decision sup- My search for neither. He did able. not, opinion. advisory If it is an case. ual any of his assertions in the record port Pro- Administrative is what the review Such are, so far as this case They fruitless. federal provides, Act what cedure concerned, nothing hot air. but is resolving collateral at- provide when courts Marozsan’s case to take Because We have convictions. on criminal tacks may it: as a re- record frame law he and the administrative way principle of every process”, his language the denial of claim of “due challenge to in the cast reviewable, if con- attack on decision is benefits, expanded to an error is, procedural whether determine nothing 211(a). There stitutionality of § And a “constitutional”. called should be nothing only because to consider—not else procedural claims evaluate may not court any rum- raised, also because else was but get down It must abstract. error unsup- are appellate brief blings in his pro- nitty-gritty, looking at the whole stave and so cannot by the record ported determine whether ceedings, both to colleagues My summary judgment. off whether gaffe an “error” and to evaluate equal 211(a) proof against an say that § words, the is harmless. other error 3). protection (maj. op. at 1471 n. attack majority approves will kind of review things; That it is not our busi- ought end the courts words “burden Johnson’s a case so that the court ness resurrect expen- Administration the Veterans’ litigants may address contentions time-consuming litigation” and re- sive and never advanced. the “techni- to examine many judges quire events, trying to majority is all At veter- complex determinations” cal and have things ways. One would both have to be supposed law that are ans’ benefits op. at 1471 (maj. that the thought conclusion Administra- single made” “uniformly own 3) of Marozsan’s barring review n. cannot judges of district tor. Hundreds to overrule require us Winslow claim would Board’s) (or deci- Administrator’s match one Mathes; the court reaffirms instead “uniformity”. Homemakers sions for 1472-73, 1479). Those op. (maj. Bowen, them Shore, Inc. v. North review obtain hold that a veteran Cir.1987). cases (7th case, he con- provided of his individual “Wolf!”, cry often Dissenters committed the VA tends that courts’ on federal is based prediction making a decision. in the course error speak I of collateral daily experience. “reflect cases that those writes The court Such criminal convictions. view of application of construction proper constitu- is limited claims generally so, Mar- 211(a)”. the hoo-ha about If that is error, of veterans’ just as review tional being prospec- class-wide and claim ozsan's to constitu- is restricted decisions benefit eyes. What the reader’s throws sand in tive ap- majority’s under the questions tional may be today is that review holds the court in collat- engage courts proach. Federal also had, case, despite portion of all significant case of a eral review —and convictions, Maroz- basis in on a may prospective had federal criminal state and per ease. The than ease. more once san’s sometimes proceedings before in most “question” in question any procedural ability to state to court their cases If take these cases over VA. veterans gets terms constitutional security claimants social must review the rate transom, court at the same 13,- proper- produce some do, today’s no error decision will satisfy itself that record 1,000 per appeals occurred. “constitutional” actions ly denominated 000 civil requires extensive frequently to sift constitutional review year.3 This task Judicial 307, Virginia, v. be even study. statutory chaff Jackson wheat from (1979), also 2781, 61 L.Ed.2d under consuming than review 99 S.Ct. more time sufficiency Act, court to requires the for a Procedure the Administrative under Although review the evidence. of a series of grapple need to with court will reasonable-doubt depends on the missing Jackson that are questions anterior law, criminal outside inapplicable standard needWe “straight” administrative review. (7th 457, Thieret, 460-62 846 F.2d Jones v. and exhaustion the forfeiture only think of often Cir.1988), Process Clause the Due cases, e.g., Wainwright v. rules in criminal evidence, smidgeon of demands least 53 L.Ed. Sykes, up sort of government sets once the (1977), questions of nagging and the 2d 594 liberty or create a rules substantive characterization, e.g., Donnelly v. DeCris Superintendent property interest. of 40 L.Ed. toforo, 416 U.S. 453-55, Hill, Walpole v. ahead. to see what lies 2d 431 (1985); 2768, 2772-73, more line-drawing may consume process of Ewing, 474 Michigan v. University cf. of the substan energy the resolution of than 88 L.Ed.2d tive claims. evidentiary question has a (1985). Every Hill, under dimension constitutional Ill losers, are dead such claims although most engaging justification What is Yet we know each must be reviewed. language, histo- the teeth review in 211(a) designed put fed- is Lynch that § 211(a)? The best functions of ry, and reviewing the business of out of eral courts 211(a) is limited argument is that line of sufficiency evidence behind veterans’ of challenges evidentiary be- statutory and decisions. “on decisions it addresses cause every- “questions” are Constitutional any law or fact under question of law pose questions and easy to where—it Administra- by the Veterans’ administered occasionally possible characterize added). (emphasis providing benefits” tion or the facts as of the law mistaken view arise question not A does constitutional power”, hence “arbitrary”, an “abuse So, providing for benefits. “under” a law Young, Compare v. Cole unconstitutional. goes, block argument (7th Cir.1987), 423-26 817 F.2d questions. review of