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different sections of the United States Code. The three principal finality measures were: 38 U.S.C. § 426; 38 U.S.C. § 705; and, 38 U.S.C. §11a-2.

Veterans benefits legislation, other than insurance, was codified on June 17, 1957, by the enactment of Public Law 85-56. The substance of the 1940 finality provision was restated at section 211, excepting from its reach matters arising under sections 784 (National Service Life Insurance), 1661 (education benefits for veterans of the Korean conflict), 1791 (war orphans education assistance), and under chapter 37 (loan guaranty). These provisions were carried forward in 38 U.S.C. § 211 (a) with the 1958 reenactment of title 38 as positive law.

Subsequent challenges were received favorably by the Court of Appeals, District of Columbia Circuit, which narrowly construed the finality provisions of section 211(a). Those opinions which commenced with Wellman v. Whittier, 259 F. 2d 163 (D.C. Cir. 1958), and culminated in Terry v. Gleason, 379 F. 2d 469 (D.C. Cir. 1967), held that the term "claim" related only to an initial claim for veterans' benefits and, therefore, the finality statute did not preclude decisions to discontinued benefits. The Tracy opinion became the springboard for approximately 450 actions in nature of mandamus by Philippine widows whose gratuitous benefits had been terminated under a Veterans' Administration rule presuming remarriage in the existence of certain circumstances. Judgments against the Administrator were entered in a number of those cases, one of the grounds being that the VA rule was not in accordance with supposed Congressional intent in statute sections defining the term "widow" and setting out terms of benefit entitlement.

Those decisions of the Court of Appeals and the District Court of the District of Columbia, when called to the attention of Congress, resulted in the 1970 amendments to section 211(a) and to the sections of title 38 of the United States Code concerning widows. Section 211 (a), as so amended, reads:

(a) On and after October 17, 1940, except as provided in section 775, 784, and as to matters arising under chapter 37 of this title, the decisions of the Administrator on any question of law or fact under any law administered by the Veterans' Administration providing benefits for veterans and their dependents or survivors shall be final and conclusive and no other official or any court of the United States shall have power or jurisdiction to review any such decision by an action in the nature of mandamus or otherwise. (Emphasis supplied.)

The legislative history of the 1970 amendments as set forth in the report of the Committee on Veterans' Affairs H. Rept. No. 1166, 91st Congress, 2d Sess., (1971), leaves no doubt of the intent of the Congress to overturn the successful court challenges to the finality statute and to make unmistakably clear that judicial review of administrative determinations of the Administrator of Veterans' Affairs under all circumstances, other than the specified exceptions involving contractual matters, was intended to be precluded.

In DeRodulfa v. United States, 461 F. 2d 1240 (D.C. Cir. 1972), cert. denied, 409 U.S. 949 (1972), the effect of the Wellman and related

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cases was declared cancelled. With a lengthy analysis of the 1970 finality amendment as well as the preceding legislative history and judicial construction, the Court concluded, at page 1251, that section 211(a), as recently amended:

restores the law in this circuit to its pre-Wellman condition; it sets for naught the exception to non-reviewability which the Wellman line of opinions had carried out for administratively forfeited compensation awards. It now makes it perfectly plain that no court has authority to disturb in any way the Administrator's disposition of any claim therefor.

The Court, at page 1257, further stated that:

We conclude that the fact that adjudication of claims for noncontractual benefits is confided to the Administrator of Veterans' Affairs does not alone afford ground for constitutional complaint..

The constitutional adjudications find common ground in the thesis, as expressed by the First Circuit, that 'veterans' benefits are gratuitous and establish no vested rights in the recipients...' [citing Milliken v. Gleason, 332 F. 2d 122, 123 (1st Cir. 1964), cert. denied, 379 U.S. 1002 (1965); and the origin of that proposition in Lynch v. United States, 292 U.S. 571 (1934), and other Supreme Court decisions] and despite possible indication that the thesis may be waning, [with reference to Goldberg v. Kelly, 397 U.S. 254 (1970)] we are obliged to accept it unless and until it is disapproved. We think, too, that there is another predicate_possessing at least an equal measure of vitality. The Supreme Court has declared that 'the United States, when it creates rights in individuals against itself, is under no obligation to provide a remedy through the courts;' [quoting United States v. Babcock, 250 U.S. 328 (1919), at 331], and, it may, 'instead provide an administrative remedy and make it exclusive. . . .' [quote from Dismuke v. United States, 297 U.S. 167 (1936), at 172.]

