1 United States Court of Appeals,

Fifth Circuit.

No. 94-50698.

Gary ZUSPANN, Plaintiff-Appellant,

v.

Jesse BROWN, Secretary of the Department of Veterans Affairs, et

al., Defendants-Appellees.

Aug. 11, 1995.

App eal from the United States District Court for the Western

District of Texas.

Before WISDOM, GARWOOD and DAVIS, Circuit Judges.

WISDOM, Circuit Judge:

The plaintiff/appellant, Gary Zuspann, appeals from the

district court's dismissal of his cause of action. We affirm.

I

Gary Zuspann served as a Navy cook on the U.S.S. New Orleans

during the war in the Persian Gulf. While the ship was anchored in

the Persian Gulf, Zuspann was exposed to a variety of pollutants:

smoke and debris from oil wel ls burning nearby, oil-contaminated

water from the Gulf, and exhaust fumes from the ship's generator.

After his tour of duty in the Persian Gulf, Zuspann went to the

Philippines, where he came in to contact with silica-containing

volcanic ash while helping to clean up after a volcanic eruption.

When Zuspann returned to the United States, he began to suffer

neck and back pain, weight loss, headaches , and respiratory

problems. He has been unable to hold a civilian job due to his

ailments. After treatment failed at two Veterans' Administration1 29 U.S.C. §§ 701-797(b) (1985).

2 In Bivens v. Six Unknown Named Federal Narcotics Agents,

403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971), the Supreme

Court established that the Constitution, in some circumstances,

2 (VA) facilities, Zuspann was transferred to a research ce nter in

Houston that specializes in the compl aints of Persian Gulf

veterans. Having been given a 70 percent disability rating,

Zuspann qualified for treatment.

Two private physicians in Houston concluded tha t Zuspann's

symptoms were consistent with a condition called "chemical

sensitivity". One recommended that Zuspann be tested in an

"environmental unit" to determine which chemicals cau sed Zuspann

difficulty. Dr. Susan Mather, the Department physician in charge

of investigating comp laints of Persian Gulf veterans, concluded

that "chemical sensitivity" was not the correct diagnosis for

Zuspann's condition. In Dr. Mather's opinion, "chemical

sensitivity" is not a true medical condition. Based on Dr.

Mather's diagnosis, the Department decided to deny Zuspann

treatment in an environmental unit. The VA discharged Zuspann and

refused him additional treatment. Since his discharge, Zuspann has

amassed $400,000 in medical bills.

Zuspann brought suit in federal district court against four

defendants in their capacities as VA officials: Jesse Brown,

Wallace Hopkins, Dr. Susan Mather, and Dr. Edward Young. Zuspann

alleged that the defendants denied him adequate me dical care in

violation of the Rehabilitation Act of 1972 1 and the Due Process

Clause of the Fifth Amendment. Zuspann also brought a B ivens 2may support private causes of action against federal officials

for constitutional torts.

3 Hebert v. United States, 53 F.3d 720, 722 (5th Cir.1995).

3 action against three of the defendants in their indiv idual

capacities, Hopkins, Mather, and Young, alleging that they denied

him a constitutionally protected property interest in his medical

benefits as a veteran. The defendants filed motions to dismiss the

complaint for failure to state a claim upon which relief can be

granted and for lack of subject matter jurisdiction under 38 U.S.C.

§ 511(a). The district court dismissed Zuspann's suit without

prejudice, and Zuspann appeals.

II

Zuspann's first argument on appeal challenges the district

court's dismissal under § 511(a) of his actions under the Fifth

Amendment and the Rehabilitation Act. We review de novo the

district court's dismissal for lack of subject matter

jurisdiction. 3

To determine whether the district court correctly dismissed

this case under § 511(a), we ask one question: whether the

plaintiff is alleging a facial attack on the constitutionality of

an act of Congress, or whether the plaintiff is challenging the

VA's decision t o deny him benefits. If Zuspann makes a facial

challenge to a statute, then the district court has jurisdiction to

hear his case. If, on the other hand, Zuspann challenges the VA's

decision to deny him benefits, the district court does not have

jurisdiction and properly dismissed his complaint. We hold that4 38 U.S.C. § 211(a), ( quoted in Johnson v. Robison, 415 U.S.