Park, 838 Village Melrose Argento force; de- it is has some approach Cir.1988), (7th 1491-92 analysis Johnson. from the Court’s rived City and Archie v. Jones Thieret unsatisfactory. statute bars Cir.1988) (en But it is (7th Racine, 847 F.2d “decisions”, legal is- lawyer review of banc). unimaginative Only ded- resolve to reach VA must sues the to find a constitutional be unable (982 appeals Report Table B-7 Department al Appeals Council of the 3. The Security 44,621 “U.S. Defendant —Social ad- classified as heard Services Health and Human 1987). security disability Social year Laws” fiscal Social appeals in fiscal ministrative Administration, up of the district make some 6% cases thus Security Executive Handbook appellate 1987). courts’. During and 3% of (May courts' cases fiscal Selected Data 13,322 Appeals almost Veterans' hears Board of these to The exactly many year took claimants every year as does the 405(g). cases under 42 U.S.C. the district courts Administration, E.g., Appeals (This lag Council. Veterans between clo- assumes administrative (1985) (61,328 ap- action.) Report p. 125 Annual and the institution civil sure 1984; 1,000 after settlement security disability peals in fiscal filed appeals in social Almost 44,064 these, many deci- the Board issued yearly. Director of Adminis- cases are filed sions). Courts, States Annu- the United trative Office of complaint: he intelligibly say that a suit his wanted review of may sions. One denying a statute or decision his claim seeking injunction for benefits. the Constitution regulation anticipated “arises under” That he the VA’s invocation of (Johnson) (Traynor) Act by nodding lightly Rehabilitation to constitution- the Constitution or in those eases arguments because give al does not him a constitu- of the claim for was the foundation arising-under purposes. tional claim for independent filed an plaintiff relief. The accepted The Court has Justice suit; depend on a veter the claim did position invariably Holmes’s that the claim in only thing to construed ans’ law. The arises under “the law that creates the the non- adjudicate order to case was action”, cause of American Well Works rule. veterans’ Co., Layne Bowler Co. & U.S. up in issue comes That a constitutional 585, 586, 36 S.Ct. 60 L.Ed. 987 adjudicating a claim for bene- the course of starting point but this is at least the and in mean that the claim itself fits does not finishing point most cases as well. Someone “arises under” the Constitution. E.g., Merrell Dow Pharmaceuticals Inc. v. necessarily makes a who wants benefits 804, 808, Thompson, 478 U.S. 106 S.Ct. laws, the veterans’ claim under (1986). For applies. therefore Under example, a claim based on state law be- rule, the claim arises complaint well-pleaded a “federal” claim when federal comes vitality. gives it under the rule of law occupies supplies so the field that it law Bank, National 299 U.S. Gully First only possible remedy, or when the federal (1936); 96, 81 L.Ed. 70 Fran- 57 S.Ct. integral right is so to the state claim that Laborers chise Tax Board v. Construction separately. E.g., think one cannot of them 1, 27-28, Trust, 463 U.S. Vacation — Williams, Caterpillar Inc. v. 2855-56, (1983). 77 L.Ed.2d S.Ct. -, 2425, 2429-30, L.Ed.2d 107 S.Ct. laws, under the veterans’ Without a claim (1987). inevitably will That a court nothing, Marozsan has no matter what con- law to reach a consider an issue of federal make; he with arguments stitutional not mean that the claim final decision does under the veterans’ laws Mar- out a claim E.g., that law. Luckett v. “arises under” standing. have Cases ozsan does not even Inc., Delpark, 46 S.Ct. question jurisdiction concerning the federal (1926); cf. 70 L.Ed. 703 Christianson. that a claim does not “arise under” show claim way defining what kind of This purposes federal law for of 28 U.S.C. governs juris- given “arises under” a rule con just because a court needs to diction-withdrawing statutes with an “aris- sider a federal issue to reach a decision. , governs component, just as it ing-under” arising-under jurisdiction depends on jurisdiction-granting statutes. Heckler v. appears plaintiff’s necessarily “what 615-16, Ringer, 466 U.S. ..., statement of his own claim unaided (1984); 2013, 2021-22, 80 L.Ed.2d 622 anything alleged anticipation or avoid 749, 760-64, Salfi, Weinberger v. thought ance of defenses which 2457, 2464-66, 45 L.Ed.2d may interpose.” Franchise Tax defendant portion with a dealt 2846; Board, at 103 S.Ct. at Salfi Security providing Act that claims Social also, e.g., see v. Colt Indus Christianson could arising under that statute U.S. -, Operating Corp., tries plaintiff at- way only. viewed one (1988). “The way in a different on tempted get complaint on well-pleaded rule ... focuses really arose argument that his claim claims, at -, not theories”. Id. Constitution, was because he under the 2176; Board, see also Franchise Tax challenge to the making a constitutional at 2855 & 463 U.S. at 26 & n. administered. benefits, way program n. 29. Marozsan’s claim is for such a acknowledged that a sense why gets them Court theory even if his about he con- claim arises under Constitution something has to do with the Constitution. under the Social that it also arises know what issues Marozsan raised in cluded We power to think about has not disclaimed the was therefore that it Security Act and held constitutionality of own decisions the his suit, though invoking the Con- barred. could the implementing the statutes —how stitution, the statute because arose under change his promise not to Administrator ingredient of an essential the statute was authority to The VA has full own mind? Tax Franchise the claim for benefits. entertain, resolve, the kind of