Gott v. Walters

Opinion for the Court filed by Circuit Judge S CALIA.

Dissenting opinion filed by Circuit Judge WALD.

SCALIA, Circuit Judge:

This case involves certain documents and methodologies used by the Veterans’ Administration (“VA”) to help determine claims of injury from exposure to radiation during military service. The complaint is that they were issued and adopted without complying with the rulemaking procedures and publication requirements ¹ of the Administrative Procedure Act (“APA”).² The Administrator of Veterans’ Affairs appeals from the District Court’s denial of his motion for summary judgment, and its grant of summary judgment for the plaintiffs. The only issue we find it necessary to resolve is whether the statutory preclusion of judicial review of VA decisions, 38 U.S.C. § 211(a) (1982), applies to this case.

I

American servicemen were exposed to radiation during cleanup operations after the bombing of Hiroshima and Nagasaki, and at a series of above-ground tests of nuclear weapons conducted between 1946 and 1961. At the time, the health effects of exposure to the levels of radiation involved were poorly understood, and to this day are not fully known. Years after their exposure, veterans continue to file claims with the government for health care and compensation for diseases assertedly resulting from the radiation. To succeed, a veteran must establish that his malady was “contracted in line of duty,” 38 U.S.C. §§ 310, 331 (1982) — which is frequently the critical obstacle, since there is usually no dispute concerning the claimant’s current medical condition. In order to prevail on this issue of so-called “service connection,” a veteran need only raise a reasonable doubt. 38 C.F.R. § 3.102 (1984).

The handling of these radiation claims by the VA and Department of Defense (“DoD”) became the subject of a Congressional investigation in June 1979, following which the agencies issued various documents dealing with the subject: a Memorandum of Understanding between the VA and DoD, issued June 15, 1979, a VA Radiation Program Guide issued August 21, 1979, and VA Radiation Claims Procedures issued September 10, 1979. Two revised versions of the Guide have since been issued.

The plaintiffs in this case, a group of veterans, veterans’ wives and veterans’ organizations, challenged as violations of the APA the failure to provide notice and comment procedures for the Program Guide, Claims Procedures and Memorandum, and the failure to publish the latter two in the Federal Register.³ On cross-motions for summary judgment, the District Court found that all three documents were rules within the meaning of the APA, and that the VA’s failure to conduct an informal rulemaking before issuing them rendered them invalid. It denied summary judgment to the government and granted it to the plaintiffs. Gott v. Cleland, Civil No. 80-0906 (D.D.C. Sept. 30, 1981) (Order). Subsequent rulings by the District Court clarified or extended the scope of that judgment. In denying plaintiffs’ request for additional individual relief to those claimants who had been denied benefits on the basis of the documents, the court suggested that the VA was obliged to reconsider any such denial if asked by claimants to do so. Gott v. Cleland, Civil No. 80-0906 (D.D.C. Dec. 15, 1981) (Order). Still later, the plaintiffs moved to hold the VA in contempt for continuing to use radiation data obtained from DoD in accordance with the invalidated Memorandum. In a supplemental opinion and order, the District Court denied the contempt motion without prejudice, explained that the methodologies established by the Memorandum were within the scope of its original order, and required the VA to conduct a rulemaking before using them. It also ordered the VA to submit a timetable for compliance within sixty days and to conduct a rulemaking within ninety days. Gott v. Nimmo, Civil No. 80-0906 (D.D.C. Feb. 17, 1982); see also Gott v. Nimmo, Civil No. 80-0906 (D.D.C. July 21, 1982) (Order modifying dates for compliance). The VA moved for clarification of the order, contending that the methodologies had been improperly included because they were outside the scope of the litigation, and for a stay pending appeal. The court denied the motions on March 26, 1982. Gott v. Nimmo, Civil No. 80-0906 (Order). On May 20, the VA and DoD published proposed radiation rules. They have declared that these will be withdrawn if this appeal succeeds.

The VA appeals from the grant of summary judgment, from the District Court’s February 17, 1982 order regarding methodology, and from the order of March 26, 1982.

II

We are confronted at the outset with a jurisdictional problem, raised and argued in the District Court, but not asserted on this appeal⁴ — though addressed briefly in appellees’ Supplemental Brief. Since we consider it substantial, and since it pertains to our power to decide this case, we feel compelled to address it on our own.

The appellees brought their suit in district court under 5 U.S.C. §§ 702-704 (1982). These provisions make “final agency action ... subject to judicial review,” 5 U.S.C. § 704, at the behest of “[a] person suffering legal wrong ... or adversely affected or aggrieved ... within the meaning of a relevant statute,” 5 U.S.C. § 702. These sections do not apply, however, to the extent that “statutes preclude judicial review.” 5 U.S.C. § 701(a)(1). As the Supreme Court has most recently expressed the test for such preclusion: “[WJhere substantial doubt about the congressional intent exists, the general presumption favoring judicial review of administrative action is controlling,” but that presumption is overcome whenever “congressional intent to preclude judicial review is ‘fairly discernible’ in the detail of the legislative scheme.” Block v. Community Nutrition Institute, — U.S. -, 104 S.Ct. 2450, 2457, 81 L.Ed.2d 270 (1984) (quoting Association of Data Processing Service Organizations, Inc. v. Camp, 397 U.S. 150, 157, 90 S.Ct. 827, 832, 25 L.Ed.2d 184 (1970)). Such intent may be found on the basis of “specific language or specific legislative history,” “contemporaneous judicial construction barring review and the congressional acquiescence in it,” or “inferences of intent drawn from the statutory scheme as a whole.” Block v. Community Nutrition Institute, 104 S.Ct. at 2456.

The statute that appears to preclude review here is 38 U.S.C. § 211(a) (1982), which provides (with exceptions not here relevant) 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 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.

