Frederick v. Shinseki

• Decision Date: 03 July 2012
• Docket Number: No. 2011–7146.,2011–7146.
• Citation: 684 F.3d 1263
• Parties: Ruth Hill FREDERICK, Claimant–Appellee, v. Eric K. SHINSEKI, Secretary of Veterans Affairs, Respondent–Appellant.
• Court: U.S. Court of Appeals — Federal Circuit

684 F.3d 1263

Ruth Hill FREDERICK, Claimant–Appellee,

v.Eric K. SHINSEKI, Secretary of Veterans Affairs, Respondent–Appellant.

No. 2011–7146.

United States Court of Appeals,Federal Circuit.

July 3, 2012.

Paul M. Schoenhard, Ropes & Gray LLP, of Washington, DC, argued for claimant-appellee.

Joshua E. Kurland, Trial Attorney, Commercial Litigation Branch, Civil Division, United States Department of Justice, of Washington, DC, argued for respondent-appellant. With him on the brief were Tony West, Assistant Attorney General, Jeanne E. Davidson, Director, and Martin F. Hockey, Jr., Assistant Director. Of counsel on the brief were David J. Barrans, Deputy Assistant General Counsel,and Amanda R. Blackmon, Attorney, United States Department of Veterans Affairs, of Washington, DC.

Before RADER, Chief Judge, CLEVENGER and REYNA, Circuit Judges.

Opinion for the court filed by Circuit Judge CLEVENGER.

Dissenting opinion filed by Circuit Judge REYNA.

CLEVENGER, Circuit Judge.

The Secretary of the Department of Veterans Affairs (“Secretary”) appeals from the judgment of the United States Court of Appeals for Veterans Claims (“Veterans Court”) that Mrs. Ruth Hill Frederick is entitled to dependency and indemnity compensation (DIC) benefits. Frederick v. Shinseki, 24 Vet.App. 335 (2011). Because the Veterans Court misinterpreted the relevant statute, we reverse.

I

As an initial matter, we must attend to our jurisdiction over this appeal. In this case, the Veterans Court did not enter a final judgment ending the litigation. Instead, it remanded the case for a determination of the proper effective date for the benefits it conferred on Mrs. Frederick. Ordinarily, we exercise jurisdiction under 38 U.S.C. § 7292(a) only over final judgments by the Veterans Court. Adams v. Principi, 256 F.3d 1318, 1320–21 (Fed.Cir.2001). In limited circumstances, however, we have jurisdiction to hear non-final judgments by the Veterans Court. We spelled out those circumstances in Williams v. Principi, 275 F.3d 1361 (Fed.Cir.2002). Thus, when the Veterans Court has rendered a clear and final decision on a legal issue that will directly govern the remand proceedings, and there is a substantial risk that the issue will not survive a remand, we may entertain the appeal. Id. at 1364. Those requirements are met here, and we may proceed because the appeal presents the question of the proper interpretation of a statute. See38 U.S.C. § 7292(a); Forshey v. Principi, 284 F.3d 1335, 1351 (Fed.Cir.2002) (en banc). We review legal determinations by the Veterans Court independently without deference. Prenzler v. Derwinski, 928 F.2d 392, 393 (Fed.Cir.1991).

II

Mrs. Frederick was previously married on February 25, 1961, to World War II veteran Fred T. Hill. Mr. Hill died on May 26, 1970, and upon his death, Mrs. Hill became entitled to DIC benefits as the surviving spouse of a veteran whose death resulted from service-related injury or disease. See38 U.S.C. §§ 1310–1318. Her entitlement continued until December 4, 1986, when at the age of 57 she was remarried to Mr. Spencer Frederick. In 1986, and until January 1, 2004, the law provided that a surviving spouse receiving DIC benefits lost entitlement to those benefits upon remarriage. See38 U.S.C. § 101(3) (defining “surviving spouse” in part as one who “has not remarried”). Consequently, when Mrs. Frederick notified the DVA of her remarriage, her DIC benefits were terminated.

On December 16, 2003, Congress enacted the Veterans Benefits Act of 2003 (“Act”), with an effective date of January 1, 2004 (“effective date”). The purpose of the Act was to improve certain benefits administered by the Secretary, including DIC benefits to surviving spouses. The legislative history of the Act reveals that Congress was concerned that the existing law, which terminated DIC benefits upon remarriage of a surviving spouse, stood as disincentive to remarriage for older surviving spouses. SeeH.R.Rep. No. 108–211, at 12 (2003), reprinted in 2004 U.S.C.C.A.N. 2312, 2315. Consequently, Congress considered revising the law to overcome the existing law that terminated DIC benefits upon remarriage. At first, the House of Representatives considered such a revision for surviving spouses who remarried after the age of 55. Upon a compromise with the Senate, the age was raised to 57.

