888 F.3d 1352 (Fed. Cir. 2018), 2017-2001, Burris v. Wilkie

Docket Nº:2017-2001, 2017-2003
Citation:888 F.3d 1352
Opinion Judge:O’Malley, Circuit Judge.
Party Name:Charles D. BURRIS, Jr., Claimant-Appellant, v. Robert WILKIE, Acting Secretary of Veterans Affairs, Respondent-Appellee. Ben H. Thompson, Claimant-Appellant, v. Robert Wilkie, Acting Secretary of Veterans Affairs, Respondent-Appellee.
Attorney:Douglas J. Rosinski, Douglas J. Rosinski Esq., Inc., Columbia, SC, argued for claimants-appellants. Thomas James Reed, Widener University, Wilmington, DE, for claimant-appellant Charles D. Burris, Jr. Veronica Nicole Onyema, Commercial Litigation Branch, Civil Division, United States Department o...
Judge Panel:Before Lourie, O’Malley, and Taranto, Circuit Judges.
Case Date:May 02, 2018
Court:United States Courts of Appeals, Court of Appeals for the Federal Circuit
 
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Page 1352

888 F.3d 1352 (Fed. Cir. 2018)

Charles D. BURRIS, Jr., Claimant-Appellant,

v.

Robert WILKIE, Acting Secretary of Veterans Affairs, Respondent-Appellee. Ben H. Thompson, Claimant-Appellant,

v.

Robert Wilkie, Acting Secretary of Veterans Affairs, Respondent-Appellee.

Nos. 2017-2001, 2017-2003

United States Court of Appeals, Federal Circuit

May 2, 2018

Page 1353

          Appeals from the United States Court of Appeals for Veterans Claims in Nos. 14-2980, 15-768, Chief Judge Robert N. Davis, Judge Coral Wong Pietsch, Judge William Greenberg.

         Douglas J. Rosinski, Douglas J. Rosinski Esq., Inc., Columbia, SC, argued for claimants-appellants.

         Thomas James Reed, Widener University, Wilmington, DE, for claimant-appellant Charles D. Burris, Jr.

         Veronica Nicole Onyema, Commercial Litigation Branch, Civil Division, United States Department of Justice, Washington, DC, argued for respondent-appellee. Also represented by Chad A. Readler, Robert E. Kirschman, Jr., Elizabeth M. Hosford; Y. Ken Lee, Bryan Thompson, Office of General Counsel, United States Department of Veterans Affairs, Washington, DC.

         Before Lourie, O’Malley, and Taranto, Circuit Judges.

         OPINION

         O’Malley, Circuit Judge.

Page 1354

          Charles D. Burris, Jr. and Ben H. Thompson appeal from decisions of the United States Court of Appeals for Veterans Claims (" Veterans Court" ) denying their respective requests for equitable relief. See

Burris v. McDonald, No. 14-2980, 2016 WL 7368115, 2016 U.S.App. Vet. Claims LEXIS 1941 (Vet. App. Dec. 20, 2016) (" Burris Decision " ); Thompson v. Shulkin, No. 15-0768, 2017 WL 914799, 2017 U.S.App. Vet. Claims LEXIS 335 (Vet. App. Mar. 8, 2017) (" Thompson Decision " ). Because we hold that the Veterans Court lacks jurisdiction to grant the particular form of equitable relief that Appellants seek, we affirm.

          BACKGROUND

          These consolidated appeals involve two cases that present similar issues related to Appellants’ requests for educational assistance benefits. We summarize each case below.

          I. Burris’s Case (No. 17-2001)

         Burris’s father served on active duty in Vietnam from February 1969 to January 1971, and was granted a permanent and total disability rating for schizophrenia effective October 1, 2000. Because of his father’s disability, Burris was eligible to receive Dependents’ Educational Assistance (" DEA" ) benefits. In October 2010, Burris, then 35-years old, elected to receive retroactive benefits for the period beginning on May 7, 2002, and ending on May 7, 2010. During a portion of that period, Burris was enrolled as an undergraduate student at Southeastern Louisiana University.

         Burris’s studies were interrupted in January 2005, however, when his mother unexpectedly passed away. At that time, Burris became the primary caretaker for his father, who suffered from prostate cancer. As a result, Burris was unable to attend school between August 16, 2004, and May 10, 2010. Burris could not resume his studies until after his period of DEA eligibility had expired.

