UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
NO . 05-3184
KEVIN J. ROSENBERG , APPELLANT ,
V.
GORDON H. MANSFIELD ,
ACTING SECRETARY OF VETERANS AFFAIRS, APPELLEE.
On Appeal from the Board of Veterans' Appeals
(Argued August 21, 2007 Decided November 28, 2007 )
Kevin J. Rosenberg, pro se.
Brian P. Tierny, with whom Paul J. Hutter, General Counsel; R. Randall Campbell,
Assistant General Counsel; Brian B. Rippel, Deputy Assistant General Counsel; and Ella Krainsky,
Appellate Attorney, were on the brief, all of Washington D.C., for the appellee.
Before GREENE, Chief Judge, and KASOLD and LANCE, Judges.
LANCE, Judge, filed the opinion of the Court. KASOLD, Judge, filed a concurring opinion.
LANCE, Judge: The appellant, Kevin J. Rosenberg, an attorney acting on his own behalf,
appeals a July 15, 2005, decision of the Board of Veterans' Appeals (Board). Record (R.) at 1-10.
In that decision, the Board denied his claim for basic educational assistance under 38 U.S.C. § 3011.
For the reasons set forth below, the Board's July 2005 decision will be affirmed.
I. BACKGROUND
In August 1992, the appellant joined the University of Arizona's Naval Reserve Officer
Training Corps (NROTC) as a College Program Basic student. R. at 40. In July 1993, the Secretary
of the U.S. Navy, acting pursuant to his authority under 10 U.S.C. § 2107, selected the appellant for
an NROTC scholarship. R. at 17, 33. The following month, the appellant signed an NROTC
Scholarship Service Agreement, the terms of which officially recognized his appointment as a
section 2107 midshipman and his entitlement to three years of financial assistance. R. at 17-20.
That assistance totaled $3,675 in 1993, $7,350 in 1994, and $3,989 in 1995. R. at 21.
In December 1996, after successfully completing the NROTC program, the appellant was
commissioned as an ensign in the U.S. Navy. That same month, he also signed a DD Form 2366,
a statement of understanding with respect to his "eligibility to participate in the Veterans'
Educational Assistance Act of 1984 (New GI Bill)," wherein the appellant acknowledged that he
was an "ROTC scholarship graduate" and hence "NOT ELIGIBLE" for basic educational assistance
under Chapter 30, title 38, U.S. Code. R. at 23. He served honorably in the U.S. Navy from
December 1996 until December 2000. R. at 4, 14-15.
In April 2001, the appellant applied for basic educational assistance under 38 U.S.C. § 3011
for the cost of attending law school. R. at 25-27. VA denied that claim, and the appellant appealed.
R. at 29. In August 2001, while his appeal was still pending, the appellant enrolled as a full-time
student at the Yeshiva University, Benjamin Cardozo School of Law in New York, New York. In
January 2002, VA reversed its original decision and issued the appellant a "Certificate of Eligibility"
for 36 months of Chapter 30 educational benefits. R. at 55.
In February 2003, the U.S. Navy recalled the appellant to active duty. R. 69-75. This change
in military status prompted VA to discontinue his Chapter 30 educational benefits. R. at 5. In June
2003, one month after his release from active duty, VA received the appellant's request for
reinstitution of his Chapter 30 educational benefits. R. at 61-62. In October 2003, the RO notified
the appellant that those benefits had been terminated, effective August 27, 2001, because he had
received more than $3,400 in financial assistance annually during his participation in the section
2107 NROTC scholarship program. R. at 89-90. While his appeal of that decision was pending, the
Secretary waived the $11,109.33 debt the appellant had accrued as a result of the overpayment in
Chapter 30 educational benefits he received during his first four semesters of law school. R. at 142-
43. The Secretary also granted $3,643.83 in additional equitable relief, an amount equal to the
Chapter 30 educational benefits that the appellant, if eligible, would have received during the Fall
2003 semester. R. at 151.
