William H. Wanless v. Eric K. Shinseki , 2009 U.S. Vet. App. LEXIS 1643 ( 2009 )

UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
No. 07-1501
WILLIAM H. WANLESS, APPELLANT ,
V.
ERIC K. SHINSEKI,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
On Appeal from the Board of Veterans' Appeals
(Decided September 18, 2009 )
Robert K. Kry, of Washington, D.C., was on the brief for the appellant.
Paul J. Hutter, General Counsel; R. Randall Campbell, Assistant General Counsel; Edward
V. Cassidy, Jr., Deputy Assistant General Counsel; and Yvette R. White, all of Washington, D.C.,
were on the brief for the appellee.
Before GREENE, Chief Judge, and MOORMAN and DAVIS, Judges.
DAVIS, Judge: U.S. Army veteran William H. Wanless appeals a December 8, 2006, Board
of Veterans' Appeals (Board) decision that denied him payment of full disability compensation
during his period of incarceration in a private prison under State contract. Mr. Wanless argues that
because he was incarcerated in a private prison under State contract, the Board erred in reducing his
benefits under 38 U.S.C. § 5313. For the reasons stated below, we affirm the Board's
December 2006 decision.
I. BACKGROUND
Mr. Wanless served on active duty in the U.S. Army from September 1979 to
November 1981. Subsequently, VA granted him service-connection compensation for enucleation
of the right eye, chronic lumbar strain with degenerative disc disease, tinnitus, high-frequency
hearing loss, and residuals of a cervical strain.
In late January 1993, VA received a copy of a January 15, 1993, "Judgment and Sentence"
rendered by the Payne County, Oklahoma, District Court, which found Mr. Wanless guilty of a
felony and sentenced him to incarceration in a penitentiary for life without parole. In February 1993,
VA informed Mr. Wanless that because of his felony conviction and subsequent incarceration,
section 5313 of title 38, U.S. Code, required that his monthly disability compensation be reduced
from $808 to $85 per month. Record (R.) at 77; see 38 U.S.C. § 5313(a)(1) (1993) (reducing the
benefits of veterans who are convicted of a felony and incarcerated in a "Federal, State, or local penal
institution" to a 10% disability rating).1 In June 1993, VA informed Mr. Wanless that it had reduced
his monthly disability compensation to $85. Mr. Wanless appealed that reduction to the Board and,
in a May 1997 decision, the Board determined that VA had properly reduced his disability
compensation based on his incarceration for a felony conviction.
In March 1999, Mr. Wanless requested from VA his full VA disability compensation. He
advised that he had been transferred from a State-operated prison to a privately operated prison run
by a for-profit company, Corrections Corporation of America (CCA).2 Mr. Wanless contended that
because his incarceration was not at a State-run prison as defined by 38 U.S.C. § 5313, he was
entitled to the reinstatement of his full compensation. A VA regional office (RO) denied the request
on the basis that Mr. Wanless remained imprisoned following his felony conviction and it was
irrelevant whether the place of incarceration was privately run or State run. Mr. Wanless appealed
to the Board, which also concluded that Mr. Wanless's imprisonment in the CCA facility qualified
as imprisonment in a State prison under section 5313. Mr. Wanless appealed that decision to the
Court. On September 13, 2004, the Court held that the Board had failed to make a factual finding
as to whether the appellant's incarceration at the private facility amounted to incarceration in a "State
penal institution" pursuant to section 5313, and thus remanded the matter for the Board to make this
determination in the first instance. Wanless v. Principi, 18 Vet.App. 337 (2004).
1
Effective December 22, 2006, Congress amended section 5313 to explicitly include the category of "other
penal institution or correctional facility" in the list of prison facilities. See Veterans Benefits, Health Care, and
Information Technology Act of 2006, Pub. L. No. 109-461, § 1002(f), 120 Stat. 3403, 3464-64.
