United States Court of Appeals
for the Federal Circuit
______________________
JOHN D. WILSON, JR.,
Claimant-Appellant,
v.
SLOAN D. GIBSON,
Acting Secretary of Veteran Affairs,
Respondent-Appellee.
______________________
2013-7037
______________________
Appeal from the United States Court of Appeals for
Veterans Claims in No. 11-0165, Judge Lawrence B.
Hagel.
______________________
Decided: June 10, 2014
______________________
JOHN D. WILSON, JR., of Zephyr Hills, Florida, pro se.
KATY M. BARTELMA, Trial Attorney, Commercial Liti-
gation Branch, Civil Division, United States Department
of Justice, of Washington, DC, for respondent-appellee.
With her on the brief were STUART F. DELERY, Principal
Deputy Assistant Attorney General, and JEANNE E.
DAVIDSON, Director. Of counsel were MICHAEL J.
TIMINSKI, Deputy Assistant General Counsel, and
RACHAEL T. BRANT, Attorney, United States Department
of Veteran Affairs, of Washington, DC.
2 WILSON v. GIBSON
______________________
Before MOORE, CLEVENGER, and O’MALLEY,
Circuit Judges.
CLEVENGER, Circuit Judge.
John David Wilson, Jr. appeals from the final decision
of the United States Court of Appeals for Veterans Claims
(“Veterans Court”) affirming the decision of the Board of
Veterans’ Appeals (“Board”) denying him a waiver of
compensation overpayment in the amount of $15,464.50.
Wilson v. Shinseki, No. 11-0165 (Vet. App. Aug. 28, 2012)
(“Mem. Op.”). The Veterans Court upheld the validity of
the overpayment debt and found no clear error in the
Board’s findings that Mr. Wilson did not qualify for waiv-
er. Id. at 6.
Mr. Wilson timely appealed to this court. He presents
three issues. First, he challenges the validity of the over-
payment debt. Second, he contends that the Board erred
in denying him waiver of overpayment. And third, he
presents a clear and unmistakable error claim for enti-
tlement to a total disability evaluation based on individu-
al unemployability due to service-connected disabilities
(“TDIU”). For the reasons set forth below, we affirm the
decision of the Veterans Court on the first issue and
dismiss for want of jurisdiction on the other two issues.
I
Mr. Wilson served the Navy honorably from January
1986 to January 1990 and again from January 1992 to
March 1994. He was given a 70% disability rating for
several service-connected physical conditions.
On June 27, 2001, Mr. Wilson was found guilty by a
jury in the 13th Judicial Circuit Court of Florida of two
felonies: attempted first degree murder with a firearm
and aggravated battery with a firearm. He was sentenced
to two concurrent life sentences on October 10, 2001, at
WILSON v. GIBSON 3
which time he was incarcerated. He began to serve his
sentences on October 19, 2001. The Second District Court
of Appeal of Florida affirmed per curiam Wilson’s convic-
tions and sentences on July 9, 2003. Wilson v. State, No.
2D01-4868, 853 So.2d 424 (Fla. Dist. Ct. App. 2003). The
mandate issued on September 10, 2003.
Mr. Wilson then pursued collateral attacks against
his conviction. On February 1, 2005, the Florida Second
District Court of Appeal denied his state petition for writ
of habeas corpus, Wilson v. State, No. 2D04-3354, 896
So.2d 761 (Fla. Dist. Ct. App. 2005), and on February 16,
2005, the Florida Supreme Court declined review. Wilson
v. State, No. SC05-274, 895 So.2d 1068 (Fla. 2005). Peti-
tioning the United States District Court for the Middle
District of Florida fared no better. Wilson v. Sec’y, Dep’t of
Corr., No. 8:07-cv-2185, 2009 WL 2900716 (M.D. Fla.