In the portion of their Supplemental Brief dealing with § 211(a), appellees assert that this provision is inapplicable here by its terms, since the legal question on which the Administrator’s decision is challenged — viz., the necessity vel non of rulemaking procedures — “arises under the APA, not ‘under the statute’ concerning veterans benefits.” Supplemental Brief for Appellees at 4. We reject this analysis, which relies upon a lengthy dictum of this court in Kirkhuff v. Nimmo, 683 F.2d 544, 546-48 (D.C.Cir.1982). Central to the reasoning of Kirkhuff was its statement that the Supreme Court, in Johnson v. Robison, 415 U.S. 361, 94 S.Ct. 1160, 39 L.Ed.2d 389 (1974), held that constitutional challenges “were not barred by § 211(a) because they involved questions of law arising ‘under the Constitution,’ rather than ‘under the statute.’ ” 683 F.2d at 547, quoting 415 U.S. at 367, 94 S.Ct. at 1166. The statement is true, but it does not lead to the conclusion that the Kirkhuff dictum suggests. As our more extended discussion of Robison below will explain, see pages 911-12, infra, the consequence of the fact that the case presented a question (concerning the validity of the statute) “under the Constitution” wa« not that therefore it did not present a “question of law ... under any law administered by the Veterans’ Administration” within the meaning of § 211(a); but rather, that therefore there had been no “decision of the Administrator” within the meaning of § 211(a), since the Administrator does not consider the constitutionality of the statutes he is directed to administer (as he does consider the compliance of his regulations with the APA). It was, the Court concluded, a decision of the Congress rather than of the Administrator that was under review. The interpretation of § 211(a) appellees suggest — requiring that the Administrator’s decision be challenged specifically on a question of law pertaining to the text of the veterans’ benefit statutes — is unthinkable, since it would open up even individual claims adjudications to review for compliance with the APA’s legal requirement of adequate evidentiary support, 5 U.S.C. § 706(2)(A), a result we have of course rejected, see Carter v. Cleland, 643 F.2d 1, 5 (D.C.Cir.1980). All that is necessary for § 211(a) to apply is that the question of .law or fact have been decided by the Administrator, and that the decision have been made in the course of applying the veterans’ benefit statutes. In other words, the provision should be read “decisions of the Administrator (on any question of law or fact) under any law administered by the Veterans’ Administration” rather than “decisions of the Administrator, on any question of law or fact under any law administered by the Veterans’ Administration.” ⁵ Thus, issues of law not decided by the Administrator {Robison) are excluded; as are issues of law decided by the Administrator not in the course of a determination under the veterans’ benefit laws, but in the course of applying independently operative statutes such as the provisions of the Freedom of Information Act not related to the procedure for administrative decisionmaking, see Leib v. Veterans’ Administration, 546 F.Supp. 758, 759 n. 4 (D.D.C.1982).⁶ But the Administrative Procedure Act operates (insofar as is pertinent here) only by regulating the manner in which determinations under the benefit laws must be made, and any administrative decision concerning that issue is a decision “under” the benefit laws in the relevant sense.

Supreme Court cases dealing with an analogous statutory provision precluding judicial review support the foregoing analysis. See Weinberger v. Salfi, 422 U.S. 749, 760-61, 95 S.Ct. 2457, 2464-65, 45 L.Ed.2d 522 (1975):

It would, of course, be fruitless to contend that appellees’ claim is one which does not arise under the Constitution, since their constitutional arguments are critical to their complaint. But it is just as fruitless to argue that this action does not also arise under the Social Security Act [within the meaning of 42 U.S.C. § 405(h) (1982) ]. For not only is it Social Security benefits which appellees seek to recover, but it is the Social Security Act which provides both the standing and the substantive basis for the presentation of their constitutional contentions.

See also Heckler v. Ringer, — U.S. -, 104 S.Ct. 2013, 2022, 80 L.Ed.2d 622 (1984) (claims that the Secretary of Health and Human Services failed to comply with rule-making requirements of APA and wrongfully decided certain issues by rulemaking rather than adjudication “arise[] under” the Medicare Act).

It would appear, therefore, that the “specific language” of § 211(a) bars us from reviewing the validity of the documents and methodologies in controversy here. In the District Court, however, the appellees argued that application of § 211(a) may be avoided on two grounds. First, they claimed that the word “decisions” refers only to adjudications of individual veterans’ claims and not to the promulgation of regulations. Second, they claimed that even if the provision bars judicial review of regulations for some purposes, e.g., to ensure that their substance is not arbitrary or capricious, it does not preclude review to ensure that regulations do not exceed the. VA’s statutory authority (which excess they deem to include the issuance of regulations in violation of the APA). We treat each of these contentions in turn.

The Contention that All Rulemaking Is Subject to Judicial Review

The principal evidence adduced for the proposition that § 211(a) reaches no rule-making is the prior version of the statute. From 1957 to 1970, § 211(a) read:

[T]he decisions of the Administrator on any question of law or fact concerning a claim for benefits or payments under any law administered by the Veterans’ Administration 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.

Veterans’ Benefits Act of 1957, 71 Stat. 83, 92 (1957) (emphasis added). The appellees take it as a given that in that earlier version the word “decisions” referred only to adjudications of individual claims, and contend that the 1970 amendments merely reaffirmed that bar to review.