2
Under Oklahoma statute, the O klahoma Department of Corrections is authorized to contract with private
prison contractors for the operation of a prison. Such a contractor must demonstrate "the ability to comply with the
standards of the American Correctional Association and with specific court orders." O KLA . S TAT . tit. 57, § 561.1(C)(2).
2
In response to the Court remand, in June 2005 the Board sought a VA General Counsel
opinion on whether a privately owned and operated correctional facility, under a contract with a State
to provide correctional facilities including the physical custody and daily operational control of
inmates, constitutes a Federal, State, or local penal institution under section 5313. In August 2006,
the VA General Counsel issued an opinion titled "Incarceration in a Privately Owned and Operated
Correctional Facility–38 U.S.C. § 5313." The General Counsel opinion stated:
Because a private corporation's authority to confine prisoners under a contract with
a State agency derives completely from the State's inherent authority to incarcerate
persons through its operation of a criminal justice system, incarceration in a facility
owned and operated by a corporation, pursuant to a contract between the corporation
and the State department of corrections, is tantamount to incarceration in a State
penal institution within the meaning of section 5313(a)(1).
VA Gen. Coun. Prec. 5-2006 (Aug. 11, 2006) [hereinafter G.C. Prec. 5-2006]. The opinion thus
concluded that the reduction of benefits provision of section 5313 applies to those incarcerated for
a felony conviction in a privately operated facility contracted by the State. Id. On December 8,
2006, the Board, relying on that General Counsel opinion, found that Mr. Wanless was "shown to
be presently incarcerated in a State penal institution for VA purposes under the felony conviction
sentence imposed in January 1993." R. at 8. The Board thus concluded that, under section 5313,
Mr. Wanless was not entitled to payment of full disability compensation. This appeal followed.
II. LAW AND ANALYSIS
Until it was amended effective December 22, 2006, section 5313 stated:
(a)(1) To the extent provided in subsection (d) of this section, any person
who is entitled to compensation or to dependency and indemnity compensation
[(DIC)] and who is incarcerated in a Federal, State, or local penal institution for a
period in excess of sixty days for conviction of a felony shall not be paid such
compensation or [DIC], for the period beginning on the sixty-first day of such
incarceration and ending on the day such incarceration ends, in an amount that
exceeds–
(A) in the case of a veteran with a service-connected disability rated at
20 percent or more, the rate of compensation payable under section
1114(a) of this title; . . .
....
3
(d) The provisions of subsection (a) of this section shall apply (1) with respect to
any period of incarceration of a person for conviction of a felony committed after
October 7, 1980, and (2) with respect to any period of incarceration on or after
October 1, 1980, for conviction of a felony of a person who on October 1, 1980, is
incarcerated for conviction of such felony and with respect to whom the action
granting an award of compensation or [DIC] is taken on or after such date.
38 U.S.C. § 5313 (emphasis added); see also 38 C.F.R. § 3.665 (1999) (implementing regulation).3
Mr. Wanless argues that his benefits should not be reduced for the period he was held in a
prison operated by a private company under contract with the State of Oklahoma because a privately
operated prison cannot be considered a "Federal, State, or local" institution as required under section
5313. He contends that his benefits should thus be restored for the period he was imprisoned in the
private CCA facility. The Secretary maintains that, based on the August 2006 VA General Counsel
opinion and congressional intent, section 5313 should be interpreted to mean that incarceration in
a state-contracted, privately operated prison facility resulting from a felony conviction makes a
veteran ineligible to receive full disability compensation.
The question before the Court is whether the Board was correct in concluding that Mr.
Wanless's benefits were subject to reduction under section 5313 because of his felony conviction and
subsequent incarceration in the State-contracted prison. The Court's inquiry into the proper
interpretation of section 5313 is a question of law, and the Court reviews the Board's interpretation
of the law de novo. See Butts v. Brown, 5 Vet.App. 532, 539 (1993) (en banc); see also Hensley v.
