Traynor v. Turnage – Oral Argument – December 07, 1987

Media for Traynor v. Turnage

Audio Transcription for Opinion Announcement – April 20, 1988 in Traynor v. Turnage

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William H. Rehnquist:

Mr. Teel, you may proceed whenever you’re ready.

Keith A. Teel:

Thank you, Mr. Chief Justice, and may it please the Court.

These cases today raise two issues for your consideration.

The primary issue is not, as the Government suggests in its brief, the medical question of whether alcoholism is a disease.

That issue has been decided by the Congress, which has determined that alcoholism is a handicap and that it is an illness, a finding that is conclusively supported by the American Medical Association, the American Psychiatric Association, and the National Council on Alcoholism, all of whom have filed briefs in support of petitioners in this case.

Instead, the question here is whether the Veterans’ Administration can ignore Congress’ determination and enforce a regulation that defines alcoholism to be willful misconduct, which regulation is applied to bar alcoholic veterans from obtaining extensions of the time in which to use their VA educational benefits.

We contend that the VA cannot use such a regulation because it is impermissibly discriminatory under Section 504 of the Rehabilitation Act of 1973.

Before reaching that issue, however, there is a threshold question of the jurisdiction of the Federal courts even to consider the legality of the willful misconduct regulation.

Section 211(a) of the Veterans Benefits Statutes precludes review of certain VA decisions.

The Government argues for a sweeping interpretation of section 211(a), one that would bar review of all VA action except constitutional challenges to VA statutes, and challenges by persons not themselves in a position to receive Veterans’ Administration benefits by who are affected by VA action.

Petitioners argue that Section 211(a) should be read slightly more narrowly and that at a minimum review of VA regulations to determine whether they comply with non-VA statutes is permitted.

William H. Rehnquist:

Is that because of the text, Mr. Teel, that you say that review of Regs to see if they comply with non-VA statutes?

Keith A. Teel:

It is because of the text and because of the legislative history and the statutory scheme for review that we believe Congress created here, which I will explain in just a moment.

The petitioners here are both honorably discharged veterans.

They each have a family history of alcoholism, and each of them began drinking while they were children; Mr. Traynor at age 8, Mr. McKelvey at age 13.

After they left the Service, they were both disabled by alcoholism for a period of six to eight years.

Before 1977, veterans were required to use their educational benefits within a period of ten years following their separation from the Service.

In 1977, the Educational Benefits statute was amended by the Congress to allow extensions of the limiting date, the ten-year period, to veterans who had been unable to use those benefits within the ten year period because of a disability that was not the result of their own willful misconduct.

Both petitioners here applied for an extension of the time in which to use their benefits.

Both were denied that extension in decisions of the Board of Veterans Appeals, in which the Board of Veterans Appeals stated explicitly the extension were being denied on the basis of the Willful Misconduct Regulation at issue here.

Thereafter, both petitioners brought suit; both prevailed on summary judgment in the district courts.

In the Courts of Appeals, Mr. Traynor lost on the jurisdictional issue in the Second Circuit; Mr. McKelvey lost on the merits question in the District of Columbia Circuit.

We believe that both Courts were in error on the issues in which they ruled against petitioners.

I’d like to begin with the jurisdictional issue.

It is difficult to imagine a less attractive circumstance for a Federal Agency to argue that review is precluded.

In this case, the Veterans Administration refused to decide the issue here; whether this regulation violated the Rehabilitation Act.

Even though it would not decide the question, it contends that the Courts cannot decide the question either.

Finally, at the same time it is making these arguments to the Courts, it has repeatedly during this decade told the Congress in response to questions, and in testimony, that review of VA regulations is in fact permitted under Section 211(a).

As with any case involving the question of bars to judicial review, we begin here with a strong presumption that there is judicial review which can be overcome by a clear and convincing showing that Congress did not intend such review.

In Block v. Community Nutrition Institute, in 1984, this Court enunciated a number of factors that should be considered in deciding whether review is precluded.

Keith A. Teel:

The first of these is the language of the Statute; others are the structure of the statutory scheme and the legislative history.

Let me address those three elements.

First, with respect to the language of Section 211(a), is not as sweeping as the Government suggests.

The specific language at issue here is whether decisions of the Administrator on any question of law or fact, under any law administered by the VA providing benefits to veterans is barred from review.

Now, certainly the Congress could have drafted a statute far more clearly had they intended to entirely preclude review of everything affecting the VA.

They simply could have said, nothing the VA does can be challenged in Court.

That’s not what we have here.

We have a statute here with a number of specific clauses that must be interpreted.

First, there’s a requirement in the Statute that a decision be on a question of law or fact arising under any statute administered by the Veterans’ Administration.

Judge Kearse noted in her dissent in Traynor in the Second Circuit that not only was the Rehabilitation Act not administered by the VA, there’s a distinction there between administering and complying with a statute.

Presumably all Federal agencies comply with Federal statutes of broad scope that affect it.

Administering a statute, we believe, indicates some expertise.

Here, the President, by Executive Order, has delegated the administration of Section 504 to the Justice Department.

This Court recognized in its decision in 1986 in Bowen v. American Hospital Association that a number of agencies have issued regulations under Section 504 and that those agencies do not have any particular expertise so there is no reason to give deference to those agencies’ views with respect to Section 504.

The reason we believe that is relevant is that is some indication that those agencies do not administer the statute; they merely comply with a statute.

Secondly, there is a requirement that the Statute provide benefits to veterans.

Again, the Rehabilitation Act does not do that.

What we have with the Rehabilitation Act is a limitation on the power of Federal agencies to discriminate against handicapped persons on the basis of their handicap.

Now, the structure and the legislative history are essential to understanding the scope of Section 211(a).

It is our position that the Congress crafted a rational scheme for review of VA actions.

Certain actions are subject to review in the Board of Veterans’ Appeals.

Section 4004(a) of the Veterans Statutes establishes the jurisdiction of the Board of Veterans’ Appeals.

It makes clear in Section 4004(c) that the Board of Veterans Appeals does not have authority to review regulations of the Veterans’ Administration.

It is bound by those regulations.

That, as petitioners discovered here in their administrative hearings in this case, is a restriction taken quite seriously by the Board of Veterans’ Appeals.

