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Burris v. Wilkie

United States Court of Appeals, Federal Circuit

May 2, 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

          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.

          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 U.S. App. Vet. Claims LEXIS 1941 (Vet.App. Dec. 20, 2016) ("Burris Decision"); Thompson v. Shulkin, No. 15-0768, 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 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 *5-13.

         As relevant here, the court also determined that it could not itself exercise equitable powers to extend Bur-ris's eligibility deadline, noting that it is devoid of such authority. Id. 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 fulltime 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 ...


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