In July 2005, the Board issued the decision here on appeal. The Board found that the
appellant was not entitled to Chapter 30 educational benefits because he had received more than
$3,400 in financial assistance annually during his participation in the section 2107 NROTC
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scholarship program. R. at 7-9. The Board further found that it had no legal authority to grant an
equitable award of Chapter 30 educational benefits. R. at 9 (citing Harvey v. Brown, 6 Vet.App.
416, 425 (1994)).
II. ANALYSIS
The appellant argues that the Secretary's interpretation of 38 U.S.C. § 3011 is incorrect and
that, even if his interpretation is correct, equitable estoppel bars the termination of his Chapter 30
educational benefits. Appellant's Brief (Br.) at 5-9. The Secretary responds that the plain meaning
of 38 U.S.C. § 3011 bars the appellant from receiving basic educational assistance and that there is
no merit, therefore, to his equitable estoppel argument. Secretary's Br. at 6-11.
A. 38 U.S.C. § 3011(c)(3) and 10 U.S.C. § 2107
Section 3011 of title 38, U.S. Code, is the entitlement provision for basic educational
assistance. See 38 C.F.R. § 21.7040 (2007); see also Burton v. Nicholson, 19 Vet.App. 249, 251
(2005) (discussing the history of veterans educational assistance). Subsection (c)(3) of section 3011
sets forth the eligibility requirements for veterans who have received financial assistance pursuant
to 10 U.S.C. § 2107.1 It states:
(3) An individual who after December 31, 1976, receives a commission as an officer
in the Armed Forces upon completion of a program of educational assistance under
section 2107 of title 10 is not eligible for educational assistance under this section
if the individual enters on active duty-
(A) before October 1, 1996; or
(B) after September 30, 1996, and while participating in such program received
more than $3,400 for each year of such participation.
38 U.S.C. § 3011(c)(3). The appellant completed a section 2107 program of educational assistance,
was commissioned as an ensign in the U.S. Navy and entered active duty after September 30, 1996,
and received more than $3,400 during each of his three years as a section 2107 midshipman. The
issue here is whether the appellant is eligible for Chapter 30 educational benefits because he did not
1
Section 2107 of title 10, U.S. Code, establishes a "[f]inancial assistance program for specially selected
members." It provides that the Secretary of the military department concerned may, subject to certain age restrictions,
specially select a citizen or national of the United States for appointment as a cadet or midshipman in the reserve
component of the armed forces under his jurisdiction. 10 U.S.C. § 2107(a)-(b). Once the statutorily-required contract
is executed, an appointee then becomes eligible to receive financial assistance for "tuition, fees, books, and laboratory
expenses," or, in certain circumstances, for room and board. 10 U.S.C. § 2107(c)(1), (c)(3).
3
receive any section 2107 financial assistance while participating in the NROTC College Program
during the 1992-1993 school year (SY).
"'Statutory interpretation begins with the language of the statute, the plain meaning of which
we derive from its text and its structure.'" Myore v. Nicholson, 489 F.3d 1207, 1211 (Fed. Cir. 2007)
(quoting McEntee v. Merit Sys. Prot. Bd., 404 F.3d 1320, 1328 (Fed. Cir. 2005)). Section 3011states
that section 2107 program participants who entered active duty after September 30, 1996, and who
received more than $3,400 per year "while participating in such program" are not eligible for basic
educational assistance. See 38 U.S.C. § 3011(c)(3)(B) (emphasis added). The appellant argues that
he received no financial assistance "while participating in an ROTC program" during the 1992-
1993 SY; therefore, he qualifies for the eligibility exception. Br. at 5. He further argues that the
statute intends to provide educational benefits to NROTC members, himself included, who "did not
receive a full, four year scholarship," and that Congress's decision to increase the maximum
allowable amount of ROTC educational assistance from $2,000 to $3,400 in the Veterans Education
and Benefits Expansion Act (VEBEA) of 2001, Pub. L. 107-103, § 105, 115 Stat. 983 (codified in
part at 38 U.S.C. §§ 3011, 3012), supports these contentions. Br. at 6-7.
