*

Honorable Richard Mills, U.S. District Judge for the

Central District of Illinois, sitting by designation. 

United States Court of Appeals,

Eleventh Circuit.

No. 95-2175.

William Stephen HALL, Plaintiff-Appellant,

v.

U.S. DEPARTMENT VETERANS' AFFAIRS, Defendant-Appellee.

June 13, 1996.

Appeal from the United States District Court for the Middle

District of Florida. (No. 94-1751-CIV-T-21A), Ralph W. Nimmons,

Jr., Judge.

Before HATCHETT, Circuit Judge, HENDERSON, Senior Circuit Judge,

and MILLS*

, District Judge.

PER CURIAM:

This is an appeal from the judgment of the United States

District Court for the Middle District of Florida dismissing

William Stephen Hall's complaint against the Department of Veterans

Affairs ("Department") for lack of subject matter jurisdiction. We

affirm.

I. BACKGROUND

Hall is a recipient of veterans' disability benefits and a

Florida state prisoner. On October 3, 1994, he filed this action

pro se. He alleged that on May 10, 1994, he was notified by the

Department that, effective October 21, 1991, his benefits were

reduced to $80.00 per month in compliance with 38 C.F.R. § 3.665,

which requires that disability compensation be diminished during

periods of incarceration for felony convictions in excess of sixty
 1

Section 3.665 was promulgated to implement the provisions

of 38 U.S.C. § 5313. See 38 U.S.C. § 501 (authorizing the

Secretary of Veterans Affairs to prescribe rules and regulations

necessary to carry out the laws administered by the Department). 

The statute states, in relevant part:

(a)(1) To the extent provided in subsection (d) of

this section, any person who is entitled to

compensation ... and who is incarcerated in a Federal,

State, or local penal institution for a period in

excess of sixty days for conviction of a felony shall

not be paid such compensation ... for the period

beginning on the sixty-first day of such incarceration

and ending on the day such incarceration ends, in an

amount that exceeds—

(A) in the case of a veteran with a

service-connected disability rated at 20 percent

or more, the rate of compensation payable under

section 1114(a) of this title; or

(B) in the case of a veteran with a

service-connected disability not rated at 20

percent or more ... one-half of the rate of

compensation payable under section 1114(a) of this

title.

38 U.S.C. § 5313(a)(1). The regulation provides in part:

(a) General. Any person specified in paragraph

(c) of this section who is incarcerated in a Federal,

State or local penal institution in excess of 60 days

for conviction of a felony shall not be paid

compensation ... in excess of the amount specified in

paragraph (d) of this section beginning on the 61st day

of incarceration.

38 C.F.R. § 3.665(a). 

days.1 Hall alleged further that, due to overpayments made to him

during his imprisonment, the Department sought the return of

$15,896.66 previously paid as benefits. He claimed that the

reduction in benefits constituted a tort in violation of numerous

provisions of the constitution. In his prayer for relief he

requested that the court "inform [the Department] that 38 CFR 3.665

is contra to the U.S. Constitution and thus must be repealed and
 2

Section 511(a) specifies:

(a) The Secretary shall decide all questions of

law and fact necessary to a decision by the Secretary

under a law that affects the provision of benefits by

the Secretary to veterans or the dependents or

survivors of veterans. Subject to subsection (b), the

decision of the Secretary as to any such question shall

be final and conclusive and may not be reviewed by any

other official or by any court, whether by an action in

the nature of mandamus or otherwise. 

all money owe [sic] plaintiff for his injury's [sic] must be repaid

in full. Thus issue a cease and desist order." (R1-1, Complaint

at 4) (capitalization altered).

Prior to service of process on the defendant, the district

court sua sponte dismissed the complaint for lack of subject matter

jurisdiction under authority of 38 U.S.C. § 511(a), which vests

decisions affecting veterans' benefits in the Secretary of Veterans

Affairs ("Secretary").2 Hall then filed this appeal pro se. This

court subsequently appointed counsel to represent him and the

Department entered an appearance. The case has now been fully

briefed and argued.

II. STANDARD OF REVIEW

 The propriety of the district court's dismissal of the

complaint for lack of subject matter jurisdiction is a question of

law which we review de novo. Tapscott v. MS Dealer Serv. Corp., 77

F.3d 1353, 1356 (11th Cir.1996). Because the case was dismissed on

the basis of the complaint, we must look to the face of that

pleading to determine whether subject matter jurisdiction existed,

considering the allegations contained therein as true. Sea Vessel,

Inc. v. Reyes, 23 F.3d 345, 347 (11th Cir.1994).

III. DISCUSSION
 3

Section 502 directs that judicial review of rules and

regulations promulgated by the Secretary "shall be in accordance

with chapter 7 of title 5 and may be sought only in the United

States Court of Appeals for the Federal Circuit." It does not

address court scrutiny of veterans' benefits legislation. 

 4

Like § 511(a), § 211(a) provided 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 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."

Johnson, 415 U.S. at 365 n. 5, 94 S.Ct. at 1164 n. 5, 39

L.Ed.2d at 396 n. 5 (quoting § 211(a)). 

 Hall urges that subject matter jurisdiction was present

because the complaint raised a constitutional attack on the

validity of 38 U.S.C. § 5313 as well as the implementing

regulation, 38 C.F.R. § 3.665. See supra note 1. He contends that

the statutory challenge was cognizable in the district court,

citing, inter alia, Johnson v. Robison, 415 U.S. 361, 94 S.Ct.