Sept. 4, 2009). The United States Supreme Court ulti-
mately denied his petition for certiorari on October 4,
2010. Wilson v. McNeil, 131 S. Ct. 249 (2010).
For veterans who have service-connected disabilities
rated at 20% or more and who are “incarcerated . . . for a
period in excess of sixty days for conviction of a felony,” 38
U.S.C. § 5313(a)(1) requires a reduction in compensation
payment to the level of 10% disability, effective “the sixty-
first day of such incarceration.” 38 U.S.C. §§ 1114(a),
5313(a)(1)(A). Mr. Wilson notified the Department of
Veterans Affairs (“Agency”) that he was incarcerated on
April 7, 2000, before he was sentenced. The Agency did
not receive notification of his actual conviction of a felony
until February of 2002.
On February 26, 2002, the Agency informed Mr. Wil-
son by letter that his rate of compensation would be
reduced from 70% to 10%, effective back to December 20,
2001, the sixty-first day of his incarceration dating from
October 19, 2001. It then sought overpayment in the
amount of $15,464.50. Mr. Wilson applied for a waiver of
4 WILSON v. GIBSON
the overpayment from the Regional Office Committee on
Waivers and Compromises, which was denied.
In addition, on February 27, 2012, Mr. Wilson was
denied an application for a TDIU rating by the Regional
Office on the basis that his unemployability was due to
his incarceration and not due to disability.
II
Mr. Wilson appealed to the Board, seeking waiver of
the overpayment and a TDIU rating. In re Wilson, No. 03-
28 094 (Bd. Vet. App. Sept. 17, 2007) (“First Board Op.”).
The Board applied the multi-factor test set forth in 38
C.F.R. § 1.965 to determine that the recovery of the
overpayment debt would not be against “equity and good
conscience.” Id. at 9-11. Accordingly, it denied waiver of
overpayment. The Board further found that Mr. Wilson
was not entitled to a TDIU rating because of evidence
that “employment was realistic and feasible” before his
incarceration and that “[his] unemployment is due to
incarceration and is not the result of his service-connected
disabilities.” Id. at 7.
Mr. Wilson challenged the Board’s decision at the
Veterans Court on the waiver of overpayment issue and
his TDIU claim. By joint motion, with Mr. Wilson repre-
sented by counsel, the parties sought remand to the Board
to take further evidence on the issue of undue hardship
regarding the waiver issue. The parties however expressly
asked the Veterans Court “not to disturb” the part of the
Board decision that denied Mr. Wilson’s TDIU claim. On
November 18, 2009, the Veterans Court entered an order
remanding the case to the Board according to the joint
remand request and dismissing the TDIU claim. On
remand, the Board considered all the evidence and again
denied waiver of overpayment. In re Wilson, No. 03-28
094 (Bd. Vet. App. Dec. 10, 2010).
WILSON v. GIBSON 5
Mr. Wilson again appealed to the Veterans Court. He
challenged the validity of the overpayment debt on the
ground that his conviction of a felony for which he was
incarcerated should not be deemed to occur until the
conviction is absolutely final, that is, the date upon which
he was denied review of the conviction by the United
States Supreme Court, which occurred on October 4,
2010. His challenge raised a question of interpretation of
38 U.S.C. § 5313, the statute pursuant to which his com-
pensation benefits were reduced on account of his incar-
ceration for conviction of a felony. According to Mr.
Wilson’s view of the statute, his compensation could not
be reduced until his conviction was final, and consequent-
ly he is entitled to retain the compensation payments
subject to the claim of overpayment. Mr. Wilson also
challenged the Board’s refusal to grant him a waiver of
the overpayment debt.
In a single judge memorandum, the Veterans Court
affirmed the conclusions of the Board. Mem. Op. at 1. The
Veterans Court first concluded that the debt was valid. It
stated that Mr. Wilson’s status under § 5313(a)(1) as
“incarcerated . . . for conviction of a felony” is “without
regard to whether [he] has appealed his conviction.” Id. at
5. The Veterans Court also held that there was no clear
error in the factual findings of the Board with regard to
the denial of waiver.