That is precisely what Congress did in the current version of Section 211(a).

The finality provisions have been sustained in Milliken v. Gleason, supra; Redfield v. Driver, 364 F. 2d 812 (9th Cir. 1966); Wickline v. Brooks, 446 F. 2d 1391 (4th Cir. 1971). In general, the finality of the Administrator's decisions has been upheld even when those decisions were alleged to be arbitrary and capricious. Hoffmaster v. Veterans' Administration, 315 F. Supp. 62 (D.C. Pa. 1970), aff'd 444 F. 2d 192 (3rd Cir. 1971); DiSilvestro v. United States, 268 F. Supp. 516 (D.C. N.Y. 1966), rev'd on other grounds, 405 F. 2d 150 (2nd Cir. 1968), cert. denied, 396 U.S. 964 (1969).

Perhaps the most significant decision concerning the finality statute rendered following the 1970 amendments and the DeRodulfa decision was that rendered in 1974 by the Supreme Court in Johnson v. Robison, 415 U.S. 361. There the Court held that section 211(a) does not bar federal courts from deciding the constitutionality of veterans benefits legislation.

The plaintiff in Robison was a conscientious objector who, being exempt from military service. had performed required alternative civilian service. After being denied educational benefits under the

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Veterans' Readjustment Benefits Act of 1966, he brought a class action on the grounds that the provisions of the Act making him and his class ineligible for such benefits violated the First Amendment's guarantee of religious freedom and the Fifth Amendment's guarantee of equal protection of the laws.

The initial issue confronted by the Court was the Government's contention that section 211(a) precluded court review of the constitutionality of veterans' benefits legislation. After indicating that such a construction would raise serious questions concerning the constitutionality of section 211(a), at page 367, 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 by the Court.)

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 the 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.

Thereafter, the Court discussed the grounds upon which it based its conclusion that the most reasonable construction of section 211(a) is that its prohibitions do not extend to actions challenging the constitutionality of laws providing benefits for veterans.

First, the Court found support for this narrow exception to the absolute finality provided by section 211 (a) in the administrative practices of the Veterans' Administration. After stating that the Court will generally show great deference to an Agency's interpretation of a statute when faced with a problem of statutory construction, the Court cited a Board of Veterans Appeals decision in which the Board denied a conscientious objector's claim for educational assistance. Therein, the Board had also held that its decision did not reach the question of the constitutionality of the pertinent statute because this was not within the jurisdiction of the Board. The Court stated, at page 368, that this Board of Veterans Appeals decision "accepts and follows the principle that '[a]djudication of the constitutionality of congressional enactments has generally been thought beyond the jurisdiction of administrative agencies.'

The Court also examined the legislative history of the 1970 amendment of section 211(a), and concluded that the history does not demonstrate a congressional intent to bar judicial review of constitutional questions. According to the Court, the legislative history of the 1970

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amendment indicates nothing more than an intent to preserve the Congress' two primary purposes in enacting the no review clause. These two purposes were to prevent an overwhelming burden on both the Veterans' Administration and the courts that would result from permitting judicial review and to prevent the courts from becoming involved in day-to-day determination and interpretation of Veterans' Administration policy. Prior to the 1970 amendment, the continued existence of these two purposes was threatened by a line of decisions in the District of Columbia Circuit. Citing Abbott Laboratories v. Gardner, 387 U.S. 136 (1967), the Court, at page 373, stated that, "neither the text nor the scant legislative history of section 211(a) provides the 'clear and convincing' evidence of congressional intent required by this court before a statute will be construed to restrict access to judicial review," and, concluded that section 211(a) does not preclude judicial review of the constitutionality of a statute authorizing veterans benefits.

