Stephen Marozsan v. The United States of America and the Veterans' Administration, Defendants

852 F.2d 1469, 1988 U.S. App. LEXIS 10702, 1988 WL 79781

• Court: Court of Appeals for the Seventh Circuit
• Decided: July 25, 1988
• Docket: 86-1954
• Status: Published

Opinions

FLAUM, Circuit Judge,

with whom BAUER, Chief Judge, and CUMMINGS, HARLINGTON WOOD, Jr., CUDAHY, POSNER, and KANNE, Circuit Judges, join.

Stephen Marozsan filed a complaint in the district court alleging in part that the Veterans’ Administration violated his constitutional right to due process of law. The district court ruled that 38 U.S.C. § 211(a) “bars a court from hearing and reviewing an action challenging a decision of the V.A., even when a plaintiff alleges that the decision violates his constitutional rights.” Marozsan v. United States, 635 F.Supp. 578, 580 (N.D.Ill.1986). Because Marozsan challenges the constitutionality of the procedures used by the Administrator, and because we do not read § 211(a) to preclude a federal court from hearing this challenge, we reverse and remand for further proceedings consistent with this opinion.

I.

Marozsan injured his back in 1949 while on active duty in the Navy. He filed his first claim for veterans’ benefits in 1953. This and subsequent claims¹ were denied until 1981, when the Board of Veterans’ Appeals rated Marozsan 20% disabled. The Board refused Marozsan’s petitions to increase this rating. In August of 1984, Marozsan filed an action in federal court alleging, among other things, that the V.A. employed an arbitrary quota system in processing claims that denied him due process of law. In his complaint, Marozsan requested that the district court issue a “directive to the Agency” enjoining “capricious and arbitrary” decisions. He also' asserted that he

does not seek judicial review of the decision rendered in his own particular V.A. claim action, erroneous as it may be, but is questioning the constitutionality of the V.A. procedures which make it impossible for veterans to obtain a fair and impartial hearing.

The district court dismissed all of the defendants except the United States and the V.A.,² converted the defendants’ motion to dismiss into a motion for summary judgment, and entered summary judgment in their favor. The court found that § 211(a) was an unequivocal bar to judicial review of Marozsan’s due process claims, and rejected on the merits his equal protection challenge to the statute itself.³

II.

The district court interpreted Mar-ozsan’s claim as a challenge to his benefit level and therefore a claim essentially seeking money from the Treasury. But this is an inappropriate characterization of the complaint. Although it is not a model pleading, a reading of Marozsan’s complaint clearly reveals that it establishes a claim for more than benefits. He alleges serious constitutional violations, including a claim that the V.A. employs a quota system ⁴ which arbitrarily limits the number of benefits claims granted. This procedure, he asserts, unconstitutionally deprived him of his property interest in his veterans’ benefits.⁵ It is evident that Marozsan would like to obtain increased benefits from the Administrator; were he not a disabled veteran seeking benefits the events giving rise to this action would not have occurred, and Marozsan would not have standing to challenge the V.A.’s procedures. But the V.A.’s decision to grant or deny him higher benefits under the veterans’ benefits statutes and regulations is not our concern. Marozsan properly asks us to review the methods — not the decision — of the Administrator. He claims that a federal executive agency has acted outside its constitutional authority by violating his right to due process. Marozsan’s action therefore is not essentially a suit to recover veterans’ benefits; “it is a suit to enforce lawful conduct on the part of the [administrator].” Starnes v. Schweiker, 715 F.2d 134, 141 (4th Cir.1983) (holding that § 1395ff of the Social Security Act did not bar claims that the Secretary’s reimbursement ceilings violated the Constitution). When the issue is “not whether the Administrator’s decision granting or denying benefits in a particular case was right or wrong, but rather whether the Administrator had acted consistently with his grant of authority or had exceeded his authority and acted in violation of veterans’ rights guaranteed by the fifth amendment,” § 211(a) does not apply. Arnolds v. Veterans’ Administration, 507 F.Supp. 128, 130-31 (N.D.Ill.1981).

