Unpublished Disposition, 883 F.2d 1023 (9th Cir. 1989)

MEMORANDUM **

Craig, an incarcerated pro se appellant, appeals the district court's dismissal of his claim for failure to exhaust administrative remedies. We affirm.

Unless statutorily mandated, the district court has discretion in applying the exhaustion doctrine to determine whether to exercise jurisdiction. Rodrigues v. Donovan, 769 F.2d 1344, 1348 (9th Cir. 1985). Craig's petition asserts a claim relating to the award of benefits by the Veterans' Administration, and challenges the constitutionality of 38 U.S.C. § 505.

The district court correctly determined that Craig's claim regarding the award of benefits had not been administratively exhausted. The record shows the Veterans' Appeal Board is still reviewing Craig's psychiatric disability claims. Additionally, "decisions of the Administrator [of Veterans' Affairs] 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...." 38 U.S.C. § 211(a). See Johnson v. Robison, 415 U.S. 361, 367 (1974).

We do have jurisdiction to review Craig's constitutional challenge to 38 U.S.C. § 505. Id. Craig contends that this statute discriminates against single pensioners such as himself in violation of the constitutional right to equal protection of the laws.¹ 

Section 505(a) provides that no pension administered by the Veteran's Administration will be paid to any individual incarcerated in state, federal or local facilities for conviction of a felony or misdemeanor. 38 U.S.C. § 505(a). Subsection (b) of the same provision, however, allows pension benefits to be paid to spouses and children of incarcerated prisoners. 38 U.S.C. § 505(b). Craig contends that because an incarcerated pensioner who has a spouse or children may receive some portion of the pension money from his family, single pensioners are unfairly deprived of their pension benefits by section 505.

We reject Craig's contention. The classification he challenges burdens no suspect class and clearly bears "some fair relationship" to the legitimate public purpose of providing support to the families of incarcerated pensioners. See Plyer v. Doe, 457 U.S. 202, 216 (1982). Accordingly, the district court properly dismissed this claim.

AFFIRMED.