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KISER v. JOHNSON

UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA


May 30, 1975

PAUL ERVIN KISER
v.
DONALD E. JOHNSON, Admin. of Veterans Affairs, United States of America

The opinion of the court was delivered by: NEALON

MEMORANDUM AND ORDER

 Plaintiff is a World War II (WW II) veteran who in 1945 received a bad conduct discharge following his trial to a general court-martial on a charge of being absent without leave. The complaint alleges that he is in need of medical care as a result of rheumatoid arthritis, a condition which he either contracted or aggravated while on active duty during WW II, and which has caused him to lose the use of both arms and legs; that the Veterans Administration (VA) has denied him all medical benefits because of the type of court-martial to which he was tried (a general, as opposed to a special, court-martial); *fn1" that this action of the VA is pursuant to 38 U.S.C. § 3103 (1970), which provides in pertinent part, "The discharge or dismissal by reason of the sentence of a general court-martial of any person from the Armed Forces . . . shall bar all rights of such person under laws administered by the Veterans' Administration based upon the period of service from which discharged or dismissed"; *fn2" and that such a classification, based upon the nature of the court-martial which ordered the plaintiff's discharge, violates the Fifth Amendment's guarantee of equal protection. *fn3" Plaintiff seeks a declaration that Section 3103 is unconstitutional, and an order in the nature of mandamus compelling defendant to pay him $10,000 in benefits which he alleges were wrongfully and improperly withheld since 1949. *fn4" Presently pending are the defendant's motion to dismiss and cross motions for summary judgment.

 A fairly substantial record has already been compiled by virtue of the parties' submission of documents and affidavits in support of their motions, and, on the basis of that record, the following facts appear. Plaintiff served on active duty in the United States Navy for a period of almost one and one-half years during WW II, during which time he pleaded guilty on three occasions to a charge of being absent without leave. On the first occasion, he was tried before a deck court-martial, and on the second before a summary court-martial. The third occasion was on April 24, 1945, when he pleaded before a general court-martial. *fn5" On this last occasion he was sentenced to reduction to Apprentice Seaman, confinement for a period of three and one-half years and discharge with a bad conduct discharge. On April 26, 1945, however, the convening authority reduced his period of imprisonment to eighteen months and authorized the suspension of his bad conduct discharge if he successfully completed eleven months of confinement.

 Subsequently, according to a psychiatric report dated October 31, 1945, plaintiff was found participating in homosexual acts at his place of confinement and, as a result, his good time was revoked and he was referred to the United States Navy Disciplinary Barracks at Hart's Island, New York, New York. There a psychiatric examiner recommended that because of his homosexual tendencies, plaintiff be separated from military service by the most expedient means at hand. Plaintiff not having successfully completed the period of confinement, the discharge portion of the general court-martial's sentence of April 24, 1945 was executed and he was given a bad conduct discharge on January 4, 1946.

 Thereafter, in April, 1949, plaintiff filed a claim with the VA for disability benefits and also applied for hospitalization benefits. In May, 1949, he received notice that both applications had been denied because of the character of his discharge from military service. A VA intra-office memorandum dated May 3, 1949 indicated that the determination of plaintiff's ineligibility to receive veterans' benefits was made pursuant to a VA regulation which provided that a person discharged because of homosexual acts or tendencies was generally considered to be ineligible for veterans' benefits. *fn6"

  In April, 1949, plaintiff also appealed to the Navy Department's Board of Review in an effort to overturn the decision of the general court-martial. That board informed him that it was not authorized to review a discharge by reason of the sentence of a general court-martial, but advised him that it had referred his appeal to the Board for the Correction of Naval Records, which was the proper forum for his appeal. In August, 1949, the latter board informed the plaintiff that it had decided to make no change, correction or modification of his discharge.

 The record discloses that the next action taken by plaintiff was in March, 1974, when his attorney wrote the VA in an effort to secure benefits for him. When that effort proved futile, this suit was filed on August 6, 1974.