West, 212 F.3d 1255, 1262-64 (Fed. Cir. 2000) (discussing proper application of de novo review).
A. Statutory Interpretation
1. Plain Language
"'Statutory interpretation begins with the language of the statute, the plain meaning of which
we derive from its text and its structure.'" Myore v. Nicholson, 489 F.3d 1207, 1211 (Fed. Cir. 2007)
(quoting McEntee v. MSPB, 404 F.3d 1320, 1328 (Fed. Cir. 2005)). "In evaluating whether Congress
has directly spoken to the question at issue, the starting point is to examine the language and
structure of the statute itself." Sursely v. Peake, 22 Vet.App. 21, 24 (2007); see also Good
3
The Court notes that although the statute has been changed to explicitly incorporate "other penal institution
or correctional facility" in the list of affected prison facilities, the regulation does not include this change. See 38 C.F.R.
§ 3.665 (2009).
4
Samaritan Hosp. v. Shalala, 508 U.S. 402, 409 (1993). "'[E]ach part or section [of a statute] should
be construed in connection with every other part or section so as to produce a harmonious whole.'"
Meeks v. West, 12 Vet.App. 352, 354 (1999) (quoting 2A N. SINGER , SUTHERLAND ON STATUTORY
CONSTRUCTION § 46.05 (5th ed. 1992)); see Sweitzer v. Brown, 5 Vet.App. 503, 505 (1993); see also
Gardner v. Derwinski, 1 Vet.App. 584, 586 (1991) ("Determining a statute's plain meaning requires
examining the specific language at issue and the overall structure of the statute."), aff'd sub nom.
Gardner v. Brown, 5 F.3d 1456 (Fed. Cir. 1993), aff'd 513 U.S. 115 (1994); Johnson v. Brown,
9 Vet.App. 369, 371 (1996) (When "'the plain meaning of a statute is discernible, that plain meaning
must be given effect.'" (quoting Tallman v. Brown, 7 Vet.App. 453, 460 (1995))); Smith v.
Derwinski, 2 Vet.App. 429, 431 (1992) (If "a reviewing court 'find[s] the terms of a statute
unambiguous, judicial inquiry is complete except in rare and exceptional circumstances.'" (quoting
Demarest v. Manspeaker, 498 U.S. 184 (1991))).
The plain language of section 5313 does not explicitly include or exclude private prisons
under State contract from the list of incarceration facilities. 38 U.S.C. § 5313. As such, the Court
must review the structure and legislative history of the statute to determine whether VA's
interpretation of this statute as including certain private prisons contracted by the State through the
Board's ruling is a permissible construction of section 5313. See Chevron v. Natural Resources Def.
Council, 467 U.S. 837, 842-43 (1984) ("[I]f the statute is silent or ambiguous with respect to the
specific issue, the question for the court is whether the agency's answer is based on a permissible
construction of the statute.").
2. Statutory Content
In reviewing the Board's interpretation of section 5313, we must consider the standard
meaning of words. "Without standard word meanings and rules of construction, neither Congress
nor the Secretary can know how to write authorities in a way that conveys their intent and no
practitioner or–more importantly–veteran can rely on a statute or regulation to mean what it appears
to say." Tropf v. Nicholson, 20 Vet.App. 317, 321-22 n.1 (2006). The title of the statute specifically
limits compensation provided "to persons incarcerated for conviction of a felony." 38 U.S.C. § 5313(emphasis added). Indeed, throughout the statute, the emphasis is on a veteran's "incarceration."
"Incarceration" is defined as "[t]he act or process of confining someone; IMPRISONMENT."
5
BLACK 'S LAW DICTIONARY 764 (7th ed. 1999) [hereinafter BLACK'S]; see MERRIAM -WEBSTER 'S
COLLEGIATE DICTIONARY 586 (10th ed. 1998) [hereinafter MERRIAM -WEBSTER 'S] (defining
"incarcerate" as "to put in prison"). The statute also excludes reductions of compensation where
there is confinement in halfway houses or participation in a work-release program, as these forms
of placement do not fall within a strict definition of the term "incarceration." 38 U.S.C. § 5313(a)(2).
