* The case is unanimously ordered submitted without o ral argument pursuant

to Fed. R. App. P. 34(a)(2) and 10th Cir. R. 34.1(G ). This order and judgment is not binding precedent, except under the doctrines o f law of the case, res judicata, and collateral estoppel. The court generally disfa vors the citation of orders and judgments; nevertheless, an order and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3. 

## F I L E D United States Court of Appeals Tenth Circuit 

### JAN 29 2003 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

THOMAS E. SCHERER,

Plaintiff - Appellant,

v. UNITED STATES OF AMERICA,

Defendant - Appellee. No. 02-3067 D.C. No. 01-CV-2428-JWL (D. Kansas)

ORDER AND JUDGMENT *

Before EBEL , BALDOCK , and LUCERO , Circuit Judges.

Thomas Scherer appeals the judgment of the districtcourt dismissing his complaint for want of subject matter jurisdiction. We review such a dismissal de novo. Weaver v. United States , 98 F.3d 518, 519 (10th Cir. 1996). Although the district court lacked jurisdiction over most of Sch erer’s claims, the district court did have jurisdiction over Scherer’s constitutional challenge to 28 U.S.C. §-2-

1346(d), and this claim should not have been dismis sed for lack of jurisdiction. Therefore, we affirm in part and vacate and remand in part. Scherer’s complaint seeks damages and other relief in connection with the processing of his applications for various benefits from the Veteran’s Administration (“VA”). Citing 38 U.S.C. § 511(a), the district court dismissed the claims in their entirety. Section 511(a) provi des in relevant part: The Secretary [of Veterans’ Affairs] shall decide a ll questions of law and fact necessary to a decision by the Secretary u nder a law that affects the provision of benefits by the Secretary to veterans . . . . [T]he decision of the Secretary as to any such ques tion shall be final and conclusive and may not be reviewed by any otherofficial or by any court, whether by an action in the nature of ma ndamus or otherwise. Accordingly, that portion of Scherer’s complaint ch allenging the VA’s handling of his applications for benefits cannot be reviewed in the federal courts. Weaver , 98 F.3d at 519. In addition to challenging directly the actions of the VA in relation to his claims for benefits, Scherer also alleges various v iolations of the Freedom of Information Act, the Americans with Disabilities Ac t, the Equal Protection Clause, and the Due Process Clause. “We examine th e substance of these allegations, rather than the plaintiff’s labels, to determine their true nature.” Id

. at 520. Because these claims are all, in reality, challenges to the underlying-3-

processes of the VA and its benefit decisions, they are similarly outside the jurisdiction of the federal courts. See id. While the district court lacked subject matter juri sdiction over the majority of Scherer’s claims, Scherer also alleged in fact twelve of his complaint that 28 U.S.C. § 1346(d) is unconstitutional. Section 511( a) does not divest the district court of jurisdiction to hear this claim. See Johnson v. Robison , 415 U.S. 361, 373 (1974) (rejecting a construction of the predece ssor of § 511(a) that would have extended the jurisdictional bar of that sectio n to “actions challenging the constitutionality of laws providing benefits for veterans”); see also Sugrue v. Derwinski , 26 F.3d 8, 11 (2d Cir. 1994) (noting that courts have jurisdiction over challenges to the constitutionality of statutes und erlying veterans’ programs). It was thus error to dismiss this claim on jurisdic tional grounds. Accordingly, the judgment of the district court is AFFIRMED in part and VACATED and REMANDED in part for further proceeding s. Plaintiff’s motion for oral argument in this court is DENIED. Entered for the Court

Carlos F. Lucero Circuit Judge