Contrary to the appellant's assertions, the text and structure of the statute make clear that the
clause "while participating in such program" refers only to the section 2107 program of educational
assistance. See Gardner v. Derwinski, 1 Vet.App. 584, 586 (1991) ("Determining a statute's plain
meaning requires examining the specific language at issue and the overall structure of the statute."),
aff'd sub nom. Gardner v. Brown, 5 F.3d 1456 (Fed. Cir. 1993), aff'd 513 U.S. 115 (1994); Johnson
v. Brown, 9 Vet.App. 369, 371 (1996) (When "'the plain meaning of a statute is discernible, that
"plain meaning must be given effect."'" (quoting Tallman v. Brown, 7 Vet.App. 453, 460 (1995)));
Smith v. Derwinski, 2 Vet.App. 429, 431 (1992) (If "a reviewing court 'find[s] the terms of a statute
unambiguous, judicial inquiry is complete except in rare and exceptional circumstances.'" (quoting
Demarest v. Manspeaker, 498 U.S. 184 (1991))). The record shows that the appellant was not
"specially selected" for section 2107's financial assistance program until July 1993, and that he did
not sign the NROTC Scholarship Service Agreement officially recognizing his appointment as a
section 2107 midshipman until August 1993. Thus, his participation in the NROTC as a College
Program Basic student during the 1992-1993 SY is simply not relevant to his eligibility for basic
4
educational assistance under the statute.2 The appellant has not identified anything in the legislative
history that would support a contrary interpretation, see Transco Prods. Inc. v. Performance
Contracting, Inc., 38 F.3d 551, 556 (Fed. Cir. 1994) ("When statutory interpretation is at issue, the
plain and unambiguous meaning of a statute prevails in the absence of clearly expressed legislative
intent to the contrary."), and he has not demonstrated that our application of the same would produce
an absurd result. See Gardner, 1 Vet.App. at 587 (noting the limited "'absurd result' exception to
the plain meaning rule"). Therefore, we must reject the interpretation urged by the appellant on
appeal. See Babbitt v. Oglala Sioux Tribal Public Safety Dep't, 194 F.3d 1374, 1378 (Fed. Cir.
1999) (stating that "we must assume that Congress 'says in a statute what it means and means in a
statute what it says there'" (quoting Conn. Nat'l Bank v. Germain, 503 U.S. 249, 254 (1992))); Tropf
v. Nicholson, 20 Vet.App. 317, 321 n.1 (2006) ("[A] functioning system of laws must give primacy
to the plain language of authorities . . . Without standard word meanings and rules of construction,
neither Congress nor the Secretary can know how to write authorities in a way that conveys their
intent and no practitioner or–more importantly–veteran can rely on a statute or regulation to mean
what it appears to say.").
B. Equitable Estoppel
The appellant argues that equitable estoppel bars the termination of his educational benefits,
because he detrimentally relied on VA's erroneously-issued January 2002 Certificate of Eligibility.
The Supreme Court has held that the Appropriations Clause of the Constitution, U.S. CONST. art. I,
§ 9, cl. 7, precludes the judiciary from ordering an award of public funds to a statutorily ineligible
claimant on the basis of equitable estoppel. See OPM v. Richmond, 496 U.S. 414, 430 (1990); see
also Utah Power & Light Co. v. United States, 243 U.S. 389, 408-09 (1917) (holding that "the
2
A section 2107 participant's eligibility for Chapter 30 educational benefits depends on the amount of financial
assistance he or she receives during each scholarship year, not on the total amount of financial assistance received or
the absence of such assistance during a non-scholarship period. W e acknowledge that this interpretation of the statute
may produce unfair results. For instance, a 4-year section 2107 recipient is eligible for additional Chapter 30 educational
benefits if, during any one of those 4 years, he or she received $3,400 or less in financial assistance. However, a 2-year
section 2107 scholarship recipient is not eligible for such benefits if, during both of those 2 years, he or she received
$3,401 in financial assistance. That being said, it is the responsibility of Congress, not the Court, to address any
unfairness in the statute as written. See Ciba-Geigy Corp v. United States, 223 F.3d 1367, 1373 (Fed. Cir. 2000) ("It
is Congress's task to change the words of the statute."); see also United States v. Missouri Pac. R.R. Co., 278 U.S. 269,
277-78 (1929) ("Inconvenience or hardships, if any, that result from following the statute as written, must be relieved
by legislation.").
