Morris v. Shinseki , 549 F. App'x 973 ( 2013 )

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
WILLIAM F. MORRIS,
Claimant-Appellant,
v.
ERIC K. SHINSEKI, Secretary of Veterans Affairs,
Respondent-Appellee.
______________________
2013-7127
______________________
Appeal from the United States Court of Appeals for
Veterans Claims in No. 12-0131, Judge Lawrence B.
Hagel.
______________________
Decided: December 5, 2013
______________________
WILLIAM F. MORRIS, of Pulaski, Tennessee, pro se.
JENNIFER E. LAGRANGE, Trial Attorney, Commercial
Litigation Branch, Civil Division, United States Depart-
ment of Justice, of Washington, DC, for respondent-
appellee. With her on the brief were STUART F. DELERY,
Assistant Attorney General, JEANNE E. DAVIDSON, Direc-
tor, and STEVEN J. GILLINGHAM, Assistant Director. Of
counsel on the brief were DAVID J. BARRANS, Deputy
Assistant General Counsel, and AMANDA R. BLACKMON,
2 MORRIS v. SHINSEKI
Attorney, United States Department of Veterans Affairs,
of Washington, DC. Of counsel was CHRISTA A. SHRIBER,
Attorney.
______________________
Before NEWMAN, MOORE, and CHEN, Circuit Judges.
PER CURIAM.
William Morris appeals a judgment of the United
States Court of Appeals for Veterans Claims (“Veterans
Court”) that affirmed the decision of the Board of Veter-
ans’ Appeals (“Board”) denying his request to waive
recovery of an overpayment of disability compensation. 1
Because his central contentions are beyond our jurisdic-
tion and the constitutional issue he raises lacks merit, we
affirm.
I
In 2001, the Veterans Administration (“VA”) granted
Mr. Morris a total disability rating based on individual
unemployability (“TDIU”) in response to his request for
an increase in benefits for his service-connected post-
traumatic stress disorder. That award was made retroac-
tive to 1993 and included dependency benefits for his
children. The letter informing Mr. Morris of his TDIU
award explained that his “children between ages 18 and
26 may be entitled to educational assistance” and en-
closed a pamphlet explaining those Dependents’ Educa-
1 The judgment on appeal also vacated the denial of
Mr. Morris’s claim for a total disability rating based on
individual unemployability and remanded to the Board
for further proceedings. Mr. Morris does not challenge
that decision. Even if he did, we “generally do not review
the Veterans Court’s remand orders because they are not
final decisions.” Ebel v. Shinseki, 673 F.3d 1337, 1340
(Fed. Cir. 2012).
MORRIS v. SHINSEKI 3
tional Assistance (“DEA”) benefits. Appellee’s Supple-
mental App. (“S.A.”) 127. As the pamphlet correctly
stated, a veteran may not receive dependency payments
for children over the age of eighteen who receive DEA
benefits. See 38 U.S.C. § 3562; 38 C.F.R. § 3.667(f); 38
C.F.R. § 21.3023(a)(1).
Shortly after his TDIU award, Mr. Morris requested
an “immediate adjustment in [his] account for 45 months
of [Dependents’ Educational Assistance (“DEA”)] bene-
fits.” S.A. 124. Separately, his daughter applied for and
was granted DEA benefits to defray educational expenses
incurred during a forty-five month period beginning in
August 1994. His daughter’s DEA benefits, however,
coincided with the time period during which Mr. Morris
had also received dependency benefits for his daughter.
Since a veteran may not collect dependency payments for
children who receive DEA benefits, the VA informed Mr.
Morris that the DEA award to his daughter created an
overpayment in dependency payments, which he would
have to repay either directly or through a future reduction
in his disability benefits. 2 The VA calculated that over-
payment to be $8,857.36.
In several responses to the VA, Mr. Morris requested
that no repayment from him should be recovered because
he was not at fault. He also asked the VA to waive recov-
ery of the overpayment because it would create a financial
hardship for him.
In 2004, the VA denied Mr. Morris’s waiver request.
It concluded that there was no evidence of hardship
because his personal assets “far exceed the amount of the
2 Mr. Morris may have also been overpaid for nine
days as a result of his son receiving DEA payments. The
overpayment at issue here is attributable only to his
daughter’s duplicative benefits.