The revision necessary to accomplish this goal was made by an amendment to 38 U.S.C. § 103(d)(2)(B), which before amendment provided certain medical care benefits to surviving spouses who remarried after the age of 55. The Act retained those medical benefits and added specific language to section 103(d)(2)(B) that secures eligibility for DIC benefits for surviving spouses who remarry after the age of 57. See Veterans Benefits Act of 2003, Pub. L. No. 108–183, 117 Stat. 2651, 2652 (codified at 38 U.S.C. § 103(d)(2)(B)) (“The remarriage after age 57 of the surviving spouse of a veteran shall not bar the furnishing of [DIC] benefits to such person as the surviving spouse of the veteran.”). Thus, after the effective date, any surviving spouse who remarries after the age of 57 (but not one who remarries at an earlier age) remains eligible for DIC benefits.

Congress also provided new DIC eligibility for surviving spouses who remarried after the age of 57, but before the date of enactment of the Act, in subsection (e) of section 101 of the Act. Id. at 2653. Subsection (e), which is uncodified, reads as follows:

(e) APPLICATION FOR BENEFITS.—In the case of an individual who but for having remarried would be eligible for benefits under title 38, United States Code, by reason of the amendment made by subsection (a), and whose remarriage was before the date of enactment of this Act and after the individual had attained age 57, the individual shall be eligible for such benefits by reason of such amendment only if the individual submits an application for such benefits to the Secretary of Veterans affairs not later than the end of the one-year period beginning on the date of enactment of this Act.

Subsection (e) refers to an individual who remarried before the effective date of the Act and who “but for having remarried would be eligible for [DIC] benefits ... by reason of the amendment made by subsection (a).” Id. The reference to the amendment made by subsection (a) thus defines a class of surviving spouses who remarry after the age of 57 and who thus become eligible for DIC benefits as a result of the Act.

This class necessarily includes two groups of surviving spouses who remarried after the age of 57: (a) those who previously applied for and received DIC benefits, and whose remarriage before the effective date of the Act destroyed their eligibility for DIC benefits (such as Mrs. Frederick), and (b) those who for whatever reason never applied for DIC benefits upon the death of their veteran spouse, but who remarried before the effective date of the Act, and thereby lost eligibility for DIC benefits.

The text of subsection (e) further provides that “the individual [whether in group (a) or (b) ] shall be eligible for such benefits by reason of such amendment only if the individual submits an application for such benefits to the Secretary of Veterans Affairs not later than the end of the one-year period beginning on the date of enactment of this Act.” Id.

On November 8, 2007, almost three years after enactment of the above-quoted legislation, Mrs. Frederick wrote the DVA asking it to begin “my DIC again. It was stopped Dec. 1986.”

III

The Nashville, Tennessee, Regional Office of the Department of Veterans Affairs (DVA) treated Mrs. Frederick's 2007 letter as an informal application for DIC benefits. On February 20, 2008, the Regional Office denied Mrs. Frederick's application as untimely, stating that “all claims for restoration of DIC benefits terminated due to remarriage on or after age 57 had to have been submitted in writing during the period of December 16, 2003 [the enactment date] to December 16, 2004.”

Mrs. Frederick appealed to the Board of Veterans Appeals. She argued that prior to 2007, she had no way of knowing of her eligibility for restoration of her discontinued DIC benefits, and that the Secretary had breached his duty to notify her of her eligibility. Because of the Secretary's alleged breach, Mrs. Frederick argued that her informal application should have been accepted. The Board rejected her notice argument. The Board reasoned that Mrs. Frederick's “application for such benefits” was untimely, and therefore ineffective.

IV

Mrs. Frederick appealed to the Veterans Court. She argued entitlement to DIC benefits as a matter of law under subsection (e) because (1) she is a surviving spouse eligible for benefits “but for having remarried,” (2) she was at least 57 years old at the time of her remarriage, (3) her remarriage was before the date of enactment of the Act, and (4) her 1970 application for DIC was filed before December 16, 2004.

In response, the Secretary argued that eligibility could not be satisfied by an application filed before the enactment of the statute, because the statutory language is written in the present tense (“only if the individual submits an application”) and because the Act set forth a requirement that an application be filed in a window of time, beginning on the date of enactment of the Act and ending a year later. In contrast, Mrs. Frederick's view treated the application timing requirement as an end date: so long as an application was filed before the end date, entitlement is satisfied. Furthermore, the Secretary recited numerous instances in the legislative history of subsection (e) that clearly show the intent of legislators that the filing period in subsection (e) is a window of time, not merely an end date that could be satisfied by an application filed before the enactment date. See, e.g.,H.R.Rep. No. 108–211, at 12, 34 (“[S]urviving spouses who remarried ... before this provision is enacted would have one year to...