 Defendant asserts four grounds in support of his motions. The first two stem from the factual contention that plaintiff was not denied benefits pursuant to 38 U.S.C. § 3103, the statute under attack here, but instead pursuant to 38 U.S.C. § 101(2). As a result, defendant argues, (1) this Court is without jurisdiction, by virtue of 38 U.S.C. § 211(a), *fn7" to review the decision to deny plaintiff benefits, and (2) plaintiff lacks standing to challenge the constitutionality of Section 3103. In addition, defendant contends (3) that this suit should be barred by the doctrine of laches, and (4) that plaintiff has failed to state a claim upon which relief can be granted. The arguments will be addressed seriatim.

 1. Section 211(a)

 Defendant argues that 38 U.S.C. § 211(a) divests this Court of jurisdiction to review his 1949 decision denying plaintiff benefits, and that, therefore, this suit must be dismissed. The Supreme Court has recently had occasion to construe Section 211(a). See Johnson v. Robison, 415 U.S. 361, 39 L. Ed. 2d 389, 94 S. Ct. 1160 (1974). That case was a suit by a conscientious objector challenging the constitutionality of veterans' benefits legislation limiting eligibility for veterans' educational benefits to persons who had served in the Armed Forces. In the course of rejecting defendant's contention that Section 211(a) precluded federal jurisdiction of the suit, the Court stated:

 

"Plainly, no explicit provision of § 211(a) bars judicial consideration of appellee's constitutional claims. That section provides that 'the decisions of the Administrator on any question of law or fact under any law administered by the Veterans' Administration providing benefits for veterans . . . shall be final and conclusive and no . . . court of the United States shall have power or jurisdiction to review any such decision . . .' (Emphasis added.) The prohibitions would appear to be aimed at review only of those decisions of law or fact that arise in the administration by the Veterans' Administration of a statute providing benefits for veterans. A decision of law or fact 'under' a statute is made by the Administrator in the interpretation or application of a particular provision of the statute to a particular set of facts. Appellee's constitutional challenge is not to any such decision of the Administrator, but rather to a decision of Congress to create a statutory class entitled to benefits that does not include I-O conscientious objectors who performed alternative civilian service. Thus, as the District Court stated: 'The questions of law presented in these proceedings arise under the Constitution, not under the statute whose validity is challenged.' 352 F. Supp. at 853."

 415 U.S., at 367.

 Applying the Supreme Court's construction of Section 211(a) to the instant case, it seems clear that the 1949 decision of the Veterans' Administrator is within the purview of that statute. That decision was that the defendant's discharge because of homosexuality was "dishonorable" for the purposes of 38 U.S.C. § 101(2), the statute which provides generally that the class of former servicepeople who will be eligible for veterans' benefits are those who have been discharged "under conditions other than dishonorable." *fn8" It was, thus, a decision "under" Section 101(2) in which the Veterans' Administrator, through his own regulation, applied the statutory term "dishonorable" to the particular set of facts raised by defendant's case, and decided that the defendant's discharge was dishonorable for the purposes of Section 101(2). As such, it is precluded from federal judicial review by Section 211(a), and this Court has no jurisdiction to question the 1949 decision to deny plaintiff benefits. Accordingly, Section 211(a) requires that the portion of the complaint seeking damages and an order of mandamus be dismissed.

 Section 211(a), however, does not apply to the portion of the complaint challenging 38 U.S.C. § 3103 and seeking a declaration that that statute is unconstitutional. Section 3103 expressly provides that the "discharge or dismissal by reason of the sentence of a general court-martial of any person from the Armed Forces . . . shall bar all rights of such person under laws administered by the Veterans' Administration . . ." It is thus a decision of Congress, not the Veterans' Administrator, to create a statutory class of persons not entitled to veterans' benefits. Like the Congressional decision in Johnson v. Robison, supra, to create a class of persons entitled to benefits that does not include conscientious objectors, it is not precluded from review by Section 211(a). Hence, there is no statutory bar to federal jurisdiction of the request for a declaratory judgment in this case.

