Frederick v. Shinseki

United States Court of Appeals

for the Federal Circuit

__________________________

RUTH HILL FREDERICK,

Claimant-Appellee,

v.

ERIC K. SHINSEKI, SECRETARY OF VETERANS

AFFAIRS,

Respondent-Appellant.

__________________________

2011-7146

__________________________

Appeal from the United States Court of Appeals for

Veterans Claims in case No. 09-433.

__________________________

Decided: July 3, 2012

__________________________

PAUL M. SCHOENHARD, Ropes & Gray LLP, of Wash-

ington, DC, argued for claimant-appellee.

JOSHUA E. KURLAND, Trial Attorney, Commercial Liti-

gation Branch, Civil Division, United States Department

of Justice, of Washington, DC, argued for respondent-

appellant. With him on the brief were TONY WEST, Assis-

tant Attorney General, JEANNE E. DAVIDSON, Director,

and MARTIN F. HOCKEY, JR., Assistant Director. Of coun-

sel on the brief were DAVID J. BARRANS, Deputy Assistant

General Counsel, and AMANDA R. BLACKMON, Attorney,

FREDERICK v. DVA 2

United States Department of Veterans Affairs, of Wash-

ington, 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 de-

pendency 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 jurisdic-

tion 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. Freder-

ick. Ordinarily, we exercise jurisdiction under 38

U.S.C. § 7292(a) only over final judgments by the Veter-

ans 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

3 FREDERICK v. DVA

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. See 38

U.S.C. § 7292(a); Forshey v. Principi, 284 F.3d 1335, 1351

(Fed. Cir. 2002) (en banc). We review legal determina-

tions by the Veterans Court independently without defer-

ence. 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. See 38 U.S.C. §§ 1310-1318. Her enti-

tlement 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. See 38 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 termi-

nated.

On December 16, 2003, Congress enacted the Veter-

ans 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.

FREDERICK v. DVA 4

See H.R. Rep. No. 108-211, at 12 (2003), reprinted in 2004

U.S.C.C.A.N. 2312, 2315. Consequently, Congress con-

sidered 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 spe-

cific language to section 103(d)(2)(B) that secures eligibil-

ity 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 surviv-

ing 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 surviv-

ing 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

5 FREDERICK v. DVA

was before the date of enactment of this Act and

after the individual had attained age 57, the indi-

vidual 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 hav-

ing 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 surviv-

ing 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 en-

actment of the above-quoted legislation, Mrs. Frederick

FREDERICK v. DVA 6

wrote the DVA asking it to begin “my DIC again. It was

stopped Dec. 1986.”

III

The Nashville, Tennessee, Regional Office of the De-

partment of Veterans Affairs (DVA) treated Mrs. Freder-

ick’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 Ap-

peals. She argued that prior to 2007, she had no way of

knowing of her eligibility for restoration of her discontin-

ued DIC benefits, and that the Secretary had breached his

duty to notify her of her eligibility. Because of the Secre-

tary’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

7 FREDERICK v. DVA

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 apply for reinstatement of their DIC benefit.”);

149 Cong. Rec. S15133 (daily ed. Nov. 19, 2003) (same);

149 Cong. Rec. H11716 (daily ed. Nov. 30, 2003) (same).

Although the Veterans Court appreciated the force of

the Secretary’s argument that the statute’s filing obliga-

tion is prospective from the enactment date, as well as the

import of the legislative history on that issue, the Veter-

ans Court saw subsection (e) of the Act in a different light.

It agreed with Mrs. Frederick that the statute creates an

end date, not a window of time, for submission of an

application for DIC benefits. But it held that the applica-

tion requirement is only applicable to a remarried spouse

who had not previously applied for and received DIC

benefits (group (b) described above). Thus, the Veterans

Court expressly held that “this provision [the application

requirement] does not apply to a remarried surviving

spouse, such as Mrs. Frederick, seeking reinstatement of

DIC.” Frederick, 24 Vet. App. at 342. The Veterans Court

reached that conclusion because it treated Mrs. Frederick

FREDERICK v. DVA 8

as seeking reinstatement of previous DIC benefits, not as

claiming eligibility for newly-conferred DIC benefits. The

Veterans Court thus reasoned that Mrs. Frederick’s

reinstatement request should be governed by 38 U.S.C.