4 MORRIS v. SHINSEKI
overpayment.” S.A. 108. That decision, however, was
vacated by the Board in 2006 and remanded for the VA to
determine whether the amount of overpayment was
properly calculated. In 2008, the VA again found that
there was no basis for waiver and also concluded that the
overpayment was properly calculated. That decision was
affirmed by the Board in January 2012 and by the Veter-
ans Court in June 2013. Mr. Morris filed a timely appeal.
II
Our jurisdiction over this appeal is limited. We may
review challenges to the validity or interpretation of a
statute or regulation relied on by the Veterans Court and
may interpret constitutional and statutory provisions “to
the extent presented and necessary to a decision.” 38
U.S.C. § 7292(c). Furthermore, except to the extent that
an appeal presents a constitutional issue, we have no
jurisdiction to review a challenge to a “factual determina-
tion” or “law or regulation as applied to the facts of a
particular case.” 38 U.S.C. § 7292(d)(2).
Mr. Morris’s main contentions on appeal are outside
our limited jurisdiction. He primarily argues that the VA
improperly calculated the overpayment amount and that
waiver was appropriate because he was not at fault for
the overpayment. Neither of those arguments concerns a
question of law we may address. The amount of over-
payment is a factual determination. We therefore may
not review that finding unless the VA committed legal
error in calculating the amount, an argument Mr. Morris
does not make. Balancing fault against the VA’s right to
recover overpaid benefits is also beyond our jurisdictional
reach. It requires the application of law to fact. See
McClain v. Brown, 42 F.3d 1409 (Fed. Cir. 1994) (un-
published) (dismissing for lack of jurisdiction a challenge
to a denial of waiver of overpayment of veterans benefits
as a question concerning the application of law to fact).
MORRIS v. SHINSEKI 5
Mr. Morris makes only one argument within our ju-
risdiction. He asserts that “[d]ue process is being violated
in the computation and denial of waiver of the $8,857
debt.” Appellant’s Informal Br. Resp. No. 3. His basis for
that assertion is not entirely clear, but he appears to
contend that his appeal has taken too long and that he did
not have a fair opportunity to present certain evidence. 3
Despite the length of the appeal process here (which we
note was extended because of remand), we see no viola-
tion of Mr. Morris’s constitutional right to due process. As
a recipient of disability benefits, Mr. Morris has the right
to due process before those benefits may be reduced to
account for the overpayment. See Cushman v. Shinseki,
576 F.3d 1290, 1296 (Fed. Cir. 2009). That right to due
process means that he had to be provided fair notice and
opportunity to be heard. See id. We believe he was. He
was informed several times of the VA’s reasoning for a
proposed reduction in his benefits to offset the overpay-
ment. Before the VA, the Board, and the Veterans Court,
Mr. Morris had repeated opportunities to challenge the
overpayment calculation. And the Board and the Veter-
ans Court both issued well-reasoned opinions that ad-
dressed his arguments, the VA’s calculation of the
overpayment amount, and the VA’s grounds for denying
waiver. “Whatever due process requires, it requires no
3 Mr. Morris raises two other arguments that relate
to his due process claim, but neither has merit. He states
that the Veterans Court failed to rule on five of his mo-
tions. Before entering judgment, however, the Veterans
Court did, in fact, rule on those motions. Mr. Morris also
asserts that VA officials were not impartial in their
decision making. He believes that they were “upset and
infuriated” at being overturned by the Veterans Court in
a related case, but he provides no evidence to support that
conclusory accusation.
6 MORRIS v. SHINSEKI
more than that.” Prinkey v. Shinseki, No. 2012-7138,
2013 WL 6068461, at *8 (Fed. Cir. Nov. 19, 2013).
III
After thoroughly reviewing Mr. Morris’s filings, we
see no other issue or argument with merit that warrants
mention. The judgment of the Veterans Court is therefore
affirmed. 4
AFFIRMED
COSTS
No costs.
4 Mr. Morris has moved to strike the supplemental
appendix filed by the Secretary in this case. He argues
that it selectively omits documents. We see no basis for
that assertion. The motion is denied.