The district court, having labeled Maroz-san’s challenge a claim for benefits despite its constitutional allegations, ruled that a federal court could not exercise review. This holding, if correct, would imply that Congress has chosen not to grant Marozsan a judicial remedy against V.A. procedures that violate the Constitution. As,a result, Marozsan would have no judicial forum, and indeed — since the V.A. disclaims authority to consider constitutional claims ⁶ — no forum at all in which to raise his due process claim.⁷ See Bartlett v. Bowen, 816 F.2d 695, 703 (D.C.Cir.1987). Yet if § 211(a) deprives us of jurisdiction, that statute would implicate profound and long-debated questions about the power of Congress, consistent with Article III, to preclude all judicial review of executive agency action. We must construe statutes to avoid such difficult constitutional questions whenever possible. Edward J. DeBar tolo Corp. v. Florida Gulf Coast Bldg, and Constr. Trades Council, — U.S. -, 108 S.Ct. 1392, 1397, 99 L.Ed.2d 645, (1988); Johnson v. Robison, 415 U.S. 361, 366-67, 94 S.Ct. 1160, 1165, 39 L.Ed.2d 389 (1974). The logical extension of the Supreme Court’s reasoning in Johnson and Traynor v. Turnage, — U.S. -, 108 S.Ct. 1372, 99 L.Ed.2d 618 (1988) and the structure of our constitutional form of government dictate that we not read § 211(a) to preclude all judicial review of a veteran’s serious constitutional claims. To preserve its constitutionality, we must instead construe § 211(a) to allow substantial constitutional challenges⁸ to the veterans’ benefits statutes and regulations, as well as to the procedures established by the V.A. to administer them.

III.

When the district court ruled on Maroz-san’s claim, it did not have the benefit of two decisions of this court which narrowly construed § 211(a). Because the statute is facially ambiguous, it is possible to interpret it as barring review of all decisions of the Administrator (a broad interpretation), or only those decisions of law or fact under V.A. benefits laws (a narrower construction).⁹ In Winslow v. Walters, 815 F.2d 1114, 1117 (7th Cir.1987) a veteran filed an action challenging the constitutionality of the V.A.’s procedures, claiming that the agency did not provide him with a hearing before changing his disability rating. We held in Winslow that § 211(a) does not bar review of claims that the procedures of the V.A. violate the due process clause. In Mathes v. Hornbarger, 821 F.2d 439, 440 (7th Cir.1987) we reiterated the holding of Winslow that “federal courts are not divested of jurisdiction over suits challenging the constitutionality of the VA’s procedures under the Due Process Clause of the Fifth Amendment.”¹⁰ The narrow interpretation of § 211(a) that we adopted in Winslow and Mathes is not only viable, it is required in order to avoid the serious constitutional questions necessarily raised by a broader construction of the statute.¹¹

Mathes and Winslow interpreted and applied Johnson v. Robison, 415 U.S. 361, 94 S.Ct. 1160, 39 L.Ed.2d 389 (1974), the seminal ease on the construction of § 211(a). The Supreme Court held in Johnson that veterans may challenge in federal court the constitutionality of veterans’ benefits legislation. The Court held that the statute does not bar challenges to the constitutionality of such legislation because its enactment is a decision of Congress, not the Administrator.¹² The Court chose to read § 211(a) to allow constitutional review of veterans’ benefits statutes in order to avoid “serious questions concerning the constitutionality” of the statute which would be raised by a contrary construction. Id. at 366, 94 S.Ct. at 1165. Whatever the statute precludes, the Court in effect said, it does not preclude judicial review of the constitutionality of the legislation. The Court did not need to go beyond the statutory challenge at issue to consider whether review of constitutional challenges to the V.A.’s regulations or procedures might also be required. Chief Justice Rehnquist later suggested, however, that Johnson implicitly interpreted § 211(a) to allow precisely the kind of challenge Marozsan makes. “Despite the general preclusion of judicial review with respect to VA benefits claims, this Court held in Johnson ... that the district courts have jurisdiction to entertain constitutional attacks on the operation of the claims systems.” Walters v. Nat’l Ass’n of Radiation Survivors, 473 U.S. 305, 311 n. 3, 105 S.Ct. 3180, 3184 n. 3, 87 L.Ed.2d 220 (1985).

Even though Johnson did not explicitly resolve the fate of constitutional challenges to the procedures employed by the Administrator in his “operation of the claims systems,” the reasoning of that case compels federal court review of Marozsan’s claim. The Johnson decision was based on three factors in addition to the Court’s desire to avoid an unnecessary construction of § 211(a) which would implicate constitutional concerns. First, the statute itself contains no explicit language barring judicial consideration of a veteran’s constitutional challenge to the benefits system; This factor applies to Marozsan’s claim as well, because the statute is equally silent on judicial review of claims that the procedures utilized to effectuate the benefits system violate the Constitution. Second, the Johnson Court accepted the V.A.’s protestations that the Administrator is not competent to decide constitutional questions. 415 U.S. at 368, 94 S.Ct. at 1166. See Weinberger v. Salfi, 422 U.S. 749, 761, 95 S.Ct. 2457, 2464, 45 L.Ed.2d 522 (1975) (section 211(a) did not preclude review in Johnson partially because “the issue was one which the Administrator considered to be beyond his jurisdiction”); Taylor v. United States, 385 F.Supp. 1034, 1036 (N.D.Ill.1974) (section 211(a) does not prevent judicial review “where the controversy involve[s] constitutional questions beyond the scope of authority of the Veterans’ Administration”). See also Traynor, 108 S.Ct. at 1379 (there is no “reason to believe that the [V.A.] has any special expertise in assessing the validity of its regulations construing veterans’ benefits statutes under a later-passed statute of general application”). Marozsan’s allegation that the Administrator utilizes an arbitrary quota system requires constitutional analysis peculiarly within the competence of an independent judiciary.