It seems to us far from self-evident that a regulation governing veterans’ benefits would not have been considered a “decision[ ] ... on [a] question of law ... concerning a claim for benefits” under the earlier version. The language in question dates back to 1940, cf. Daylo v. Administrator of Veterans’ Affairs, 501 F.2d 811, 813 n. 10 (D.C.Cir.1974), an era in which the adoption of principles governing adjudications by rule was rare (and thus unlikely to be specifically addressed in such a statute) and in which, under then current notions of ripeness, rules could in any event not be challenged until applied in the course of an adjudication. See generally Scalia, Vermont Yankee: The APA, the D. C. Circuit, and the Supreme Court, 1978 Sup.Ct. Rev. 345, 375-77 (1979). The 1940 enactment was accompanied, moreover, by the statement (in the Senate Finance Committee Report) that it “provides for the finality of decisions made by the Administrator of Veterans’ Affairs on questions relating to claims under any of the laws administered by the Veterans’ Administration.” S.Rep. No. 2198, 76th Cong., 3d Sess. 11 (1940) (emphasis added). In addition, the 1940 version was described in the Senate debate as “not so much a limitation as a restatement of what is believed to be the law upon the question,” 86 Cong.Rec. 13,383 (1940) (remarks of Sen. George); and the then existing law consisted of § 5 of the Economy Act of 1933, ch. 3, 48 Stat. 9, which provided that “[a]ll decisions rendered by the Administrator of Veterans’ Affairs under the provisions of this title ... shall be final and conclusive on all questions of law and fact, and no other official or court of the United States shall have jurisdiction to review by mandamus or otherwise any such decision” — a formulation more equivalent to the current provision than to the 1940-to-1970 version. If the pre-1970 language is to be used to contradict the apparent meaning of the present statute, then it is only fair that the 1933 statute be used to contradict the apparent meaning of the pre1970 language. In any case, we need not decide this question, since even if the appellees’ view of the pre-1970 law is correct, there is nothing to indicate that the 1970 amendment of § 211(a) was meant, despite its language, to perpetuate it.

If we had no specific information on Congress’s intentions in removing the participial phrase “concerning a claim for benefits or payments,” the natural conclusion would be that Congress meant to make clear, among other things, that the class of unreviewable decisions included more than individual adjudications. The appellees, however, contend that we do have specific information on Congress’s intentions, which points to one purpose: to overrule a line of cases in this circuit finding that a decision on the part of the VA to terminate benefits was not a “decision[ ] ... concerning a claim” because it was initiated by the VA, not by a claimant. Plaintiffs’ Reply to Defendants’ Memorandum in Support of Motion to Dismiss, etc., at 10-11 & n. 21 (filed Sept. 4, 1981). See H.R.Rep. No. 1166, 91st Cong., 2d Sess. 10 (1970), reprinted in 1970 U.S.Code Cong. & Ad. News 3723, 3731, rejecting the “fairly tortured construction adopted by the court of appeals in the Wellman [v. Whittier, 259 F.2d 163 (D.C.Cir.1958) ], Thompson [v. Gleason, 317 F.2d 901 (D.C.Cir.1962) ], and Tracy [v. Gleason, 379 F.2d 469 (D.C.Cir.1967)] holdings.”

Overruling that line of eases was undeniably Congress’s principal purpose in the amendment. The legislative history shows, however, that Congress also thought it was preventing judicial review of regulations— whether by way of amending the preexisting law or (as seems more likely) by way of clarifying the prior understanding. The same House report relied upon by the appellees sets forth a letter from the VA,. which it describes as “discusspng] in detail” “the events that have transpired in recent years which gave rise to this amendment,” H.R.Rep. No. 1166, supra at 8, 1970 U.S. Code Cong. & Ad.News 3729. That letter, referring to the “353 suits of [the Wellman-Thompson-Tracy ] type ... filed in the District of Columbia circuit,” id. at 21, 1970 U.S. Code Cong. & Ad.News 3740, stated that

suits similar to the several hundred already filed can — and undoubtedly will— subject nearly every aspect of our benefit determinations to judicial review, including rating decisions, related Veterans’ Administration regulations, Administrator’s decisions, and various adjudication procedures.

Id. at 23-24, 1970 U.S. Code Cong. & Ad. News 3742 (emphasis added). It is true that the VA’s letter endorsed an amendment to § 211(a) different from that which the Committee proposed and Congress adopted.⁷ But that is beside the point. The point is that the Committee, by including the VA’s letter in its Report, referred to the danger of review of regulations as one of the evils that “gave rise” to the amendment which it proposed. This would, of course, be weak legislative history to establish that a statute which referred only to “decisions ... concerning a claim for benefits or payments” was meant to cover decisions concerning regulations. But it is more than enough to refute an appeal to legislative history to establish that a statute which refers to “decisions ... on any question of law or fact under any law administered by the Veterans’ Administration” does not cover decisions concerning regulations.

Coverage of regulations is further supported by the basic purposes of § 211(a), which the Supreme Court has said are twofold: first, to prevent the courts from becoming “involve[d] ... in day-to-day determination and interpretation of Veterans’ Administration policy,” with the accompanying prospect of “ ‘judicial review of millions of decisions terminating or reducing many types of benefits’ and second, “to insure that the technical and complex determinations and applications of Veterans’ Administration policy connected with veterans’ benefits will be adequately and uniformly made,” Johnson v. Robison, 415 U.S. at 370, 372, 94 S.Ct. at 1167, 1168, quoting H.R.Rep. No. 1166, supra at 24, 1970 U.S. Code Cong. & Ad.News 3742-43.

Review of the substance of regulations obviously would frustrate the second of these purposes. Regulations are at least as likely as adjudications to involve “technical and complex” policy determinations regarding benefits. In fact the appellees’ principal complaint about the documents at issue here is that they are for all practical purposes final decisions of issues which would otherwise be resolved by adjudication: the health effects of exposure to low levels of radiation, the kinds of diseases radiation may cause, and the best method for calculating the dosages of radiation to which appellees were exposed. It is hard to see why these determinations are too technical and complex to be “adequately” reviewed in the context of individual adjudications, but less so when reviewed in the context of rulemaking; or why the destruction of “uniformity” in these determinations — presumably attributable to the differing views of the various federal circuits as opposed to the unitary view of the Administrator — is any more tolerable when achieved through review of rules than through review of the same policies adopted in adjudication.⁸