For example, a halfway house is not strictly a prison, but is "a residence for formerly institutionalized
individuals (as mental patients, drug addicts, or convicts) that is designed to facilitate their
readjustment to private life." MERRIAM -WEBSTER 'S AT 524. In contrast, the rules and limitations
of "incarceration" in a private prison under State contract do not differ from "incarceration" in a State
facility.
Additionally, the Court of Civil Appeals of Oklahoma has previously concluded that although
a person who had been sentenced to a term of confinement under the custody of the Department of
Corrections was confined at a privately owned facility, his status as a prisoner was not altered.
Washington v. Cornell Corr. Inc., 30 P.3d 1162, 1164 (Okla. Civ. App. 2001). Furthermore, there
remains no dispute that privately managed prisons have been and currently are operated under
contract for the State of Oklahoma or that the State of Oklahoma is expending funds to incarcerate
these prisoners. See generally http://www.doc.state.ok.us/newsroom/annuals/2008/08ANNUAL.pdf
(visited Aug. 6, 2009) ("The State of Corrections in Oklahoma Fiscal Year 2008"; listing per diem
expense to State per inmate). As such, "the reasons for not helping a prisoner at a privately run
institution maintain a standard of living are identical to the reasons for not doing so for a prisoner
at a publicly run institution." See Wanless, 18 Vet.App. at 357. Thus, a review of the statutory
structure and content supports the conclusion that Congress intended the compensation reduction
provision to apply to all veterans who are subject to incarceration for longer than 60 days for a
felony, regardless of whether the facility in which they were incarcerated was publicly or privately
operated.
3. Legislative History
The legislative history of section 5313 provides significant insight into the congressional
intent underlying the section 5313 provision regarding benefits reduction for veterans incarcerated
for a felony. That provision was originally promulgated in 1980, see Pub. L. No. 96-385, Stat. 1528,
6
tit. V, §504(a) (Oct. 7, 1980) (originally under 38 U.S.C. § 3113), and the legislative report
accompanying the original version of the bill stated the statute's purpose:
We have read in the newspapers where we have some individuals who are serving
sentences for murder and other major criminal offenses who are drawing Federal
benefits. In some cases, these individuals are drawing veterans benefits. This change
in current law would restrict these benefits to these individuals. This provision
would provide for a saving of $3 million during the next fiscal year.
126 CONG . REC. 18,791 (1980) (statement of Rep. Montgomery). After the introduction of the final
bill, Representative Montgomery, the bill's principal sponsor, explained:
I do not see the wisdom of providing hundreds and thousands of tax free benefits to
such individuals [referring to individuals serving long sentences for the commission
of felonies] when at the same time the taxpayers of this country are spending
additional thousands of dollars to maintain these same individuals in penal
institutions.
126 Cong. Rec. 26,118 (1980). Representative Montgomery noted that servicemen who are
dishonorably discharged because of the in-service commission of a felony are barred from receiving
VA benefits and that "an economic effect caused by [a service-connected] disability is not felt" by
incarcerated veterans. Id.; see also 38 U.S.C. § 101(2) (requiring that a veteran's discharge must be
under conditions other than dishonorable in order to receive VA benefits). Congressman Chalmers
Wylie likewise remarked: "In the case of imprisonment, when a prisoner is being fully supported by
tax dollars that fund the penal institution, it becomes ludicrous to continue payment of benefits
designed to help him maintain a standard of living." 126 Cong. Rec. 26,122 (1980) (emphasis
omitted). These remarks demonstrate that Congress intended to avoid wasteful expenditures of
Government resources. Congress has explicitly concluded that if the taxpayers are financing a
veteran's incarceration, it is contrary to the public good to also pay him full VA disability benefits.
