OpenJurist

917 F2d 1307 Cheser v. The Veteran Administration

917 F.2d 1307

Unpublished Disposition

NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.

Dale E. CHESER, Plaintiff-Appellant,
v.
THE VETERAN ADMINISTRATION, Defendant-Appellee.

No. 89-35122.

United States Court of Appeals, Ninth Circuit.

Submitted Nov. 5, 1990.*
Decided Nov. 7, 1990.

Before WRIGHT, CHOY and DAVID R. THOMPSON, Circuit Judges.

1

MEMORANDUM**

2

Cheser appeals the dismissal of his pro se complaint against the Veterans Administration. We affirm the district court's dismissal for lack of jurisdiction.

3

Cheser complained that he sought an increase in his disability rating from 70% to 100% and that his file was sent to Detroit without his approval. Magistrate Hogan concluded that Cheser was "either seeking judicial review of the Veterans Administration's conduct with regard to his claim for benefits or an award of money damages." The court adopted the magistrate's order and held that it did not have jurisdiction to entertain either of these claims.

4

Congress has prohibited district court review of VA determinations regarding entitlement to disability benefits. 38 U.S.C. Sec. 211;11See also Walters v. National Ass'n of Radiation Survivors, 473 U.S. 305 (1983); Tietjen v. Veterans Admin., 884 F.2d 514 (9th Cir.1989). This court has found specifically that Sec. 211 prevents judicial review when the remedy sought is monetary damages. Demarest v. United States, 718 F.2d 964 (9th Cir.1983), cert. denied, 466 U.S. 950 (1984). Section 211 also bars review when the remedy sought is retroactive payments. Mozur v. Turnage, 729 F.Supp. 27, 30 (E.D.Pa.), aff'd, 908 F.2d 936 (3d Cir.1990).

5

Cheser appears to allege that the VA violated his due process rights when it sent his file to a VA office in Detroit for review. The district court does not have jurisdiction to consider this allegation. There is no authority for the proposition that Cheser had a right to have his file remain in Portland. Furthermore, the core of his complaint consists of a petition for increased disability benefits. A veteran may not circumvent the Sec. 211 jurisdictional prohibition by claiming a constitutional violation of the benefits review process. See, e.g., Rosen v. Walters, 719 F.2d 1422, 1423 (9th Cir.1983); Ross v. United States, 462 F.2d 618 (9th Cir.) (per curiam), cert. denied, 409 U.S. 984 (1972).

6

Cheser also raises issues involving the Social Security Administration and the United States Navy Board of Contract Appeals. These contentions were not properly raised before the district court and we shall not consider them. Romain v. Shear, 799 F.2d 1416, 1419 (9th Cir.1986), cert. denied, 481 U.S. 1050 (1987).

7

Cheser has successfully obtained a 100% disability rating. If he has further disputes with the VA as to his benefits, his remedy lies with the Board of Veterans Appeals and then with the specifically designated appeals courts as set forth in 38 U.S.C. Sec. 4052(a) and 38 U.S.C. Sec. 4092(a).

8

The judgment is AFFIRMED.

*

The panel unanimously finds this case suitable for decision without oral argument. Fed.R.App.P. 34(a); Ninth Circuit Rule 34-4

**

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3

1

This law was amended in 1988 by the Veterans' Judicial Review Act. Pub.L.No. 100-687, 102 1tat.4105 (1988). The amended version retains the prohibition on district court review of VA determinations