Moreover, both review of the substance of regulations and review of the procedures by which they are adopted conflict with the first purpose the Supreme Court found Congress was pursuing in enacting § 211(a) — avoiding the courts’ embroilment in numerous individual claims decisions. That is evident from considering what would happen in this case if we were to proceed with review of the appellees’ complaint that the documents and methodologies at issue are substantive regulations and therefore should have been adopted in accordance with informal rulemaking procedures. All parties to this litigation agree that whether they are substantive regulations turns on whether they are given a dispositive effect in the adjudication of individual claims. The VA asserts they are not determinative, the appellees the contrary. It is quite impossible to resolve this issue without looking at the actual use of the documents and methodologies in individual proceedings. But even if we were to resolve it on some philosophical basis, and were to conclude that the documents and methodologies are dispositive, are substantive rules and therefore are improperly adopted, it is difficult to imagine any effective order we could issue. In prohibiting the VA from giving them binding legal effect, we would be telling the VA not to do what it believes it is not doing anyway. It would presumably continue to act as it says (though we disagree) it has been acting — and how would we ever stop that behavior? Our order is a vain act, in other words, unless we can review subsequent adjudications for compliance. And that will always be so, with regard to any regulation that governs the adjudication of claims. Review of such regulations, therefore, either frustrates the first purpose of § 211(a) described by the Supreme Court, or else requires the courts to issue embarrassingly impotent mandates. The former consequence is not, given the Supreme Court’s pronouncement, a permissible assumption of legislative intent; and the latter is not a plausible one.

Therefore, in light of the language, the legislative history, and the purposes of § 211(a), we reject the appellees’ argument that it does not bar review of regulations. The Contention that Ultra Vires Rule-making Is Subject to Judicial Review

The appellees advanced in the District Court the further argument that even if some types of judicial review of regulations, such as review to ensure that they are not arbitrary or capricious, or review to ensure that they have adequate evidentiary support, are barred by § 211(a); the type of review they seek here, merely to assure that the APA’s procedural requirements have been observed, is not barred. They rely for that proposition upon decisions in other circuits holding that § 211(a) does not preclude judicial review of regulations to ensure that they do not exceed the VA’s statutory authority, citing Wayne State University v. Cleland, 590 F.2d 627 (6th Cir.1978), and cases that accept the reasoning of that opinion without additional analysis, University of Maryland v. Cleland, 621 F.2d 98 (4th Cir.1980); Evergreen State College v. Cleland, 621 F.2d 1002 (9th Cir.1980); Merged Area X (Education) v. Cleland, 604 F.2d 1075 (8th Cir. 1979). Plaintiffs’ Reply to Defendants’ Memorandum in Support of Motion to Dismiss, etc., at 12-13 (filed Sept. 4, 1981).

We note in passing that if there is a meaningful line between unlawful action in excess of authority and unlawful action not in excess of authority, it is not immediately apparent why failure to comply with procedural forms would fall into the former rather than the latter category. And that the Wayne State court, curiously enough, after having established to its satisfaction its power to review only “the Administrator’s authority to promulgate regulations,” 590 F.2d at 632 (footnote omitted), proceeded to consider not only “whether the regulations were promulgated in excess of statutory authority”; and not only (as we have said, less logically) “whether the agency followed necessary procedural requirements in the promulgation of the regulations”; but also whether the regulations were “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law” (which is, of course, everything else). Id. at 632-33. So that if one is guided by what Wayne State ultimately did rather than by what Wayne State initially said, there seems to be no difference between this present argument of the appellees and the argument discussed earlier: all aspects of regulations appear to be reviewable. But no matter. We have examined the appellate cases that (in their formulation at least) limit review of VA rules to the authority for their promulgation, and find them unpersuasive.

Wayne State rested upon the assumption that “ ‘clear and convincing’ evidence of congressional intent [is] required by the Supreme Court before a statute will be construed to restrict access to judicial review,” 590 F.2d at 632, citing, inter alia, Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 410, 91 S.Ct. 814, 820, 28 L.Ed.2d 136 (1971). This assumption is likewise quoted by the only one of the three appellate cases following Wayne State which devotes more than two paragraphs to this issue, see University of Maryland v. Cleland, 621 F.2d at 100. Subsequent Supreme Court authority makes clear, however, that a “clear and convincing evidence” test, in the normal sense in which we and other courts had interpreted that phrase, does not apply:

This Court has ... never applied the “clear and convincing evidence” standard in the strict evidentiary sense the Court of Appeals thought necessary in this case. Rather, the Court has found the standard met, and the presumption favoring judicial review overcome, whenever the congressional intent to preclude judicial review is “fairly discernible in the statutory scheme.” Data Processing Service v. Camp, 397 U.S. at 157 [90 S.Ct. at 832]. In the context of preclusion analysis, the “clear and convincing evidence” standard is not a rigid evidentiary test but a useful reminder to courts that, where substantial doubt about the congressional intent exists, the general presumption favoring judicial review of administrative action is controlling. That presumption does not control in cases such as this one, however, since the congressional intent to preclude judicial review is “fairly discernible” in the detail of the legislative scheme.

Community Nutrition Institute v. Block, 104 S.Ct. at 2457.

Even apart from its faulty assumption, the reasoning of Wayne State is wanting. It rests its conclusion upon an analysis it claims to derive from Johnson v. Robison, supra, in which the Supreme Court found that § 211(a) did not bar judicial review of the claim that a portion of the VA statute was unconstitutional. As the Wayne State court interpreted Robison, the Supreme Court reached its conclusion by analyzing the purposes of § 211(a) and finding that review of adjudications to ascertain whether they were based on an unconstitutional statute would not be contrary to those purposes. But that is not so.⁹ The Robison opinion did not proceed immediately to the issue of whether review would offend the policies of § 211(a), but began where one ordinarily begins, with the language of the statute. It found that the phrase “decisions of the Administrator” in § 211(a) did not appear to apply to review of the constitutionality of the statute under which the Administrator acted, since the terms of the statute were decisions not of the Administrator, but of Congress. 415 U.S. at 367, 94 S.Ct. at 1165. It adduced support for this conclusion from the VA’s practice' of refusing to consider the constitutionality of its governing laws on the ground that it lacked authority to do so, a principle generally accepted by other agencies and authorities as well. Id. at 367-68, 94 S.Ct. at 1165-66. Only then, after having assessed the reasonable meaning of the statutory text, did the Court reach a discussion of the policies underlying the statute, introducing that discussion as follows: “Nor does the legislative history accompanying the 1970 amendment of § 211(a) demonstrate a congressional intention to bar judicial review even of constitutional questions.” 415 U.S. at 368, 94 S.Ct. at 1166. As the Supreme Court described its Robison holding in a later case:

We were required to resolve whether this language [of § 211(a)] precluded an attack on the constitutionality of a statutory limitation. We concluded that it did not, basically because such a limitation was not a “decision” of the Administrator “on any question of law or fact”; indeed, the “decision” had been made by Congress, not the Administrator, and the issue was one which the Administrator considered to be beyond his jurisdiction____ Thus the question sought to be litigated was simply not within § 211(a)’s express language____

Weinberger v. Salfi, 422 U.S. at 761, 95 S.Ct. at 2465.

The Wayne State court suggests no similar basis for excluding from the express language decisions regarding regulations’ compliance with statutory requirements. These are assuredly decisions that can and indeed must be made by the Administrator himself. In the absence of a term in the statute permitting such a distinction, all the policy analysis in the world cannot persuade us that § 211(a)’s bar applies to one sort of review and not another.¹⁰

Finally, a powerful analytical objection to the proposed interpretation is that there is no principled reason to limit it to review of regulations. Once it is conceded that the phrase “decisions ... under any law administered by the Veterans’ Administration” does not cover a decision that is ultra vires, there is no basis for declining to review the proper authority (whatever that vague term may mean) for adjudications as well. No one thinks that is permissible under § 211(a).

The Contentions of the Dissent

The dissent misreads the legislative history, as our discussion above adequately indicates. Beyond that, however, the dissent uses the legislative history — as it uses the dicta of Robison —not to clarify any ambiguity in the statute, but to create a meaning which it never seeks to relate to the text of the statute, and which in fact the text simply will not bear. Only one interpretation of the statutory language other than that which we have adopted is conceivable. It can be argued, contrary to our discussion at pages 906-07, supra, that the phrase “under any law administered by the Veterans’ Administration” modifies the phrase “question of law or fact” rather than the word “decisions,” with the consequence that not all decisions of the Administrator in the course of applying the VA statutes are included, but only those decisions specifically relating to the interpretation or coverage of those statutes. But as we have noted, if that were the correct interpretation, then decisions regarding the application of APA procedures (which is not a question of law under the VA statutes) would be reviewable in adjudications as well as in rulemakings.¹¹ In order to avoid this consequence, the dissent must import into § 211(a) an additional limitation — to wit, limitation of the preclusion of judicial review to individual adjudications as opposed to rulemakings. There is simply no language in the statute on which such a restriction can be hung; in fact, the phrase “decisions on any question of law ” positively tends to negate it.

There is, moreover, another factor that contradicts both the dissent’s application of its implausible textual interpretation to this case and its imported extratextual limitation: For simplicity’s sake, we have been speaking as though the issue before us was the application of APA procedures to this alleged rulemaking. See note 2, supra. In fact, however, the APA rulemaking requirements do not apply, since the APA specifically excludes from its rulemaking provisions rules relating to government benefits. 5 U.S.C. § 553(a). What is technically at issue is the VA’s failure to comply with its own veterans’ benefit regulations, see 38 C.F.R. § 1.12 (1984), which of course did not repeal the “government benefits” exception of the APA, but merely adopted the substance of the APA provisions as requirements under the veterans’ benefit statutes. Compliance with those requirements thus presents, technically, a question of law under the veterans’ benefit statutes rather than under the APA. Hence, one cannot argue that review is proper in this case even if one believes that § 211(a) is limited as the dissent asserts.¹² The statutory exemption of veterans’ benefits from APA rulemaking requirements also suggests the invalidity of the attempt to limit § 211(a) to individual adjudications. It is implausible, to say the least, that Congress should have taken such care (unexpressed though it might have been) to single out VA rulemaking procedures, as opposed to VA adjudicatory procedures, for judicial review while at the same time exempting VA rulemaking (though not adjudication) from procedural requirements.

The dissent’s citations to case authority suffer from the fact that the cases permitting review do not set forth the precise rationale of reviewability adopted by the dissent, nor (as our discussion above has indicated) any intelligible theory of their own — vacillating among theories that all rulemaking is exempt, e.g., University of Maryland v. Cleland, 621 F.2d 98, 101 (4th Cir.1980); Merged Area X (Education) v. Cleland, 604 F.2d 1075, 1078 (8th Cir.1979), that only ultra vires rules are exempt, e.g., Wayne State University v. Cleland, 590 F.2d 627, 631-32 (6th Cir.1978), and that all unconstitutional action is exempt, e.g., Devine v. Cleland, 616 F.2d 1080, 1084-85 (9th Cir.1980); Plato v. Roudebush, 397 F.Supp. 1295, 1302-03 (D.Md.1975). We

may note in this connection that the dissent’s allusion to the “serious constitutional problems” which our interpretation entails, Dissent at 921, forms no basis for distinguishing the dissent’s position from our own. If it is a proposition of law that constitutional challenges cannot be excluded from the courts, but see Ex parte McCardle, 74 U.S. (7 Wall.) 506, 19 L.Ed. 264 (1869), exceptions would have to be made to the dissent’s interpretation of the statute as well as to our own — for surely a constitutional issue may arise in the course of adjudications, which are excluded from review even under the dissent’s analysis.