The Congressmen's concerns reveal a strong sense of responsibility to the public fisc. Nothing in
the legislative history suggests that Congress was concerned about limiting section 5313 so as to not
affect veterans who are incarcerated in privately run, State-contracted penal institutions. The
statute's emphasis is thus not on the place of incarceration, but on the source of the monies used to
maintain that incarceration. Congress's main stated objective is the avoidance of duplicative
Government expenditures that would result in a windfall for those convicted of felonies.
7
Consequently, Congress never intended to make a distinction between public prisons and private
prisons paid for by public funds.
Mr. Wanless provides no support in the legislative history of section 5313 in arguing that
Congress could have intended to exclude State-contracted private prisons from section 5313 and that
there are legitimate reasons for the legislature to distinguish between public and private State-
contracted prisons. Indeed, such contentions disregard the legislative history of the statute. Mr.
Wanless argues that because the Social Security Act precludes payment to anyone confined in a "jail,
prison, or other penal institution or correctional facility," without referencing jurisdictions as section
5313 does, one should presume that Congress was making a purposeful distinction in the two
statutes. See Appellant's Brief (Br.) at 11; see also Pub. L. No. 96-473, 94 Stat. 2263, 2265, § 5(c)
(Oct. 19, 1980) (current version at 42 U.S.C. § 402(x)(1)(A)(I)). That position is unpersuasive. As
stated above, there is simply no indication in the legislative history of section 5313 that Congress,
based on a desire to exempt veterans housed in private, State-contracted prisons, purposefully
employed different language in section 5313 than that found in the Social Security Act.
Mr. Wanless's argument that the December 2006 amendment to section 5313 reveals that the
prior version of the statute should be interpreted as he suggests also must fail. See Appellant's Br. at
12. The amendment was published as a "Clarification of Correctional Facilities Covered by Certain
Provisions of Law." See Pub. L. No. 109-461 (2006) (emphasis added). The statutory language now
states that VA benefits will be reduced for claimants convicted of a felony and incarcerated in a
"Federal, State, local, or other penal institution or correctional facility." 38 U.S.C. § 5313. Indeed,
the legislative history of the bill states that it was promulgated as part of "technical and clarifying
amendments to title 38." 152 CONG . REC. H 9015 (statement of Rep. Steve Buyer). This clarifying
amendment further demonstrates to the Court that the prior version of the statute adequately
expressed the congressional intent to provide for a reduction of benefits to veterans incarcerated for
commission of a felony, regardless of whether the institution in which a veteran is confined is a State
institution or a State-contracted institution. See Comm'r v. Estate of Holmes, 326 U.S. 480 (1946)
(distinguishing between substantive and clarifying amendments); see also Aectra Ref. & Mktg. v.
United States, 565 F.3d 1364, 1370 (Fed. Cir. 2009) (discussing a clarifying amendment and stating:
"Given that Congress is presumed to enact legislation with knowledge of the law and a newly-
8
enacted statute is presumed to be harmonious with existing law and judicial concepts, the absence
of any statement that the statute was designed to modify the limitations period for drawback claims
is telling" (citations omitted) (emphasis added)). As such, contrary to Mr. Wanless's contention,
Congress, by its own explanation, amended the plain language of the statute to explicitly reflect its
original intent and not to change the meaning, purpose, or effect of section 5313.
4. August 2006 VA General Counsel Opinion
The Court reviews VA's statutory interpretation de novo. DeBeaord v. Principi, 18 Vet.App.
357, 363 (2004). However, we recognize that opinions of the General Counsel "constitute a body
of experience and informed judgment." Osman v. Peake, 22 Vet.App. 252, 256 (2008). VA's
interpretation of the statute is entitled to respect to the extent that it has "the power to persuade."