Mr. Wilson subsequently sought reconsideration of
the adverse decision of the single judge or, in the alterna-
tive, a panel decision from the Veterans Court. The Vet-
erans Court granted his motion for a panel decision,
which maintained the single-judge memorandum decision
as the decision of the court. Wilson v. Shinseki, No. 11-
0165 (Vet. App. Nov. 14, 2012).
III
As noted above, Mr. Wilson’s appeal to this Court
raises three issues: (1) his view of 38 U.S.C. § 5313, which
6 WILSON v. GIBSON
would begin reduction of disability benefits on account of
incarceration for conviction of a felony on the date when a
conviction is final; (2) his claim that the Board incorrectly
assessed the factors governing waiver of overpayment;
and (3) his TDIU claim. We address these issues in turn
below.
Our jurisdiction over appeals from the Veterans Court
is limited. We have “exclusive jurisdiction to review and
decide any challenge to the validity of any statute or
regulation or any interpretation thereof brought under
[§ 7292], and to interpret constitutional and statutory
provisions to the extent presented and necessary to a
decision.” 38 U.S.C. § 7292(c). We may not review factual
determinations or the application of law or regulation to a
particular set of facts, unless a constitutional issue is
presented. § 7292(d)(2).
IV
38 U.S.C. § 5313(a)(1) states in relevant part,
. . . any person who is entitled to compensation . . .
and who is incarcerated in a Federal, State, local,
or other penal institution or correctional facility
for a period in excess of sixty days for conviction of
a felony shall not be paid such compensation . . .,
for the period beginning on the sixty-first day of
such incarceration and ending on the day such in-
carceration ends, in an amount that exceeds . . . in
the case of a veteran with a service-connected dis-
ability rated at 20 percent or more, the rate of
compensation payable [for a service-connected
disability rated at 10 percent] . . . .
(emphases added).
The Veterans Court provided the following construc-
tion of the provision:
WILSON v. GIBSON 7
the beginning of the period of incarceration re-
ferred to in 38 U.S.C. § 5313(a)(1) is calculated
without regard to whether the veteran has ap-
pealed his conviction
Mem. Op. at 5. Accordingly, the Veterans Court sustained
the Board’s conclusion that Mr. Wilson was “incarcerated
. . . for conviction of a felony” as of October 19, 2001.
Before the Veterans Court, Mr. Wilson argued that a
conviction is final under § 5313(a)(1) only after exhaustion
of federal habeas corpus relief. On appeal, he urges the
same construction of “conviction,” and alternatively
argues that a conviction is final after issuance of the
mandate by a state court denying direct appellate review
of a felony conviction.
Mr. Wilson asserts that § 5313(a)(1) must contem-
plate the right to appeal a conviction, directly and collat-
erally, through the writ of habeas corpus. He points to the
fact that a final state court judgment is a prerequisite to
habeas corpus review, see 28 U.S.C. §2244(d)(1)(A), and
from that fact argues that reduction of compensation
under 38 U.S.C. § 5313(a)(1) should proceed only follow-
ing entry of a final judgment of conviction of a felony. Of
course nothing in § 5313(a)(1) prevents the right to appeal
a conviction, and there is no reason why the requirements
for perfection of habeas corpus review should have any
relevance to the statutory determination by Congress that
compensation benefits should be reduced upon incarcera-
tion for conviction of a felony.
The plain language of the statute undeniably supports
the interpretation of the Veterans Court that reduction of
compensation under § 5313(a)(1) depends only upon
incarceration for a period in excess of sixty days for con-
viction of a felony, not upon the conviction becoming final
in state courts, or after complete exhaustion of post-
conviction review opportunities. First, the plain language
of the statute requires only a “conviction,” not a “final
8 WILSON v. GIBSON
conviction.” A “conviction” is “[t]he act or process of judi-
cially finding someone guilty of a crime; the state of
having been proved guilty,” or “[t]he judgment (as by a
jury verdict) that a person is guilty of a crime.” BLACK’S
LAW DICTIONARY 358 (8th ed. 2004). In the criminal law
setting, the ordinary meaning of “conviction” is a trial
determination of guilt, without regard to whether the
conviction is appealed. When Congress wants to trigger
events upon a final conviction, it knows how to do so, and
does so explicitly. See, e.g., 5 U.S.C. § 8332(o)(3), (6)
(barring federal retirement benefits following the “final
conviction” of certain offenses and defining “final convic-
tion” to refer to cases in which appeal rights have expired
or been exhausted); 10 U.S.C. § 12312(a)(2) (providing for
involuntary release from military service if a service-
member “is convicted and sentenced to confinement . . .
and the sentence has become final”); 38 U.S.C.
