Wilson v. Gibson , 753 F.3d 1363 ( 2014 )


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  •   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.
    

Document Info

Docket Number: 2013-7037

Citation Numbers: 753 F.3d 1363, 2014 U.S. App. LEXIS 10707, 2014 WL 2579614

Judges: Moore, Clevenger, O'Malley

Filed Date: 6/10/2014

Precedential Status: Precedential

Modified Date: 11/5/2024