constitu- and Christianson, since decided Board arguments presses.4 tional Marozsan strengthen their hold- Ringer, Salfi apply to principles should ings. The same Congress have had reason What could for benefits 211(a). claim The veteran’s as re- treating procedural a contention § This claim laws. under the veterans’ arises under the just because articulated viewable procedure gets the administrative rea- is what There is no functional Constitution? administrator son; constitu- already The “decision” I going. have remarked tional, proce- laws. The statutory, those common law occurs under therefore decision, just and the three different challenges contentions complaint dural are 211(a) expressing a demand for “fair” ways on a based anticipation of defense § procedure here means complaint. procedure change the basis does not —which produce an accu- reasonably calculated to during used to the objection procedure An could contentions rate result. Marozsan’s case, to the Administrator’s any given even Proce- founded on the Administrative issu- taking evidence and regular ways of naturally Act more than on the Con- dure arising in the decisions, is an issue ing stitution, APA yet under the as claims the statute. proceeding under course of securely are barred A choice —even covers it. Section therefore APA though not mention the way, to in a certain by the to act VA law) (or than it men- the common more “decision”, hearing, is a dispense awith If read the we tions Constitution. objection to that deci- constitutional and a APA reject judicial determination of to The Adminis- one on “law”. sion is based claims, analysis APA claims decked the course if he follow a different trator could the garb must be out constitutional legal validity of the persuaded of the were same. Administrator the argument. Although contentions review the Marozsan’s constitutional power to has disclaimed proce- up to the that the VA’s Congress, he add belief constitutionality of Acts of statements, Consti- contrary Branch forbidden majority’s e.g. maj. op. the Executive is 4. The precedence (because giving authority the Constitution "the disclaims tution from at 1472 consider constitutional V.A. claims" the veteran “has position is to refute over statutes. To state his due forum at all which to raise ... no requirement in Arti- Each case relies it. on claim”), process a confusion of chal- rest on that the "take Care that cle II President practices. lenges challenges to to statutes with executed”, faithfully but “Laws” for this Laws be Supreme Court in Johnson The VA told Cf. Na- purpose must include Constitution. disregard authority statutes on it lacked ICC, 850 F.2d 694 tional Federation Wildlife grounds. doubt that this is cor- constitutional rect; I (D.C.Cir.1988) (remanding a case that the so supreme for adminis- the Constitution objection agency may consider a nothing judicial personnel, and as well as trative decision). pass. Let Assume for the to its hierarchy implies that about the constitutional contrary view of its that the VA moment takes place only judges power the Consti- have powers duties. VA’sview in Johnson Every governmental above mere tution law. “jump” jumps. Congress says was that when duty has the do this. official Nothing belief that statutes must about the VA’s hierarchy or review comes from promulgating implies be followed that when law; rules, superior to with the Constitution (establishing revising rules for 38 C.F.R. 3.103 gov- hierarchy applies every other that same holding hearings), the Administrator does actor, each takes an oath of ernmental indeed, questions; consider constitutional Lee, See Rex E. obedience to Constitution. regulation captioned process procedur- "Due Interpretation, The Provinces Constitutional appellate rights uses a ...”. If the Board al and (collect- Tulane L. Rev. 1012-14 61 ing presidential cases, "quota” deciding or exalts the medical subject). But see views on the spe- general practitioners over those of views of Lehman, Siegler, F.2d Lear Inc. v. cialists, VA has decided to do 1119-26, someone (9th Cir.1988), and Continental Air he, she, or successor in office can Lines, this and Department Transportation, Inc. v. (D.C.Cir.1988), saying that reverse course. both careful, sufficiently or adver- appeals dures are his claim not to the courts but to sarial, resolutions of produce (which accurate organizations veterans’ have exer- in They are the disputed factual issues. shaping influence in the cised considerable Eldridge, v. mold Mathews system) and to the successors in current (1976). 18 Yet on 47 L.Ed.2d of those who made the decision. The office argu- constitutional what account would judicata, VA does not use res 38 C.F.R. § concerning procedures the used ments 3.105, and Marozsan has numerous received reviewable, the accuracy when achieve dispositions through years. the That the themselves are not? substantive decisions him March VA rated disabled effective 20% Lynch and the know for sure —from We injury supposedly for incurred Congress meant in 1970—that debates something agency’s says pa- for the are of claims that decisions cut off review open-mindedness. Congress tience and also Lynch tells us that even inaccurate. closely, monitors the VA at the behest of or- reviewable, is not no-evidence case Judges ganized groups. veterans’ are not a decision could less accurate than what applicants only or the best friends of for A of evidence behind it? without a scintilla benefits. must be en- review-preclusion clear statute it cuts off constitutional forced even when IV Pressley, Swain v. arguments. 1224, 1227-28, 372, 377-78, 51 majority offers several additional (1977). 411 did not L.Ed.2d Since giving stingy reading reasons decisions to be reviewed