Finally, the legislative history of § 211(a) contains no indication that Congress intended to bar judicial review of constitutional questions.¹³ As the Court in Johnson found, the legislative history clearly evinces two purposes. Section 211(a) was intended to avoid burdening the courts with requests for review of individual claims determinations. Although it is clear that Congress feared that the courts would be inundated if required to review fact-specific benefits decisions, there is not even a hint that Congress intended to exclude consideration of substantial constitutional claims, whatever the marginal burden on the courts. Further, as Judge Posner points out in his concurrence, the post-Johnson advent of Federal Rule of Civil Procedure 11 protects the federal courts from a flood of insubstantial claims. Veterans or their counsel who file frivolous claims, whether or not they allege violations of the Constitution, will now be sanctioned under Rule 11. In addition, it is not clear what incentive lawyers would have to file frivolous constitutional challenges when courts have no jurisdiction to hear related meritorious benefits claims. See Fallon, On Legislative Courts, Administrative Agencies, and Article III, 101 Harv. L. Rev. 916, 976 n. 328 (1988).

The statute was also intended to ensure the expert and uniform adjudication of individual claims.¹⁴ Yet this “interest in uniform administration of veterans’ benefits focuses ... on the technical interpretations of the statutes granting entitlements, particularly on the definitions and degrees of recognized disabilities and the application of the graduated benefit schedules.” Rose v. Rose, 107 S.Ct. 2029, 2035 (1987). Johnson noted that “the prohibitions [of § 211(a) ] would appear to be aimed at review only of those decisions of law that arise in the administration by the Veterans’ Administration of a statute providing benefits for veterans. A decision of law or fact ‘under’ a statute is made by the Administrator in the interpretation or application of a particular provision of the statute to a particular set of facts_” 415 U.S. at 367, 94 S.Ct. at 1166. See Rose, 107 S.Ct. at 2035. The Court thus implicitly recognized that § 211(a) was intended to bar only those actions that challenge the V.A.’s application of benefits laws to specific fact situations. See Gott v. Walters, 756 F.2d 902, 918-19, vacated and dismissed as moot, 791 F.2d 172 (D.C.Cir.1985) (Wald, J., dissenting).

The Supreme Court’s recent decision in Traynor v. Turnage, — U.S. -, 108 S.Ct. 1372, 99 L.Ed.2d 618 (1988) confirms this reading -of Johnson.¹⁵ Traynor was an honorably discharged veteran who had not exhausted his educational benefits. He sought to continue receiving benefits after the expiration of the applicable ten-year limit on the ground that he had been disabled by alcoholism during much of that period. The administrator found that alcoholism was “willful misconduct” under a V.A. regulation and denied the requested benefits. “Traynor sought review of the Veterans’ Adminstration’s decision” in his case, id. at 1377, which he claimed violated § 504 of the Rehabilitation Act.

The Court found that § 211(a) did not bar judicial review of Traynor’s claim. Seven Justices¹⁶ concluded that “[sjection 211(a) insulates from review decisions of law and fact ‘under any law administered by the Veterans’ Administration,’ that is, decisions made in interpreting or applying a particular provision of that statute to a particular set of facts.” Id. at 1379. The challenge in Traynor, like Marozsan’s challenge, did not involve the application of any particular provision of the V.A. statute to a specific set of facts; rather Traynor alleged that a V.A. regulation violated a statute of general applicability. As the Court observed, Traynor’s claim did not “challenge ... the Veterans’ Administration’s construction of any statute dealing with veterans’ benefits, except to the extent that its construction may be affected by the Rehabilitation Act.” Id.

In concluding that § 211(a) did not deprive the Court of jurisdiction to hear Tray-nor’s challenge, the Court specifically rejected the argument that allowing review of such a claim would contravene congressional intent by opening the “floodgates” to disgruntled veterans seeking benefits. The Court reasoned that

[i]t cannot be assumed that the availability of the federal courts to decide whether there is some fundamental inconsistency between the Veterans’ Administration’s construction of veterans’ benefits statutes, as reflected in the regulation at issue here, and the admonitions of the Rehabilitation Act will enmesh the courts in “the technical and complex determinations and application of Veterans’ Administration policy connected with veterans’ benefits decisions” or “burden the courts and the Veterans’ Administration with expensive and time-consuming litigation.”

