RONALD C. RULOFF, PETITIONER V. UNITED STATES VETERANS' ADMINISTRATION, ET AL. No. 90-5817 In The Supreme Court Of The United States October Term, 1990 On Petition For A Writ Of Certiorari To The United States Court Of Appeals For The Second Circuit Brief For The Respondents In Opposition OPINIONS BELOW The opinion of the court of appeals (Pet. App. II) is unreported. The opinion of the district court (Pet. App. I) is also unreported. JURISDICTION The opinion of the court of appeals was entered on May 25, 1990. Justice Marshall extended the time within which petitioner could file a petition for certiorari to and including September 23, 1990. The petition for certiorari was filed on September 21, 1990. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). QUESTION PRESENTED Whether 38 U.S.C. 211(a) bars judicial review of a decision to transfer a patient from one Veterans' Administration hospital to another Veterans' Administration hospital. STATEMENT Because the courts below dismissed petitioner's complaint for want of jurisdiction, the following statement assumes the facts as stated in the petitioner's pleadings to be true. 1. On May 30, 1989, the Manhattan Veterans' Administration Medical Center (MVAMC) admitted petitioner, an Air Force veteran, for treatment for ulcerative colitis. C.A. App. 14. Petitioner consented to colon surgery. Ibid. Before surgery was performed, petitioner was told by a resident on MVAMC's surgical ward and by a social worker that after his surgery MVAMC would either continue to treat him in the medical center or would arrange for his placement in a nursing home in Manhattan or Long Island City, New York, until he could return to work. Id. at 14, 23. On June 23, 1989, MVAMC doctors performed surgery on petitioner, and on August 9, 1989, they performed a follow-up surgical procedure. C.A. App. 15-16. During this period, petitioner complained about his medical care and his food. Id. at 16-18, 24-25. After petitioner's follow-up surgery, MVAMC personnel began discussing discharge plans with him. C.A. App. 16-17. Among the options discussed was a transfer within the Veterans' Administration (VA) medical care system -- from MVAMC, an acute-care VA facility, to the St. Albans Extended Care Center (St. Albans), an intermediate-care VA facility in Queens, New York. Petitioner objected to such a transfer. Id. at 16-17, 59. Petitioner also objected to a suggestion that he be placed in an adult boarding house that was not run by the VA. Id. at 17. 2. On November 8, 1989, petitioner filed suit in the United States District Court for the Southern District of New York. Pet. App. I, 1. Petitioner sought an order that, in relevant part, would direct MVAMC (1) either to continue to treat petitioner or to pay for his treatment in a private hospital; and (2) when discharge was appropriate, either to arrange for his placement in a nursing home of good quality in Manhattan or to pay for a private apartment during his recuperation. C.A. App. 26. On November 13, 1989, petitioner discharged himself from the MVAMC. Pet. App. I, 1. The district court treated petitioner's complaint as an application for a temporary restraining order. C.A. App. 28. At a hearing on this matter, MVAMC told the court that it proposed to transfer petitioner to St. Albans, where a bed had already been reserved. Id. at 31, 45. Petitioner maintained his objection to going there. Id. at 35-36. After the hearing, the district court entered a temporary restraining order pursuant to which MVAMC readmitted petitioner. Id. at 47-48. /1/ Upon reconsideration, the district court vacated its order and dismissed petitioner's complaint for lack of subject matter jurisdiction. Pet. App. I; see also C.A. App. 55. The court determined that MVAMC's plan to transfer petitioner to St. Albans, a VA facility, was a decision regarding medical treatment. Pet. App. I, 3-5; see also C.A. App. 60. As such, the court held, judicial review of the decision was barred under 38 U.S.C. 211(a). /2/ Pet. App. I, 5. The court also held that, because MVAMC was no longer considering discharging petitioner from the VA medical care system, petitioner's claims based on its initial proposal to do so were moot. Pet. App. I, 5. /3/ 3. The Second Circuit affirmed the district court's judgment in an unpublished decision. Pet. App. II. The court of appeals agreed with the distict court that in 38 U.S.C. 211(a) "Congress has explicitly precluded judicial review of (petitioner's) * * * claims of inadequate treatment and improper discharge or transfer." Id. at 1-2. ARGUMENT The court of appeals' holding is correct and does not conflict with any decision of this Court or any other court of appeals. Further review is therefore not warranted. 1. Section 211(a) of Title 38, U.S.C., bars judicial review of decisions by the VA regarding individual claims for veterans' benefits. Walters v. National Ass'n of Radiation Survivors, 473 U.S. 305, 307 (1985); see note 2, supra. A claim that the VA is failing to provide adequate medical treatment seeks "precisely the type of judicial review that Congress, in enacting 38 U.S.C. Section 211(a), expressly prohibited." In re Agent Orange Product Liability Litigation, 818 F.2d 194, 201 n.2 (2d Cir. 1987). Accordingly, the courts below were correct in holding that Section 211(a) bars review in this case, in which Mr. Ruloff seeks judicial review of the respondents' decision that his treatment should proceed at an intermediate-care VA facility. See C.A. App. 60. /4/ Permitting review of decisions to transfer patients within the VA system would allow the very sort of judicial intrusion into day-to-day decision-making within the VA that Congress enacted Section 211(a) to prevent. Johnson v. Robison, 415 U.S. 361, 372 (1974). 