Morgan v. Principi, 02-7378.

• Decision Date: 06 May 2003
• Docket Number: No. 02-7378.,02-7378.
• Citation: 327 F.3d 1357
• Parties: Douglas B. MORGAN, Claimant-Appellant, v. Anthony J. PRINCIPI, Secretary of Veterans Affairs, Respondent-Appellee.
• Court: U.S. Court of Appeals — Federal Circuit

327 F.3d 1357

Douglas B. MORGAN, Claimant-Appellant, v. Anthony J. PRINCIPI, Secretary of Veterans Affairs, Respondent-Appellee.

No. 02-7378.

United States Court of Appeals, Federal Circuit.

Decided May 6, 2003.

Rehearing Denied June 4, 2003.

William A. L'Esperance, of Albuquerque, New Mexico, for claimant-appellant.

John S. Groat, Trial Attorney, Commercial Litigation Branch, Civil Division, Department of Justice, of Washington, DC, for respondent-appellee. With him on the brief were Robert D. McCallum, Jr., Assistant Attorney General, David M. Cohen, Director, and Harold D. Lester, Jr., Assistant Director. Of counsel on the brief were Richard J. Hipolit, Deputy Assistant General Counsel, and Michael J. Timinski, Attorney, Department of Veterans Affairs, of Washington, DC.

Before RADER, Circuit Judge, PLAGER, Senior Circuit Judge, and BRYSON, Circuit Judge.

PLAGER, Senior Circuit Judge.

This case raises the question of the effect of Congress's recent amendment of the jurisdictional statute under which we review decisions of the Court of Appeals for Veterans Claims. The case arose when Douglas B. Morgan sought review of the March 14, 2002 decision of the United States Court of Appeals for Veterans Claims, which decision affirmed a September 28, 1999 decision of the Board of Veterans' Appeals (BVA).

The BVA found that a Department of Veterans Affairs regional office (VARO) had properly denied Mr. Morgan's request for an extension of time in which to file a substantive appeal, and that his substantive appeal was not timely filed. The Court of Appeals for Veterans Claims affirmed. On appeal to this court, Mr. Morgan for the first time raises the question of whether equitable tolling is available under the applicable limitations statute.

The Government, in its October 2002 brief as respondent-appellee, argued that Mr. Morgan did not present an issue over which this court has jurisdiction. The Government's position was based on our recent en banc opinion in Forshey v. Principi, 284 F.3d 1335 (Fed.Cir.) (en banc), cert. denied, ___ U.S. ___, 123 S.Ct. 110, 154 L.Ed.2d 33 (2002). Subsequently, however, in a supplemental filing dated March 2003, the Government, based on the amendment to this court's jurisdictional statute contained in the Veterans Benefits Act of 2002, enacted December 6, 2002, conceded that we had jurisdiction, and withdrew its argument to the contrary.

We are faced, then, with the question of whether we properly have jurisdiction over Mr. Morgan's appeal, and if so, what disposition is to be made of it. We conclude that, as a matter of statutory interpretation, the Government is correct that we have jurisdiction to hear Mr. Morgan's case. We decline, however, as a prudential matter to consider the merits of the sole issue he presents to this court, and accordingly affirm the judgment of the Court of Appeals for Veterans Claims.

I. Background

The facts can be briefly stated, since the issues before us are solely those of law. Section 7105 of title 38, United States Code, and its implementing regulations establish the requirements for filing a substantive appeal of a VARO determination to the BVA. The time limit for filing an appeal is sixty days from the date the statement of the case is mailed to the appellant, or one year from the date the notification of the determination is mailed, whichever is later. 38 C.F.R. § 20.302(b). In Mr. Morgan's case, the deadline for appealing the denial of his claim for dependents' educational assistance was December 4, 1993, one year from the date notification of the denial was mailed.

In July 1993, five months before the filing deadline, Mr. Morgan filed a request for a thirty-day extension of time in which to file his appeal, apparently believing that he had to file his appeal within sixty days from the date the statement of the case was mailed in May 1993 and unaware that the alternate one-year provision applied. The VARO responded with a letter explaining that Mr. Morgan had one year from the date notification of the denial of benefits was mailed in which to perfect his appeal. Mr. Morgan filed a substantive appeal on December 16, 1993, twelve days past the filing deadline.

In a June 30, 1997 decision, the BVA requested the VARO to provide Mr. Morgan with another statement of the case addressing the issues of whether Mr. Morgan's request for an extension should have been granted and whether his December 16, 1993 substantive appeal was timely filed. The VARO issued a statement of the case, in which it explained that the VARO's July 1993 letter essentially denied the request for a thirty-day extension of time and that the substantive appeal was untimely. In a September 28, 1999 decision, the BVA found that the VARO acted properly in denying the extension request and that Mr. Morgan's substantive appeal was not timely filed. On March 14, 2002, the Court of Appeals for Veterans Claims affirmed.

