Davenport v. Principi

UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS

No. 99-2030

ROBERT R. DAVENPORT , APPELLANT ,

V.

ANTHONY J. PRINCIPI,

SECRETARY OF VETERANS AFFAIRS, APPELLEE.

On Appeal from the Board of Veterans' Appeals

(Decided December 17, 2002 )

Robert R. Davenport, pro se.

John H. Thompson, Acting General Counsel; Ron Garvin, Assistant General Counsel; and

Carolyn F. Washington, Deputy Assistant General Counsel, all of Washington, D.C., were on the

pleadings for the appellee.

Before FARLEY, STEINBERG, and GREENE, Judges.

STEINBERG, Judge: The pro se appellant seeks review of a September 14, 1999, Board of

Veterans' Appeals (Board or BVA) decision that denied Department of Veterans Affairs (VA)

educational assistance benefits [hereinafter "education benefits"] under chapter 1606 of title 10, U.S.

Code, for periods of enlistment after November 30, 1997. Record (R.) at 3. The appellant filed a

brief, and the Secretary filed a motion for summary affirmance. The Court ordered supplementary

briefing in October 2001, to which both parties have responded. This appeal is timely, and the Court

has jurisdiction pursuant to 38 U.S.C. §§ 7252(a) and 7266(a). For the reasons that follow, the Court

will affirm the Board decision.

I. Relevant Background

The veteran served honorably on active duty in the U.S. Navy from November 1972 until

January 1977, including service in Vietnam. R. at 9, 11. After his discharge, he received VA

education benefits pursuant to 38 U.S.C. § 3451, et seq., to attend law school from January 1977 to

June 1979, to take a bar-examination review course from June through July 1979, and to attend

business school from September 1982 to May 1984. See Davenport v. Brown (Davenport I),

7 Vet.App. 476, 477 (1995) (located at R. at 32). By this point, the veteran had used 45 months of

the maximum of 48 months allotted for education benefits under chapter 34 of title 38, U.S. Code.

Ibid.; R. at 4; Appellant's Brief (Br.) at 2; Secretary's Motion (Mot.) at 3. In June 1991, he entered

the U.S. Army Reserves and obligated himself to six years of service, including service in the Persian

Gulf War. R. at 26. In September 1992, he signed a form entitled "Selected Reserve Educational

Assistance Program (GI Bill) Notice of Basic Eligibility", which provided in pertinent part:

2. NOTICE OF BASIC ELIGIBILITY

You meet the eligibility criteria for the . . . program . . . as

follows:

a. During the period of July 1, 1985[,] through June 30,

1988, you have agreed to serve six years in the Selected Reserve. . . .

....

3. INELIGIBILITY

Members of the Selected Reserve who have completed a

course of instruction required for a bachelor's degree or have the

equivalent evidence of completion of study . . . are ineligible for

benefits described in Paragraph 5.

....

5. MONTHLY ENTITLEMENTS

You are entitled to a monthly benefit in pursuit of a program

of education leading up to an undergraduate degree or the

equivalent evidence of completion of study as defined by the

[Veterans'] Administration . . . .

R. at 28 (emphasis added).

Pursuant to that Selective Reserve GI Bill program, the veteran applied in August 1995 for

VA education benefits for a certificate program in professional screenwriting. R. at 51-53. This

application was approved (R. at 56-57, 67-68, 72-73), and the veteran received more than 26 months

of VA education benefits until VA terminated those benefits as of November 30, 1997. R. at 77.

After the veteran inquired about the termination (R. at 75), VA responded that he had previously

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used 45 months of entitlements under the chapter 34 benefits program and that, because his

entitlement was limited to "48 months of combined education[] benefits", he was "only entitled to

3 months of [c]hapter 106 benefits". R. at 79. Although VA determined that he had been overpaid

benefits, his notice letter indicated that he would not be required to "repay this debt" because the

error was not his. R. at 79; see R. at 81. For reasons that are not clear from the record on appeal

(ROA), the veteran was later asked to repay this debt. R. at 149. The veteran filed a claim for

waiver of the debt and for additional benefits under chapter 106 (currently codified at chapter 1606)

of title 10, U.S. Code (see R. at 153); waiver was granted in September 1998 (R. at 158, 160), and

the veteran appealed to the Board the denial of education benefits under chapter 106 for periods of

enrollment after November 30, 1997.

