by plaintiff's prior evidentiary submissions to the defendant." (Plaintiff's Second Motion at 46).
The threshold question that must be resolved is whether § 211(a)'s bar against judicial review of "all questions of law and fact necessary to a decision by the Administrator under a law that affects the provision of benefits by the Administrator to veterans . . .," 38 U.S.C. § 211(a), extends to plaintiff's claim that the limitations on retroactive money damages contained in 38 U.S.C. § 3010(i) and 38 C.F.R. 3.400(g) do not apply to him.
The Supreme Court has repeatedly acknowledged "the strong presumption that Congress intends judicial review of administrative action." Traynor v. Turnage, 485 U.S. 535, 108 S. Ct. 1372, 1378, 99 L. Ed. 2d 618 (1988), quoting, Bowen v. Michigan Academy of Family Physicians, 476 U.S. 667, 670, 90 L. Ed. 2d 623, 106 S. Ct. 2133 (1986). This presumption may be overcome "only upon a showing of 'clear and convincing evidence' of a contrary legislative intent." Traynor, 108 S. Ct. at 1378, quoting, Abbott Laboratories v. Gardner, 387 U.S. 136, 141, 18 L. Ed. 2d 681, 87 S. Ct. 1507 (1967).
The area of veteran's benefits legislation, however, is one in which the Supreme Court has found a clear legislative intent to narrow jurisdiction. It has ruled that § 211(a) insulates from review "decisions [of the VA] made in interpreting or applying a particular provision of th[e] statute [administered by the VA] to a particular set of facts." Traynor, 108 S. Ct. at 1379. In an attempt to clarify the scope of § 211(a)'s ban, the Court has held that it does not apply to constitutional challenges to veterans' benefits legislation, see Johnson v. Robison, 415 U.S. 361, 94 S. Ct. 1160, 39 L. Ed. 2d 389 (1974), nor to claims that VA regulations are invalid because they conflict with other legislation, see Traynor v. Turnage, supra. In so holding, the Court reasoned that Congress did not intend to preclude judicial review of these types of challenges because review would not frustrate the two principal purposes of § 211(a): (1) ensuring that veterans' benefit claims will not burden the courts, and (2) ensuring that technical and complex determinations and applications of VA policy will be adequately and uniformly made. See Traynor, 108 S. Ct. at 1379.
Applying the rational of § 211(a) and the foregoing cases leads to the inescapable conclusion that there is no subject matter jurisdiction in this case. Exercising jurisdiction over plaintiff's challenge to the VA's interpretation and application of 38 U.S.C. 3010(i) and 38 C.F.R. 3.400(g) would frustrate the purposes of § 211(a). Essentially plaintiff argues that this court should reverse the VA's application to his case of the limitation on retroactive damages because the reinstatement of his benefits was established by prior evidentiary submissions and not by correction of his military record. Plaintiff's challenge involves the application of two particular provisions to a particular set of facts and, as such, lies at the heart of § 211(a)'s bar. The argument which plaintiff makes against the application of the limitations to his case could be made by any similarly situated claimant; hence, a finding that jurisdiction exists in cases like plaintiff's would create a substantial burden for the federal courts. Plaintiff's challenge also involves the question of when a reinstatement is "established" by "correction" of a military record, a technical matter within the particular expertise of the VA.
For the reasons stated above, the Court concludes that 38 U.S.C. § 211(a) precludes it from reviewing the decision of the VA to limit, pursuant to 38 U.S.C. § 3010(i) and 38 C.F.R. 3.400(g), its award of retroactive benefits to plaintiff. Because of this lack of subject matter jurisdiction, the Court will grant defendant's Motion to Dismiss and deny plaintiff's Motion for Summary Judgment and Second Motion for Summary Judgment.
An appropriate Order follows.
AND NOW, to wit, this 11th day of January, 1990, upon consideration of the Motion of the plaintiff, Robert S. Mozur, for Summary Judgment, the Second Motion of the said plaintiff for Summary Judgment, and the Motion of the defendant, Thomas K. Turnage, to Dismiss or for Summary Judgment, and the Responses to the said Motions, IT IS ORDERED that:
1. Plaintiff's Motion for Summary Judgment and Second Motion for Summary Judgment are denied;
2. Defendant's Motion to Dismiss or for Summary Judgment is granted and judgment is entered in favor of defendant, Thomas K. Turnage, and against plaintiff, Robert S. Mozur.