The Board of Veterans’ Appeals in both cases here stated that it was powerless to review regulations of the Veterans’ Administration.

It was bound by those regulations.

With this view, this Court basically is left with two alternatives; one is to make a decision that nevertheless despite the view of the Board of Veterans’ Appeals, there is no review available here.

The effect of that is that the Veterans’ Administration could pick and choose among those Federal Statutes that it wanted to pay attention to.

It could decide not to bother with the Rehabilitation Act.

Keith A. Teel:

It could decide not to bother with the Civil Rights Act.

And presumably under the Government’s interpretation of Section 211(a), the Veterans’ Administration could do so with impunity.

We believe that that is not supported by the language of the Statute, and that the more rational interpretation of Section 211(a) is that while decisions of the Veterans’ Administration within the specific facts of a veteran’s case under Veterans’ laws as to whether a particular veteran is entitled to benefits is consigned to the Board of Veterans’ Appeals, but that challenges to regulations under non-Veterans’ Administration statutes may be reviewed in the Federal Courts.

William H. Rehnquist:

How about challenges to regulations under VA Statutes?

Keith A. Teel:

Our position is that regulations generally are reviewable because of the distinction between decisions and regulations that we believe is in Section 4004.

I would note that we believe this is not that case.

William H. Rehnquist:

The Government says there are just thousands and thousands of regulations if you say any decision based on a regulation is reviewable that there are just going to be all sorts of cases coming into the courts.

Keith A. Teel:

Well, I know they say that, and I think the experience–

William H. Rehnquist:

Do you have reason to doubt it if we were to say that VA statute regulations as well as non-VA statute regulations were reviewable?

Keith A. Teel:

–I think there is quite a lot of reason to doubt it.

Within the last decade, four Federal Courts have allowed review of regulations, challenges to regulations that they were in excess of statutory authority, that kind of challenge.

There simply has not been that flood of litigation which you would expect if the Government’s position were correct here.

William H. Rehnquist:

And these were allowing review of regulations based on VA statutes?

Keith A. Teel:

Yes.

The other point to note here is that we believe our interpretation here is supported by the Veterans’ Administration.

It’s only in this case they seem to be arguing something differently.

They have repeatedly expressed the view to the Congress that review in these circumstances is permitted.

In 1952, they explained to the Congress that they believed that Section 211(a) barred review of determinations arising in the facts of particular veterans’ cases under particular Veterans’ law, and they gave as an example, rating decisions, degrees of disability, that kind of thing.

No mention of regulations.

More recently, the Veterans’ Administration has been questioned repeatedly since 1980 on this issue by the Congress and has stated that in their view, regulations of the Veterans’ Administration are subject to review.

Indeed, what is particularly striking is they most recently said that in response to a letter from Senator Ganston in 1986, which was after the decisions of these courts on the Courts of Appeals.

William H. Rehnquist:

But Mr. Teel, here we have the Veterans’ Administration appearing formally before us by the Solicitor General, and he’s saying this is what the Veterans’ Administration, this is their position.

Now, we ordinarily accept that.

You may argue that it has not been consistently applied in the past, but we ordinarily take the Solicitor General’s word for what the VA’s position is.

Keith A. Teel:

I’m disputing that, Your Honor.

William H. Rehnquist:

But you say the Veterans’ Administration itself believes the way you do.

If it did, obviously, there wouldn’t be any lawsuit.

Keith A. Teel:

Well, I would think so myself, but that doesn’t seem to be what we have here.

The statutes, the legislative support we have cited in our brief, quite clearly, they have taken a different view for Congress.

Now, they are no doubt here arguing a different position, but that shouldn’t control.

William H. Rehnquist:

Well, you say legislative support, and you’ve cited states made, or you think were made… and probably were… by VA people to the Congress, but that isn’t legislative support.

That may be an inconsistent position by the Agency.

Keith A. Teel:

I agree with you it is not legislative history in the sense that this Court often refers to it.

William H. Rehnquist:

In any orthodox sense.

Keith A. Teel:

Pardon me?

William H. Rehnquist:

Or in any orthodox sense.

Keith A. Teel:

That’s correct.

But this Court has noted repeatedly, and we cite cases to support this view that the view of an agency with respect to statutes that govern it is entitled to some deference.

That’s the reason we think that the statements made by the Veterans’ Administration to the Congress are significant.

John Paul Stevens:

Yes, but this statutory provision really doesn’t have much to do with what the Agency does; it describes what courts may do.

Keith A. Teel:

Nevertheless, I think that the Agency lives day to day with this statute.

They presumably know what they do is not subject to review, and they better get it right.

Here their view seems to be… other than in this case… that they think 211(a) does not reach regulations.

We think that view is entitled to some deference, certainly consideration by this Court in resolving these issues.

We think that it’s an indication that the Veterans’ Administration recognizes that the statutory scheme for review that I suggested was created by 211(a) is in fact the proper one.

I’d like to now turn, if I could, to the Rehabilitation Act issue before the Court.

Our argument is a simple one.

We contend that because alcoholism has been defined as a handicap under the Rehabilitation Act, and because Section 504 of the Rehabilitation Act applies to the VA Educational Benefits Program, the regulation here at issue is impermissibly discriminatory and cannot stand.

Sandra Day O’Connor:

I guess under your view, disability payments would have to be made as well, wouldn’t they?

Keith A. Teel:

Well, it is a troubling aspect of this case, as the Government points out, that the VA uses the same term, willful misconduct, in its disability statutes as it does in these educational benefits statutes.

The fact is, however, we believe that the choice for the Court is to write these petitioners out of the Rehabilitation Act by saying that you don’t get your benefits, or to worry about the question of disability benefits which, if that resulted in a problem, the Congress could correct that problem.

There’s ample room for–

Sandra Day O’Connor:

Well, it would be pretty hard to distinguish legally, wouldn’t it, if you’re right?

Keith A. Teel:

–Well, under the current statutes, it is.

But I note, for instance, under the Rehabilitation Act under the definitions of what’s a handicapped person with respect to employment benefits, the Congress has made just that kind of distinction that persons who are currently alcoholics or currently are drug abusers are not covered with respect to employment opportunities if their problems would prevent them from being able to do their job.