want VA’s 211(a). presumption One is the in favor statutory implementation of the accurate constitutionality review of the criteria, Congress a deci- why attribute Supreme agency action. The Court has of conten- provide sion to many pre times that there is such a said reaching procedures tions that the used Sanders, v. sumption. E.g., 430 decisions did not ensure a sufficient those Califano 99, 109, 97 L.Ed.2d U.S. S.Ct. degree accuracy? (1977) (constitutional contention review convincing

able unless there is clear and decision). contrary legislative evidence of process guarantor is the political recent, emphatic, of The most and most the run of cases. accuracy over sufficient — Doe, these cases is Webster U.S. leave the say meant to To -, 100 L.Ed.2d agency is cases to the decision individual that a district court which holds has been left say not to that the decision constitutionality of may review the solitary, unaccountable bureaucrats. employee of an CIA’s dismissal solitary, less and more staff at the VA is 403(c), statute, gives though U.S.C. § accountable, judiciary. than is the federal Intelligence author- the Director of Central make Hearing receive evidence and officers “in ity any employee to dismiss whenever ap- decisions; applicants may dissatisfied deem such termi- he “shall his discretion” Appeals. 38 peal the Board of Veterans necessary nation or advisable”. judges with the ben- C.F.R. 3.103. State regularly hear and de- efit of less tenure not, of review are Presumptions favor fairly; public servants at the cide cases however, un- of “evidence” that stand CIA, bits Savage v. VA can do likewise. by stronger evidence. This less overcome Cir.1987). (7th Before 563-64 statutory construc- presumption is a rule of of Claims an Congress made the Court tion, place of the usual leaves in all tribunal, III final decisions concern- Article Fausto, United States art. tools of that government almost ing claims 668, 675-76, -, the Article invariably were made outside Zdanok, Cases such Webster as Cf. Glidden Co. v. system. III giving discretion (1962). deal with statutes broad L.Ed.2d regulating to the Executive Branch but handling A veteran dissatisfied with strict construc that calls for circumstance Executive relations between A formal distinction the waiver. tion of Nothing on the Branches. Judicial terms of was un- the substantive decision that the CIA’s said books construed, proce strictly cases hold while and like Webster waiver are reviewable. federal-question (such judicial review to grant of attributes given dural its substance) gen by 28 U.S.C. are compliance with jurisdiction ensure under 5 United States to the har application does not The distinction erously read. say Congress does 702, when however, cases, U.S.C. several because monize pre- issues review of the availabili line dealt with in the “strict” intent evidence of cluded, clearest only the Da Block v. North judicial review. ty of why question One the doors. closes judicial review kota, example, declines ever language would from divorced intent of limitations construing a statute juris- of trick, multiple grants given do the distinction And the sovereign’s favor. When relief. prospective to award diction explain it does not not convince because withdrawing the a law passes Congress re should be disputes why substantive 702, that law and 1331 authorization government’s on the with a thumb solved Department enforced. is to be disputes procedural of the scales side — 818, U.S. -, 108 S.Ct. Egan, Navy v. side. the other thumb on the other v. Briscoe (1988); 823-27, L.Ed.2d 918 98 plausible A more distinction is that 2428, 404, 409-10, 97 S.Ct. Bell, 432 U.S. presumption of review play comes into Block v. (1977). Cf. 2431, L.Ed.2d 439 53 when a court prospective is asked to issue Institute, 467 U.S. Community Nutrition relief, while the ap- strict construction (1984); 2450, 270 340, 81 L.Ed.2d 104 S.Ct. proach takes over when the court is asked Milling Allied Ry. v. Seaboard Southern compel payment money. Then the 2388, L.Ed. 444, Corp., 442 U.S. 99 S.Ct. line is drawn where the eleventh amend- Gressette, (1979); Morris v. 2d ment and principles govern- correlative 2411, L.Ed.2d 506 97 S.Ct. U.S. immunity mental prospective draw it: preclusion (three inferring cases permitted lief is sovereign once en- structure). It is to be statutory parte Young, Ex the fiction of 209 U.S. Pressley, when, Swain as forced even 28 S.Ct. 52 L.Ed. 714 is a constitutional subject foreclosed indulged, though damages awards of on “intent” shoe is Now the argument. Mitchell, are not. United States v. barring language foot. Given the other 206, 212-19, 2961, 2965-69, U.S. review, showing of intent takes a it (1983); 77 L.Ed.2d 580 United States v. 211(a) is a law bar- it. Section authorize Mottaz, 834, 841, and Lindahl review; show Lynch ring (1986). When courts recognizes it as one. Supreme Court power have the constitutional to award re- clearer, Congress have been could How lief, there presumption is a really mean it!” adding “and we except by award; authorized the when the the close? depends award relief on an affirmative au- presumption The notion of a thorization, this waiver is read more cau litigation, brews trouble in for it tiously. If right line, this is the John collides with then another line of cases —the one Traynor son saying (the were on sovereign that waivers of one side immunity side), prospective-injunction are narrowly. to be construed while In addition Maroz- Testan, see, claim, King along san’s with Winslow e.g., Block v. Dakota, Mathes, North (the 273, 287, are on the retrospective- U.S. other 1811, 1819, side). Doe, (1983); money United Webster v. the most Sherwood, States v. 584, 590, potent cases, pro-review U.S. is on the Johnson and 85 L.Ed. 1058 These side of the line. lines of cases do not Many cross-cite. Plaintiff sought only Doe prospective re — employing cases a presumption of re- lief: pay, reinstatement but not back view involved claims to very benefits —the at -, 108 S.Ct. at 2051.5 Marozsan this, anything Websterv. Doe does not turn make surprising light on but that is not Maroz- penumbra if we construe tions treats the around the Con- money; even wants forward, force, he looking independent what stitution as it has san’s claim cash, only. al- thereby So denies effect to real laws on the prospectively wants get hacking lost apt are insubstantial “concerns”. See though judges basis Club, Big Muskego Boxhorn’s Inc. v. prece- Gun jungle of inconsistent through this Workers, Electrical dents, sovereign immuni- 798 F.2d a bold assertion ought respect- (7th Cir.1986). money case still to be ty in a ed. problem Is there a serious contentions is majority’s Another of 211(a)? No; there is not even a hu- 211(a) to avoid ought to construe that we morous When creates a one. unconstitutional, perhaps even to holding it right money to recover from the United questions addressing constitutional avoid States, may “provide an administrative Corp. DeBartolo it. See Edward J. about remedy and make it exclusive.” Dismuke Building & Con- Coast v. Florida Gulf States, United Council, -, Trades struction (1936). Accord, 80 L.Ed. 561 (1988); 1397, 1392, L.Ed.2d 645 99 108 S.Ct. Babcock, 328, v. United States 250 U.S. Cranch) 64, (2 Charming Betsy, 6 U.S. 331, (1919). 39 S.Ct. 63 L.Ed. 1011 *118, (1804). to Construction L.Ed. the It does so as a condition on waiver of ques- unconstitutionality or a serious avoid immunity, power sovereign for the to stand Bishop Chi- see NLRB v. Catholic tion, immunity implies the to on waive 500-01, 1313, cago, Lehman immunity E.g., with conditions. 1318-19, must L.Ed.2d 533 be Nakshian, revising to from statutes distinguished (1981) (the power of Con- the any questions at all. What with avoid remedy against the gress to withhold “questions”, proliferation of grant remedy to a Treasury permits they pleased. anything courts could do trial). jury All does is without a 210-11 Henry Friendly, Benchmarks J. remedy make the administrative exclusive. in- properly This canon recently there was doubt whether Until problem co- only when a substantial voked Congress could allow Article III tribunals reading possibility fairly incides with the Treasury. claims the to resolve problem. that “This the statute to avoid (on in- Five Justices held Glidden in two give does not a court canon of construction theories) may. It compatible legislative prerogative ignore to the the grudging leap to transmute this quite is a adjudi- to avoid constitutional will order compulsion permission into constitutional Schor, 833, 106 cation.” CFTC III courts. in the Article provide (col- say, judges as two did Swain, Perhaps one could cases); 430 U.S. at lecting see also Bowen, 816 F.2d in Bartlett v. dicta n. 11. n. 97 S.Ct. at 1228 Constru- vacated, 824 703-11, rehearing en banc ques- all constitutional ing statutes to avoid money, tutionality absence of a claim reviewing for and the of a law waiver of because it was not sovereign immunity in 5 U.S.C. 702 for claims I a decision the Administrator within the mean- concede, however, seeking damages. And, ing 211(a). of § the Court added in John- aspect another of Webster is both at odds with son, review of the law itself would not create a approach easy the taken here and not so embroiling risk of the courts in the tens of - relied, -, explain. Webster U.S. at disputes thousands of under veterans’ benefits S.Ct. at proposition on Johnson v. Robison for the acts, very thing designed pre- is pre- that "where intends to Although vent. Webster did not refer to those clude review of constitutional claims its intent Johnson, limiting aspects repu- neither did it