1160, 39 L.Ed.2d 389 (1974). The Department agrees that if Hall

sought to overturn the statute, the district court would have

jurisdiction. The Department maintains, however, that he attacked

only the regulation, not the statute, and that, under 38 U.S.C. §

502, such challenges must be brought in the United States Court of

Appeals for the Federal Circuit,3

 or in accordance with the

Veterans' Judicial Review Act, Pub.L. No. 100-687, 102 Stat. 4105

(1988) ("VJRA").

In Johnson, the Court construed the jurisdictional

implications of 38 U.S.C. § 211(a), the precursor to § 511(a). 4

The Court held that while § 211(a) insulated from judicial review
 5

Only a claimant may seek review of a decision of the Board. 

38 U.S.C. § 7252(a). 

 6Both the claimant and the Secretary may appeal to the

Federal Circuit Court of Appeals. 38 U.S.C. § 7292(a). 

decisions of the Administrator of Veterans Affairs (now, the

Secretary) in the interpretation or application of a statute

governing veterans' benefits, it did not preclude the district

courts from entertaining facial constitutional challenges to acts

of Congress affecting benefits. Johnson, 415 U.S. at 366-74, 94

S.Ct. at 1165-69, 39 L.Ed.2d at 397-401.

On November 18, 1988, Congress enacted the VJRA. It

stipulates that determinations of the Secretary may be appealed to

the Board of Veterans' Appeals ("Board"), whose ruling becomes the

final decision of the Secretary. 38 U.S.C. § 7104(a). Decisions

of the Board may then be reviewed exclusively by the United States

Court of Veterans Appeals, an Article I court established by the

VJRA.5

 38 U.S.C. §§ 7251, 7252(a), 7266(a). Decisions of the

Court of Veterans Appeals are in turn appealable solely to the

United States Court of Appeals for the Federal Circuit, 38 U.S.C.

§ 7292(a), which has "exclusive jurisdiction to review and decide

any challenge to the validity of any statute or regulation or any

interpretation thereof ... and to interpret constitutional and

statutory provisions, to the extent presented and necessary to a

decision." 38 U.S.C. § 7292(c). 6

 See also Zuspann v. Brown, 60

F.3d 1156, 1158-59 (5th Cir.1995), cert. denied, --- U.S. ----, 116

S.Ct. 909, 133 L.Ed.2d 841 (1996). The judgment of the Federal

Circuit Court of Appeals is then subject to review by the United

States Supreme Court by writ of certiorari. 38 U.S.C. § 7292(c).
Thus, under the statutory scheme, judicial review of a

particular application of the law made by the Secretary with

respect to a veteran's entitlement to benefits may be had only by

appealing to the Board, then to the Court of Veterans Appeals, the

Federal Circuit Court of Appeals and the Supreme Court. Facial

constitutional attacks on regulations promulgated by the Secretary

may be pursued in one of two ways—either in accordance with the

procedure set forth in the VJRA, or directly in the Federal Circuit

Court of Appeals as permitted by 38 U.S.C. § 502. See Barton F.

Stichman, The Veterans' Judicial Review Act of 1988: Congress

Introduces Courts and Attorneys to Veterans' Benefits Proceedings,

41 Admin.L.Rev. 365, 392-93 (1989).

In the wake of the VJRA, the vitality of the Johnson holding

with respect to the jurisdiction of the district courts to

entertain facial constitutional attacks on veterans' benefits

legislation (as opposed to the implementing rules and regulations)

is debatable. The United States Court of Appeals for the Second

Circuit has squarely held that the jurisdiction of the district

courts continues to extend to such constitutional questions. See

Disabled Am. Veterans v. United States Dep't of Veterans Affairs,

962 F.2d 136, 140-41 (2d Cir.1992); Larrabee v. Derwinski, 968

F.2d 1497, 1501 (2d Cir.1992). In Zuspann, the Fifth Circuit Court

of Appeals also indicated, albeit in dicta, that, despite the VJRA,

facial constitutional challenges may be maintained in the district

courts. Zuspann, 60 F.3d at 1158-59. The Eighth Circuit Court of

Appeals appears to have taken a different view in Hicks v. Veterans

Admin., 961 F.2d 1367 (8th Cir.1992). Although Hicks did not
involve a facial constitutional attack on a statute affecting

veterans' benefits, it did concern a constitutional claim that the

plaintiff's veterans' benefits were reduced in retaliation for

having exercised his First Amendment rights. Id. at 1368. The

appellate court held that the district court lacked jurisdiction

over this constitutional issue, finding that all questions of law

and fact necessary to a decision by the Secretary under a law

affecting veterans' benefits, including constitutional questions,

fall within the purview of the VJRA and its exclusive judicial

review provisions. Id. at 1369-70.

Because the face of the complaint in the present case did not

specify that a statute was under constitutional attack, we need not

decide whether Johnson remains good law after the VJRA. We are

mindful that pro se complaints are held "to less stringent

standards than formal pleadings drafted by lawyers." Haines v.

Kerner, 404 U.S. 519, 520, 92 S.Ct. 594, 596, 30 L.Ed.2d 652, 654

(1972). Nevertheless, there is no question that Hall sought to

overturn 38 C.F.R. § 3.665, a regulation promulgated by the

Secretary. The district court lacked jurisdiction over this

question of law. Aside from the avenue of review made possible by

the VJRA. judicial scrutiny of the regulation is available

exclusively in the Federal Circuit Court of Appeals in accordance

with 38 U.S.C. § 502. Moreover, Hall clearly sought to reverse the

Secretary's application of the law as it affected him. This, he

could do, only by following the procedure required by the VJRA.

IV. CONCLUSION

Accordingly, for the foregoing reasons, we AFFIRM the judgment
of the district court dismissing the complaint for lack of

jurisdiction.