2. Petitioner asserts (Pet. 13) that Section 211(a) is unconstitutional because it immunizes the VA from liability for tortious and criminal conduct. /5/ On the contrary, Section 211(a) does not authorize the VA to engage in tortious or illegal conduct, nor does it deprive persons alleging such conduct of an adequate remedy. Malpractice claims involving the VA may be brought against the United States under the Federal Tort Claims Act, 28 U.S.C. 2671 et seq., after the exhaustion requirements prescribed under that statute have been met. E.g., Ryan v. Cleland, 531 F. Supp. 724, 773 (E.D.N.Y. 1982). Any criminal behavior by VA employees may be prosecuted by appropriate authorities. /6/ 3. Petitioner contends that in the course of his medical treatment the VA violated his "First, Fourth, and Fifth Amendment rights." Pet. 15. The lower courts have uniformly held that Section 211(a) bars review of constitutional challenges to decisions by the VA regarding individual benefits. See Higgins v. Kelley, 824 F.2d 690, 691 (8th Cir. 1987); Pappanikoloaou v. Administrator of Veterans Administration, 762 F.2d 8, 9 (2d Cir.), cert. denied, 474 U.S. 851 (1985); Anderson v. Veterans Administration, 559 F.2d 935, 936 (5th Cir. 1977); Ross v. United States, 462 F.2d 618, 619 (9th Cir.), cert. denied, 409 U.S. 984 (1972). /7/ In any event, petitioner did not advance these constitutional claims in the courts below. /8/ Under these circumstances, petitioner's claims do not warrant this Court's review. See Delta Airlines v. August, 450 U.S. 346, 362 (1981); United States v. Lovasco, 431 U.S. 783, 788 n.7 (1977). CONCLUSION The petition for a writ of certiorari should be denied. Respectfully submitted. KENNETH W. STARR Solicitor General STUART M. GERSON Assistant Attorney General FREDDI LIPSTEIN JONATHAN R. SIEGEL Attorneys NOVEMBER 1990 /1/ The court also prohibited MVAMC from placing petitioner in MVAMC's psychiatric ward or providing any psychiatric treatment without prior court approval and ordered MVAMC to give petitioner a copy of his medical records. C.A. App. 40-43, 48-52. /2/ 38 U.S.C. 211(a) provides in relevant part: (a)(1) The Administrator shall decide 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 or the dependents or survivors of veterans. Subject to paragraph (2) of this subsection, the decision of the Administrator shall be final and conclusive and may not be reviewed by any other official or by any court, whether by an action in the nature of mandamus or otherwise. The provision referred to, 38 U.S.C. 211(a)(2), contains certain exceptions, none of which applies here. The statutes pursuant to which the VA provides veterans with medical treatment, including hospital care, are set forth at 38 U.S.C. 610 et seq. /3/ Petitioner left MVAMC after MVAMC informed him of the district court's decision, even though MVAMC renewed its proposal to transfer him to St. Albans. Pet. 11. /4/ MVAMC initially discussed with petitioner the possibility of his being discharged from the VA medical care system to a private facility. C.A. App. 17. The Eighth Circuit has held that, before a veteran may be transferred from a VA facility to a "non-Veterans' Administration" facility, the veteran has limited procedural rights protected under the Due Process Clause. Hanke v. Walters, 740 F.2d 654 (1984). In so holding, the Eighth Circuit relied on 38 U.S.C. 620(a), see Hanke, 740 F.2d at 656, 657 n.5, which prescribes procedures for transfers out of the VA medical care system but, as the district court below recognized (Pet. App. I, 3-5), does not apply to transfers from one VA facility to another VA facility. The district court below correctly concluded that any claims by petitioner based on Hanke and 38 U.S.C. 620 became moot when MVAMC decided to transfer petitioner to St. Albans, another VA facility. Pet. App. I, 5. /5/ Similar challenges to Section 211(a) have consistently been rejected by the courts of appeals. See, e.g., Higgins v. Kelley, 824 F.2d 690, 692 (8th Cir. 1987); Rosen v. Walters, 719 F.2d 1422, 1423 (9th Cir. 1983); De Rodulfa v. United States, 461 F.2d 1240, 1258 (D.C. Cir.), cert. denied, 409 U.S. 949 (1972); Milliken v. Gleason, 332 F.2d 122, 123 (1st Cir. 1964), cert. denied, 379 U.S. 1002 (1965). /6/ The availability of adequate remedies for tortious and illegal conduct disposes of petitioner's contention (Pet. 13-14) that judicial review should be permitted in this case because "the Manhattan VAMC went far beyond any possible authority given the V.A. medical system by the Congress to conduct its own affairs." Petitioner concedes (Pet. 17) that he did not exhaust the administrative remedies prescribed for claims such as his. /7/ In Johnson v. Robison, 415 U.S. 361, 366-374 (1974), this Court held that Section 211(a) does not "bar() federal courts from deciding the constitutionality of veterans' benefits legislation," but the Court expressly distinguished (id. at 367) challenges to decisions regarding individual benefits. Johnson is thus inapposite here, since petitioner challenges only the treatment decisions made in his case. Likewise inapposite is Maroszan v. United States, 852 F.2d 1469 (1988) (en banc), in which the Seventh Circuit held that a veteran could bring a constitutional challenge to the procedures employed by the VA in denying benefits. The court in Maroszan recognized that Section 211(a) bars "those actions that challenge the V.A.'s application of benefits laws to specific fact situations." 852 F.2d at 1475. /8/ A review of petitioner's complaint, petitioner's briefs on appeal, and the opinions below shows that petitioner did not advance claims under either the First or Fourth Amendment in the courts below. The district court, reading petitioner's complaint liberally, construed the complaint to raise a colorable Due Process Clause claim based on the initial proposal to discharge petitioner from the VA medical treatment system. Pet. App. I, 1-2. But the court correctly concluded that any such claim became moot when MVAMC decided to transfer petitioner to another VA facility. Id. at 5.