§ 5110(g) and 38 C.F.R. § 3.114, which permit the Secre-

tary to take the initiative to establish effective dates for

benefits that have been enhanced by a change in law. In

a nutshell, the Veterans Court read the relevant statute

to set forth an end date, December 16, 2004, for applica-

tions to gain DIC benefits, with the application require-

ment applying only to the group (b) individuals described

above.

The Veterans Court bolstered its two-part decision in

several ways. First, in deciding that subsection (e) cre-

ates a filing end date time, the Veterans Court relied on

the distinction between the language in subsection (e) and

the language of an existing statutory provision that was

amended by subsection (f) in section 101 of the Act. The

language of the existing provision created a filing window

by stating that the application under the provision must

be filed “during the 1-year period ending on the effective

date.” In subsection (f) of the Act, this “during” language

was changed to “before the end of the one-year period

beginning on the date of enactment.” This amendment

resulted in the same timing language as is found in

subsection (e). From this, the Veterans Court reasoned

that Congress knew how to create a window filing re-

quirement, as it had in the language amended by subsec-

tion (f), and because it used different language in

subsection (e), that section could not create a window

filing time.

Second, the Veterans Court viewed the argument that

subsection (e) presents a window filing requirement as

inconsistent with 38 U.S.C. § 5110(g) and 38 C.F.R.

§ 3.114. Because nothing in those provisions restricts the

9 FREDERICK v. DVA

time when the Secretary can set an effective date for a

benefit enhanced by a change in law, the Veterans Court

surmised that reading a strict window filing time into

subsection (e) would conflict with those provisions.

Third, the Veterans Court analogized Mrs. Frederick’s

situation to the situation in which a surviving spouse

became ineligible for DIC benefits by remarriage before

the effective date but re-qualified for such benefits upon

the termination of the second marriage, whether by death

or divorce. Citing 38 C.F.R. § 3.55(a) and cases in which

the Secretary restored benefits on the termination of the

second marriage upon informal request by the surviving

spouse, the Veterans Court stated that in those situa-

tions, the surviving spouse was not required to file an

application. If the surviving spouse who reacquires DIC

benefits on the termination of a disqualifying marriage

does not have to file an application for restoration, the

Veterans Court surmised that Mrs. Frederick too should

not be required to file an application.

Because the Veterans Court saw Mrs. Frederick’s case

as a request for establishment of an effective date for the

benefits afforded to her by the Act, it remanded the case

for ascertainment of a correct effective date. The Secre-

tary timely appealed to this court.

V

Before this court, the parties present again their con-

flicting interpretations of the legislation which (1) created

a right for surviving spouses who remarry after the age of

57 to retain DIC benefits that otherwise would cease upon

remarriage, (2) extended that right to surviving spouses

who remarried after the age of 57 before enactment of the

legislation, and (3) set out an explicit requirement that

the an individual who remarried after the age 57 and

before the date of enactment would be eligible for such

FREDERICK v. DVA 10

benefits only if the individual submits an application for

such benefits in the specified time.

Mrs. Frederick continues to argue that the plain lan-

guage of the statute only requires an application to have

been filed before the calendar date December 13, 2004.

Consequently, she interprets the one year calculation in

the statute to refer only to its end point, one year after

enactment of the statute. So long as an application for

DIC benefits has been filed before that date, as was her

1970 initial application, she maintains the statute’s

requirements are met. She posits that this reading must

be correct because the DVA has created no forms for

reinstatement of DIC benefits based on subsection (e)—

instead its only relevant form is for initial application of

benefits. Mrs. Frederick rejects the holding of the Veter-

ans Court that she is not even covered by subsection (e),

describing that holding as harmless error. At oral argu-

ment, Mrs. Frederick argued that the admittedly adverse

legislative history must be overlooked because of what she

believes is the correct interpretation of the statute.