to do so must be clear." The Court did parties diate them. join in Webster did not potential remark on the viewing difference between re- Johnson; scope issue on the and effect of constitutionality enabling legisla- Solicitor General’s briefs do not mention that (as Johnson) day-to- reviewing tion leaves, reading case. Instead of tea an inferior (as day Webster). decisions That difference court should stick to Johnson’s stated rationale was one Johnson itself stressed in order to dem- longer until told that it is no authoritative. that the onstrate Court could review the consti- show cases im- of other sovereign a host (D.C.Cir.1987),that Pugh, Cory, F.2d a defeats immunity permits the United States munity longer governmental no remedy, for funds even when requests money courts to as a close the claim the foun- event of the Consti- Treasury; in that violation has shown plaintiff Feder- for cases such Dismuke v. Six why dation in Bivens is That tution. a substantial could be gone, and there Agents, al 211(a). The ruminations seeking question about plaintiff (1971), the L.Ed.2d however, and unpersuasive, in Bartlett are ac- of unconstitutional on account damages rejected has Circuit majority of the D.C. government federal agent by an tion J., (Bork, them, at 712-28 see 816 F.2d unconstitu- acted person who to sue had on, and discussing cases dissenting, and access immunity barred sovereign tionally: of, subject), 824 scholarly treatments seeking is a suit Treasury. Ours to the Starr, Buckley, (Bork, F.2d at 1248-49 in its own States the United money from JJ., dissenting, Ginsburg, D.H. & Williams immunity sovereign name, is what wrong”), 824 “plainly calling the dicta are Officers all about. (Silberman, J., concurring in the at 1247 wrongs, for their liable personally “inclined vacating rehearing but order officer sovereign, no such are not juris- on analysis” favor dissent's this case. party to familiar in question). It is dictional questions that attend many subtle amendment jurisprudence of the eleventh III to close the Article legislative efforts footing a claim the constitutional seeking protect natural to suits courts open judicial review does not authorize govern- private property from liberty and treasuries, e.g., Kentucky v. Gra- state to close courts se- mental interference —or 3099, 169-70, 159, 105 ham, S.Ct. 473 U.S. reflecting hostility to cer- lectively ways White, (1985); 3107, Cory v. 87 114 L.Ed.2d to rights irrelevant tain constitutional 2328, 2325, 85, 90, 72 102 —are 457 U.S. S.Ct. 211(a). validity See Gun- Gerald (1982); 438 Pugh, Alabama v. L.Ed.2d 694 ther, to Fed- Congressional Power Curtail 1114 781, 3057, 57 L.Ed.2d 98 U.S. S.Ct. Opinionated An eral Court Jurisdiction: (1978). Congress’ power to assert waive Debate, 36 Stan.L. Ongoing to the Guide immunity is no less than sovereign Madison, (1984). Marbury v. Rev. 895 immunity eleventh states’ under 137, *177-80, (1 Crunch) 2 L.Ed. 60 U.S. Maricopa County v. amendment. See juris- (1803), a court with Bank, that 318 U.S. because Valley National heldt decide, resolve it is entitled to must L.Ed. diction question logically entailed a constitutional “[sjince the My colleagues’ assertion review reaching a conclusion. Judicial authority sovereign to lacks Administrator authority to It is from the decide. came Constitution, he as- cannot contravene authority to decide yet true that the immunity liability for sovereign from sert may inferred from institution 1477) misunder- (maj. op. at acts” such review, presup- for that institution They might immunity. sovereign stands authority So rightful to decide. posed the one no because force that say equal someone is not true that whenever the Constitu- “authority to contravene has issue, the court presents a constitutional thing sov- law) no such (or there is tion” Quotations (maj. decide. power have to must nonethe- doctrine immunity. That ereign 1477) Crowell cases such as from op. at to violate privilege not a exits. It is less 56-57, Benson, 52 S.Ct. immunity is law, than any more point. 294-95, miss 76 L.Ed. or institution person No privilege. a such authorized issue Crowell the law. Sov- “authority to contravene” has money to transfer agency a federal with the alloca- has to immunity do ereign private person B on private person A to among branches of powers tion of wrong. A committed a civil finding that had au- has the Congress alone government. Congress passed authoriz- another statute suit against permit thority to when decide ing administrative judicial review Graham, entity. as an States the United Crowell, sue, settlement, or to dismiss in unfair la- dealt with the decision. United practice complaints); pay, on to had bor person called rights of Erika, Inc., States v. against the United nothing suits to do with (no or with seeking payments, welfare review States engage in review in courts to certain decisions under the Medicare Cases such as Erika show that denying jurisdic- statute). them statutes the teeth of must No case has held request tion. a for a remand to the adminis- the Trea- review of claims allow agency requires statutory trative authori- sury; Dismuke many other cases that zation and be blocked a statute choose not to discuss hold my colleagues precluding Interpreting review. Maroz- it need not.6 requesting san’s suit as one a remand rath- money give er than does not us the statu- Supreme Court has never held tory authority necessary grant unconstitutional, and it door-closing statute just step way lief.7 A remand on the the denial of many, starting with has seen money, precluding judicial and statutes federal-question jurisdiction to the fed all agency invariably review of action are Judiciary Act. It courts in the first eral adjudication forbidding treated as followed Ex it encountered. has enforced those Cf. Florida v. agency. McCardle, by remand to the parte (7 Wall.) 506, — Long, -, string (1868); see the L.Ed. 264 (1988) (treating an cases such as Fausto increase (no review of modern pension payments for future months as a governmen disputes arising out of certain Food money employment); NLRB v. United “retroactive” award because tal Workers, payments are attributable earlier U.S. -, equally applicable conclusion (1987) (no work —a review decisions L.Ed.2d awards). disability to is- veterans’ the Board’s General Counsel (1909) (no sovereign example, invoked 53 L.Ed. 742 immu- For Mottaz money concerning the nity prohibit adjudication of constitutional claim to of a suit that in- handling just government's liquor), are had violated cluded a claim that the Clause; 581, smattering point. Perhaps Lynch, other cases on U.S. at Process 292 the Due revision; 844, majority’s opin- seeking these cases need that in a suit 54 S.Ct. at remarked sovereign immunity; hostility recovery Treasury to but rule that the ion oozes "[t]he from the Supreme may Court tells us to throw that without con- until the United States not be sued its ought away implement all-embracing” "applies we