Id. at 1379 (quoting Johnson, 415 U.S. at 370, 94 S.Ct. at 1167). See also id. at 1379 n. 9 (noting that in the four circuits allowing “judicial review of statutory challenges to [V.A.] regulations, only eight such challenges have been filed”). Concern that the floodgates would be opened if § 211(a) does not bar claims that the V.A. violated a generally applicable federal statute was insufficient to deny jurisdiction in Traynor, and is similarly insufficient to deprive us of jurisdiction to hear Marozsan’s challenge.

The reasoning of the Johnson and Tray-nor decisions mandates federal court review of the type of challenge to the V.A.’s procedures that Marozsan presents. It is hard to see how the Court would insist on the right to review the constitutionality of legislation, but hold immune from review all unconstitutional administrative actions taken pursuant to that legislation.¹⁷ See Reisch, 211 in Progress: Must the Veterans’ Administration Comply with Federal Law?, 40 Stan.L.Rev. 323, 343 (1987) (student author). Similarly, because courts can review V.A. action for compliance with non-V.A. statutes, it would be anomalous to suggest that the V.A.’s actions in violation of the Constitution are immune from scrutiny. As the D.C. Circuit reasoned in Ralpho v. Bell, 569 F.2d 607, 620 (1977):

[I]f legislation by Congress purporting to prevent judicial review of the constitutionality of its own actions is itself constitutionally suspect, legislation that frees an administrative agency from judicial scrutiny of its adherence to the dictates of the Constitution must pose grave constitutional questions as well. Not only is it daring to suggest that Congress, though subject to the checks and balances of the Constitution, may create a subordinate body free from those constraints; it also beggars the imagination to suggest that judicial review might be less crucial to assuring the integrity of administrative action than it is to make certain that Congress will operate within its proper sphere. If the courts are disabled from requiring administrative officials to act constitutionally, it is difficult to see who would perform that function,

(citations omitted).

Courts are properly reluctant to look into complex, fact bound, discretionary determinations of an agency’s decisionmaking process. Id. at 622. But they must be equally reluctant to license “free-wheeling agencies [to mete] out their own brand of justice.” Id. at 623 (quoting Oestereich v. Selective Serv. Sys. Local Bd. No. 11, 393 U.S. 233, 237, 89 S.Ct. 414, 416, 21 L.Ed.2d 402 (1968)). Johnson and Traynor thus support the conclusion that federal courts are empowered and obligated to review substantial claims of unconstitutional agency action, such as the imposition of an arbitrary quota system.

IV.

We emphasize that because Marozsan demands constitutional Veterans’ Administration procedures — not merely money from the Treasury — no aspect of sovereign immunity can bar his claim. Cf. Bartlett v. Bowen, 816 F.2d 695, 711 (D.C.Cir.1987) (Bork, J., dissenting). We are asked here to consider allegedly unlawful government action, not simply a request for money. It is axiomatic that Congress may not act unconstitutionally, nor may it delegate authority to executive agencies to do so. Furthermore, Congress cannot insist that the executive be immune from judicial review requiring it to act in a constitutional manner. It is the essential function of the judiciary to review and enjoin such illegal action. See B. Schwartz, Administrative Law 436 (2d ed. 1984) (“The responsibility of enforcing the limits of statutory grants of authority is a judicial burden_ Without judicial review, statutory limits would be naught but empty words.”); Note, Congressional Preclusion of Judicial Review of Federal Benefit Disbursement: Reasserting Separation of Powers, 97 Harv.L. Rev. 778, 786 (1984). See also Northern Pipeline Constr. Co. v. Marathon Pipeline Co., 458 U.S. 50, 70 n. 23, 102 S.Ct. 2858, 2870 n. 23, 73 L.Ed.2d 598 (1982) (where Congress creates adjudicative schemes for executive agencies, the Supreme Court has “suggested that it may be required to provide for Article III review”). Since the Administrator lacks sovereign authority to contravene the Constitution, he cannot assert sovereign immunity from liability for such acts. Half a century of burgeoning administrative agency adjudication has not diminished the vitality of the words of Chief Justice Hughes:

The recognition of the utility and convenience of administrative agencies for the investigation and finding of facts within their proper province, and the support of their authorized action, does not require the conclusion that there is no limitation of their use, and that the Congress could completely oust the courts of all determinations of fact by vesting the authority to make them with finality in its own instrumentalities or in the Executive Department. That would be to sap the judicial power as it exists under the Federal Constitution, and to establish a government of a bureaucratic character alien to our system, wherever fundamental rights depend, as not infrequently they do depend, upon the facts, and finality as to facts becomes an effect finality in law.

Crowell v. Benson, 285 U.S. 22, 56-57, 52 S.Ct. 285, 295, 76 L.Ed. 598 (1932). It would be surprising and profoundly troubling if federal courts had no jurisdiction to consider whether a federal agency violated the Constitution. See Fallon, 101 Harv.L. Rev. at 963 (“No modern case ... holds that Congress may cut off all judicial review of the administration of an entitlement program.”); Gunther, Congressional Power to Curtail Federal Court Jurisdiction: An Opinionated Guide to the Ongoing Debate, 36 Stan.L.Rev. 895, 921 n. 113 (1984) (commentators “agree that Congress cannot bar all remedies for enforcing federal constitutional rights”).