In the BVA decision here on appeal, the Board denied chapter 1606 education benefits to the

veteran for periods of enrollment after November 30, 1997. R. at 3. The Board reasoned that it was

constrained by the law limiting to 48 months "the aggregate period for which an individual may

receive benefits under [c]hapter 1606, [t]itle 10, [U.S.] Code, and [c]hapter 34, [t]itle 38, [U.S.]

Code". R. at 4 (citing 38 U.S.C. § 3695(a)). The Board determined that the veteran had received,

between 1995 and 1997, 23 months of education benefits to which he was not entitled and that he

could not receive, under the law, any additional education benefits. R. at 4. In response to the

veteran's contractual arguments, the Board asserted that "VA is not a party to the contract the veteran

signed . . . , and[,] therefore, it has no contractual duties related thereto". R. at 4. In response to the

veteran's argument that he had received notice from VA that he had "9 months and 21 days of

remaining entitlement", the Board concluded that even if that statement were true, the Board is "not

authorized to award payment of benefits where statutory requirements for such benefits are not met".

R. at 5 (citing Harvey v. Brown, 6 Vet.App. 416, 424 (1994), and Shields v. Brown, 8 Vet.App. 346,

351 (1995)). In response to the veteran's argument that 38 C.F.R. § 21.4020(b) (1998) permitted

payment of the benefits that he sought, the Board determined that VA had not awarded extended

benefits under this discretionary provision and that, even if such benefits were proper, that provision

would not permit a "full 36 months of [c]hapter 1606 benefits". R. at 5. Finally, the Board rejected

the veteran's argument that the 48-month limitation was not intended to apply to veterans "who have

multiple periods of non[]continuous service, in different service branches, during different periods

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of war" by referring again to the statute and stating that there is "no legal basis for an award of any

additional education benefits". R. at 5-6 (citing 38 U.S.C. § 3695(a)).

II. Analysis

A. Parties' Contentions

In his principal brief, the appellant largely reiterates arguments that he had made before the

Board. He argues that the "government has the authority, under the same statute which [it] is

claiming [imposes] a 48[-]month limit on training, to waive that 48[-]month limit on training" and

that VA is "guilty of breach of contract" because the appellant had already satisfied his part of the

agreement when VA "terminat[ed]" the contract. Br. at 4-5. In support of his contractual arguments,

the appellant asserts that (1) because "there is no lack of specific detail in th[e] enlistment contact",

the omission of such a "material" term regarding the "48[-]month limit" indicates that it is not part

of the contract, and (2) VA, "acting as the agent for the Department of the Army", the party to the

contract, "is now estopped from adding a new term to the enlistment contract". Br. at 6-7.

Furthermore, the appellant argues that the statutory provision limiting the period of entitlement to

48 months applies only to the ten-year period in which the benefits may be used and that, if "a

veteran subsequently enters the service for a different war, and obtains a new ten[-]year entitlement

period under another statute, he logically also obtains the right to accrue up to 48 months of

educational entitlement to be used during that new ten[-]year period". Br. at 8. The appellant also

argues that the 48-month limit was not meant to apply to separate periods of service. Br. at 10-12.

In his motion for summary judgment, the Secretary argues that 38 U.S.C. § 3695(a) and

38 C.F.R. § 20.4020(a)(4), (a)(5) mandate that the veteran cannot, absent waiver, receive more than

48 months of benefits, and that the instant appeal "does not involve any determination that the

[a]ppellant was not entitled to [c]hapter 31 benefits in excess of the 48-month limitation, so [section]

3695(b) is not relevant". Mot. at 6. In response to the appellant's breach-of-contract arguments, the

Secretary asserts that "VA is not a party to any contract that the [a]ppellant may have signed with

the Army in 1991, so his remedy, if one exists, lies against the Department of the Army". Mot. at

8. Furthermore, the Secretary argues that the appellant cites no authority for his arguments regarding

congressional intent with respect to both the "10-year rule" and the 48-month limitation applying