The Secretary argues that the statute imposes a pro-

spective application filing requirement binding on all

individuals seeking DIC benefits due to remarriage before

the effective date of the Act and after the age of 57. The

Secretary insists that subsection (e) must apply to both

groups (a) and (b) described above, and that both should

be treated the same. An application received any time

before the Act’s enactment, says the Secretary, is a nullity

insofar as the Act’s bestowal of eligibility to remarried

surviving spouses is concerned. Before the Act, Mrs.

Frederick was ineligible for benefits, according to the

Secretary, and it is only because of the Act that, effective

January 1, 2004, Congress created a new avenue for

eligibility. In the Secretary’s view, an application for

11 FREDERICK v. DVA

benefits, filed during a time when such benefits were

understood to terminate upon remarriage, cannot create

an entitlement to the new eligibility created by the Act.

The Secretary also argues that the Veterans Court

misunderstood the import of the amendment made in

subsection (f) and erred in seeing the case as governed by

38 U.S.C. § 5110(g). Further, the Secretary correctly

posits that the rule of interpretative doubt favoring

veterans in Brown v. Gardner, 513 U.S. 115 (1994), has no

force if a statute properly interpreted leaves no ambiguity

as to its meaning. The Secretary maintains that the

Veterans Court erred with its analogy to surviving

spouses whose DIC benefits are restored upon termina-

tion of a disqualifying second marriage, and argues that

should any doubt as to the meaning of the statute exist,

we should be guided by the legislative history.

VI

This appeal calls upon us to interpret subsection (e) of

the Act, and in the process to answer two questions: does

the subsection apply to Mrs. Frederick, and if so, what is

the application filing requirement that Mrs. Frederick

must meet?

Statutory interpretation of course starts with the

words of a statute, which must be interpreted in the

context of the Act as a whole. Where ambiguity persists

after application of the standard tools of statutory con-

struction, legislative history may be used to resolve any

such ambiguity. We need not recite the legislative history

of subsection (e), admitted by Mrs. Frederick as adverse

to her case, by rote, because when the present tense of

“submits” is coupled with the correct meaning of “such

benefits,” subsection (e) of section 101 is unambiguous.

Mrs. Frederick’s interpretation of subsection (e), as

made before the Veterans Court and repeated here, must

FREDERICK v. DVA 12

fail for three reasons, each tied to the text of the statute.

Taken together, these statutory provisions demonstrate

both that Mrs. Frederick is covered by subsection (e) and

that she was required to file an application for DIC bene-

fits, based on her new-found eligibility, within the one-

year period between December 16, 2003, and December

16, 2004.

A

First, Mrs. Frederick cannot overcome the correct

meaning of “submits an application for such benefits.”

As the Veterans Court acknowledged, the statutory

language “submits an application for such benefits” in the

present tense connotes that a post-enactment application

is necessary to secure DIC benefits based on remarriage

after the age of 57. The Veterans Court, however, erred

in only applying this prospective filing requirement to

individuals who remarried after age 57 and who had

never earlier applied for and received DIC benefits (group

(b) above).

“Such benefits” necessarily refers to DIC benefits that

became available for the first time by virtue of subsection

(e) for individuals who remarried after the age of 57.

“Such benefits” are the same whether in the hands of an

individual in group (a) or group (b), as described above.