There is that kind of precedent that the Congress has made those small corrections when necessary.

Presumably it could do the same thing here.

Last term in Arline, this Court noted that discrimination against the handicapped often results from insensitivity.

We believe this is not such a case.

The Regulation here is discriminatory by intent.

Keith A. Teel:

The VA knows about the problems of alcoholism.

Its hospitals may be the Federal Government’s largest provider of treatment and services to alcoholics.

And it significantly does not make any distinction on the basis of wilful misconduct in treating those patients.

Despite that, it continues to enforce a regulation that we believe is based on nothing more than the history of the Regulation.

The regulation comes from the era of prohibition.

It has never been reconsidered in light of current medical knowledge, despite the united opposition of the leading medical groups in this country including the AMA and the American Psychiatric Association.

It truly is reflective, to use the phrase used in Arline of archaic attitudes and laws.

And we believe cannot be allowed to stand.

Previous judicial decisions under Section 504 have created a four-part analysis for determining whether the Section 504 has been violated.

The first question is, are the petitioners handicapped.

The answer here obviously is, yes.

This Court recognized in Arline that alcoholics are covered by the language of the Rehabilitation Act.

Are they otherwise qualified.

Again, the facts in this case indicate that the answer must be, yes.

Both petitioners here received education after they recovered from their alcoholism.

The Government has not disputed that point.

Third point, are these programs covered by Section 504.

Again, the answer is, yes.

The Government concedes that.

The fourth point, have these petitioners been excluded solely on the basis of handicap.

Here, the Board of Veterans’ Appeals said, we’ve got this regulation here that says if you are an alcoholic, we can’t give you an extension.

Therefore, that’s the end of the case.

Harry A. Blackmun:

You feel that’s an irrebuttable presumption.

Keith A. Teel:

Yes.

Now, I want to address a point that the Court of Appeals in McKelvey made because they had some problem with the notion that this was exclusion on the basis of handicap.

The majority there said this was not discrimination on the basis of handicap but rather on the basis of conduct.

We believe that that is a distinction that does not make sense.

The key feature of alcoholism is the compulsion to drink.

There may be other points about it but what characterizes the illness in its active phase is drinking behavior.

We believe the two must be taken part and parcel, at least with respect to this kind of regulation.

Keith A. Teel:

Here the Regulation was not regulating behavior, it was simply saying, if you are an alcoholic, you don’t get your benefits.

That is a decision made not on the basis of any conduct but on the basis of the petitioners’ status as alcoholics.

In Arline, this Court noted that the contagious effects of tuberculosis cannot meaningfully be distinguished from the disease itself.

We believe here you have essentially the same kind of problem.

You can’t separate the drinking behavior from alcoholism.

To do so would write alcoholics entirely out of the protection of the Rehabilitation Act.

We believe that any Federal Agency could say well, we understand you’re an alcoholic and we’re not saying anything about that.

We’re just regulating on the basis of your conduct.

John Paul Stevens:

Mr. Teel, I would like to go back because your argument I think raises the point to the question Justice O’Connor asked you earlier.

Does your argument also require the same treatment of claims for disability benefits by a veteran?

And I particularly am concerned about the legislative history in 1977 in which the Senate suggested that in determining whether the disability was a result of willful misconduct, they wanted to apply the same standard that was being applied by the VA under this Regulation.

Keith A. Teel:

I think the answer to the question is, yes.

The VA applies the same willful misconduct standard in the context of disability benefits as well as these educational benefits.

John Paul Stevens:

Your arguments against doing so in the tolling context seem to me to apply equally to the disability benefit claim context.

Keith A. Teel:

I’m sorry, I don’t understand the question.

John Paul Stevens:

You’re explaining why they should not do it in the context of tolling the ten-year prohibition, but doesn’t your argument also apply equally to a claim by a veteran for disability benefits based on his alcoholism?

Keith A. Teel:

I think it well might, yes, sir.

John Paul Stevens:

So you don’t really buy Judge Ginsburg’s distinction of the two.

You say then whatever we decide today will decide the issue on disability benefits?

Keith A. Teel:

Well, I think, as Justice O’Connor notes, it’s a tough distinction to make.

There are suggestions that the VA might be able, for instance, to determine that if somebody knows they have the problem of alcoholism and they’re not receiving treatment, that perhaps that alone is a sufficient basis to call willful misconduct in the disability benefit context.

That is a bit far afield from this case.

We don’t have that problem because here we’ve got petitioners who are recovered from the problem of alcoholism.

It’s conceivable the VA might try to make those distinctions.

But nevertheless, we recognize that there is the same language in the Statutes and that if the Congress perceives that to be a problem as a result of the decision for petitioners in this case, they may have to modify it.

John Paul Stevens:

Not only the same language in the Statute and the Regulation, but also legislative history suggesting at least in 1977 Congress intended the two rules to be the same.

Keith A. Teel:

Well, that’s right.

And in fact, I’d like to mention that legislative history.

In our view, the Government makes much of the point that that reference in ’77 to these regulations.

We think that the most that can be made out of that is that Congress felt the same standards should be applied across the board.

Keith A. Teel:

That’s a rational thing for an agency to do.

If you’ve got the same language, apply the same meaning to it.

Thurgood Marshall:

Isn’t this tough enough for us to take it one step at a time?

Keith A. Teel:

Well, in fact, I think it is, it’s very difficult.

And I think this Court’s decision for instance in Choate where you decided some things… we reached some disparate impact under Section 504; we may not reach it all… has shown a willingness to take things one at a time.

You could have a narrow decision such as that in this case.

Byron R. White:

If there had been no Rehabilitation Act, the Veterans’ Administration would withstand challenge of its interpretation and application to alcoholics of this tolling provision, without the Rehabilitation Act Section 504, you would not have a case, I take it?

Keith A. Teel:

Well, I think we would have a much more difficult case.

Byron R. White:

But that’s your principal reliance?

Keith A. Teel:

Yes, we are principally relying on Section 504.

Byron R. White:

So here’s an Act that was being administered as it was supposed to be administered, and then came the Rehabilitation Act and you say there’s a fundamental inconsistency between the two statutes?

Keith A. Teel:

No, actually that’s what the Government argues.