A brief word is necessary concerning the dissent’s use of what has become known (with a disappointing lack of sense for the paradoxical) as “subsequent legislative history” — i.e., legislative “history” that postdates the statute in question. The dissent notes that the Senate-passed version of the recently enacted Veterans’ Dioxin and Radiation Exposure Compensation Standards Act, see note 4, supra, provided that the VA’s rules on radiation compensation standards would be subject to judicial review; and that this provision “was eventually dropped on the explicit assumption of its leading proponent [Sen. Simpson], relayed to the Senate, that judicial review ... was already available under section 211(a).” Dissent at 926. It seems to us that the use by Senator Simpson and other members of his committee of self-created legislative history to achieve the result they were unable to obtain through the legislative process is precisely the sort of “history” we should steadfastly reject. If Congress as a whole indeed agreed that judicial review was already available, how to explain Senator Cranston’s statement that “[a]s our negotiations with the House committee on this legislation progressed ... I become [sic] concerned that permanently holding firm to my position on including an express reference to access to court review might prevent our ever reaching an overall compromise”? 130 Cong.Rec. S13598 (daily ed. Oct. 4, 1984). See also 130 Cong.Rec. H11160 (daily ed. Oct. 3, 1984) (statement of Rep. Hammerschmidt) (compromise between House and Senate on Dioxin and Radiation Act possible only because “[t]he Senate ... recede[d] from its position on judicial review”). It is difficult to believe that the House would be so adamant about the impropriety of reciting law that already existed — or that if the adverse implications of redundancy were its only concern, a statement similar to Senator Simpson’s would not have appeared in the record of the House proceedings. From the standpoint of the dissent’s case, one must consider the legislative history of the recent enactment to be at best non-probative, and more likely an indication that Congress does not desire review of VA rulemaking.

Finally, we may respond to the dissent’s assertions that “Congress ... relied in its 1984 legislation on the Administrator’s opinion that section 211(a) does not preclude judicial review of unlawfully promulgated VA rules,” Dissent at 927, and that “the Administrator has consistently indicated to Congress that the no-review clause does not ... preclude judicial review ... [whenever the VA makes any] ‘decision’ relating to veterans’ benefits law.” Id. at 928 (emphasis added). As our earlier discussion has indicated, in failing to write a provision for judicial review into the Dioxin and Radiation Act, Congress appears to have relied, not on the Administrator’s “clearcut ... interpretation of section 211(a),” id. at 928, but on the House’s clearcut insistence that it would not pass a bill which included a judicial review provision. Moreover, the word “consistently” is singularly inappropriate to describe the Administrator’s position over the past 30 years. Of the seven position statements cited by the dissent, Dissent at 927-28, one states that “VA ... regulations in excess of lawful authority ” are reviewable, 130 Cong.Rec. S13600 (daily ed. Oct. 4, 1984) (statement of Sen. Cranston, quoting VA Administrator Walters) (emphasis added); a second states that all regulations and “ ‘substantive Agency actions of broad, binding application’ ” are reviewable, Letter from Administrator Robert Nimmo to Sen. Alan Cranston (Mar. 29, 1982), reprinted in 130 Cong.Rec. S6160 (daily ed.' May 22, 1984); a third and fourth suggest, if anything, that review of regulations is precluded by § 211(a), S.Rep. No. 178, 96th Cong., 1st Sess. 93 (1979); H.R.Rep. No. 1166, 91st Cong., 2d Sess. 23-24 (1970); a fifth and sixth simply cite cases allowing review of constitutional challenges to VA statutes, rulemakings or adjudications, and endorse legislation explicitly providing for such review, FY ’78 Legislative Recommendations of Veterans’ Organizations: Hearings Before the Senate Comm, on Veterans’ Affairs, 95th Cong., 2d Sess. 382-83 (1978); VA Administrative Procedure and Judicial Review Act: Hearings Before the Senate Comm, on Veterans’ Affairs, 95th Cong., 1st Sess. 6-9 (1977); and the. seventh merely notes the (pre-1970) statute’s preclusion of review of individual claims in the course of opposing legislation that would allow review of benefit determinations, Hearings on H.R. 360, j78, 2jj2 and 6772 Before a Subcomm. of the House Comm, on Veterans’ Affairs, 82d Cong., 2d Sess. 1962-63 (1952). Thus, all except the first two are entirely compatible with our holding here, and not a single one reflects the position of the dissent that both constitutional challenges and challenges to APA rulemaking procedures (but not the substance of rules) are permissible. In any case, it is fanciful to regard these diverse pronouncements as a “consistent” endorsement of anything.

The dissent “simply cannot believe that section 211(a) was intended to allow the VA to defy with .impunity the traditional, government-wide constraints on agency action” as far as rulemaking is concerned, Dissent at 919 n. 3. Yet it is forced to accept precisely that conclusion (if one considers the absence of judicial review to constitute “impunity”) with respect to VA adjudications —even though individualized determinations have traditionally been accorded more rather than less judicial protection against agency error than generally applicable rules. Compare Bi-Metallic Investment Co. v. State Board of Equalization, 239 U.S. 441, 36 S.Ct. 141, 60 L.Ed. 372 (1915), with Londoner v. Denver, 210 U.S. 373, 28 S.Ct. 708, 52 L.Ed. 1103 (1908). See United Gas Pipe Line Co. v. FPC, 181 F.2d 796, 798-99 (D.C.Cir.1950). It seems to us that what is truly incomprehensible to the dissent, and to those courts that have improvised assorted nonstatutory limitations upon the scope of § 211(a), is not the nonreviewability of rules or of APA rule-making procedures in particular, but rather the whole concept of a system of administrative justice, even in a field of government benefits, without general judicial supervision. That concept, however, is precisely what the veterans’ benefit laws enacted, plainly rejecting the judicialization, and even the lawyerization, of this field. It is reflected not merely in § 211(a), whose predecessor was first enacted in 1933, see pages 907-08, supra, but in other venerable provisions permitting claimants to be represented by “the American National Red Cross, the American Legion, the Disabled American Veterans, the United Spanish War Veterans, the Veterans of Foreign Wars, and such other organizations as [the Administrator] may approve,” to which organizations “[t]he Administrator may, in his discretion, furnish, if available, space and office facilities,” 38 U.S.C. § 3402(a) (1982) (see ch. 867, § 200, 49 Stat. 2031 (1936)); and prohibiting any attorney or other person from charging a veteran for assisting in the presentation of his claim, 38 U.S.C. § 3403, with compensation payable to such persons by the Administrator limited to “$10 with respect to any one claim,” id. at § 3404(c)(2) (see ch. 234, § 31, 17 Stat. 575 (1873)).