An “application for such benefits” could only be submitted

after “such benefits” came into existence. “Submits”

therefore necessarily is forward-looking from the date of

enactment of the Act. Such interpretation is consistent

with the Dictionary Act, 1 U.S.C. § 1, which notes that

“unless the context indicates otherwise[,] . . . words used

in the present tense include the future as well as the

present” but not the past tense, and Legislative Drafting

Manuals, which prefer the present tense. See Senate

Office of the Legislative Counsel, Legislative Drafting

13 FREDERICK v. DVA

Manual, § 103(a), p. 4 (1997); House Legislative Counsel’s

Manual on Drafting Style, HLC No. 104-1, § 102(c), p. 2,

and § 351(f), p. 60 (1995). Although present tense verbs,

like “submits,” are not ordinarily thought to encompass

the past, the Supreme Court in Carr v. United States, 130

S. Ct. 2229, 2236 n.5 (2010), noted that “there may be

instances in which ‘context’ supports this sort of om-

nitemporality.” The context here, however, leaves no

room to interpret “submits an application for such bene-

fits” to include an application submitted in 1970. Because

the rights Mrs. Frederick seeks to vindicate did not exist

in 1970, an application submitted then could not suffice to

secure rights first created in 2004.

Mrs. Frederick would prefer us to interpret “such

benefits” as limited to the DIC benefits to which she was

entitled in 1970 upon the death of her veteran husband.

But the words of the subsection themselves stand in her

way. The phrase “such benefits” refers to the change in

law made in subsection (a) of the statute and to remar-

riage “before the date of enactment of this Act and after

the individual had attained the age of 57.” And, in addi-

tion, the statute provides that “an individual shall be

eligible for such benefits by reason of such amendment

only if the individual submits an application for such

benefits . . . “ (emphasis added). Further, the one-year

filing time has a specific beginning—the date of enact-

ment of the statute.

There is only one reasonable way to read the relevant

words in the statute. Coupled with the present tense of

“submits,” the statute must be construed to require an

application to be submitted after the date of enactment of

subsection (e) and “not later than the end of the one-year

period beginning on the date of enactment of this Act.”

Indeed, the same “not later than” language creates lim-

ited filing periods for filing of reports and other obliga-

FREDERICK v. DVA 14

tions imposed on the Secretary in sections 601(a)(3) and

602(b) of the Act. Veterans Benefits Act of 2003, Pub. L.

No. 108-183, 117 Stat. 2651, 2668-69. Thus, we must

reject Mrs. Frederick’s view that the application burden

imposed on her in subsection (e) is satisfied by an applica-

tion submitted in 1970.

B

Second, the interplay of subsections (e) and (f),

thought by the Veterans Court to support its decision that

subsection (e) sets a timing end date, strongly supports

the Secretary’s view that subsection(e) creates a window

filing requirement. As noted above, the Veterans Court

understood subsection (f) to replace a window filing re-

quirement with the language enacted in subsections (f)

and (e). Therefore, the Veterans Court reasoned that

subsection (e) as enacted could not create a window filing

requirement.

The Veterans Court overlooked the fact that subsec-

tion (f) is a technical correction, not intended to change

the substantive law being corrected. In the Veterans

Benefits Act of 2002, Congress provided that the remar-

riage after the age of 55 would not bar the furnishing of

certain medical benefits to the surviving spouse of a

veteran. In order to qualify for such benefits following

remarriage after the age of 55, the statute conditioned

availability of the medical benefits on the receipt by the

Secretary of an application for such medical care “during

the 1-year period ending on the effective date specified in

subsection (c).” Veterans Benefits Act of 2002, Pub. L. No.

107-330, 116 Stat. 2820, 2821. Subsection (c), however,

created an effective date of “60 days after the enactment

of this Act.” Id. The law thus created a window of time

for receipt of applications to secure the new benefits. The

problem with the language of the statute was that the

15 FREDERICK v. DVA

window, which lasted for one year, opened even before the

legislation was enacted, and closed shortly thereafter.

The 2002 law, corrected in 2003, thus created a filing

window for securing medical benefits, but opened that

window for a mere and almost meaningless 60 days. The

object of the amendment made in subsection (f) was to

extend the filing period for a longer period. The “during

the 1-year period” language that was amended had cre-

ated the short filing period, whereas the “before the end of

the one-year period” simply lengthened the window filing

period. Properly understood, the amendment made by

subsection (f) did not replace a window filing requirement

with an end date filing requirement; instead, the techni-

cal correction simply extended the previously flawed

window filing time to a meaningful period.