 2. Standing and Ripeness

 Defendant argues that even though plaintiff may also be ineligible for veterans' benefits because of 38 U.S.C. § 3103, in that he was discharged by reason of the sentence of a general court-martial, the actual ground on which he was denied disability and hospitalization benefits when he applied for them in 1949 was the VA regulation which provided that a discharge because of homosexual acts or tendencies "generally will be considered as under dishonorable conditions and a bar to . . . (veterans' benefits)." 38 C.F.R. § 2.1064(D) (1946). For that reason, defendant contends, plaintiff lacks standing to challenge the constitutionality of Section 3103, as that statute is not the enactment from which his injury has resulted.

 Recent Supreme Court decisions have established a two-fold test for determining whether a plaintiff has standing to challenge administrative action. First, he must satisfy the jurisdictional requirement of "injury in fact" imposed by the case or controversy clause of Article III of the Constitution. Association of Data Processing Organizations v. Camp, 397 U.S. 150, 152, 25 L. Ed. 2d 184, 90 S. Ct. 827 (1970). Second, he must demonstrate that the interest he seeks to protect is "arguably within the zone of interests to be protected or regulated by the statute or constitutional guarantee in question." Id., at 153. It seems clear that plaintiff satisfies the second phase of the test, inasmuch as he is invoking the Due Process clause of the Fifth Amendment, and, indeed, defendant does not contend otherwise. Instead, he asserts that plaintiff does not satisfy the injury in fact requirement. Arguing that to satisfy this requirement, a person challenging the constitutionality of a statute "must show that he is within the class of persons with respect to whom the act is unconstitutional and that the alleged unconstitutional feature injures him[,]" Heald v. District of Columbia, 259 U.S. 114, 123, 66 L. Ed. 852, 42 S. Ct. 434 (1922), defendant maintains that Section 3103 cannot be deemed to have injured this plaintiff, inasmuch as that statute was not the ground of the 1949 denial of benefits. While defendant is correct in arguing that the basis of that denial forms a jurisdictional barrier to this lawsuit, see infra, that barrier is not a lack of standing on the part of plaintiff to challenge Section 3103.

 An analysis of plaintiff's relationship to Section 3103 establishes that he satisfies the injury in fact requirement with respect to his challenge to that statute. To begin with, it does appear to be true that the VA's 1949 decision to deny plaintiff benefits was because of his homosexuality and not because of the grade of the court-martial that discharged him. See fn. 6, supra. Technically speaking, therefore, the 1949 decision was pursuant to Section 101(2) and not Section 3103. Nevertheless, the fact remains that plaintiff was discharged "by reason of the sentence of a general court-martial," and thus, under the express language of Section 3103, has been ineligible ever since his discharge to receive veterans' benefits because of Section 3103. If the statute is constitutionally defective in the manner he contends, he would be "within the class of persons with respect to whom the act is unconstitutional." Furthermore, the alleged unconstitutional feature of the statute has injured the plaintiff. Simply because the VA did not expressly refer to Section 3103 when it denied him benefits in 1949 does not alter the facts that the statute was an absolute bar to plaintiff's receipt of benefits in 1949, and bars his receipt of them now. If he were to obtain a determination that the ground of the 1949 denial of benefits was unconstitutional, *fn9" or a determination by the VA that his homosexuality no longer renders him ineligible, *fn10" the VA would still be prevented from awarding him benefits because of Section 3103. Thus, because the statute has been an absolute bar to plaintiff's receipt of benefits ever since his discharge, he has in fact been injured by the statute. I conclude that he has standing to challenge Section 3103. *fn11"