it. alike to doctrine is and sent arising under acts of causes of action arising may concurring opinion says and to those from some violation ... that courts The 7. by rights upon agencies. Consti- conferred the citizen the States, is cases to A remand remand benefits (citing Schillinger running against v. United 155 tution" order 163, 166, 85, 86, requires entity L.Ed. 108 15 S.Ct. 39 and therefore authoriza U.S. as an (1894)); sovereign pro Maricopa County immu- Act used Administrative Procedure tion. The cases, many nity eject court a contention that authorization for from federal vides that money provided the grant powers wants certain to the Reconstruc- when the claimant — “damages”, money see Bowen v. Massa Corp. the Due Process is not tion Finance violated — 2722, U.S. -, chusetts, retroactively proper- 101 L.Ed. because it burdened Clause APA, (1988). Section 702 of ty, remarking, S.Ct. at 589: 2d 749 318 U.S. at 63 case, interpreted waives immuni in that maintained without the "No such suit States”; ty, question was "how far?" Section and the of the United see also consent Califor- 919, 922, general Arizona, immunity; the more rules S.Ct. 99 asserts nia v. clear, course, (1979) (“It by Act the Administrative Procedure established L.Ed.2d 144 is 59 701(a)(1), govern. provid § See 5 U.S.C. to waive the Nation’s do not could refuse that only ing judicial-review of the APA sovereign immunity that the sections in all cases or in some 702) (including apply do not when “statutes § action would cases but in all courts. Either 702(1) origi- preclude judicial review”. Sections exercise of its bind this Court even in the this; (2) by that jurisdiction” jurisdiction granted each subsection states reinforce nal —a subject permit review that forbidden 702 is § to the does Constitution and therefore 211(a), "exceptions”). law. So we are back to legislative Morri- some other to make (like APA) Work, applies, 702 the rest of the L.Ed. for if it 69 son v. not, statutory authority (no missing are claims and we review of constitutional 394 grant as an property); the United States concerning management relief of Indians’ Co., Distilling entity. Murray U.S. v. Wilson discrimination; (3) surely ious forms of violates that contends Marozsan judicial review of Congress would allow component of the Due equal protection of the VA Clause, that the Administrator which is ludicrous. claims Process hand, maj. gives it the back or Christian majority granting benefits white hardly a disfa- identically- are op. denying at 1471n. Veterans but them veterans class; they veterans; (4) receive benefits instead there vored black or Jewish situated employ- governmental preferences legislative debates is no evidence E.g., Administrator ment. Personnel permit racial dis- Congress wanted to 256, 99 Feeney, U.S. Massachusetts crimination, which a denial (1979). Veter- L.Ed.2d 870 S.Ct. do; yet (5) nothing in view would compared singled out ans have not been judicial review of claims permit security clearanc- with, whose say, persons religious discrimination on racial or based alleg- revoked, persons Egan, or see es are claims; and because deny it for other Food practices, see United ing unfair labor 3) review of claims of (by # there must be Workers, companies be- or chemical discrimination, (6) legislation invidious appro- have been formulae lieve their other consti- necessarily permits review of Ag- see Thomas v. Union Carbide priated, tutional claims. Co., 473 U.S. ricultural Products premises; I I not doubt these doubt do 3325, 3333-34, L.Ed.2d 582-84, syllogistic, too conclusion. This is workers who believe or railroad logic: the “life of the law has not been col- disregarded have employers that their experience.” Wendell it has Oliver been agreements, bargaining see Union lective (1881). Holmes, Jr., Law Common Sheehan, R.R. v. Pacific Boston Mu Lydon v. Justices See also (1978). Sec- (1st Cir.1982) Court, nicipal 698 F.2d pur- rationally related to the tion reversed, J., dissenting), (Campbell, bene- ensuring that veterans’ poses of 294, 313, 104 1805, 1815,80 L.Ed. adver- operates outside the program fits technique starts 2d 311 (see Ass’n Radi- system sarial National question to the putting hypothetical Survivors) ensuring com- ation legislators who never minds deceased questions get consistent plex treatment thought they living about it while were It unitary Administrator. serves from a while in Congress let alone were assem well, Marozsan these functions well—too legislators always ghostly These bled. dissipates any equal protec- tells us—which questioner prefers; give answer plausible There no con- challenge. tion position in no to do otherwise. they are challenge 211(a), and no stitutional in basis for Their becomes the “answer” to side- to reason “construe” they actually sisting the statute wrote that step phantom a attack. consistently the views construed with be my ap- part colleagues’ more One they did put their mouths—for we have majority proach calls for comment. con they that wanted the statute deny technique that starts with uses familiar they consistently with answer strued that unpalatable hypothetical, observes they Yet the fact did not give! did not that, way to deal there must be some question not asked of answer was given to power and concludes (cid:127) grant authority us to them necessary hypotheti- result in the reach the gave disregard they the answer to situation, principled ground no cal there is Rodriguez asked. question that was stop result about to short States, 480 U.S. United Gewirtz, greater doubt. See Paul there is (1987). 94 L.Ed.2d 32 J. Jurisprudence Hypotheticals, pro- hypotheticals The terror of extreme (1982). Applied to Legal Education law. as the answer (1) duces much bad Just racial proceeds: the method power tax obnoxious; to the that “the to involves claim religious discrimination are (and power destroy” to the conclusion has decided that re- the Nation tax) “not can be no is necessary wipe invid- that there view is out these ment, sits”, Panhandle Oil would break ... while this Court down all barriers Knox, Mississippi agents ex rel. If Co. review. claims of the YA 72 L.Ed. 857 racial, engage religious, political dis- (1928)(Holmes, J., by dissenting), overruled crimination, the Board of Ap- Veterans’ Boozer, King Alabama v. & peals can correct the situation. The feder- generic L.Ed. 3 so the complaints al courts do not receive hypothetical to the extreme answer adjudicatory tribunals are themselves dis- bridge when we come to “we’ll cross that criminators; jurisprudence the vast arising actually to do some- Congress it”. If were security disability (a out of social claims today’s perspective seems thing that from parallel claims) to veterans’ does not reveal good maybe “extreme” it would have a charge substantiated of discrimination reason; may make the flow events by judges the administrative law and the things done than more sensible when Appeals Department Council of the Legislation that appear