The Government argues there is a fundamental inconsistency.

We don’t argue that for a minute.

Byron R. White:

What are you arguing?

Keith A. Teel:

Well, our point is that the inconsistency here–

Byron R. White:

Yes, but you say that the Rehabilitation Act requires the Veterans’ Administration to change its views.

Keith A. Teel:

–It’s views as expressed in a regulation.

We do not contend that they could not then take petitioners’ cases and direct them back for the sort of–

Byron R. White:

I know, but I thought that you answered that the Veterans’ Administration position in its regulation would be perfectly acceptable absent the Rehabilitation Act.

Keith A. Teel:

–No.

What I said was, I think it would be a tougher case.

You said, did we principally rely on Section 504 and we do.

Byron R. White:

Assume for the moment that the Regulation was quite valid, absent the Rehabilitation Act, and hence the Regulation is a valid regulation under the applicable statutes.

And that expresses the meaning of the statute or a permissible meaning of the statute.

Keith A. Teel:

I concede it would be more difficult to challenge that.

Byron R. White:

Well, let’s assume that it was a permissible interpretation of the statute.

Now, you in effect say that the Rehabilitation Act made it an impermissible construction of the statute.

Keith A. Teel:

That’s right, but that does not have the affect, as the Government suggests, of repealing the ’77 Statute.

What it does is mean they can’t enforce this particular regulation.

Keith A. Teel:

There’s no inconsistency.

Byron R. White:

Well, the reason they can’t is because it is no longer a permissible interpretation of the Veterans’ Statute.

Keith A. Teel:

Well, it is no longer permissible with these statutes with the Rehabilitation Act to define a condition, a handicapping condition under the Rehab Act.

But to define that as–

Byron R. White:

Yes, but you’re arguing that the Rehabilitation Act means that the Veterans’ laws governing the Veterans’ Administration can no longer be construed the way the Veterans’ Administration has been construing them.

Keith A. Teel:

–If you assume, as is correct, the regulations implement that statute, I will concede that point, but there is no inherent contradiction between the two statutes, we believe.

You can still have a determination on theses petitioners of whether there was something in particular in their behavior–

Byron R. White:

But you say that the Rehabilitation Act means that there is no longer any room to construe the laws of the Veterans’ Administration is administering in the way that they have been construed.

Keith A. Teel:

–Make a blanket determination that alcoholics have engaged in misconduct we believe that’s inconsistent with the Rehabilitation Act.

Byron R. White:

Even though absent it, it was quite consistent with the Veterans’ Administration laws?

Keith A. Teel:

Well, actually, I’m not so sure it is inconsistent with the Veterans’ Administration laws.

The Veterans’ Administration laws, as this Court has noted in previous opinions, the Radiation case back in ’85, are typically slanted in favor of the veteran.

This is something that while maybe as a legal matter absent the Rehabilitation Act, would be consistent with Veterans’ laws, I’m not sure that somebody couldn’t challenge it on that basis.

William H. Rehnquist:

In light of the Senate history in 1977?

Keith A. Teel:

Well, again, the Government, I believe, places too much reliance on that history.

I think the most that history stands for is that the same concept should be applied in the same circumstances, pardon me, applied in the same way.

Willful misconduct means the same thing in all contexts.

There was no discussion in that legislative history of what the regulation meant, and there was certainly no consideration of it in light of the Rehabilitation Act, which did not apply in ’78 to this program.

I’d like to reserve my remaining time.

William H. Rehnquist:

Thank you, Mr. Teel.

We’ll hear now from you, Mr. Ganzfried.

Jerrold J. Ganzfried:

Thank you, Mr. Chief Justice, and may it please the Court.

Congress has spoken plainly and directly on the two questions that are at issue in these cases.

One jurisdictional, the other substantive.

First, did Congress intend to preclude judicial review in these cases.

The answer is, yes.

And second, did Congress intend for the GI bill to be administered just as the VA has administered it here.

And the answer, again, is yes.

The common theme in both issues is ultimately the principle that Congressional intent must govern.

The Statute barring judicial review, Section 211(a) precludes review of decisions of the Administrator on any question of fact or law under any law administered by the VA providing benefits.

Jerrold J. Ganzfried:

The intent of this language couldn’t be clearer.

Harry A. Blackmun:

You’re going to explain how the Rehab Act is administered by the Veterans’ Administration?

Jerrold J. Ganzfried:

I’m going to explain how what’s being challenged in this case is a decision by the Administrator under a law administered by the VA, namely the decision was to deny the particular extension on the educational benefits program to the petitioners.

I would also point out that to the extent that the petitioners are suggesting that the Rehabilitation Act has required some modification of the Veterans’ Benefits law, they’re arguing that the Rehabilitation Act has been integrated into that Statute, and of course, it’s the head of the Agency who has been given the responsibility by Congress of implementing the Rehabilitation Act within his Agency’s programs.

There’s a reference to the Department of Justice.

The Department of Justice has coordinating responsibilities, but to the extent that the Administrator has to make a decision in a benefits case, that subsumes questions raised under other statutes, he’s still deciding a question under the VA Benefits Laws.

Harry A. Blackmun:

Mr. Ganzfried, I want to be sure… as long as the ten years has not expired, the veteran is entitled to this assistance, isn’t he?

Jerrold J. Ganzfried:

That’s correct.

Harry A. Blackmun:

Even though he’s an alcoholic?

Jerrold J. Ganzfried:

That’s correct.

Harry A. Blackmun:

And all you’re doing is denying him the necessary time to get the full benefit?

Jerrold J. Ganzfried:

He is not in a position from anyone else who is not handicapped.

He had reasonable access to the package of benefits, the educational benefits program.

He had the ten years.

All that has been denied is the extension that Congress provided in 1977 for certain handicapped people, and they defined handicapped people to whom that extension would be available and defined it in a way that did not include the petitioners within that category.

I should make clear that the VA Regulation does not disqualify alcoholics from benefits.

And as I think your question implied, had they applied during the ten-year period, and in fact both of them did, and did receive educational benefits during their applicable ten year delimiting periods, and they got them.

There was no disqualification on account of alcoholism.