361, 365 n. 5, 94 S.Ct. 1160, 1165 n. 5, 39 L.Ed.2d 389 (1974)).

5 415 U.S. 361, 94 S.Ct. 1160, 39 L.Ed.2d 389 (1974).

6 Id. at 367, 94 S.Ct. at 1165-66.

7 Anderson v. Veterans Administration, 559 F.2d 935, 936 (5th

Cir.1977).

4 the district court has no jurisdi ction over Zuspann's action

against the defendants in their official capacities for alleged

violations of the Rehabilitation Act and the Fifth Amendment.

Federal courts are courts of limited jurisdictio n. Section

511 of Title 38, formerly § 211, precludes judicial review of

veterans' benefits determinations. The 1970 version of § 211(a)

provided that:

the decisions of the Administrator on any question of law or

f act under any law administered by the Vetera n's

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. 4

In Johnson v. Robison, 5 the Supreme Court held that § 211(a)

precluded judicial review of decisions "made by the Administrator

in the interpretation or application of a particular provision of

the statute to a particular set of facts", but did not preclude

review of the very statute itself. 6 Under J ohnson, this Court has

held that § 2 11 does not bar suits in federal district court

challenging the constitutiona lity of the statutes underlying the

veterans' benefits program, but that § 211 does bar challenges to

individual benefits determinations. 7

The current version of § 511 provides:8 38 U.S.C. § 511(a) (1991).

9 38 U.S.C. § 7251 (1991).

10 38 U.S.C. § 7104(a) (1995).

11 38 U.S.C. §§ 7252(a), 7266(a) (1995).

12 38 U.S.C. § 7292 (1991).

13 38 U.S.C. § 7292(c) (1991).

5 The Secretary sha ll 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 [the

exceptions lis ted in] subsection (b), the decision of the

secretary as to any such question shall be fi nal 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. 8

In 1988, Congress passed the Ve terans' Judicial Review Act

("VJRA"), 9 which clearly announce d the intent of Congress to

preclude review of benefits det erminations in federal district

courts. The VJRA also created an exclusive review procedure by

which veterans may resolve their disagreements with the Department

of Veterans Affairs. The VJRA allows veterans to appeal benefits

determinations to the Board of Veterans' Appeals. 10 Jurisdiction

to rev iew the Board's decisions is conferred exclusively on the

Court of Veterans Appeals. 11 The United States Court of Appeals for

the Federal Circuit has exclusive jurisdiction to rev iew the

decisions of the Court of Veterans Appeals. 12 Congress expressly

gave the Federal Circuit Court of Appeals "exclusive jurisdiction"

to "interpret c o nstitutional and statutory provisions, to the

extent presented and necessary to a decision". 13

Since the enactment of the VJRA, federal courts have refused14 Sugrue v. Derwinski, 26 F.3d 8, 10-11 (2d Cir.1994), cert.

denied, --- U.S. ----, 115 S.Ct. 2245, 132 L.Ed.2d 254 (1995);

Larrabee by Jones v. Derwinski, 968 F.2d 1497, 1499-1501 (2d

Cir.1992); Hicks v. Veterans Administration, 961 F.2d 1367, 1369

(8th Cir.1992).

15 Zuspann v. Brown, 864 F.Supp. 17, 21 (W.D.Tex.1994).

6 to entertain constitutional claims if they are based on the VA's

actions in a particular case. 14

Our inquiry in this case focuses on wh ether Zuspann's

complaint challenges the VA's decision to deny himbenefits, or

whether it makes a facial challenge to an act of Congress. The

district court concluded that Zuspann did not make a facial attack,

but instead merely was "complaining about a denial of benefits". 15

We agree with the district court.