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only to veterans serving a "single period of military service". Mot. at 8-9. The Secretary also argues

that the veteran's arguments raised to the Board regarding detrimental reliance have been abandoned

on appeal. Mot. at 9 (citing R. at 4-5 for appellant's argument and Ford v. Gober, 10 Vet.App. 531,

535-36 (1997); Degmetich v. Brown, 8 Vet.App. 208, 209 (1995); and Bucklinger v. Brown,

5 Vet.App. 435, 436 (1993), for abandonment law). Based on the authority cited by the Secretary,

the Court agrees and considers that argument abandoned. See Ford, Degmetich, and Bucklinger, all

supra.

After the parties filed these pleadings, the Court issued a briefing order, requesting that the

parties respond to the language in the enlistment contract (quoted above) that states that "[m]embers

of the Selected Reserve who have completed a course of instruction required for a bachelor's

degree or have the equivalent . . . are ineligible for benefits" and that entitlements are for education

"leading up to an undergraduate degree or the equivalent". Davenport v. Principi, No. 99-2030,

2001 WL 1182699 (Vet. App. Oct. 1, 2001) (citing R. at 28).

In response to the Court order, the appellant asserts that the government form containing the

terms of the contract was created in 1985 and that, pursuant to an amendment to 10 U.S.C. § 16131,

the rule that such benefits are only for the pursuit of a baccalaureate degree or an equivalent program

was abolished after the creation of that form. Response (Resp.) at 1-2 (citing Pub. L. No. 101-189

§ 642(a), 103 Stat. 1352 (1989) (codified as amended at 10 U.S.C. § 2131(c)(1), later renumbered

at 10 U.S.C. § 16131(c)(1))). The appellant argues that because "the statute is crystal clear", he is

"entitled to the [c]hapter 106 benefits". Resp. at 2. In the Secretary's response, he argues that the

public law to which the appellant referred did not actually amend the statute as the appellant

suggested, but instead retained the restriction that the benefit pertain to only baccalaureate-degree

or equivalent programs. Resp. at 1-2. Furthermore, the Secretary contends that the effective date

of that provision, September 30, 1990, "would have included potential benefits sought by the

[a]ppellant". Resp. at 2. Citing a November 1993 amendment that struck the limiting language and

provided a new subsection that specifically permits benefits for post-baccalaureate-degree programs

"subject to the availability of appropriations", the Secretary argues that this amendment is the one

that does what the appellant asserts that the prior public law did, but the Secretary contends that the

amendment is not applicable to the appellant's claims because, pursuant to Ryan v. West, 13 Vet.App.

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151, 156 (1999), and Landgraf v. USI Film Products, 511 U.S. 244, 265 (1994), it "cannot be read

to have retroactive effect". Resp. at 2-3. The Secretary concludes that even if the Court determines

that Landgraf does not apply, "the [a]ppellant is otherwise precluded from entitlement to the benefit

he now seeks by virtue of the aggregate period allowed by law for the receipt of such benefits".

Resp. at 3 (citing, inter alia, 38 U.S.C. § 3695(a)).

The appellant filed a reply, in which he argues that irrespective of whether the law was

amended in 1989 or in 1993, the Secretary's argument regarding retroactivity is irrelevant, because

the veteran "did not enroll in the program of graduate instruction until 1996". Reply at 2. The

appellant contends that the fact that he received approximately two years of benefits for his graduate

study program "is direct and definitive proof that such benefits were payable". Reply at 2. In

addition, the appellant argues that Congress intended, with the Reserve GI Bill, to provide an

incentive for college graduates who had already used their "Regular GI Bill" benefits to attend

college to now join the Reserves, and that all material terms should have been in the contract because

"[y]ou cannot expect every veteran, when reading an enlistment contract, to also read the entire U.S.

Code". Reply at 3.

B. Court's Disposition

Section 16131(a) directs military departments to "establish and maintain a program to

provide educational assistance to members of the Selected Reserve of the Ready Reserve of the

armed forces" for members who serve at least six years. 10 U.S.C. § 16131(a); see 10 U.S.C.