It just becomes a relevant consideration in connection with this limited extension of the ten-year period that Congress has provided for certain handicapped people.

Harry A. Blackmun:

Well, I take it you imply that their delay in completing their education was due to the continuing disability due to alcoholism?

Jerrold J. Ganzfried:

What I mean to say is that as the Board of Veterans’ Appeals determined in this case, they did not meet any of the statutory or VA regulatory criteria for qualifying for the extension.

John Paul Stevens:

Isn’t it somewhat unrealistic.

You say they could have had the benefits, but aren’t we assuming that during the period of alcoholism, they really were not fit to be students in higher education institute.

Jerrold J. Ganzfried:

Well, we’re not assuming that because had they suffered consequential physical disabilities, consequential physical effects of the alcoholism that themselves would have qualified as a disability, they would have gotten the benefits.

John Paul Stevens:

Yes, but still, doesn’t the alcoholism itself, assuming it’s serious enough, would not that prevent a person from passing college grade courses?

Jerrold J. Ganzfried:

It could but it would be the derivative physical effects of the alcoholism and the determination in these cases by the Board was that the physical effects on which the petitioners relied did not satisfy to meet other regulatory requirements as to how severe a disability you have to show to get your benefits.

John Paul Stevens:

I really don’t understand your argument.

Jerrold J. Ganzfried:

Okay.

The regulation–

John Paul Stevens:

I mean, the physical effect is just that the person is consuming so much alcohol that he or she is unable to live a normal life.

John Paul Stevens:

Are you saying–

Jerrold J. Ganzfried:

–I take issue with one statement there.

The physical effect is consuming too much alcohol, our position that consuming too much alcohol is conduct, not a physical effect.

If the veteran has derivative physical effects that are so disabling–

John Paul Stevens:

–Yes, but that conduct itself is sufficient to prevent the person from acquiring an education, isn’t it?

Jerrold J. Ganzfried:

–Only if he has the consequential physical disabilities.

John Paul Stevens:

Maybe in the Government’s interpretation of the regulation, it doesn’t count, but just as a practical matter whether it was otherwise qualified or not, if he is consuming large quantities of alcohol 24 hours a day, six days a week, and there’s nothing else… he doesn’t break his leg in an accident or anything like the no other conduct… but isn’t that itself something that as a practical matter makes it rather unrealistic to suggest he should be taking advantage of this education benefit.

Jerrold J. Ganzfried:

Well, what I have to understand in the question is are there any physical consequences of his consuming–

John Paul Stevens:

He’s drunk all the time.

Jerrold J. Ganzfried:

–Well, in that case, if he’s consuming alcohol 24 hours a day, if he’s not eating, then he’s going to have nutritional deficiencies, he’s going to have vitamin deficiencies which is specified in the VA regulation as… he may have all kinds of other physical maladies and consequences of it, and if he has those and if he proves them, he gets the benefits.

And the fact that alcoholism may have been the cause is not a disqualification.

William H. Rehnquist:

But is being dead drunk so to speak a physical consequence that would entitle him to some sort of benefits?

Jerrold J. Ganzfried:

Being unconscious?

William H. Rehnquist:

Yes.

Jerrold J. Ganzfried:

The question is whether it’s a disability that would have prevented someone from pursuing an education.

Being dead drunk on occasions does not disable someone from pursuing an educational program.

The problem that the petitioners ran into before the Board here was that… and there are various periods of hospitalization in Mr. Traynor’s case.

He was hospitalized five times over the course of four years, but none of his periods of hospitalization were sufficiently long to satisfy a separate regulatory requirement that only hospitalization periods of 30 days would permit someone to get an extension of benefits.

John Paul Stevens:

If he had been hospitalized for 30 days because of alcoholism, then he would have gotten credit for that 30 days in the tolling?

Jerrold J. Ganzfried:

He may have, depending on how the Board looked at what evidence he presented.

But ordinarily, the hospital records are not going to say often simply, hospitalized 30 days alcoholism.

They’re going to indicate alcoholism and because, as the brief suggests as a very important part of alcoholism, and that is denial, the fact that this person is not likely to be in the hospital in the first place unless there is some physical manifestation.

Thurgood Marshall:

But this rule doesn’t say anything about physical manifestations or anything else about being drunk or anything.

It says, if you’re an alcoholic; that’s all.

Jerrold J. Ganzfried:

No, it does not say that.

Thurgood Marshall:

What does it say?

Jerrold J. Ganzfried:

The VA rule is that alcoholism is divided into two categories: primary alcoholism and secondary.

Thurgood Marshall:

Right.

Jerrold J. Ganzfried:

Secondary alcoholism, which is the result of any underlying psychiatric disorder, is not a disqualification.

You get the extension of benefits.

Thurgood Marshall:

That has nothing to do with how much liquor he drinks or anything else.

Jerrold J. Ganzfried:

Well, whether someone’s an alcoholic doesn’t always depend on how much liquor he drinks.

Thurgood Marshall:

That’s what I’m talking about; that’s exactly what I’m complaining about.

Jerrold J. Ganzfried:

There are people who may drink as much as someone who is an alcoholic, and yet those people are not alcoholics.

There are alcoholics who may be functioning alcoholics.

There are alcoholics who may have binges or weekend drinking and yet are able to function at school and at work five days a week.

Thurgood Marshall:

I guess he couldn’t teach either, could he, if he’s an alcoholic?

He couldn’t teach, could he?

Jerrold J. Ganzfried:

An active alcoholic, 24 hours a day, seven days a week?

Thurgood Marshall:

Yes.

Jerrold J. Ganzfried:

And showing the physical manifestations of that?

Thurgood Marshall:

Yes.

Jerrold J. Ganzfried:

I suppose not.

Thurgood Marshall:

That’s right, but you pick on this one group.

Jerrold J. Ganzfried:

No, it’s only a group of people who can prove neither–

Thurgood Marshall:

Who are sick.

Have you admitted that this is an illness?

Jerrold J. Ganzfried:

–That alcoholism is an illness?

Thurgood Marshall:

That alcoholism is an illness?

Jerrold J. Ganzfried:

We submit that it’s basically an irrelevant question in this context for reasons very similar to–

Thurgood Marshall:

Well, do you mind answering an irrelevant question?