C

Third, section 701 of the Act underscores that the in-

terplay of subsections (e) and (f) supports the Secretary.

Section 701 makes clear, in the context of the statute as a

whole, that there is no difference between the meaning of

“during” and “before the end of.” Section 701 sets forth

time limitations on submission of certain claim informa-

tion to the Secretary. Section 701(d)(1) states that the

Secretary will readjudicate a claim if the request for

readjudication is received “not later than the end of the

one-year period that begins on the date of the enactment

of this Act.” This is the language used in subsection (e).

Section 701(d)(4)(A), however, states that the Secretary is

not obligated to readjudicate a claim that “is not submit-

ted during the one-year period referred to in paragraph

(1).” Section 701 thus shows that Congress did not assign

different meanings to “not later than the end of” and

“during” for purposes of filing time requirements. Conse-

quently, section 701, together with subsections (e) and (f)

of section 101, and coupled with the correct interpretation

FREDERICK v. DVA 16

of “submits an application for such benefits,” requires that

we interpret subsection (e) to create a filing window for an

individual seeking to secure the DIC benefits afforded by

the Act. In the words of the statute, the window’s “begin-

ning” is the date of enactment of the Act and its end is

“not later than the one-year period beginning on the date

of enactment.” The application submission requirement

applies to any individual seeking to secure the DIC eligi-

bility created by subsection (e) of the Act, whether or not

such an individual had previously enjoyed receipt of DIC

benefits.

VII

The points used by the Veterans Court to bolster its

view that Mrs. Frederick is exempt from the Act cannot

suffice to overcome subsection (e) as properly interpreted

in Part VI above.

Contrary to the view of the Veterans Court, 38 U.S.C.

§ 5110(g) and 38 C.F.R. § 3.114 are not necessarily incon-

sistent with, and do not stand in the way of, the require-

ment that Mrs. Frederick was required to file an

application in the specified window time period. Section

5110(g) permits the Secretary to set the effective date for

an award or increase in amount of DIC benefit, where the

award or increase in amount results from “any Act or

administrative issue.” But any such award or increase

cannot be retroactive “more than one year from the date

of application therefore or the date of administrative

determination of entitlement, whichever is earlier.” For

purposes of this appeal, at least, the Secretary agrees that

section 5110(g) “contemplates that the [Secretary] may

identify and grant previously filed claims that benefit

from a new law upon [his] own initiative, [but] it does not

relieve claimants from having to file a claim for benefits

under a new law when the [Secretary] does not do so.”

17 FREDERICK v. DVA

Appellant Br. 26. The Secretary relies on Wells v. Prin-

cipi, 3 Vet. App. 307, 309 (1992), in which the Veterans

Court held that the Secretary is not obliged to seek out

beneficiaries of new law. Where the Secretary has not

independently granted a new benefit to a previously filed

claim, as in Mrs. Frederick’s case, the individual is

obliged to apply for the newly-created benefit. The Veter-

ans Court in Wells, and the Secretary in this case, point

also to 38 U.S.C. § 5101(a), which requires that a claim

must be filed in order for benefits to be paid. Because

Mrs. Frederick’s 1970 application for DIC cannot suffice

to gain her eligibility that only arose in 2003, enforcing

the application requirement of subsection (e) is not neces-

sarily inconsistent with the authority of the Secretary to

establish effective dates under section 5110(g). The

pertinent regulation, 38 C.F.R. § 3.114 (a)(1) and (3),

recognizes the difference between the case in which the

DVA initiates a new effective date based on a change in

law, and the case in which no such initiative is taken and

the individual files an application.

The situation facing a DIC recipient who remarried

before the Act and whose remarriage terminated (either

by death or divorce) is no different from Mrs. Frederick’s

situation. The relevant statute, 38 U.S.C. § 5110(k),

requires a claim to be filed for reinstatement of benefits

upon annulment of a marriage, and 38 U.S.C. § 5110(l)

sets the effective date for benefits arising from termina-

tion of a remarriage by death or divorce “if application

therefore is received within one year from such termina-

tion.” In short, the Veterans Court overlooked the re-

quirement of an application in order to reclaim DIC

benefits upon the termination of disqualifying remarriage.