Although Zuspann attempts to fashion his complaint in

constitutional terms, his complaint is an individualized challenge

to the VA's decision to deny him benefit s. The gravamen of

Zuspann's complaint is that he r equested a chemical free living

area, but the VA decided not to provide one. Zuspann's complaint

seeks a judicial declaration that he is han dicapped by chemical

sensitivity and that the VA is required to provide him with a

chemical free living environment. Based on the VA's allegedly

erroneous decision to deny him benefits, Zuspann seeks compensation

for his medical bills, damages for his pain and suffering, punitive

damages, and attorney's fees. Zuspann's complaint frames his

contentions as violations of the Rehabilitation Act and the Fifth

Amendment, but federal district courts "do not acquire jurisdiction

to hear challenges to benefits determinations merely because those16 Sugrue, 26 F.3d at 11.

17 Zuspann, 864 F.Supp. at 21.

18 Zuspann argued that he "[did] not seek a systematic change

in agency policies or regulations; rather, Zuspann challenges

the Department's refusal to officially acknowledge chemical

sensitivity and provide him the medical care he is entitled to

receive, in violation of the Rehabilitation Act". Record at 263.

19 See, e.g., Sugrue, 26 F.3d at 11; Anderson, 559 F.2d at

936.

7 challenges are cloaked in constitutional terms". 16

Zuspann also asserts in his complaint that he is challenging

the policies and regulations of the secretary, but we agree with

the district court that he "fails to specifically point to a policy

or regulation that prevents [him] from obtaining medical care". 17

Indeed, Zuspann responded to the defendants' motion to dismiss the

complaint by arguing that he "[did] not seek a systematic change in

agency policies or regulations". 18 Instead, Zuspann challenged the

individual denial of benefits in his case. That Zuspann couches

his challenge to the benefits determination in constitutional terms

does not remove it from § 511's p reclusion of judicial review of

benefits decisions. 19

Whether the benefits determination made in this case was right

or wrong is not the issue in this case. The issue is whether the

plaintiff may bring this case in federal district court. We

express no opinion about the merits of Zuspann's case, and hold

that federal district court is not the correct forum in which to

bring this case. Congress has set up an exclusive review procedure

for decisions involving veterans' benefits determinations, and the20 Clanton v. Orleans Parish School Board, 649 F.2d 1084,

1094 n. 12 (5th Cir.1981). See also Stegmaier v. Trammell, 597

F.2d 1027, 1038 (5th Cir.1979); Raven v. Panama Canal Co., 583

F.2d 169, 171 (5th Cir.1978), cert. denied, 440 U.S. 980, 99

S.Ct. 1787, 60 L.Ed.2d 240 (1979).

21 We do not reach the question of whether Zuspann had

federal jurisdiction for this claim.

8 district court in this case correctly concluded that it lacked

subject matter jurisdiction to hear Zuspann's challenge to the VA's

decision to deny him benefits.

III

Zuspann's second argument on appeal challenges the dismissal

of his Bivens action against the defendants H opkins, Mather, and

Young.

The defendants filed a motion to dismiss the Bivens action,

arguing that the district court lacked jurisdic tion to hear the

contention and that the plaintiff failed to state a claim upon

which relief could be granted. The district court found it lacked

jurisdiction to hear the Bivens action. We are free to uphold the

district court's judgment on any basis that is supported by the

record; 20 no cause of action lies against the VA employees in their

individual capacities. Because the plaintiff fails to state a

claim upon which relief can be granted, we affirm the dismissal of

the plaintiff's Bivens action. 21

In Bivens v. Six Unknown Named Agents of the Federal Bureau of

Narcotics, the Supreme Court established that the Constitution may

support a pri vate cause of action against federal officials for

constitutional torts and allowed the victims of a Fourth Amendment22 Bivens, 403 U.S. 388, 394, 91 S.Ct. 1999, 2005, 29 L.Ed.2d

619 (1983).