Do you agree that it is an illness?

Jerrold J. Ganzfried:

–It can be.

It can be.

Thurgood Marshall:

Do you agree that the “average alcoholism” in quotes, is an illness?

Jerrold J. Ganzfried:

Well, we don’t know what the average alcoholism is.

Thurgood Marshall:

Well, the one that you’re talking about in your statute?

Jerrold J. Ganzfried:

Primary alcoholism?

Thurgood Marshall:

Yes, sir.

Jerrold J. Ganzfried:

Okay, what is defined in the regulations–

Thurgood Marshall:

Is that an illness?

Jerrold J. Ganzfried:

–It can be.

Thurgood Marshall:

Is it?

Jerrold J. Ganzfried:

It is not always.

Thurgood Marshall:

It’s in your Statute, you put it in there.

Jerrold J. Ganzfried:

Well, it’s in the Regulation and the term primary alcoholism is essentially what the VA has determined to be willful alcoholism.

Thurgood Marshall:

Is it an illness?

Jerrold J. Ganzfried:

It can be.

Is it in every case?

I don’t know.

Thurgood Marshall:

Mr. Ganzfried, if it’s not an illness, what is it?

Jerrold J. Ganzfried:

It can be conduct, it can be a compulsion short of an illness, it can be an inclination short of a compulsion, it can be a predisposition.

Thurgood Marshall:

Is that what they’re talking about?

Jerrold J. Ganzfried:

Well, we don’t know.

Thurgood Marshall:

Oh, you mean the statute’s indefinite?

Jerrold J. Ganzfried:

The statute simply says disability not the result of willful misconduct.

Thurgood Marshall:

And the regulations are indefinite.

They’re not too indefinite to take away a man’s livelihood.

Jerrold J. Ganzfried:

It’s not talking about any questions of taking away anyone’s livelihood.

Thurgood Marshall:

Well, I’m asking you, is it an illness, or not?

Jerrold J. Ganzfried:

You raise it in terms of someone’s livelihood.

The Congress has said in the Rehabilitation Act that an alcoholic who is not able to perform employment duties is not a handicapped person.

That’s in the Statute in the Rehabilitation Act.

Thurgood Marshall:

I’m talking about this Statute which says, alcoholism.

Jerrold J. Ganzfried:

Well, this statute doesn’t say, alcoholism.

Thurgood Marshall:

It says primary?

Jerrold J. Ganzfried:

No, it’s a regulation and the VA policy, it says primary regulation.

Thurgood Marshall:

Well, is that regulation an illness when it says alcoholism in the regulation?

Jerrold J. Ganzfried:

It doesn’t address the question whether it’s an illness.

Thurgood Marshall:

Well, does it say alcoholism?

Thurgood Marshall:

Primary alcoholism?

Jerrold J. Ganzfried:

Primary alcoholism.

Thurgood Marshall:

Well, is that or not… I’m going to try this one more time, and then I’m through: Is it or is it not an illness.

Jerrold J. Ganzfried:

The regulation doesn’t say.

Thurgood Marshall:

Well, is it or is it not.

Is it administered as, or is it not?

Jerrold J. Ganzfried:

In terms of providing rehabilitation and treatment, the answer to that, in terms of the Veterans’ Administration is, yes.

And it provides $100 million in in-patient rehabilitation alcoholism services each year, and for rehabilitation, it regards it as an illness.

It will help people overcome the condition.

Thurgood Marshall:

You agree, it is an illness.

Jerrold J. Ganzfried:

In some contexts.

Thurgood Marshall:

It took quite awhile, but I made it.

Mr. Ganzfried, let me try to bring this down to earth.

I take it that the issue much proclaimed by the media as to whether alcoholism is or is not a disease is not really very relevant in this case, is it?

Jerrold J. Ganzfried:

No.

Because illness is not necessarily a disability.

I guess I’ve gotten a bit afield from the section 211(a), but I think the colloquy points out that we are dealing here with very complex questions that touch on a very intricate ganglion of nerves in society that cuts across questions of medicine and law and philosophy and religion.

The case doesn’t have to be decided on that level, but the issues do implicate all of those concerns.

The basis for deciding the case is really determining Congress’ intent in two statutes.

211(a) in which it said, no review because it didn’t want the Courts to get involved in day to day determinations of VA policy and VA benefits.

And it’s clear that that’s exactly what is really involved in these cases.

It’s clear from the prayers for relief in the District Courts.

John Paul Stevens:

Yes, but Mr. Ganzfried, that’s because these cases arise in that particular way.

But supposing they brought declaratory judgment actions asking for a ruling on the consistency of this regulation with the Rehabilitation Act.

Then your language of the Statute argument really wouldn’t fit.

It’s just that it happens to arise in that particular way.

Jerrold J. Ganzfried:

Without ever first doing something like petitioning the administrator of the VA to reconsider?

I mean, what’s the agency action that’s being challenged here?

It’s either the benefits determination in their cases–

John Paul Stevens:

It’s the regulation, I suppose.

Jerrold J. Ganzfried:

–or it’s a regulation that was promulgated in 1972 before the Rehabilitation Act was passed, six years before it became applicable to Federal programs, and it’s simply not an appropriate basis for Federal jurisdiction to come into Court–

John Paul Stevens:

Well, maybe it’s a challenge of the failure of the VA to–

Jerrold J. Ganzfried:

–without having gone to the head of the Agency petitioning him to reconsider his regulation as–

John Paul Stevens:

–No, but all I’m suggesting is that if you brought that kind of a lawsuit, the language of 211(a) would not read upon it.

Jerrold J. Ganzfried:

–It might.

It might, because what might happen is that the Administrator could say that this was a question of whether I should interpret–

John Paul Stevens:

The Administrator could say, as he did here–

Jerrold J. Ganzfried:

–the benefits law to have the following consequences on the benefits law as a result of the Rehabilitation Act.

John Paul Stevens:

–Or the VA could say, as it did here, we’re just not interested in deciding that question.

They did not decide it here, as I understand.

Jerrold J. Ganzfried:

The Board of Veterans’ Appeals didn’t decide it here.

The Board of Veterans’ Appeals was deciding the particular eligibility–

John Paul Stevens:

And your position is that nobody should decide it, nobody should decide it, because the agency refused to and the Court says we can’t.