The Veterans Court thus erred in thinking that a person

in the terminated remarriage situation has no duty to

apply, and hence Mrs. Frederick should have no duty to

FREDERICK v. DVA 18

apply. As the Veterans Court noted, it is true that the

Secretary treats informal requests by individuals to

reinstate DIC benefits as sufficient application under

statute. Indeed, in this case the Regional Office accepted

Mrs. Frederick’s informal November 8, 2007, letter as an

application to gain the DIC rights afforded by the Act.

The sufficiency of Mrs. Frederick’s “application” has never

been challenged by the Secretary—only its timeliness.

VIII

For the reasons stated above, subsection (e) must be

interpreted to apply to any individual seeking to secure

the specific DIC benefits newly afforded thereby, and any

such individual is required to have applied for such bene-

fits after the date of enactment of the Act and before the

end of the one-year period thereafter. Mrs. Frederick’s

view of the statute cannot prevail. At the least, the

factors we have cited cast doubt on Mrs. Frederick’s view

of subsection (e) and would therefore create ambiguity as

to which party has the better interpretative argument.

Mrs. Frederick understandably does not wish to be drawn

into ambiguity, for there she must confront the legislative

history she recognizes is adverse and upon which the

Secretary could rely. See Staub v. Office of Pers. Mgmt.,

927 F.2d 571, 573 (Fed. Cir. 1991) (“Since both parties

claim victory on the face of the statute, we have no reluc-

tance to examine the legislative history [of the statute].”)

We need not pursue the ambiguity point further, for our

interpretation of the statute leaves no ambiguity as to

what Congress meant by subsection (e).

In the end, with no sustainable statutory interpreta-

tion to assert, and no desire to find ambiguity in the

statute, the only way Mrs. Frederick could prevail is on

the ground found by the Veterans Court: that she is

19 FREDERICK v. DVA

simply not covered by subsection (e). But that door, too, is

closed to Mrs. Frederick.

For the reasons stated above, we must reverse the de-

cision of the Veterans Court, and remand with instruc-

tions to dismiss Mrs. Frederick’s claim as untimely filed.

REVERSED AND REMANDED

COSTS

Each party shall bear its own costs.

United States Court of Appeals

for the Federal Circuit

__________________________

RUTH HILL FREDERICK,

Claimant-Appellee,

v.

ERIC K. SHINSEKI, SECRETARY OF VETERANS

AFFAIRS,

Respondent-Appellant.

__________________________

2011-7146

__________________________

Appeal from the United States Court of Appeals for

Veterans Claims in case No. 09-433.

__________________________

REYNA, Circuit Judge, dissenting

I do not believe that the United States Court of Ap-

peals for Veterans Claims (“Veterans Court”) misinter-

preted § 101(e) of the Veterans Benefits Act of 2003

(“Act”) by restoring dependency and indemnity compensa-

tion (“DIC”) benefits to surviving spouses of veterans who

remarry after age 57 and whose application was submit-

ted before December 16, 2004. The Veterans Court,

specialists in this area of law, properly held that Mrs.

Frederick met all of the statutory criteria and awarded

her DIC benefits as the remarried widow of a World War

II veteran. The majority decision strips that award from

Mrs. Frederick and thousands of others. I respectfully

dissent because the plain meaning of the statute requires

FREDERICK v. DVA 2

an interpretation favoring Mrs. Frederick; even if ambigu-

ity can be shown, canons of construction unique to veter-

ans law require that we resolve any remaining doubt in

her favor.

The relevant facts are uncontested and underscore the

merit of Mrs. Frederick’s claim under the Act. Mrs.

Frederick was married in 1961 to Mr. Fred T. Hill, a

World War II veteran who passed away with a 100%

disability rating in 1970 and she was at that time a

“surviving spouse” under the Act. See § 101(a). Mrs.