V.

If we were to accept the government’s position that § 211(a) bars review of Mar-ozsan’s claim, we would face a difficult issue — the scope of judicial power to curb unconstitutional agency action — which lies at the core of our conception of a government of separated powers.¹⁸ If § 211(a) precluded review, it would subvert the judiciary’s function of providing a “check against arbitrariness and self-aggrandizement by Congress, the executive, and their administrative agents.” Fallon, 101 Harv. L.Rev. at 975-76 (footnote omitted). To deny jurisdiction to claimants like Maroz-san would be to find that veterans simply have no forum in which to pursue a claim that the V.A. violated the Constitution. The necessary implication of such a holding, candidly conceded by the government at oral argument, is that the V.A. may not be called to account for any method it uses in administering the veterans’ benefits laws, no matter how egregious.¹⁹ Surely if the V.A. could deny hearings and employ arbitrary quotas without judicial review, as is alleged here, it could also grant benefits only to those veterans born on July 4th or only to white veterans. A statute which precludes review of such obviously unconstitutional decisions must be just as unconstitutional as the underlying action of the Administrator. See Bartlett v. Bowen, 816 F.2d 695, 711 (D.C.Cir.1987).

The government conceded at oral argument that its broad interpretation of § 211(a) bars review even of such abhorrent practices. It must concede this, because there is no basis for distinguishing, for purposes of judicial review, between a due process, equal protection or other constitutional violation by the Administrator.²⁰ This untenable distinction may not be avoided by trivializing Marozsan’s due process claim as a challenge to mere details of evidence taking. An alleged arbitrary quota system that obviates the Administrator’s need to consider the evidence is no mere detail but a serious question of constitutional dimension. The V.A.’s procedures may not be scrutinized for a high degree of accuracy, but they must comport with the minimum requirements of due process. Only the federal courts can finally ensure this compliance, and § 211(a) cannot remove their power to do so. Congress could not (nor do we think it intended to) so blithely circumvent the requirements of the Constitution.

A reading of § 211(a) that bars review of Marozsan’s constitutional claims is thus suspect and unnecessary. We must construe § 211(a) so as to render it constitutional. Courts presume judicial review unless intent to preclude review is fairly dis-cernable from the legislative scheme. Bowen v. Michigan Academy of Family Physicians, 476 U.S. 667, 670, 106 S.Ct. 2133, 2135, 90 L.Ed.2d 623 (1986). As Johnson indicates, the statute is ambiguous on its face and the legislative history provides no indication that § 211(a) precludes review of constitutional claims. Had Congress truly wished to preclude review even of constitutional challenges to the administration of the veterans’ benefits laws, § 211(a) could have clearly specified that even these claims against the V.A. are unreviewable in federal court. See Webster v. Doe, — U.S. -, 108 S.Ct. 2047, 100 L.Ed.2d 632 (1988). Unlike § 211(a), however, the constitutionality of such a statute could not be saved by canons of statutory construction.

It is true that Congress did not affirmatively state that constitutional claims against the V.A.’s procedures are reviewable. When questioned at oral argument, however, counsel for the government was unable to point to a single státute which affirmatively asserts the jurisdiction of the federal courts to entertain constitutional challenges to a statute’s administration. This is surely because the presumption in favor of review is not just a guideline for interpreting statutes, but part of the very fabric of our constitutional scheme as we— and Congress — understand it. Congress may have initially assumed that the V.A. would be fair in carrying out its mandate; that federal officials will perform their duties consistent with the Constitution is presumed in every congressional enactment.²¹ It is at least as likely that Congress failed to address the issue, or assumed review of constitutional questions, as it is that Congress sought to preclude such review altogether. See Bartlett, 816 F.2d at 708. The federal judiciary’s responsibility to review constitutional challenges would be hollow indeed if federal executive agencies, immune from judicial review, could circumvent the Constitution at will. See generally Hart, The Power of Congress to Limit the Jurisdiction of Federal Courts: An Exercise in Dialectic, 66 Harv.L.Rev. 1362 (1953). Since the statute itself is ambiguous and there is not ope shred of evidence in the legislative history that Congress ever meant to preclude review of V.A. procedures that violate the Constitution, we certainly should not strain to find any such intent.

VI.