In his appeal brief filed with this court, Mr. Morgan argues only that the Court of Appeals for Veterans Claims should have applied the doctrine of equitable tolling to 38 U.S.C. § 7105, a theory that was not presented to or considered by either the BVA or the Court of Appeals for Veterans Claims.

II. Jurisdiction

Section 7292 of title 38, United States Code, sets out the jurisdictional parameters within which this court functions when we review a decision of the Court of Appeals for Veterans Claims. The statute as currently applicable reads:

(a) After a decision of the United States Court of Appeals for Veterans Claims is entered in a case, any party to the case may obtain a review of the decision with respect to the validity of a decision of the Court on a rule of law or of any statute or regulation ... or any interpretation thereof (other than a determination as to a factual matter) that was relied on by the Court in making the decision.

. . .

(d)(2) Except to the extent that an appeal under this chapter presents a constitutional issue, the Court of Appeals 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 (2000), amended by Veterans Benefits Act of 2002, Pub.L. No. 107-330, § 402(a), 116 Stat. 2820, 2832.

To say that the statute is less than brilliant in its clarity is perhaps to gild it beyond its entitlement. As we said in Forshey, "jurisdictional issues under section 7292 have proved difficult and have arisen frequently. Despite our clarification of those provisions today, this will continue." 284 F.3d at 1353.

Our effort in Forshey focused on the language in section 7292 that provided that any party to a case before the Court of Appeals for Veterans Claims "may obtain a review [before the Court of Appeals for the Federal Circuit] of the decision with respect to the validity of any statute or regulation ... or any interpretation thereof... that was relied on by the Court in making the decision." 38 U.S.C. § 7292(a) (2000) (emphasis added). The "relied on" language had been the subject of prior cases, and of considerable debate about the proper scope of that phrase given the various possibilities for presentation of an issue or issues in a case as it wends its way through the administrative and judicial machinery of the veterans' benefits system. See, e.g., Smith v. West, 214 F.3d 1331 (Fed.Cir.2000), cert. denied, 531 U.S. 1144, 121 S.Ct. 1080, 148 L.Ed.2d 956 (2001); Belcher v. West, 214 F.3d 1335 (Fed.Cir.2000), cert. denied, 531 U.S. 1144, 121 S.Ct. 1080, 148 L.Ed.2d 956 (2001).

In Forshey we described the text of the statute as granting us "issue jurisdiction" over appeals from the Court of Appeals for Veterans Claims, as distinct from the broader "case jurisdiction" such as we have when an appeal comes to us from a final judgment of a district court, for example. 284 F.3d at 1348. Combining the notion of "issue jurisdiction" with the "relied on" language, we concluded that our jurisdiction is limited to: (1) issues concerning the validity of statutes or regulations on which the decision of the Court of Appeals for Veterans Claims depended; (2) issues of interpretation if the Court of Appeals for Veterans Claims elaborated the meaning of a statute or regulation and the decision depended on that interpretation; (3) issues of validity or interpretation raised before the Court of Appeals for Veterans Claims but not explicitly decided, if the decision would have been altered by adopting the position that was urged; and (4) other "relevant"¹ questions of law. Id. at 1338.

Despite this effort at clarification, or perhaps because of it, both the majority and the dissent in Forshey called upon Congress to amend the statute to correct the perceived problems. The majority expressly invited Congress "to consider amending section 7292 to confer `case' jurisdiction (except for a continued bar on the review of fact issues)." Id. at 1353; see also id. at 1365 (Mayer, C.J., dissenting) ("Congress should revisit its legislative handiwork.").

Congress, whether moved by this court's entreaties or the urging of veterans organizations and interest groups, was not long in responding. Public Law No. 107-330, enacted December 6, 2002, and known as the Veterans Benefits Act of 2002, amended the statutes applicable to veterans' benefits in a number of respects. Section 402(a) amended 38 U.S.C. § 7292(a) by "inserting `a decision of the Court on a rule of law or of' in the first sentence after `the validity of.'"²

When the new language is inserted into the then-existing § 7292(a), the statute as now amended reads in relevant part that any party to a case before the Court of Appeals for Veterans Claims "may obtain a review of the decision with respect to the validity of a decision of the Court on a rule of law or of any statute or regulation ... or any interpretation thereof ... that was relied on by the Court in making the decision." § 7292(a). The...