Jerrold J. Ganzfried:

–No, we’ve got to forums here, neither one of which was addressed by the petitioners.

The first is a petition to the Administrator.

The Administrator has by issuing this as a regulation and not maintaining it as a decision which it had been in earlier years in 1931 and 1964, they were decisions by the Administrator, individual determinations, not subject to judicial review.

In 1972, the Administrator put that into a regulation.

And the Administrator–

John Paul Stevens:

Yes, but the question is whether that regulation, as interpreted by the Administrator, continues to comport with the law that was passed in 1978.

Jerrold J. Ganzfried:

–Yes, and the answer is you go back to the Administrator, the person who promulgated the regulation, 553(e) of the Administrative Procedure Act, which has been incorporated here by the VA, says you go back and you petition to the head of the Agency, or you go to Congress.

John Paul Stevens:

No.

But do you concede that there would be review under the Administrative Procedure Act in such a proceeding, notwithstanding the language of the–

Jerrold J. Ganzfried:

Well, it’s altogether different from this case and it’s not a concession that–

John Paul Stevens:

–Yes, but are you contending that the Statute would bar such a proceeding?

If you are, why are you suggesting that’s the way they should have done it?

Jerrold J. Ganzfried:

–Because they could have gotten relief.

There might not have been a need for a proceeding.

Or having gotten that decision from the Administrator to go in, to present the medical evidence, to present whatever you’d like to present from the recent medical literature and say, look, times have changed, the statute has changed.

We think that a rethinking is in order here.

The Administrator has, independent of the fact that there had been no such petition for that, has looked at this question.

John Paul Stevens:

Yes, but I don’t understand that as a jurisdictional argument unless you’re saying that there would have been review under the Administrative Procedure Act.

If you’re not saying that, they could have written him a letter, too, and said, please reexamine this.

They could have done a lot of things.

Jerrold J. Ganzfried:

That’s right, but they did none of them.

John Paul Stevens:

The question is whether the Statute requires them to do those.

And I still don’t know what your answer is on whether there would have been review in an appropriately framed proceeding under the Administrative Procedure Act.

Jerrold J. Ganzfried:

If ultimately what it was was a decision by the Administrator under a law administered by the VA, the answer to that has got to be that there would not be judicial review.

Let me address the question briefly as to whether review extends only to regulations or turn that around, whether the preclusion of review extends only to adjudications in individual cases, or it applies to regulations as well.

The petitioners have argued that there has been very little litigation on this subject, very few cases brought, even though a number of circuits have permitted judicial review of VA decisions in particular instances.

The question really isn’t whether we can predict whether flood gates will open and the waters will rush in.

It’s more important to look at what Congress was saying when it was writing the statute and whether it was concerned about flood gates, and the answer to that is, yes.

In 1970, when 211 was amended to its present form as this Court discussed in its decision in Johnson v. Robison, it was done as a reaction to decisions by the D.C. Circuit that had permitted review in certain circumstances.

And the legislative history which is discussed in Johnson v. Robison, and is also discussed in then Judge Scalia’s opinion in the case of Gott v. Walters, indicates that there was concern that there were 353 cases pending in the D.C. Circuit alone, and that there was concern that future cases would be brought based on individual benefits determinations and regulations.

And that was part of Congress’ concern and that is part of the basis upon which Congress amended the Statute to read the way it does today.

William H. Rehnquist:

How did it read before the amendment?

Jerrold J. Ganzfried:

It used the term, claims, and what the D.C. Circuit had said, well, that would preclude judicial review if you’re coming in and applying for benefits, but in instances where benefits were discontinued or benefits were forfeited for some reason, the Court had held that you can come into court because that’s not a claim for benefits, that’s something that happens after you’re already getting benefits.

And Congress came in and said, no, we want no review; we don’t want to involve the courts in the day to day workings of the VA.

Now, would a decision that you could challenge regulations, even the validity of regulations under other statutes interfere with the day to day workings of the VA?

And the answer to that is, yes.

Just one example is that the VA has a regulation on the ratings for disability of malaria.

It’s got four categories that rate the disability from 100 percent to 50 percent to 30 percent to 10 percent.

The gradations depend on such things as whether there have been three relapses in a six month period or two relapses in a six month period.

I suppose that someone could claim that current medical evidence makes that distinction inappropriate, that two serious relapses is more important than three not so serious relapses, and that he shouldn’t be discriminated against because he happened to have two rather than three relapses of malaria.

Well, under petitioners’ theory, he would get into Court.

That’s just one example.

Asthma is another condition with four categories.

High blood pressure has four categories.

Ulcers have five.

Epilepsy has six.

And blindness has more than 100 different ratings categories in the regulations that depend upon the degree of impairment division.

Jerrold J. Ganzfried:

A suggestion that reviewing regulations would not inject the courts into the day to day workings of the VA has no basis in fact.

Now, if the Court concludes despite the arguments I’ve made and those in our brief, that there is jurisdiction for these cases to proceed–

Sandra Day O’Connor:

May I ask one question on that point, Mr. Ganzfried?

Jerrold J. Ganzfried:

–Sure.

Sandra Day O’Connor:

Do you agree with the view taken by then-Judge Scalia in the McKelvey case that the Administrator necessarily decided in the benefit claims case that the regulation was consistent with the Rehab Act?

Jerrold J. Ganzfried:

I didn’t hear the middle part–

Sandra Day O’Connor:

Judge Scalia’s view in the McKelvey case, do you agree with it?

Jerrold J. Ganzfried:

–I think that view as amplified in his opinion in the Gott case, Gott v. Walters, an earlier case that was the opinion was vacated upon granting of rehearing en banc and then the case was settled but the opinion is cited in some of the briefs mentioned briefly in a quotation in our brief.

That explanation is an appropriate one.

There’s also a procedural wrangle in this case as to whether the Administrator or the VA had decided the issue or hadn’t decided the issue.

Sandra Day O’Connor:

Would that view have implications for us in terms of our jurisdiction in other cases do you think?

Jerrold J. Ganzfried:

The question of whether a decision–

Sandra Day O’Connor:

Whether necessarily encompasses others?