This court’s decisions in Winslow v. Walters, 815 F.2d 1114 (7th Cir.1987), and Mathes v. Hornbarger, 821 F.2d 439 (7th Cir.1987), reflect the proper construction and application of § 211(a); they remain the law of this circuit. Marozsan’s complaint on its face makes a substantial, non-frivolous assertion, see Hagans v. Lavine, 415 U.S. 528, 537-42, 94 S.Ct. 1372, 1379-81, 39 L.Ed.2d 577 (1974); Bell v. Hood, 327 U.S. 678, 66 S.Ct. 773, 90 L.Ed. 939 (1946), that the V.A. violated his constitutional rights by employing arbitrary methods of determining which benefits claims to grant. Section 211(a) does not deprive a federal court of jurisdiction to entertain this type of constitutional challenge. The district court should therefore assume federal question jurisdiction over Marozsan’s due process claims under 28 U.S.C. § 1331.²² Accordingly, we affirm in part, reverse in part, and remand this case to the district court for further, proceedings consistent with this opinion.

1 . Veterans may file successive claims for benefits even if their previous claims were denied. 38 C.F.R. §§ 3.103, 3.104, 3.105.

2 . Marozsan originally sued the United States of America, the United States Attorney General, the Veterans’ Administration, Harry N. Walters, Administrator, R.L. Hornbarger, Regional V.A. Adjudication Officer of Indiana, the National American Legion, Robert E. Lyngh, Director of Veterans' Affairs & Rehabilitation, and the National American Legion Executive Officers.

3 . Marozsan contended that "veterans are denied judicial review of V.A. decisions whereas Social Security disability and general welfare recipients have judicial review rights.” Marozsan, 635 F.Supp. at 581. The district court properly construed this argument as an equal protection challenge to the constitutionality of § 211(a). See Johnson v. Robison, 415 U.S. 361, 94 S.Ct. 1160, 39 L.Ed.2d 389 (1974). We agree with the district court that § 211(a) bears a rational relationship to the legitimate state ends of ensuring adequate and uniform decisions on veterans’ benefits and not burdening federal courts with review of these benefits decisions. We therefore affirm the portion of the district court’s opinion granting summary judgment in favor of the defendants on Marozsan's equal protection challenge to § 211(a).

In addition to asking for V.A. compliance with the due process clause, Marozsan sought retroactive benefits, restoration to his proper level of disability, and $5 million in damages. Section 211(a) clearly precludes our review of the Administrator’s decision to set benefits and disability levels, Winslow v. Walters, 815 F.2d 1114, 1117 (7th Cir.1987), and 28 U.S.C. § 1346(a)(2) precludes a district court from hearing claims against the United States for more than $10,000. We therefore affirm that portion of the district court’s opinion dismissing these claims for lack of subject matter jurisdiction.

4 . See N.Y. Times, February 19, 1988, sec. D, at 17, col. 1 (witnesses testifying before House Government Operations Subcommittee denounce V.A. appeals system’s production quotas for case workers as arbitrary, subject to abuse, manipulative and supportive of slipshod work); N.Y. Times, June 10, 1988, sec. 1, at 8, col. 6 (V.A. announces end of production quotas).

5 . In asserting jurisdiction in the district court, Marozsan may have been arguing that Congress could not have intended to set up a veterans’ benefits system in which constitutional violations are not subject to review. To the extent that this may have been Congress’ intent in enacting § 211(a), this is a challenge to a decision of Congress, see Devine v. Cleland, 616 F.2d 1080 (9th Cir. 1980), which is not precluded by § 211(a) under Johnson. We find, however, that the district court had jurisdiction over Mar-ozsan’s constitutional challenge to the procedures employed by the V.A., and therefore express no opinion on whether Marozsan’s complaint also challenges a decision of Congress on due process grounds.

6 . See Johnson v. Robison, 415 U.S. 361, 368, 94 S.Ct. 1160, 1166, 39 L.Ed.2d 389 (1975). See also Weinberger v. Salfi, 422 U.S. 749, 765, 95 S.Ct. 2457, 2466, 45 L.Ed.2d 522 (1974) (constitutional issues beyond jurisdiction of Secretary administering the Social Security Act).

7 . It is beyond dispute that the administrative procedures of the V.A. do not provide review as constitutionally meaningful as that available in the courts. Indeed, it has been suggested that the V.A. is not even an impartial, deliberative body. See, e.g., National Ass'n of Radiation Survivors v. Turnage, 115 F.R.D. 543 (N.D.Cal.1987) (V.A. sanctioned for willfully or recklessly destroying and thwarting discovery of documents relevant to veterans’ claims); N.Y. Times, March 29, 1988, at 16, col. 1 (mounting public criticisms of V.A.’s paralysis, delays and denials of due process in its benefits and pension programs). See also Ralpho v. Bell, 569 F.2d 607, 629 (D.C.Cir.1977) (much needless litigation could be avoided if agencies would show a modicum of consideration for claimants).

8 . See Hagans v. Lavine, 415 U.S. 528, 537-42, 94 S.Ct. 1372, 1379-81, 39 L.Ed.2d 577 (1974); Bell v. Hood, 327 U.S. 678, 66 S.Ct. 773, 90 L.Ed. 939 (1946).