from a distance. Health and Human Congress Services. majority of appeared to a Justices could well conclude that the ratio of actual appears to a and destructive be bizarre by professional adjudicators discrimination majority today benign, perhaps inev- be to efforts to obtain back-door understanding an “ex- Only after itable. merits is too small to authorize a search proposal position are we in a treme” system Judges, another of tribunals. of all consequences prop- and craft the assess its people, recognize should that this conclu- Taking anticipated reactions response. er sion reached per- conscientious to an extreme result —one divorced Judges sons. immunity, have absolute in- justifications using this as plausible —and cluding immunity seeking from suits dam- reconstructing on the a law basis discrimination, ages on account of racial treatment, disregards principle parity because of a belief that the costs of such development. common law genius litigation swamp good could do We must start from the cases and laws correcting wrongs. thoughtful legis- A hand and them as best we can. understand way, lature also could come out the other daily litigation must The stuff of (and providing review of claims of racial statutes; existing solved under fear of other) discrimination but not of “the mer- future, long, of what’s at the of a bottom its” of decisions. slippery good slope, is not a reason for Schauer, today’s likely decision. Frederick A belief that to do See Slopes, this, asked, Slippery 99 Harv.L.Rev. 368- sufficient reason to is not a so, say already that it has done and be- distinguish neglected cause it has racial application Consider the of the extreme contentions, from other constitutional ev- 211(a). hypothetical My colleagues to § ery argument is reviewable are convinced that would not today. prediction with a This confuses close the courts to claims of racial discrimi- passed in fact. Section though nation. Detestable discrimination in 1970. The first Con- and last amended is, Congress rationally might conclude that gress of the Franklin Roosevelt Adminis- judicial review of claims of discrimination Searching ways not for to ex- tration was purchase. great Many would come at too courts, pand claims of discrimination take the form: proposal protect rights civil would have “My govern- case was sufficient under the Not until produced an endless filibuster. benefits; law, ing yet I was denied there- 1972, in an amendment to Title VII of the my against race must held fore have been 1964, Congress first Rights Act of did me”, Civil “My good that or claim is as as suits based on else, expose the United States to yet request granted someone his denied; racial discrimination. Not until claims of my and mine was therefore race in an amendment to 5 U.S.C. must account for the difference.” This line against Congress permit litigation first reasoning, litigation common in about did States, matter, sex, general age, employ- the United as a and race discrimination implausible, which none indeed be money are at would than subjects other when implies. contending interpretations to read earlier stat- revisionism issue. It is supersede Congress may amend or enacted recent they had been utes as if tomorrow, as 5 yet later laws such in this case is not U.S.C. § The clash Congresses. existing question alone. Our statutory leave bars construction sensible between construction, relief meaning” that statute “plain is whether authorizes and wooden it; no one for it does against would have the United States: the concurrence not, sovereign immunity bars what Maroz- meanings apart have that words believes other) My colleagues must believe (and san wants. contexts. linguistic responsible keeping understanding that courts are and enforc- clash is between even if that means alter “up laws date” own terms and law on its ing a 1933 them; Supreme trend[s]”, ing Court believes “strong modern impulse to follow empty into 1484). statute ‘is not an vessel J., op. “a (Posner, concurring at vintage pour is free to which Court [a] applying the If must choose between we present-day tastes.’ ... better suits imagining today’s have and how we statute kind are for Con of this ... Considerations problem, handle the same Congress would gress, not the courts.” National Broiler path. former take the we must “[UJnen- States, 436 Marketing Ass’n v. United beliefs, and desires are approvals, acted 2122, 2130, L.Ed. U.S. Department Con Puerto Rico laws.” (1978). 2d 728 Corp., - v. Isla Petroleum sumer Affairs consistency trying produce between -, my racial claims to If we must choose treatment Congress have colleagues “would we have and believe applying the statute between asked, agreed” it and the actual enacting Congress had been imagining how the claims, the court questions pose we treatment of other handled the would have Nothing in 1483), inconsistency. (Posner, J., create a real concurring op. at for it claims suggests that constitutional again path is clear. case “must be differently from claims are to be treated against Congress the ... measured statute other than veterans’ ben- hypothetical based on statutes passed, against Pro- legislation. efits The Administrative it is most ‘reasonable believe’ If cedure Act is one such statute. consist- passed had it considered would have aim, must we not hold all Reed, ency is our question”. Lukhard APA are based on the reviewa- n. contentions 1812-13 95 L.Ed. balk, majority opinion seems to (1987) (plurality opinion).8 If we ble? The 2d 328 special; claims as treating must whether wonder concurring opinion bites the bullet agreed extinguish all con have “would laws, concluding: 211(a)does “section against Veterans’ most remedies stitutional judicial review of actions might not foreclose that veterans other Administration that are al- Administration might acquire by virtue of the Veterans’ possess, wise J., the Veter- (Posner, leged laws other than concur- to violate enactments” subsequent (Posner, J., concur- 1483), Act itself” had ans’ Benefits ring op. at the answer law, 1481-82). APA is entity in such ring op. as an the United States none away. Con- concurrence shies nothing in Con- but inhibits sitting sitting in the one one doing “subsequent gress enact- gress from —the sur- sitting today the one pleases. whatever it The concur- ments” —would that standard APA review is implausible prised conclude that to learn rence thinks cases, just veterans’ benefits preclude[s]” (Posner, J., available in “forever how it my colleagues are confident 1483) because concurring op. at remedies—which — U.S. -, Cartier, Inc., 108 S.Ct. 1834- plurality Justice 8. The in Lukhard Chief White, Stevens, (1988) (concurring and dis 100 313 Rehnquist and Justices Sca- L.Ed.2d senting opinion). therefore has the Rehnquist The view Justice Black- Iia. Chief mun, Justices (Justice support majority Court. expressed a Scalia the same O'Connor and subject.) Kennedy strongly Corp. not addressed this position in K v. has even more Mart