Even before the Supreme Court decision in Robison, federal district courts, relying on Goldberg v. Kelly, 397 U.S. 254 (1970), had assumed jurisdiction in suits challenging the constitutionality of Veterans' Administration procedures. The Goldberg case did not involve veterans benefits. The issue in Goldberg was whether the Due Process Clause required the holding of an evidentiary hearing before terminating the continued receipt of welfare payments. Answering this question in the affirmative, the Court asserted that welfare benefits are matters of statutory entitlements. As such, the Court characterized them as being more like property interests than gratuities. In addition, the Court stressed that compliance with the requirements of due process was necessary to protect a recipient's right to continued payments because termination of those payments might deprive an eligible recipient of the very means to live. As a result, the Court concluded that an individual's interest in a pretermination hearing clearly outweighed the Government's interest in proceeding without such a hearing. Therefore, due process requirements were violated when welfare payments were terminated without providing an opportunity for a hearing prior to such termination.

Wallace, et al. v. The Administrator of Veterans' Affairs, No. 14499 (D. Conn., filed December 23, 1974), is the earliest of several unreported class action suits challenging the constitutionality of Veterans' Administration procedures wherein the court assumed jurisdiction on grounds that an allegation of constitutional deprivation was a sufficient basis for jurisdiction.

In the Wallace case, the veteran's partial disability evaluation was temporarily increased to total disability during a period of hospitalization and convalescence. After hospital discharge, his evaluation was reduced to the prehospital level. Although Mr. Wallace had received notice of the reduction as provided by 38 C.F.R. § 3.105, he filed suit alleging denial of due process because the Veterans' Administration failed to grant a hearing prior to the reduction.

The Court denied the Government's motion to dismiss for lack of jurisdiction based upon the prohibition in section 211 (a). The Court found that the plaintiff was not seeking review of a decision of the Administrator, but instead, was seeking enforcement of his due process

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rights to notice and a hearing prior to a decision of the Administrator to modify or terminate benefits. The Court concluded that the principles established in Goldberg v. Kelly, supra, were dispositive of questions presented in Wallace.

After scrutinizing Veterans' Administration procedures, the Court ordered a physical examination by a court-appointed physician. The Court dismissed the action after the examining physician confirmed the reduced evaluation and Mr. Wallace withdrew his hearing request. The Wallace case resulted in amendment of 38 C.F.R. § 3.103 to strengthen due process requirements by establishing more rigid guidelines for notice standards to clearly define the information to be furnished a claimant including that regarding hearing, and appellate rights.

Since 1974, several Federal District Courts have expanded the Robison holding as a basis for assumption of jurisdiction in suits alleging deprivation of due process under Veterans' Administration adjudicative procedures. This has been coupled by an increasing tendency of some courts to insist upon review of the merits of the case prior to determining the jurisdictional issue. These courts have reasoned that jurisdiction depends on whether or not constitutional rights have been abridged as is often asserted by the plaintiff. Courts are particularly reluctant to dismiss actions involving hearing rights which cite the Goldberg case as precedent.

A recent case challenging Veterans' Administration adjudicative procedures was filed in the Maryland District Court by Mrs. Marion Plato when her pension payments were suspended in May 1974. Mrs. Plato was receiving death pension payments after an administrative decision held her free from fault in an estrangement from the veteran and thereby meeting the continuous cohabitation requirement of 38 U.S.C. § 101 (c). Payment suspension resulted from information submitted by Mrs. Plato on her income questionnaire regarding her illegitimate child born during the marital estrangement. She instituted suit when she was notified of the suspension and requested the opportunity to submit evidence to establish the veteran's possible condonation of her infidelity. She alleged abrigdment of her constitutional right to due process in that she was not given an opportunity for a hearing prior to suspension of her pension payments.

While a Government-filed motion to dismiss was pending, the Court certified the suit as a class action. Robert Trail then moved to intervene, stating he had been notified his pension payments would be suspended or terminated because his income questionnaire indicated his income might be excessive. He, too, alleged due process deprivation in that he had not been granted a hearing until after suit was filed, the Court rejected the Government's argument that the case was rendered moot. The Court's Memorandum Opinion, filed May 6, 1975, addressed jurisdictional and constitutional issues simultaneously, holding that the section 211(a) prohibition against judicial review of decisions of the Administrator did not exempt the Administrator's procedural policies from constitutional review by federal courts. The Court cited the Robison case, supra, in support of its position. The Court then held jurisdiction existed under the mandamus statute, 28 U.S.C. § 1361, despite precedent cases holding that section 1361 does not bestow juris