Skidmore v. Swift & Co., 323 U.S. 134, 140 (1944); see Gonzales v. Or., 546 U.S. 243, 257-58
(2006) (concluding that regulation "does little more than restate the terms of the statute itself" and
discussing whether agency interpretation was a "permissible interpretation" of the statute). Here, in
August 2006, the Secretary published G.C. Prec. 5-2006, which provides his interpretation, with
supporting rationale, of section 5313. That August 2006 opinion concluded that a veteran's
incarceration in a privately owned and operated correctional facility under State contract constituted
incarceration as contemplated under section 5313. See G.C. Prec. 5-2006 ("Incarceration in a
privately Owned and Operated Correctional Facility–38 U.S.C. § 5313"). The General Counsel
opinion provides the following reasoning for its conclusion: (1) A private prison's authority to
confine a veteran derives from his State felony conviction and the authority to imprison citizens
ultimately rests with the government only; (2) interpreting section 5313 to apply to private prisons
under State contract would promote the statute's stated legislative purpose of avoiding the
duplication of governmental expenditures for veterans who are already supported by the government
and suffer no lost earnings as a result of their disability; and (3) creating a distinction between
veterans in State-operated and State-contracted privately operated prisons would create an
unreasonable or irrational result because it would both thwart the intentions of Congress and allow
"felons who chance to be incarcerated in private facilities at government expense [to] continue to
be entitled to the full amount of their VA benefits while felons incarcerated in State-owned-and-
operated facilities would not." Id. at ¶ 4-6.
9
Mr. Wanless's argument that G.C. Prec. 5-2006 conflicts with a previous General Counsel
Precedent opinion, G.C. Prec. 10-2001 (May 24, 2001), which concluded that, in some cases, VA
benefits would not be reduced under section 5313 while veterans were incarcerated in foreign
prisons, is misplaced. See VA Gen. Coun. Prec. 10-2001 (May 24, 2001) [hereinafter G.C. Prec. 10-
2001]. Mr. Wanless fails to adequately explain how his felony conviction in a State court and
subsequent imprisonment in a State-contracted, privately owned prison, located in the United States,
could be a considered a "foreign prison"4 for VA benefits purposes. See Shinseki v. Sanders,
129 S. Ct. 1696, 1706 (2009) (appellant bears burden of demonstrating error on appeal); see also
Hilkert v. West, 12 Vet.App. 145, 151 (1999) (en banc) (same). Further, G.C. Prec. 10-2001 made
clear veterans convicted of felonies in foreign countries and imprisoned in foreign prisons are
exempt from section 5313 because their incarcerations are not funded by U.S. tax dollars. G.C. Prec.
10-2001. That reasoning is consistent with the August 2006 General Counsel opinion and expressed
congressional intent underlying section 5313 that, to preserve taxpayer resources, veterans who are
convicted of a felony in the United States and housed in a prison funded by U.S. citizens' tax dollars
are subject to a benefit reduction under section 5313. Thus, contrary to Mr. Wanless's contention,
the two opinions do not conflict. The Secretary's interpretation of section 5313 found in the VA
General Counsel opinion is very persuasive. See Skidmore, supra; Osman, 22 Vet.App. at 256
(weight given to VA General Counsel Opinions "depends heavily upon their thoroughness,
reasoning, and consistency with earlier and later pronouncements on the specific issue"). As stated
above, the legislative history wholly supports the Secretary's views as well. As such, we hold that
the Secretary's interpretation is not arbitrary, capricious, an abuse of discretion, or otherwise not in
accordance with law. See DeBeaord, supra; see also Kent v. Principi, 389 F.3d 1380, 1384 (Fed.
Cir. 2004) (reiterating that the "'arbitrary, capricious, an abuse of discretion, or otherwise not in
accordance with law' standard of review . . . contemplates de novo review of questions of law").
B. Board's Statement of Reasons or Bases
The Board is required to include in its decision a written statement of the reasons or bases
for its findings and conclusions on all material issues of fact and law presented on the record; that
4
"Foreign" is defined as "[o]f or relating to another country." B LACK 'S at 658.