9 . For a discussion of the broad and narrow interpretations of § 211(a), see Reisch, 211 in Progress: Must the Veterans’ Administration Comply with Federal Law?, 40 Stan.L.Rev. 323 (1987) (student author).

10 . Winslow and Mathes, like Marozsan and virtually all veteran claimants the courts encounter, were unhappy with the V.A.’s determination of their benefits levels. We unequivocally held in Winslow that § 211(a) “clearly deprives a federal court of the power to alter determinations made by the V.A. regarding disability ratings and entitlements to benefits." Winslow, 815 F.2d at 1117. But Marozsan, Winslow, and Mathes also challenged the constitutionality of the process afforded them by the Administrator in the course of deciding their individual claims. We held then, as we hold now, that this type of challenge is not barred by § 211(a). A veteran may obtain review, not of his individual claim determination, but of unconstitutional methods employed by the V.A. in arriving at that benefits decision.

11 . We note that Weinberger v. Salfi, 422 U.S. 749, 95 S.Ct. 2457, 45 L.Ed.2d 522 (1975) and Heckler v. Ringer, 466 U.S. 602, 104 S.Ct. 2013, 80 L.Ed.2d 622 (1984) do not support the assertion that Marozsan’s claim is unreviewable because it “arises out of” a claim for benefits. The district court found § 211(a) unequivocal and thus susceptible of only one viable reading under which the statute precludes judicial review of all decisions made by the Administrator. In Marozsan's case, the government argues, the Administrator “decided” to employ the methods at issue, thereby rendering these methods immune from review. See supra note 9 and accompanying text.

First, it is unconvincing to assert that § 211(a) must logically control whenever the V.A. violates the Constitution in the course of deciding benefits claims. This interpretation begs the fundamental question of whether the district court’s broad reading of § 211(a) is constitutionally permissible. Any violation of the Constitution by the V.A. will inevitably arise in the context of a claim for benefits. If the government’s view of § 211(a) were correct, no veteran would ever have standing to challenge such violations.

The Court’s Salfi and Ringer decisions do not preclude a narrow reading of § 211(a) which allows federal courts to hear constitutional claims. Salfi held that § 405(h) of the Social Security Act deprived the federal courts of jurisdiction over a widow's claim for benefits on behalf of her child from a previous marriage. The widow claimed that the “duration of the relationship” requirement of the Social Security Act created a constitutionally impermissible classification. The Court held that § 405(h) precluded jurisdiction despite the fact that the claim also arose under the Constitution. Unlike the V.A. statutes, however, the Social Security Act specifically provides for federal court review following a final administrative determination. In concluding that § 405(h) prohibited jurisdiction, the Salfi Court expressly stated that Johnson was inapposite because unlike the Social Security Act, “if § 211(a) reached constitutional challenges to statutory limitations, then absolutely no judicial consideration of the issue would be available.” 422 U.S. at 762, 95 S.Ct. at 2465. This "extraordinary” result was unacceptable. Id. Further, although § 405(h) bars even challenges to the constitutionality of the statute (until the prescribed administrative remedies are exhausted), Johnson demonstrates that § 211(a) cannot be given such a broad reading. Section 405(h) is thus in crucial respects unlike § 211(a), and Salfi therefore offers scant support for the view that § 211(a) must be read to preclude judicial review even of claims that the Administrator violated the Constitution. Ringer is similarly inapposite. In that case the Court held only that § 405(h) initially requires Medicare claimants to channel their claims into the administrative process before seeking judicial review. 466 U.S. at 614, 104 S.Ct. at 2021.

In any event, the Court's recent decision in Traynor v. Turnage, — U.S. -, 108 S.Ct. 1372, 99 L.Ed.2d 618 (1988) moots this debate over the significance of Salfi and Ringer. Tray-nor specifically adopted a narrow reading of § 211(a) that precludes review only of “decisions made in interpreting or applying a particular provision of [the veterans’ benefit laws] to a particular set of facts.” Traynor, 108 S.Ct. at 1379. The Traynor Court even framed the issue before it as whether the V.A.’s "decision” was

subject to review, id. at 1377, thereby implicitly rejecting the government’s view that every action of the Administrator is an unreviewable "decision." Marozsan challenges the constitutionality of the Administrator’s procedures, not the accuracy of his decision under the veterans’ benefits laws.

12 . Both constructions of § 211(a) reach this result. Under the broad construction, the statute is not a decision of the Administrator; under the narrow construction, it is not a decision of the Administrator under the veterans' benefits laws. See Reisch, supra note 9, at 338 n. 81.