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United States is neither bound nor estopped by acts of its officers or agents in entering into an
arrangement or agreement to do or cause to be done what the law does not sanction or permit").
That precedent is controlling here. Accordingly, our determination that the appellant is not eligible
to receive basic educational assistance precludes an award thereof on the basis of equitable estoppel.
See OPM, 496 U.S. at 434. ("[I]t is enough to say that this Court has never upheld an assertion of
estoppel against the Government by a claimant seeking public funds.").
III. CONCLUSION
After consideration of the appellant's and the Secretary's briefs, and a review of the record,
the Board's July 15, 2005, decision is AFFIRMED.
KASOLD, Judge, concurring: I write separately to address what is a much too narrow view
by the Secretary of our jurisdiction. Specifically, the Secretary argues that the Court lacks
jurisdiction to even review Mr. Rosenberg's claim for equitable estoppel, ostensibly because we do
not sit as a court of equity. See Secretary's Brief (Br.) at 9.1
Although we are not a court of equity in the sense that we cannot render an award that is
contrary to law, this is true of all federal courts,2 see Immigration & Naturalization Serv. v.
Pangilinan, 486 U.S. 875, 883 (1988) ("[I]t is well established that 'courts of equity can no more
disregard statutory and constitutional requirements and provisions than can courts of law.'"(quoting
Hedges v. Dixon County, 150 U.S. 182, 192 (1893))); see also OPM v. Richmond, 496 U.S. 414, 434
(1990) ("[I]t is enough to say that this Court has never upheld an assertion of estoppel against the
Government by a claimant seeking public funds.").
Further, although we generally do not have jurisdiction to review the Secretary’s exercise
of his equitable authority under 38 U.S.C. § 503, see Harvey v. Brown, 6 Vet.App. 416, 425 (1994)
(recognizing that neither the Board nor the Court has jurisdiction to review the Secretary's exercise
1
Indeed, although OPM v. Richmond, 496 U.S. 414, 434 (1990) is controlling in this case, the Secretary fails
to cite to it in his written brief, relying instead on the assertion that we lack jurisdiction to hear the issue.
2
"There is no procedural distinction in federal court between suits in equity and suits at law." 27A A M .J U R .
2 D Equity § 4 (1996). See generally, the Fed. R. Civ. P. 1 (stating that these rules govern suits at law, equity, and in
admiralty); F ED . R. C IV . P. 2 (noting in federal courts there is one form of action called a "civil action").
6
of his equitable discretion),3 it does not follow that we lack the authority to review the arguments
made in this case, or any other arguments seeking equitable relief due to error on the part of the
Secretary. Indeed, as with any federal court, we have all the authority necessary to exercise
equitable jurisdiction and direct equitable relief not otherwise restricted by law. Cf. Pangilinan,
supra.
For example, early on the Court recognized its authority to review and consider the
application of equitable defenses. See Manio v. Derwinski, 1 Vet.App. 140, 143 (1991) (explicitly
stating our authority to consider application of equitable defenses, but rejecting the Secretary's
equitable defense of laches because this defense was not raised to the Board); see also Browder v.