1501 questions (1988). answer about racial dis- 108 S.Ct. 101 L.Ed.2d 370 It short, however, Stopping en- seeking crimination. is a suit money against the United line-drawing sort of that the name, tails the same States its own a claim traditional- right abjures. otherwise lesson court ly barred unless a statute unambiguously to draw from this cascade of inferences is authorizes the suit. instilling meaning

that the method of into my colleagues The submission find most lines did statute based on not appealing is Marozsan’s assertion that the draw, things it as a result of did consid- “quota system”. YA uses a ap- What he er, fundamentally flawed. parently means is that the Board of Veter- Appeals ans’ reverses approximately the

V percentage same year.9 decisions each This is true appellate of federal courts too. may recognizing worth It still what percentage The table shows the of rever- not involve. It does not this case does Board, sals the United prospective relief of States involve a demand appeals cases, courts of in civil granted despite governmen sort that is same years:10 immunity. tal It does not involve a “claim” Constitution; arising under the it involves Reversal Rate arising in only a constitutional issue arising adjudicating course of a claim un Year BVA Courts long It has der the veterans’ laws. been 1975 30.7 20.7

recognized litigants general have no 1976 29.5 21.9 right to resolution in federal court of con 1977 28.3 16.9 arising in stitutional issues other forums. 1978 25.9 19.7 Mississippi, Johnson E.g., 421 U.S. (1975) (collect 44 121 L.Ed.2d 1979 26.3 18.8 cases). ing It 26.8 19.0 involve contention 26.7 19.3 racial, religious, political, that the used VA 28.2 18.4 or other criteria. It does not involve a damages against persons claim for said 29.1 18.4 to have violated the Constitution. Com 28.7 18.6 Lucas, Bivens with Bush v. pare 29.6 18.3 31.6 20.0 — Chilicky, U.S. -, Schweiker 17.5 "quota system” reports There is another sense of data come from the annual 10. may recently, which Marozsan refer. Until see Office of the Courts and Administrative Times, 10, 1988, 1, 8,p. New York June col. 6 of the Veterans Administration and are for the system), (reporting the abolition of this the VA years ending fiscal or statistical in the calendar gave among bonuses to those the 62 members of year question. categories VA allowed, denied, three has Appeals disposed the Board of Veterans’ who dispositions: claims per year. separating the most cases The line (or "closed"). I manded combine the "allowed” may "quota”. bonus from no bonus be called a figures produce and "remanded” the reversal Perhaps pressure dispose of more cases years slightly rate. In most there were more leads the members do less well with each. remands than allowances. The reversal rate for readily This could cut in favor of the veteran as appeals the courts of is the column "reversed or events, against. At all crush of business in the Administrative Office’s annual denied” legislative is attributable to choices. year. report for the After 1984 the Administra- money determines how much is available to aggregate stopped reporting tive Office "civil” appellate adjudicators, hire which fixes how gave sub-categories rate and the rates for of civil many Day, cases each will have. Cf. Heckler v. give cases. For 1985-87 I a reversal rate de- L.Ed.2d (all by dividing rived the total civil reversals why It is not clear financial incentives B-5, reversals listed in Table less the number of up backlog to clear of cases—incentives that reversals) by criminal the total number of ter- might lead to inaccurate decisions but also (less decisions adjudicators spend minations on the merits criminal induce the the extra time merits). necessary keep up VA in are not on the Data for the with their work—are a problem. yet available. law, it ceas and when power to declare the rates, though have stable Both institutions remaining exist, only function the es to flat as Marozsan not so is the Board’s announcing the fact of and is:that the court surprise, for no stability is believes. parte cause.” Ex McCar dismissing the litigants’ on depends reversal rate of the Wall) (7 514. The federal dle, at is cost- taking appeal Because choices. case. Marozsan’s jurisdiction of courts lack believe litigants do so ly, the lim scrupulously observe must Courts a decent them facts and offer the law Judges have jurisdiction. own its on their of the costs Unless chance of success. powers not whatever only power granted, for a of success the rate change, appealing choose between If I must they think best. be stable. See should kind of case given simple statute as license Klein, reading even Benjamin & George L. Priest J., (Posner, con 13 J. a “modern trend” Litigation, to follow Disputes Selection for 1484) laws (1984). Stability no more decisions under curring op. Legal Studies Ap- process of Veterans’ that makes the Board suggests post-dating —a do. that courts “quota” than the judicial founda peals uses one assertion review did, would reading if it what this statute Even for the next—and tion stability Determining whether binding entail? on until amended its a choice me equilib- from comes of reversal author, in the rate hesi latter without I choose the damn the from inclination rium forces or regret. tation require out would get cases and facts inquiry. case-by-case painstaking the most contention, seriously, if taken “quota” This the files the examination demand

would judi- do not seek of the veterans who Ap- of Veterans’

cial review. Board 35,000 the merits between

peals decides on America, about double 45,000 per year, UNITED STATES cases appeals Plaintiff-Appellee, courts output of all of take a inquiry could together, so the put farther removed process A time. little NESBITT, Thomas and functions language Defendant-Appellant. imagine. impossible 211(a). Argu- praise not to This is No. 86-3150. review. may made ments Appeals, States United Court than 700 dis- more Judicial Seventh Circuit. consistency sacrifice judges trict improve might expertise, but technical Argued Sept. 1987. rule of law at implementation July Decided dissatisfied with Many people are VA. claims, Rehearing Rehearing Banc way the VA handles 9, 1988. provide Sept. Denied why proposals A conscientious Con- currency. view have way. either might strike balance

gress however, Congress has know, how

We today. the balance between struck be, 211(a)may its fringe Wherever no there shall be principle

core is im- ensure accurate

case-by-case review to statutory rules. It is

plementation accu- review to ensure

exactly case-by-case requires. today

racy that the court the court cannot jurisdiction

“Without Jurisdiction

proceed at all cause.

Case Details

Case Name: Stephen Marozsan v. The United States of America and the Veterans' Administration, Defendants

Court Name: Court of Appeals for the Seventh Circuit

Date Published: Jul 25, 1988

Citation: 852 F.2d 1469

Docket Number: 86-1954

Court Abbreviation: 7th Cir.