10
statement must be adequate to enable an appellant to understand the precise basis for the Board's
decision, as well as to facilitate informed review in this Court. See 38 U.S.C. § 7104(d)(1); Allday v.
Brown, 7 Vet.App. 517, 527 (1995); Gilbert v. Derwinski, 1 Vet.App. 49, 56-57 (1990). Mr.
Wanless argues that the Board failed to fulfill the terms of the Court's 2004 remand order by failing
to address the terms of the contract between CCA and the State of Oklahoma. See Wanless,
18 Vet.App. at 337. It is well established that "a remand by this Court . . . confers on the veteran or
other claimant, as a matter of law, the right to compliance with the remand orders." Stegall v. West,
11 Vet.App. 268, 271 (1998). Furthermore, "a remand by this Court . . . imposes upon the Secretary
. . . a concomitant duty to ensure compliance with the terms of the remand," and that where "the
remand orders of the Board . . . are not complied with, the Board itself errs in failing to insure
compliance." Id. However, it is substantial compliance, not absolute compliance, that is required.
See Dyment v. West, 13 Vet.App. 141, 146-47 (1999). The Court's 2004 order stated: "Given that
the resolution of these issues may involve very specific factual determinations and other documents
that are best for the Board to make in the first instance, the Court concludes that it is premature for
the Court to address this matter." Id. (emphasis added).
Contrary to Mr. Wanless's argument, this does not constitute a binding instruction on remand
for the Board to review certain documents. It is clear from the record that the Board substantially
complied with this Court's remand order. See Dyment, supra. After this Court's September 2004
remand, the Board requested a VA General Counsel opinion on the matter. As discussed above, that
opinion provided sufficient analysis and explanation for the Secretary's interpretation that section
5313 required the reduction of benefits to veterans convicted of a felony and imprisoned in a State-
contracted, privately owned prison.5 Based on the VA General Counsel's opinion and supporting
analysis, the Board found that Mr. Wanless's imprisonment for his felony conviction in a State-
contracted, privately operated facility fell within the purview of section 5313 and therefore he was
not entitled to payment of full disability compensation. It remains undisputed that Mr. Wanless was
5
The Davis Correctional Facility is one of the CCA facilities with an Oklahoma DOC contract. As such, it is
reasonable to conclude that the private facility is an agent of the State of Oklahoma, thereby making it a "State" prison
for purposes of section 5313. See Wanless, 18 Vet.App. at 355-56 (Judge Greene dissenting); see also generally
http://www.doc.state.ok.us/newsroom/annuals/2008/08ANNUAL.pdf (visited Aug. 6, 2009) ("The State of Corrections
in Oklahoma Fiscal Year 2008"; listing Davis Correctional Facility, where Mr. W anless has been incarcerated, as one
of the private prisons with which Oklahoma DOC contracts).
11
convicted by the State of Oklahoma and is now incarcerated in the United States, at a minimum, at
the behest of the State of Oklahoma. Moreover, there is no allegation that the Davis Correctional
Facility was housing Mr. Wanless free of charge; rather, as stated above, it is clear that the State of
Oklahoma, both now and at the time of Mr. Wanless's incarceration at Davis, expended and
continues to expend funds to incarcerate these prisoners. See Wanless, 18 Vet.App. at 355-
5 6 ( J u d g e G r e e n e d i s s e n t i n g ) ; s e e g e n e r a l l y
http://www.doc.state.ok.us/newsroom/annuals/2008/08ANNUAL.pdf (visited Aug. 6, 2009) ("The
State of Corrections in Oklahoma Fiscal Year 2008"; listing per diem expense to state per inmate).
As such, the Board's reasons or bases were adequate to enable Mr. Wanless to understand the precise
basis for the Board's decision, as well as to facilitate informed review in this Court.
III. CONCLUSION
On consideration of the foregoing, the Board's December 8, 2006, decision is AFFIRMED.
12