Frederick submitted an application for DIC benefits to the

Veterans Administration on June 4, 1970, shortly after

the death of her husband. She received DIC benefits from

the time of her husband’s death in 1970 until 1986, when

the benefits were terminated due to her marriage to Mr.

Spencer Frederick.

There is no question that “but for having remarried

[she] would [have remained] eligible for benefits” under

the Act. See § 101(e). Mrs. Frederick was born on Janu-

ary 4, 1929, and married Mr. Frederick in December of

1986 so at the time of her remarriage, she “had attained

age 57” as required by the Act. See id. Given her 1970

application for DIC benefits, her DIC claim was received

by the Secretary of Veterans Affairs “not later than the

end of the one-year period beginning on the date of the

enactment of th[e] Act,” to wit, before December 16, 2004.

See id. Accordingly, Mrs. Frederick meets every eligibility

requirement on the face of the Act, §§ 101(a) 1 and (e), 2

and should have been receiving DIC benefits.

1 “(a) The remarriage after age 57 of the surviving

spouse of a veteran shall not bar the furnishing of benefits

specified in paragraph (5) to such person as the surviving

spouse of the veteran.”

3 FREDERICK v. DVA

As the Veterans Court determined, the plain meaning

of the statute provides only an end date—“not later than

the end of the one-year period beginning on the date of

enactment of this Act”—by which an application for DIC

benefits must have been submitted. Frederick v. Shin-

seki, 24 Vet. App. 335, 338 (2011); § 101(e). I agree that

the Act’s clear language creates a final deadline, as op-

posed to a bounded period, for submission of a DIC bene-

fits application. Mrs. Frederick’s initial 1970 application

for DIC benefits precedes the Act’s critical date by more

than three decades. It was more than timely filed.

The majority holds that a second application for DIC

benefits should have been filed by Mrs. Frederick during a

narrow one-year window, between December 16, 2003 and

December 16, 2004; that is, Congress created a bounded

period of one year during which applications under the

Act should have been filed. Yet, the Act neither pre-

scribes filing “during,” “within,” or “between” two dates,

nor requires “a reapplication,” “a new application,” or

“another application.” In clear and plain language, the

Act provides only that “an application” must be submitted

“not later than” December 16, 2004. The Veterans Court

was correct that this clear language should control.

The majority works hard to establish that because the

word “submits” is drafted in the present tense, it indicates

2 “(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 appli-

cation 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.”

FREDERICK v. DVA 4

a fully prospective requirement, i.e., the filing of a new

application for DIC benefits. See Maj. Op. at 12-13.

(“Submits . . . necessarily is forward-looking from the date

of enactment of the Act.”). But the Supreme Court has

recognized that while not the typical understanding in

other circumstances, a word drafted in the present tense

may also be used to encompass past events in “instances

in which ‘context’ supports this sort of omnitemporality.”

Carr v. United States, 130 S. Ct. 2229, 2236 n.5 (2010).

Indeed, English-language scholars know well that the

present tense may refer to the past, a usage grammarians

call the “historical present.” See R. Pence and D. Emery,

A Grammar of Present-Day English, 262-63 (2d ed. 1963).

The historical present uses the present tense commonly in

narratives to express immediacy. Id. Furthermore, the

present tense may be used when time is meant to remain

indefinite. 3 Id. In this light, I believe that Congress used

the present tense word “submits” precisely because it did

not wish to limit § 101(e)’s reach to either past or future

applications. See Coal. for Clean Air v. U.S. Envtl. Prot.

Agency, 971 F.2d 219, 224-25 (9th Cir. 1992) (“The pre-

sent tense is commonly used to refer to past, present, and

future all at the same time.”); In re Stratford of Tex., Inc.,

3 The majority acknowledges that Congressional

drafting manuals prefer the present tense. Maj. Op. at

12. For example, Congress drafted 42 U.S.C.

§ 7413(c)(2) using the present tense: “any person who

knowingly—(A) makes any false material state-

ment, . . . (B) fails to notify or report as required under

this Act; . . .” 42 U.S.C. § 7413(c)(2) (emphasis added).