Derwinski, 1 Vet.App. 204, 208 (1991) (concluding "that the VA benefits system as well as the
Veterans' Judicial Review Act both militate against the application of the doctrine [of laches] to
cases before this Court"). We also have the authority to issue decisions nunc pro tunc when equity
warrants such action, see Padgett v. Nicholson, 473 F.3d 1364, 1371 (Fed. Cir. 2007) (stating that
"nunc pro tunc relief is equitable in nature"); Seals v. Derwinski, 2 Vet.App. 190, 191 (1992)
(granting nunc pro tunc relief for a Notice of Appeal (NOA) timely filed via facsimile but without
a confirming NOA as required by the Court's Rules of Practice and Procedure), and we have the
equitable authority of "all courts established by an Act of Congress" granted by the All Writs Act.
See 28 U.S.C. § 1651(a); see Cox v. West, 149 F.3d 1360, 1363 (Fed. Cir. 1998); see also
Rosemount, Inc. v. U.S. Int'l Trade Comm'n, 910 F.2d 819, 821 (Fed. Cir. 1990) (stating that an
injunction is equitable relief); Ben-Shalom v. Secretary of the Army, 807 F.2d 982, 988 (Fed. Cir.
1986) (holding writ of mandamus is equitable relief).
Moreover, in furtherance of our broad authority over Board decisions and matters below
affecting Board decisions,4 the Court has applied equitable estoppel against the Secretary precluding
3
Not yet addressed is our authority to review allegations that the Secretary's actions under 38 U.S.C. § 503
violate the Constitution, e.g., discrimination violating the equal protection guaranteed by the Constitution. See 38 U.S.C.
§ 7261(1) (directing the Court to decide all relevant questions of, inter alia, constitutional interpretation, when necessary
and presented).
4
See 38 U.S.C. § 7252 (granting "exclusive jurisdiction to review decisions of the Board of Veterans' Appeals
. . . [and the] "power to affirm, modify, or reverse a decision of the Board or to remand the matter, as appropriate"). See
also 38 U.S.C. § 7261(a)(3)(A) (providing the full scope of our review authority, including, inter alia, the authority to
compel action of the Secretary "unreasonably delayed" and set aside decisions, rules, or regulations of the Secretary or
the Board that are "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law").
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him from asserting that a claimant's informal claim is not a "cognizable claim for effective date
purposes." Servello v. Derwinski, 3 Vet.App. 196, 200 (1992) (finding no evidence that the
Secretary fulfilled his statutory duty pursuant to 38 C.F.R. § 3.155(a) to provide the veteran with an
application form after receipt of an informal claim, the Court held that the Secretary "may not . . .
assert . . . that . . . [the] informal claim is not a cognizable claim for effective-date purposes"
(quoting Quarles v. Derwinski, 3 Vet.App. 129, 137 (1992))). We have also held that fair process
requires certain notifications. See Thurber v. Brown, 5 Vet.App. 119, 123 (1993) ("The entire thrust
of the VA's nonadversarial claims system is predicated upon a structure which provides for notice
and an opportunity to be heard at virtually every step in the process."). Remedial actions such as
these are not mandated by statute or regulation; they are equitable resolutions imposed by the Court.
Thus, Mr. Rosenberg's equitable estoppel argument fails not because the Court lacks
jurisdiction to review such an argument. Rather, assuming arguendo that equitable estoppel was
otherwise appropriate in this case, and it is not clear it would be,5 Mr. Rosenberg's argument fails
because a monetary award simply is not permitted by law. See OPM, 496 U.S. at 430 ("The whole
history and practice with respect to claims against the United States reveals the impossibility of an
estoppel claim for money in violation of a statute.").
5
"[A] party seeking to assert equitable estoppel must demonstrate that (1) the party to be estopped made a
'definite misrepresentation of fact to another person having reason to believe that the other [would] rely upon it'; (2) the
party seeking estoppel relied on the misrepresentations to its detriment; and (3) the 'reliance [was] reasonable in that the
party claiming the estoppel did not know nor should it have known that its adversary's conduct was misleading.'"
Ramirez-Carlo v. United States, 496 F.3d 41, 49 (1st Cir. 2007) (quoting Heckler v. Community Health Services,
467 U.S. 51, 59 (1984)).
8