Jerrold J. Ganzfried:

–It would have enormous implications.

Let me say something about a case, considering the subject matter of this case it is quite astonishing that the case has not been mentioned before.

This is not the first time that this Court has been asked to consider the legal ramifications of alcoholism.

In Powell v. Texas, the Court refused to accept the blanket rule that alcoholics may not be asked to bear some degree of responsibility for their conduct, criminal responsibility in that case.

And the Court recognized that alcoholism is not merely status, it involves conduct, drinking, for which there may be an element of volition, at least at some point in the progression leading toward chronic alcoholism.

Now, the Powell case is discussed in our brief in several places, but it’s not mentioned in Petitioners brief or reply brief, or in any of the amicus submissions and hasn’t been mentioned today.

I’ve tried to explain that the VA policy is not a blanket disqualification of alcoholics from benefits.

They get rehabilitation and treatment and medical services.

They also get educational benefits if they apply within the ten years.

So there’s some reasonable access to the package of benefits that we’re talking about in this case.

With respect to the language of willful misconduct, that is language that petitioners try to paint as deriving from prohibition.

What’s more important about that language is that it derives from the statutes that deal with veterans benefits for disability compensation and pensions.

And no one can seriously claim that a disability compensation which amounts to $1355 a month for a total disability and that’s not an income-sensitive amount, that that should be paid to someone whose sole disability is alcohol abuse or drug abuse.

And I should mention that the VA has a regulation that treats drug abuse, for the purposes of these programs, in a similar way to the way it treats alcoholism.

Because to take that position would be tantamount to paying that person for life to continue drinking or taking drugs, and would discourage treatment or rehabilitation.

And it is certainly an appropriate response for Congress to take to say that funds would be better spent on rehabilitation and treatment than on simply providing pensions and disability compensations.

And I should add also that a claim along those lines has already been made, a claim for alcoholism disability has been made in the pension area and is pending in the Third Circuit and is mentioned in our briefs.

Jerrold J. Ganzfried:

Now, in 1977, Congress incorporated the willful misconduct language into the educational benefit program to assess who was entitled to this extension.

And it took a term of art.

It didn’t make up some language.

It took a term of art that had a particular meaning that had evolved in VA pension determinations over the course of years, a position that was first addressed in 1931, was reviewed again in 1964, and was reviewed again in 1972 when the present regulation was promulgated and sent out for notice and comment, and there was only one comment on this regulation when it was proposed in 1972.

So the VA’s position is not as it’s been suggested woodenly fixed in the early days of the century.

It has evolved in response to changing conditions as to the facts as they were presented.

John Paul Stevens:

Mr. Ganzfried, may I ask you this question.

Supposing in 1978, the VA had said, we want to take another look at this regulation and allow an extension in this kind of situation.

Do you think the 1977 history would have prevented them from doing it?

Jerrold J. Ganzfried:

It would have made it awfully difficult and the VA came to that conclusion, because there’s legislative history in 1979 and 1981 when members of the Senate Committee that oversees the VA said we really don’t want you to apply this alcoholism standard in the educational benefits extension context.

And the VA went up there and said, well, you may say that now, but in your Committee Report in 1977 you said that by using the term, willful misconduct, we intend for the VA to apply that term as it’s applied it in the other contexts, and specifically referenced this regulation–

John Paul Stevens:

I understand that.

Do you think–

Jerrold J. Ganzfried:

–and the provision from the manual.

And the VA went back to Congress and said, you may have something different in mind, but we’ve concluded that we’re bound by what you told us in ’77.

You told us, you must do this.

John Paul Stevens:

–Do you think they would have been bound by that 1977 history even if they read the 1978 legislation the way your opponent does?

Jerrold J. Ganzfried:

I think the answer to that is still yes, but it’s a question for the Administrator to take up in the first instance because the 1978 legislation is more general and it doesn’t repeal something that’s more specific.

If it requires a different result, then you do have to address whether it effected an appeal by implication.

William H. Rehnquist:

Thank you, Mr. Ganzfried.

Mr. Teel, you have three minutes remaining.

Keith A. Teel:

Thank you, Your Honor.

I would just like to address a couple points.

First, with respect to Mr. Ganzfried’s astonishment at our failure to discuss Powell v. Texas, I also note this Court has the precedent in 1962 of Robinson v. California, which explicitly held that it was improper to punish people for the status of being, in that case, drug abusers.

William H. Rehnquist:

Didn’t Powell say it wouldn’t apply the Robinson principle in the case of alcoholics?

Keith A. Teel:

No.

What it said was, the Court there I think was concerned about extending the principle of you can’t do something to somebody just because of their status to regulating conduct that went along with it.

The express concern in that case I think was along the lines of criminal statutes in the states, for instance, regulating drunk driving.

The Court wanted to make clear it did not reach those kinds of things.

But with respect to regulation based solely on somebody’s status as an alcoholic, which is what we think this regulation does, we think Robinson is still controlling here.

Keith A. Teel:

Well, that was in a criminal context, constitutional context, to the extent that it has any relevance at all or that Powell does, we contend we’re Robinson and we’re not Powell.

The Rehabilitation Act, as this Court noted in Arline, requires an individualized determination of each handicapped person’s situation.

That is at essence the problem with a regulation like this.

This Regulation is discriminatory.

We believe it cannot stand.

However, we contend that a decision our way here, the probable result of that decision would be to send these cases back to the Veteran’s Administration with a directive that you’ve got the law wrong.

The law is, alcoholism is a handicap.

You can’t discriminate solely on that basis.

Now, you have a Statute in 1977 that says the VA does have a right to decide whether a particular petitioner, particular veteran engaged in willful misconduct.

The effective of a decision for petitioners here is to send these cases back to the Veterans’ Administration for that willful misconduct determination.

The delimiting date extension statute would still have force.

The VA just would be unable on the basis of these petitioners’ condition as alcoholics to say that alone means you don’t get your benefits.

That is in essence what our case is here.

The VA is ignoring the requirements of the Rehabilitation Act.

They will continue to do so as long as this regulation stands, and therefore, we believe this regulation should be invalidated by the Court.

If there are no further questions.

William H. Rehnquist:

Thank you, Mr. Teel.

The case is submitted.