 That the plaintiff has standing, however, does not end the inquiry as to whether this Court has jurisdiction to issue a declaratory judgment in this case. The question remains whether the complaint presents an "actual controversy" within the meaning of the Declaratory Judgment Act, 28 U.S.C. § 2201, that is ripe for decision. *fn12" The Supreme Court has recently reemphasized the test to be applied in that regard:

 

"The test to be applied, of course, is the familiar one stated in Maryland Casualty Co. v. Pacific Coal & Oil Co., 312 U.S. 270, 273, 85 L. Ed. 826, 61 S. Ct. 510 (1941): 'Basically the question in each case is whether . . . there is a substantial controversy, between parties having adverse legal interests, of sufficient immediacy and reality to warrant the issuance of a declaratory judgment.'" Lake Carriers' Assn. v. MacMullan, 406 U.S. 498, 506, 32 L. Ed. 2d 257, 92 S. Ct. 1749 (1972).

 If there exist contingencies that must occur before an issue is actually joined by the parties, then the case will not be ripe until those contingencies occur. See Wright & Miller, supra, § 2757. In this case, in order for this Court to be in a position to afford plaintiff any meaningful relief with respect to Section 3103, and not simply issue an advisory opinion regarding that statute, the other independent ground for denying plaintiff benefits, a ground on which the VA actually relied when it denied him benefits in 1949 and which is unreviewable by this Court, must be removed. Considering what plaintiff must do to circumvent that ground -- he must obtain either a determination that the 1949 decision was unconstitutional or a determination by the VA that his homosexuality no longer renders his discharge "dishonorable" within the meaning of 38 U.S.C. § 101(2) -- the removal of that ground is simply too large a contingency to imbue the dispute concerning Section 3103 with sufficient immediacy and reality to warrant the issuance of a declaratory judgment. Accordingly, I find that this suit is not ripe for decision at this time. *fn13"

 3. Laches

 Assuming further, however, that the dispute with respect to Section 3103 is ripe, and that this Court would exercise its discretion to take jurisdiction of the request for a declaratory judgment, plaintiff's suit would still have to be dismissed because of the doctrine of laches. Defendant advances this ground for dismissal vigorously, if only because of the uncontroverted long delay (more than 25 years) between the 1949 denial of benefits and the institution of this lawsuit. Nevertheless, it is axiomatic that mere delay alone, no matter how long, is insufficient to constitute laches, Holmberg v. Armbrecht, 327 U.S. 392, 90 L. Ed. 743, 66 S. Ct. 582 (1946), and, in addition, that the delay must be found to have been inexcusable, and the defendant must be shown to have been prejudiced thereby in order for laches to be invoked. Gruca v. United States Steel Corporation, 495 F.2d 1252 (3d Cir. 1974). In this Circuit, the rule with respect to a party who has slept on his rights for as long as plaintiff in this case appears to have is that inexcusable delay and prejudice will be presumed, and the burden is on the plaintiff to establish that the delay was excusable and that the defendant has not been prejudiced thereby. Burke v. Gateway Clipper, Inc., 441 F.2d 946 (3d Cir. 1971).

 Applying that rule to this case, I find that plaintiff has offered no explanation for his delay in bringing this suit, and has not established that the defendant will not be prejudiced by the delay. He has had ample opportunity to make the necessary showings. Laches was the initial ground offered in support of the motion to dismiss, and since the filing of that motion, plaintiff has filed several briefs and affidavits in opposition to it. In addition, there was a hearing on the motion. In spite of these opportunities, plaintiff has failed to make the necessary showings of excuse and lack of prejudice. Accordingly, the suit must be dismissed.

 In view of the above discussion, it is unnecessary to consider the defendant's contention that the complaint fails to state a claim upon which relief can be granted. In accordance with the above, the motion to dismiss will be granted.

 William J. Nealon / United States District Judge

 ORDER

 Now, this 30th day of May, 1975, in accordance with memorandum this date filed, defendant's motion to dismiss is hereby granted and the suit is dismissed.

 William J. Nealon / United States District Judge


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