13 . Congress amended § 211(a) in 1970 in reaction to three decisions of the D.C. Circuit. These decisions

held that certain individual claims determinations were subject to judicial review despite section 211(a) by reading the term "claim” very narrowly. [Specifically, they held that a forfeiture of benefits did not create a “claim” to benefits, and thus V.A. decisions that veterans had forfeited their benefits were held reviewable in federal court.] See Tracy v. Gleason, 379 F.2d 469 (D.C.Cir.1967); Thompson v. Gleason, 317 F.2d 901 (D.C.Cir.1962); Wellman v. Whittier, 259 F.2d 163 (D.C.Cir.1958). The House Report accompanying the 1970 amendments clearly states that the language change was designed to reject the “fairly tortured construction adopted by the court of appeals in the Wellman, Thompson, and Tracy holdings.” H.R.Rep. No. 1166, 91st Cong., 2d Sess. 11 (1970), U.S. Code Cong. & Admin. News 1970, p. 3731. In particular, Congress feared that judicial review might be extended under those decisions to "millions of decisions terminating or reducing many types of benefits provided under laws administered by the Veterans’ Administration.”

Gott v. Walters, 756 F.2d 902, 924-25 (D.C.Cir.1985) (Wald, J., dissenting). Thus Congress simply reaffirmed that fact-specific benefits determinations under veterans’ benefits laws are immune from federal judicial review.

14 . We note that the preclusion of federal judicial review has not produced a high level of uniformity in benefits decisionmaking. See Reisch, supra note 9, at 353 & n. 160.

15 . Our reading of Johnson is further confirmed by Webster v. Doe, - U.S. -, 108 S.Ct. 2047, 100 L.Ed.2d 632 (1988), in which the Court refused to read § 102(c) of the National Security Act of 1947 to exclude review of constitutional claims by a discharged CIA employee. Section 102(c), codified at 50 U.S.C. § 403(c), gives the Director of Central Intelligence discretion to fire employees whose termination he deems "necessary or advisable in the interests of the United States.” The court held that this language did not evince a clear enough intent to preclude federal court review of constitutional challenges to the Director’s action. Writing for a six Justice majority, Chief Justice Rehnquist stated:

Nothing in § 102(c) persuades us that Congress meant to preclude consideration of colorable constitutional claims arising out of the actions of the Director pursuant to that section; we believe that a constitutional claim based on an individual discharge may be reviewed by the District Court.

Id. at -, 108 S.Ct. at 2054 (footnote omitted). The Court refused to read the statute as precluding constitutional claims in part "to avoid the ‘serious constitutional question' that would arise if a federal statute were construed to deny any judicial forum for a colorable constitutional claim.” Id. (citing Bowen v. Michigan Academy of Family Physicians, 476 U.S. 667, 681 n. 12, 106 S.Ct. 2133, 2141 n. 12, 90 L.Ed.2d 623 (1986)).

16 . Justices Scalia and Kennedy took no part in the consideration or decision of the case.

17 . Many lower courts have therefore interpreted Johnson to mean that § 211(a) does not bar judicial review of the constitutionality of the regulations, procedures or policies of the Administrator. See Arnolds v. Veterans’ Administration, 507 F.Supp. 128, 130 (N.D.Ill.1981) (listing cases).

18 .The underlying constitutional conception is that wielders of governmental power must be subject to the limits of law, and that the applicable limits should be determined, not by those institutions whose authority is in question, but by an impartial judiciary. As Professor Sunstein pithily puts it, the proposition that foxes should not guard henhouses is as applicable to administrative agencies as it is to Congress or the executive. Indeed, the absence of electoral safeguards against arbitrary and self-interested bureaucratic deci-sionmaking and the documented risk of agency susceptibility to influence by private groups furnish compelling separation-of-powers arguments for retaining the Article III courts as guarantors of agency fidelity to law.

Fallon, 101 Harv.L.Rev. at 938 (citations omitted).

19 . Congress could not have intended the V.A. to consider itself free to engage in "politically motivated infidelity to the requirements of the law.” Fallon, 101 Harv.L.Rev. at 943.

20 . See Judge Posner’s concurring opinion at 26-27 and Rabin, Preclusion of Judicial Review in the Processing of Claims for Veterans’ Benefits: A Preliminary Analysis, 27 Stan.L.Rev. 905, 908 (1975).

21 . We presume that "Congress intends the executive to obey its statutory commands and, accordingly, that it expects the courts to grant relief when an executive agency violates such a command." Bowen v. Michigan Academy of Family Physicians, 476 U.S. 667, 106 S.Ct. 2133, 2141, 90 L.Ed.2d 623 (1986). Congress must expect executive agencies to be no less faithful to the Constitution.

22 . We remand because the district court erred in holding that § 211(a) barred it from considering Marozsan’s due process claim. It may be true, however, that even under the proper construction of § 211(a) Marozsan has not made a showing adequate to survive a motion for summary judgment. This determination should be made by the district court in the first instance.