The scheme envisioned by the legislation is, for modern times at least, concededly an extraordinary one: that an agency which is designed and intended to have the interests of the veterans at heart will dispose of matters relating to their claims in a manner different from the adversarial process familiar to the courts, with a minimum of formality, with assistance from veterans’ organizations, without assistance from compensated lawyers, and with finality. That scheme, and particularly its exclusion of paid counsel and of judicial review, have drawn sharp criticism from some respected quarters. See, e.g., 102 Reports of the American Bar Association 533-34 (1983). On the other hand, a recent and much praised treatise based upon a study of the government’s most extensive individual benefits program, the social security disability program, which has adopted full-scale adversarial process and judicial appeal, concludes that “fundamental reasons ... prevent judicial review from having a major beneficial impact on the quality of administrative justice in the Social Security system,” J. Mashaw, Bureaucratic Justice 185 (1983), and observes that the VA system has “managed to maintain an acceptable level of satisfaction with its process without significant use of oral hearings, without employing independent AUs, and without subjecting its judgments to judicial review.” Id. at 142 (footnote omitted).

Whatever the pros and cons of that argument may be, short of the point at which the exclusion of judicial involvement becomes unconstitutional (which is not even asserted here), the debate is to be conducted before Congress, and resolution against the presently prescribed system is to be effected by statutory amendment rather than judicial gerrymandering of the existing provisions. As the Supreme Court made clear in Block v. Community Nutrition Institute, 104 S.Ct. at 2457, our function in cases such as this is not to devise plausible ways of depriving statutory language of its apparent meaning, but rather to give honest effect to the “fairly discernible” intent of Congress to preclude judicial review. There is no indication in the text of the statute that rulemaking is excluded from what some regard as this unthinkable prohibition. Both the language of § 211(a) and the reason of the matter leave no doubt in our mind that decisions of the Administrator regarding rules applicable in claims adjudications occupy no different status, insofar as judicial review is concerned, than the claims adjudications themselves, and specifically are not reviewable for procedural deficiencies. Accordingly, we vacate the District Court’s entry of summary judgment and remand this case with instructions to dismiss for lack of jurisdiction.

So ordered.

1 . The requirement that substantive rules be published in the Federal Register is contained in 5 U.S.C. § 552 (1982), generally known as the Freedom of Information Act. It antedates most of the other provisions of that section, however, and was (in slightly different form) § 3(a)(3) of the original Administrative Procedure Act. 60 Stat. 238, ch. 324 (1946). Also unlike most of the other provisions of that section, it establishes a procedural prerequisite for the validity of agency action. In this opinion, therefore, we do not adopt the plaintiffs’ characterization of their nonpublication claim as an alleged violation of the Freedom of Information Act, but rather of the Administrative Procedure Act.

2 . Strictly speaking, veterans’ claims are “a matter relating to ... benefits” and therefore exempt from the rulemaking requirements of the APA. 5 U.S.C. § 553(a)(2) (1982). However, the VA has provided by rule that it will abide by the APA’s procedures, with authority to make exceptions where the APA permits exceptions. 38 C.F.R. § 1.12 (1984). (It has not been contended that the agency has not complied with its prescribed procedures for invoking these exceptions.) Thus, this case technically involves not the agency’s required compliance with the APA, but its required compliance with its own rules which incorporate the APA by reference. See Service v. Dulles, 354 U.S. 363, 77 S.Ct. 1152, 1 L.Ed.2d 1403 (1957). For purposes of simplicity, the distinction will be disregarded in this opinion.

3 .Their complaint also charged that changing the Program Guide without notice deprived them of property without due process of law. This constitutional claim, which was not pursued below and has not been raised in this appeal, is insubstantial. Even if the due process clause does impose some procedural requirements with regard to the initial conferring, as opposed to the withdrawal (see Goldberg v. Kelly, 397 U.S. 254, 90 S.Ct. 1011, 25 L.Ed.2d 287 (1970)) of benefits, there is no conceivable reason why the opportunity to challenge the application of the new Program Guide in the individual claims proceedings would not be entirely adequate.

4 . The Government has raised a different jurisdictional problem on appeal, asserting that the case has been mooted by passage of the Veterans’ Dioxin and Radiation Exposure Compensation Standards Act, Pub.L. No. 98-542, 98 Stat. 2725 (1984) (to be codified at 38 U.S.C. § 354 & note), which requires the VA to promulgate regulations, in accordance with specified policies, for dealing with claims for death or illness assertedly caused by radiation during military service. That is not clear. While the Administrator will presumably decide to use the new regulations to redetermine claims previously adjudicated by use of the documents and methodologies here under challenge, the legislation does not of its own force affect those earlier adjudications, nor does it explicitly require benefits to be paid retroactively. See 38 U.S.C. § 3010(a) (1982), providing that as a general rule “the effective date of an award based on ... a claim reopened after final adjudication ... shall be fixed in accordance with the facts found, but shall not be earlier than the date of application therefor.” The prayer for relief in the present case, by contrast, requests the court to ”[d]eclare that ... decisions denying disability and death benefit claims ... in accordance with the unlawfully promulgated rules are null and void,” J.A. 33-34; and the District Court in effect granted this relief, declaring that “[cjlaims decisions such as these based on invalid rules are not res judicata," and that the VA must "treat any new claims filed by plaintiffs as dating back to when the original claim was filed.” Gott v. Cleland, Civil No. 80-0906 (Dec. 15, 1981) (Order). We cannot confidently conclude that the new statute provides precisely comparable relief.