§ 16132. Section 16131(b) provides that "each educational assistance program established under

subsection (a) shall provide for payment by the Secretary concerned, through the Secretary of

Veterans Affairs, to each person entitled to educational assistance under this chapter who is pursuing

a program of education of an educational assistance allowance at the following rates"; the statute

then sets forth the applicable rates. 10 U.S.C. § 16131(b)(1). Section 16131(h) provides: "A

program of education in a course of instruction beyond the baccalaureate degree level shall be

provided by this chapter, subject to the availability of appropriations." 10 U.S.C. § 16131(h).

Section 3695 of title 38, U.S. Code, provides in pertinent part:

(a) The aggregate period for which any person may receive

assistance under two or more of the provisions of law listed below

may not exceed 48 months (or the part-time equivalent thereof):

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....

(4) Chapters 30, 32, 34, 35, and 36 of this title, and the former

chapter 33.

(5) Chapters 107, 1606, and 1611 of title 10.

....

(b) No person may receive assistance under chapter 31 of this title

in combination with assistance under any of the provisions of law

cited in subsection (a) of this section in excess of 48 months . . .

unless the Secretary determines that additional months of benefits

under chapter 31 of this title are necessary to accomplish the purposes

of a rehabilitation program . . . in the individual case.

38 U.S.C. § 3695; see 38 C.F.R. § 21.4020 (2002).

'"The starting point in interpreting a statute is its language'", Lee (Raymond) v. West,

13 Vet.App. 388, 394 (2000) (quoting Good Samaritan Hosp. v. Shalala, 508 U.S. 402, 409 (1993));

"if the intent of Congress is clear, that is the end of the matter." Cacatian v. West, 12 Vet.App. 373,

376 (1999) (citing Gardner v. Brown, 5 F.3d at 1456); see also Meeks v. West, 12 Vet.App. 352, 354

(1999) ("Principles of statutory construction require that, where a statute has a plain meaning, a

Court shall give effect to that meaning[;] . . . each part or section should be construed in connection

with every other part or section so as to produce a harmonious whole." (internal quotations and

citations omitted)). "In determining the plain meaning of statutory language, 'legislative purpose is

expressed by the ordinary meaning of the words used.'" Jones (McArthur) v. Brown, 41 F.3d 634,

638 (Fed. Cir.1994) (quoting Ardestani v. INS, 502 U.S. 129, 136 (1991)).

Here, the plain language of section 3695(a) prohibits the award of benefits for an aggregate

period of more than 48 months for education benefits under chapter 34 of title 38 and chapter 1606

of title 10. 38 U.S.C. § 3695(a)(4), (5). Before he enrolled in the Army Reserves, the veteran had

used 45 months of chapter 34 education benefits, the maximum amount available to him under

38 U.S.C. § 3461(c), with which he had attended law school, taken a bar-review course, and attended

business school. See Davenport I, 7 Vet.App. at 477 (located at R. at 32). At that point, he also had

used 45 of the 48 months of education benefits allowed by 10 U.S.C. § 16131. Under the plain

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language of the statute, the veteran was thereafter entitled to receive only three months of chapter

1606 benefits. 38 U.S.C. § 3695(a). Therefore, the Secretary is correct (Mot. at 5) that the veteran

has received more than 23 months of education benefits to which he was not entitled under the plain

statutory language. 38 U.S.C. § 3695(a); see R. at 77, 56-57, 67-68, 72-73. Because the Court holds

that the appellant is not eligible, under the statute, for education benefits payable for periods of

enrollment after November 30, 1997, the Court need not reach the issue regarding the baccalaureate-

degree limitation in the statute and whether such a statutory limitation applies to the veteran's claims

for benefits.

The appellant argues that, pursuant to the same statute under which VA may impose the 48-

month limit, VA has the authority to waive that limit. Br. at 4. The statute does not, however,

provide for such a waiver; rather, the waiver to which the appellant refers is contained in 38 U.S.C.

