Burris v. Wilkie

Decision Date02 May 2018
Docket Number2017-2001,2017-2003
Citation888 F.3d 1352
Parties 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.
CourtU.S. Court of Appeals — Federal Circuit

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.

O’Malley, Circuit Judge.

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.


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.

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.


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.

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 appeals because Appellants do not raise a constitutional issue or an issue concerning the validity or interpretation of a statute or regulation that the Veterans Court relied upon in its decisions. But, as the government conceded at oral argument, see Oral Arg. at 20:40–22:37, these appeals require us to interpret the scope of the Veterans Court’s jurisdictional statute, 38 U.S.C. § 7252, an exercise that falls squarely within our jurisdiction, see Maggitt v. West , 202 F.3d 1370, 1374 (Fed. Cir. 2000) ("The jurisdictional reach of the Veterans Court presents a question of law for our plenary review."); see also Bailey v. West , 160 F.3d 1360, 1362 (Fed. Cir. 1998) (en banc) ("Because our review of this decision involves a question of statutory interpretation—namely the ability of the Court of Veterans Appeals to equitably toll a particular statutory time limit and thereby exercise jurisdiction over a late-filed notice of appeal—we have jurisdiction over this matter."). Our review of the Veterans Court’s own interpretation of its jurisdictional statute, moreover, presents "questions of legal interpretation" that are also "clearly within our jurisdiction." Cox v. West , 149 F.3d 1360, 1362 (Fed. Cir. 1998).

With respect to Burris, the government additionally argues that his appeal amounts to an impermissible request for an advisory opinion insofar as he argues that the Veterans Court may review the Secretary’s denial of equitable relief under § 503, because Burris failed to petition the Secretary for such relief before filing his appeal to the Veterans Court. We disagree. Burris does not argue that the Veterans Court has jurisdiction to review the Secretary’s discretionary decisions under § 503 ; he assumes it does not for purposes of his appeal. Instead, he argues that the Veterans Court itself has jurisdiction to grant the equitable relief that he seeks. Thus, that Burris did not seek equitable relief before filing his appeal to the Veterans Court does not render his appeal to this court a request for an advisory opinion.

With respect to Thompson, the government additionally argues that his appeal requires us to weigh the equities of his case, which we may not do. Again, we disagree. Thompson does not request that we address the merits of the Veterans Court’s decision, and, in fact, he...

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