The Ninth Circuit observed that in this instance “Con-

gress uses the present tense to establish criminal liabil-

ity . . . . Yet clearly the 1990 Amendments do not forgive

criminal violations that occurred prior to the Amend-

ments just because Congress speaks in the present tense.”

Coal. for Clean Air v. U.S. Envtl. Prot. Agency, 971 F.2d

219, 225 (9th Cir. 1992).

5 FREDERICK v. DVA

635 F.2d 365, 369 (5th Cir. 1981) (“[T]he present tense of

a verb may sometimes refer to the past and to the future

as well as to the present.”). Such “omnitemporality”

makes sense in this context, signaling a congressional

intent to recognize that eligibility may be retained by

anyone who filed prior to the date of enactment, or within

a year thereafter. When “submits an application” is

added to the express deadline language “not later than,”

the meaning is irrefutably clear—only one application for

DIC benefits is required, filed any time before December

16, 2004.

We must assume when the words of a statute are ir-

refutably clear that Congress said what it meant and

meant what it said, thereby ending our judicial inquiry.

Conn. Nat’l Bank v. Germain, 503 U.S. 249, 253-54

(1992); United States v. LaBonte, 520 U.S. 751, 757

(1997). The legislative history, no matter how creatively

spun, cannot trump the plain and unambiguous language

of the statute. See Ratzlaf v. United States, 510 U.S. 135,

147-48 (1994) (“There are, we recognize, contrary indica-

tions in the statute’s legislative history. But we do not

resort to legislative history to cloud a statutory text that

is clear.”); Van Wersch v. Dep’t of Health & Human Servs.,

197 F.3d 1144, 1152 (Fed. Cir. 1999) (“[W]e are not pre-

pared to allow the extant legislative history . . . to trump

the irrefutably plain language that emerged when Con-

gress actually took pen to paper.”).

The Veterans Court found, and I agree, that the legis-

lative history here is, “at best, ambiguous.” Frederick, 24

Vet. App. at 342. The majority cites a single legislative

history quotation that remarried spouses “would have one

year to apply for the reinstatement of these benefits,” 149

Cong. Rec. S15,133-01 (daily ed. Nov. 19, 2003). Aside

that this language also does not create a defined one year

period for filing of applications, this limitation was not

FREDERICK v. DVA 6

included in the Act as passed. Maj. Op. at 4-5. This

inchoate idea—a bounded window for reinstatement—was

rejected by Congress, as evidenced that the Act was

passed containing language that goes the other way. This

case is a good example of why we should avoid reliance on

“murky, ambiguous, and contradictory” legislative his-

tory, especially when it defies the statute’s plain meaning

and defeats its remedial purpose. Exxon Mobil Corp. v.

Allapattah Servs., Inc., 545 U.S. 546, 568 (2005); see also

Ratzlaf, 510 U.S. at 147-48; Van Wersch, 197 F.3d at

1152.

Even if the statute did admit of ambiguity, we must

be loathe to construe § 101(e) against Mrs. Frederick. The

Act is a remedial statute intended to broaden eligibility

for DIC benefits. The veterans benefits system operates

in a uniquely pro-claimant manner so we must do justice,

ensuring that veterans and their families are treated

fairly. See Barrett v. Nicholson, 466 F.3d 1038, 1044 (Fed.

Cir. 2006); Hodge v. West, 155 F.3d 1356, 1362-64 (Fed.

Cir. 1998). Indeed, the Supreme Court has held that any

interpretive doubt be resolved in the veteran’s favor.

Brown v. Gardner, 513 U.S. 115, 117-18 (1994); Coffy v.

Republic Steel Corp., 447 U.S. 191, 196 (1980); Fishgold v.

Sullivan Dryrock & Repair Corp., 328 U.S. 275, 285

(1946); see also Sursely v. Peake, 551 F.3d 1351, 1355

(Fed. Cir. 2009). The Veterans Court faithfully applied

this important principle, and I would affirm.