§ 3695(b) and 38 C.F.R. § 21.4020(b) and pertains solely to the waiver of a 48-month limit "on

combining assistance received under [c]hapter 31 [(vocational rehabilitation)] with assistance under

another program". 38 U.S.C. § 3695(b); 38 C.F.R. § 21.4020(b). Because the appellant is not

seeking "additional months of benefits under chapter 31", these sections are irrelevant to the instant

claim. As to the appellant's arguments that Congress intended the 48-month limitation on

beneficiaries under chapters 34 and 1606 to apply to only "those veterans whose single period of

military service qualified them for both of these programs" (Br. at 10), the Court holds that the plain

language of the statute that limits "[t]he aggregate period for which any person may receive benefits

under two or more of [these] provisions of law" applies, as the statute plainly states, to "any person",

regardless of the number of service periods that person has had. See Jones (McArthur) and

Ardestani, both supra. Moreover, the Court notes that, even were we to hold that the statute is

ambiguous, which we do not, the appellant has cited no legislative history to support his

interpretation of the statutory language. In essence, he has raised policy arguments, which are not

the province of this Court to consider. See 38 U.S.C. §§ 7252, 7261(a).

As for the appellant's arguments that VA, "acting as an agent for the Department of the

Army", breached its "contract" with him to provide education benefits in return for his service (R. at

28; Br. at 4-7), the Court has previously held in Harvey v. Brown that, even if it had determined that

common-law contract principles applied to the enlistment agreement there at issue, "the remedy for

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[such a contract] breach in this case cannot be the relief that the veteran seeks, a direction by the

Court that the unauthorized enlistment contract be honored through specific performance, because

the veteran is not eligible to receive such benefits under statutory law." Harvey, 6 Vet.App. 416,

424 (1994) (emphasis added) (citing United States v. Larionoff, 431 U.S. 864, 869 (1977) (holding

that where question is breach of enlistment-extension bonus agreement, courts should refer to

statutes and regulations rather than ordinary contract principles); Bell v. United States, 366 U.S. 393,

401 (1961) ("[c]ommon law rules governing private contracts have no place in the area of military

pay"); Peavy v. Warner, 493 F.2d 748, 750 (5th Cir.1974) (deciding claim that enlistment-extension

contract was invalid or was breached under traditional notions of contract law); Johnson v. Chafee,

469 F.2d 1216, 1220 (9th Cir.1972) (impliedly same); Shelton v. Brunson, 465 F.2d 144, 147 (5th

Cir. 1972) (same); and Helton v. United States, 532 F. Supp. 813, 824 (S.D. Ga.1982) (same)). "'[I]t

would be most anomalous for a judicial order to require a Government official . . . to make an

extrastatutory payment of federal funds[; i]t is a federal crime, punishable by fine and imprisonment,

for any Government officer or employee to knowingly spend money in excess of that appropriated

by Congress.'" Harvey, supra (quoting OPM v. Richmond, 496 U.S. 414, 430 (1990)). As in

Harvey, even were the Court to determine here (1) that sovereign immunity does not apply, U.S.

CONST . amend. XI; Little Tucker Act, 28 U.S.C. § 1346(a)(2); (2) that the Court could entertain such

arguments based on asserted contract rights; (3) that the Notice of Basic Eligibility document (R. at

28) is a contract; and (4) that VA was, as the appellant claims, acting as "the agent for the

Department for the Army" (Br. at 7), the Court could not enforce such a contract, because it would

be granting a benefit that "the veteran is not eligible to receive . . . under statutory law". Harvey,

supra; see also Richmond, Larionoff, and Bell, all supra.

The Court notes, however, that there are additional questions raised by the Notice of Basic

Eligibility document. R. at 28. Specifically, it appears that the document (1) makes eligible only

reservists who "agreed to serve six years in the Selective Reserve" from "July 1, 1985[,] through

June 30, 1988", (2) makes ineligible those reservists who have completed a baccalaureate degree or

the equivalent, and (3) imposes a "maximum of 36 months of educational assistance". R. at 28. The

Court expresses no view on the resolution of these questions in light of the above analysis.

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III. Conclusion

Upon consideration of the foregoing analysis, the ROA, and the parties' pleadings, the Court

holds that the appellant has not demonstrated that the Board committed error that would warrant

reversal or remand. Therefore, the Court affirms the September 14, 1999, BVA decision.

AFFIRMED.

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