23 Id. at 396, 91 S.Ct. at 2004-05.

24 Schweiker v. Chilicky, 487 U.S. 412, 421, 108 S.Ct. 2460,

2466-67, 101 L.Ed.2d 370 (1988) ( citing Carlson v. Green, 446

U.S. 14, 100 S.Ct. 1468, 64 L.Ed.2d 15 (1980) and Davis v.

Passman, 442 U.S. 228, 99 S.Ct. 2264, 60 L.Ed.2d 846 (1979)).

9 violation by federal officers to bring suit against the o fficers

for money damages in federal court. 22 In B ivens, there were "no

special factors counselling hesitation in the abs ence of

affirmative action by Congress", 23 and the absence of a federal

statutory basis for the cause of action was not an obstacle to the

award of damages. The Supreme Court has allowed B ivens actions in

situations wh ere, as in B ivens itself, there were no "special

factors counselling hesitation in the absence of affirmative action

by Congress", no statutory prohibition against the relief sought,

and no exclusive statutory remedy. 24

Where there are "special factors counselling hesitation",

however, the Supreme Court has been reluctant to extend Bivens

remedies to new contexts. In B ush v. Lucas, the Supreme Court

declined to find that an employee of the National Aeronautics and

Space Administration had a private right of action against the

director of the George C. Marshall Space Center for alleged

violations of the employee's First Amendment rights. No B ivens

right of action exists, the Court concluded, in a situation in

which federal legislation had already set up "an elaborate remedial

system that ha[d] been construct ed step by step, with careful25 Bush v. Lucas, 462 U.S. 367, 388, 103 S.Ct. 2404, 2416-17,

76 L.Ed.2d 648 (1983).

26 462 U.S. 296, 103 S.Ct. 2362, 76 L.Ed.2d 586 (1983).

27 487 U.S. 412, 108 S.Ct. 2460, 101 L.Ed.2d 370 (1988).

28 --- U.S. ----, ----, 114 S.Ct. 996, 1006, 127 L.Ed.2d 308

(1994).

29 Sugrue v. Derwinski, 26 F.3d 8, 12-13 (2d Cir.1994).

10 attention to conflicting policy considerations". 25 Similarly, in

C happell v. Wallace the Supreme Court declined to find Bivens

remedy for mil itary personnel who were injured by the allegedly

unconstitutional actions of superior officers. 26

In Schweiker v. Chilicky, 27 the Supreme Court considered

whether a Bivens remedy existed for alleged due process violations

in the denial of social security disability benefits. The Court

remarked that the remedial scheme Congress created to safeguard the

rights of social security recipients was "considerably more

e laborate than the civil service system considered in Bush ", and

declined to recognize a Bivens remedy against the state and federal

officials who administered the benefits program. Finally, the

Supreme Court held last Term in FDIC v. Meyer that no Bivens action

lies against federal agencies. 28

We agree with the Second Circuit Court of Appeals that the

reasoning of Bush and Chilicky applies in the context of veterans'

benefits, and that no Bivens remedy exists against VA employees. 29

Sp ecial factors counsel hesitation to create a B ivens remedy in

this case. This is a situation in which Congress has set up an

elaborate remedial structure; the administrative process created30 Id. at 12.

11

by Congress provides for a compre hensive review of veterans'

benefits disputes. Further, Congress has explicitly precluded

judicial review of veterans' benefits disputes, which suggests that

Congr ess' failure to create a remedy against individual VA

employees was "not an oversight". 30

We hold that no Bivens remedy lies against the individual

employees of the VA. The district court properly dismissed both

Zuspann's Bivens action and his challenge to the VA's denial of

benefits.

The judgment of the district court is affirmed.