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First Amendment Library:
Michael David Rosenberg


A draftee accorded Class I-O conscientious objector status and completing performance of required alternative *363 civilian service[1] does not qualify under 38 U. S. C. § 1652 (a) (1) as a "veteran who . . . served on active duty" (defined in 38 U. S. C. § 101 (21) as "full-time duty in the Armed Forces"), and is therefore not an "eligible veteran" entitled under 38 U. S. C. § 1661 (a) to veterans' educational benefits provided by the Veterans' Readjustment Benefits Act of 1966.[2] Appellants, the Veterans' *364 Administration and the Administrator of Veterans' Affairs, for that reason, denied the application for educational assistance of appellee Robison, a conscientious objector who filed his application after he satisfactorily completed two years of alternative civilian service at the Peter Bent Brigham Hospital, Boston. Robison thereafter commenced this class action[3] in the United States District Court for the District of Massachusetts, seeking a declaratory judgment that 38 U. S. C. §§ 101 (21), 1652 (a) (1), and 1661 (a), read together, violated the First Amendment's guarantee of religious freedom and the Fifth Amendment's guarantee of equal protection of the laws.[4] Appellants moved to dismiss the action on the *365 ground, among others, that the District Court lacked jurisdiction because of 38 U. S. C. § 211 (a) which prohibits judicial review of decisions of the Administrator.[5] The District Court denied the motion, and, on the merits, rejected appellee's First Amendment claim, but sustained the equal protection claim and entered a judgment declaring "that 38 U. S. C. §§ 1652 (a) (1) and 1661 (a) defining `eligible veteran' and providing for entitlement to educational assistance are unconstitutional and that 38 U. S. C. § 101 (21) defining `active duty' is unconstitutional with respect to chapter 34 of Title 38, United States Code, 38 U. S. C. §§ 1651-1697, conferring Veterans' Educational Assistance, for the reason that said sections deny plaintiff and members of his class due process of law in violation of the Fifth Amendment to the Constitution of the United States . . . ." 352 F. Supp. 848, 862 (1973).[6] We postponed *366 consideration of the question of jurisdiction in light of § 211 (a) to the hearing on the merits, and set the case for oral argument with No. 72-700, Hernandez v. Veterans' Administration, post, p. 391. 411 U. S. 981 (1973).[7] We hold, in agreement with the District Court, that § 211 (a) is inapplicable to this action and therefore that appellants' motion to dismiss for lack of jurisdiction of the subject matter was properly denied. On the merits, we agree that appellee's First Amendment claim is without merit but disagree that §§ 1652 (a) (1), 1661 (a), and 101 (21) violate the Fifth Amendment and therefore reverse the judgment of the District Court.