§ 2411(b)(1)-(2) (barring interment in a national cemetery
of a person who has been convicted of a Federal or State
capital crime “and whose conviction is final”). Accordingly,
there is no basis for importing the requirement of final
conviction into 38 U.S.C. § 5313(a)(1).
Second, the plain language of the statute states that a
person incarcerated on a felony conviction “shall not be
paid [the full amount of benefits] . . . for the period begin-
ning on the sixty-first day of such incarceration.”
§ 5313(a)(1). This language mandates that the reduction
of compensation be based on, and measured from, a date
of incarceration, not from a date upon which a person had
exhausted all available post-conviction avenues of relief.
Mr. Wilson’s theory of the statute needs the statute to say
that the incarcerated person not be paid the full amount
of benefits “for the period beginning on the sixty-first day
of incarceration after the conviction becomes final.” The
plain language keys the reduction of compensation to an
incarceration date without regard to whether post-
conviction review is pursued.
WILSON v. GIBSON 9
The Secretary’s implementing regulation for
§ 5313(a)(1) also reads the statute to begin reduction of
compensation following incarceration for a felony convic-
tion. In particular, the regulation specifies reduction of
benefits following incarceration for a felony conviction,
and specifically provides that “[i]f a conviction is over-
turned on appeal, any compensation . . . withheld under
this section . . . shall be restored to the beneficiary.” 38
C.F.R. § 3.665(m). The regulation does not contemplate
full payment of benefits while post-conviction relief is
sought, as Mr. Wilson claims. Instead, the regulation
contemplates reduction of benefits on the sixty-first day of
incarceration for a felony conviction, and restoration of
full benefits after successful post-conviction review.
The statute will not bear the weight of Mr. Wilson’s
argument. Reduction of compensation benefits begins on
the sixty-first day of incarceration for a felony conviction,
regardless of whether post-conviction judicial review is
sought. We therefore affirm the statutory construction of
the Veterans Court, and reject Mr. Wilson’s contention
that the overpayment amount is invalid.
V
Mr. Wilson’s challenge to the Board’s failure to grant
him a waiver of compensation overpayment goes to the
facts of the case, as they line up against the standards by
which a waiver request is measured, which are set forth
in the Secretary’s regulations at 38 C.F.R. § 1.965. Mr.
Wilson does not challenge the legality of those standards,
but instead argues that he should have prevailed under
them. He thus asks us to reweigh the facts, an exercise
beyond our jurisdictional reach. See 38 U.S.C.
§ 7292(d)(2). We therefore dismiss his appeal of the denial
of his waiver request.
10 WILSON v. GIBSON
VI
Mr. Wilson’s request that we greet and decide his
TDIU claim frankly admits that this matter was not
reached and decided in the Veterans Court decision from
which he appeals. Wilson Brief at 3. As noted above, the
TDIU claim was alive on Mr. Wilson’s first appeal from
the Board to the Veterans Court. In that appeal, a joint
remand request was granted, but a joint request of dis-
missal of the TDIU claim was also granted. The dismissal
of the TDIU claim is final and not subject to review on
this appeal. There is no TDIU issue in the decision on
appeal. With nothing to adjudicate, we dismiss Mr. Wil-
son’s TDIU claim for want of subject matter jurisdiction.
Guillory v. Shinseki, 669 F.3d 1314, 1320 (Fed. Cir. 2012).
AFFIRMED-IN-PART AND DISMISSED-IN-PART
COSTS
No costs.