5 . That the modifying phrase "under any law administered by the Veterans’ Administration" goes with the word "decisions” rather than with the phrase "question of law or fact” is demonstrated by the Supreme Court’s italicization of the statutory passage in Robison: ”[T]he decisions of the Administrator on any question of law or fact under any law administered by the Veterans' Administration providing benefits for veterans...." 415 U.S. at 367, 94 S.Ct. at 1166 (emphasis in original).

6 . We do not suggest approval of that portion of Leib which holds that the Privacy Act is also such a statute. Portions of that law relate to the manner in which claims decisions are to be made under the benefits laws — viz., the data that are to be maintained and considered, see 5 U.S.C. § 552a(e)(5). Thus, a civil suit under 5 U.S.C. § 552a(g)(l)(C) would in effect require review of a claims determination. See Rosen v. Walters, 719 F.2d 1422, 1423-25 (9th Cir.1983).

7 . Instead of removing the phrase “concerning a claim for benefits,” it would have "define[d] the term ‘claim’ to include an application for benefits or payments under any law administered by the Veterans’ Administration; the assertion of rights to continuance, nonreduction, or restoration of such benefits or payments; and the assertion of rights to such benefits or payments which have been found to be forfeited.... ” H.R.Rep. No. 1166. flora at 24, 1970 U.S.Code Cong. & Ad.News 3743. That approach is unquestionably less (if at all) suited to assuring no review of regulations than the amendment actually adopted — which may simply suggest that the VA thought regulations were already covered by the pre-1970 provision, except regulations that might be challenged in connection with claims of the sort which this circuit’s decisions had excluded.

8 . The dissent evidently believes that it is possible to review "the VA’s adherence to the rule-making provisions of the APA” without "invoIv[ing] the courts in the agency’s expert functions.” Dissent at 923. That seems quite impossible unless the APA is to be sucked dry of its content. One can hardly determine, for example, whether the agency has provided an adequate "statement of ... basis and purpose,” 5 U.S.C. § 553(c), which includes "response] to significant points raised by the public,” Action on Smoking and Health v. CAB, 699 F.2d 1209, 1217 (D.C.Cir.1983), — or indeed even whether the rule in question is a substantive rule rather than a procedural rule to which certain APA procedures do not apply, see 5 U.S.C. § 553(b)(A) — without entering into an analysis of the substance of the matter at hand. The requirement that the agency’s rule not be "arbitrary [or] capricious," 5 U.S.C. § 706(2)(A) is also imposed by the APA.

9 . Even if it were so, with the result that the proper method for deciding whether a particular appeal runs afoul of § 211(a) is simply to proceed at once to determine whether review would impair the two statutory policies Robison identified, we would still conclude, for reasons described in our earlier discussion, see pages 909-10, supra, that the review sought here is unavailable. See generally Carter v. Cleland, 643 F.2d at 9.

10 . The Wayne State court’s only other argument for review of claims that VA regulations exceeded the VA’s statutory authority was that any other interpretation would make § 211(a) constitutionally suspect. It did not identify what constitutional problems would be posed except to cite the pages of Johnson v. Robison where the Supreme Court made that argument for finding that § 211(a) did not preclude review of statutes for unconstitutionality. Wayne State, 590 F.2d at 632 & n. 13, citing Robison, 415 U.S. at 366 & n. 8, 94 S.Ct. at 1165 & n. 8. We have considered this question carefully in the context of denials of review of adjudications and have concluded that there is no constitutional infirmity, at least in precluding review of nonconstitutional issues, because ”[t]he Supreme Court has declared that ‘the United States, when it creates rights in individuals against itself, is under no obligation to provide a remedy through the courts;’ ‘it may,’ instead, ‘provide an administrative remedy and make it exclusive____’ That is precisely what Congress did in the current version of Section 211(a), and Congress was well within its legislative prerogatives when it did so.” De Rodulfa v. United States, 461 F.2d 1240, 1258 (D.C.Cir.), cert. denied, 409 U.S. 949, 93 S.Ct. 270, 34 L.Ed.2d 220 (1972) (citations omitted). See also Rosen v. Walters, 719 F.2d at 1423. If the Constitution does not require Congress to provide judicial review of the individual adjudications themselves, a fortiori it does not require judicial review for rules whose only effect is to determine the outcome of those adjudications.

11 . It is not the case, as the dissent asserts, that the adjudicatory procedures specified in the veterans' benefits laws displace the otherwise applicable provisions of the APA. See Dissent at 919 n. 3. Since displacement of the APA by implication is disfavored, see 5 U.S.C. § 559, those APA informal adjudication requirements that do not conflict with what the VA statutes provide are assuredly not superseded.

12 . The dissent’s response to this is that "the Administrator’s selective defiance of [his] regulations” is "no more related to any provision of the veterans’ benefit statutes than a VA decision to defy the APA’s notice and comment provisions in this case but not the next." Dissent at 919 n. 3. This suggests that the dissent’s test for establishing that agency action is taken “under” the VA statutes for purposes of the judicial review provision is even more uncertain (and more restrictive) than we had supposed. Evidently it is not only insufficient that the action was taken in the course of administering those statutes; but it is also not enough that the provision allegedly violated (here, the rulemaking requirement) was imposed by or under those statutes. Rather, the test seems to be whether evaluation of the violation depends upon some specific provision of those statutes rather than upon some more general principle of law (in the present case, the principle that an agency must comply with its own regulations). It is hard to square this with the dissent’s simultaneous assertion that review for compliance with the APA’s • evidentiary requirements, or with the APA’s "arbitrary or capricious” standard is a "spectre" entirely of our imagination. Dissent at 920 n. 4. Surely the determination that a particular piece of evidence credited by the agency was entirely unreliable would be based upon general principles of law rather than upon anything peculiar to the VA statutes; similarly, the determination that a particular rule is arbitrary because it inexplicably contradicts another rule. We confess that our comprehension of the line the dissent wishes to draw is inadequate for any purpose except the conclusion that it makes no policy sense and is assuredly not to be found in the text of the statute.