         The Department of Veterans Affairs (" VA" ) notified Burris that it could not grant DEA benefits after the expiration of his eligibility period, and thereafter denied Burris’s request for an extension of that period, citing VA regulations that prohibit extensions for dependents " beyond age 31." 38 C.F.R. § § 21.3041(g)(1), (g)(2), 21.3043(b). The VA also refused to reimburse Burris for educational expenses incurred from 2002 to 2004 because DEA benefits cannot be paid for expenses incurred more than one year prior to Burris’s October 2010 application date. The Board of Veterans’ Appeals (" Board" ) likewise denied Burris’s request for an extension. Although it expressed sympathy for Burris, it stated that it was bound by applicable law and " is without authority to grant benefits simply on the basis of equity." J.A. 34.

         The Veterans Court affirmed on appeal. The court held that the Board correctly determined that it was without jurisdiction to grant equitable relief. Burris Decision, 2016 WL 7368115, at *2-5, 2016 U.S.App. Vet. Claims LEXIS 1941, at *5-14. Citing 38 U.S.C. § 503— which gives the Secretary of the VA authority to pay " moneys to any person whom the Secretary determines is equitably entitled" — the court determined that only the Secretary may provide such relief. Id. at *2-5, 2016 U.S.App. Vet. Claims LEXIS 1941, at *5-13.

         As relevant here, the court also determined that it could not itself exercise equitable powers to extend Burris’s eligibility deadline, noting that it is devoid of such authority.

Page 1355

Id. at *5, 2016 U.S.App. Vet. Claims LEXIS 1941, at *14 (citing Fritz v. Nicholson, 20 Vet.App. 507 (2006); Moffitt v. Brown, 10 Vet.App. 214 (1997); Owings v. Brown, 8 Vet.App. 17 (1995) ). The court therefore affirmed the Board’s decision denying relief.1

          II. Thompson’s Case (No. 17-2003)

          Thompson served intermittently in the U.S. Navy and Air Force from 1975 to 2012. Under statutory law, Thompson was entitled to receive 48 months of educational assistance benefits for his time in service. As of May 2011, Thompson had used 44 months and 22 days of entitlement and therefore had a period of 3 months and 8 days remaining.

         On July 7, 2011, the VA sent Thompson a Certificate of Eligibility (" COE" ) accurately indicating that he had only 3 months and 8 days of full-time benefits available.2 One day later, however, the VA sent Thompson a second COE erroneously indicating that he had 36 months of full-time benefits remaining. Relying in part on the second COE, Thompson transferred his remaining eligibility to his son so that he could attend the University of South Carolina School of Law, the more expensive of the two schools that he was considering attending.[3]

          After Thompson’s son enrolled, the VA refused to provide 36 months’ worth of benefits, and Thompson alleges that he incurred approximately $50,000 of additional education-related expenses. The Board affirmed the VA, stating that it " has no authority to grant additional benefits on an equitable basis," and noting that only the Secretary has such authority. J.A. 40.

          Shortly thereafter, Thompson wrote a letter to the Secretary pleading for equitable relief. The Secretary denied that request, stating that Thompson was not entitled to relief because he was " not denied a benefit due to an error on the part of an employee of the federal government" and did not " suffer a financial loss due to reliance on an incorrect decision by the" VA. J.A. 135.

         Meanwhile, the Veterans Court affirmed the Board, reiterating that only the Secretary " has the authority to act upon requests for equitable relief in certain circumstances." Thompson Decision, 2017 WL 914799, at *2, 2017 U.S.App. Vet. Claims LEXIS 335, at *4. The court also expressed sympathy for Thompson’s predicament but determined that it " is bound by the controlling statutes and is without jurisdiction to grant equitable relief." Id. at *1-2, 2016 U.S.App. Vet. Claims LEXIS 1941 at *3-4.

          Appellants separately filed timely appeals, which were consolidated before this court.

          DISCUSSION

          Appellants argue that the Veterans Court wrongly concluded that it lacks jurisdiction to grant equitable relief. Before addressing the Veterans Court’s jurisdiction, however, we first address our own.

Page 1356

          I. Jurisdiction

         " This court’s jurisdiction to review decisions by the Veterans Court is limited." Wanless v. Shinseki, 618 F.3d 1333, 1336 (Fed. Cir. 2010). We " shall decide all relevant questions of law, including interpreting constitutional and statutory provisions." 38 U.S.C. § 7292(d)(1); see also id. § 7292(a); Halpern v. Principi, 384 F.3d 1297, 1300 (Fed. Cir. 2004). Absent a constitutional issue, however, we " may not review (A) a challenge to a factual determination, or (B) a challenge to a law or regulation as applied to the facts of a particular case." 38 U.S.C. § 7292(d)(2).

         The government asserts that we lack jurisdiction over these...

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