Gordon v. Gober

This version contains an errata issued on 1Dec90 - e
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
NO . 99-200
MAMIE GORDON , APPELLANT ,
V.
HERSHEL W. GOBER,
ACTING SECRETARY OF VETERANS AFFAIRS, APPELLEE.
Before HOLDAWAY, STEINBERG, and GREENE, Judges.
ORDER
The appellant appeals through counsel a November 25, 1998, decision of the Board of
Veterans' Appeals (Board or BVA) that determined that she had not submitted a timely request for
a waiver of recovery by the Department of Veterans Affairs (VA) of overpayment of death benefits.
Record (R.) at 2. The appellant filed an informal brief, and the Secretary filed a motion for single-
judge affirmance. Subsequently, counsel entered the case for the appellant, and the appeal was
referred to this panel for consideration on September 21, 2000.
In his motion, the Secretary does not address whether 38 C.F.R. § 1.962 (1999), entitled
"Waiver of overpayments", is applicable to this case. Instead, he relies solely, as did the Board,
on the denial of the appellant's claim on the ground that 38 C.F.R. § 1.963(b)(2) (1999) sets forth a
180-day period that serves as a deadline for the submission of an application for a waiver and that,
in this case, no such waiver application was timely received. Motion at 3-4; see also R. at 3-5.
Both §§ 1.962 and 1.963 were promulgated in July 1974. See 39 Fed. Reg. 26,400. As then
promulgated, § 1.962 contained no application-deadline provision and § 1.963 contained a 2-year
waiver-application deadline. Compare 38 C.F.R. § 1.962 (1975) with 38 C.F.R. § 1.963 (1975).
Both regulations were revised in September 1985, and the following uncategorical language was
added to § 1.962 at that time: "There shall be no collection of an overpayment, or any interest
thereon, which results from participation in a benefit program administered under any law by VA
when it is determined by a regional office Committee on Waivers and Compromises that collection
would be against equity and good conscience." The language appears to have been added without
explanation. See 549 Fed. Reg. 45,870 (proposed rule making); 50 Fed. Reg. 38,802 (1985)
(publishing final amended regulation).
Thus, it appears that §§ 1.962 and 1.963 may conflict with each other; although § 1.962
expressly forbids collection in a case where collection "would be against equity and good
conscience", § 1.963 states that "[a] request for waiver of an indebtedness . . . shall only be
considered . . . if made within 180 days following the date of a notice of indebtedness". 38 C.F.R.
§ 1.962, 1.963(b)(2) (1999). In that regard, the underlying statutory provision provides:
(a) There shall be no recovery of payments or overpayments (or any interest
thereon) of any benefits under any of the laws administered by the Secretary
whenever the Secretary determines that recovery would be against equity and good
conscience, if an application for relief is made within 180 days from the date of
notification of the indebtedness by the Secretary to the payee, or within such longer
period as the Secretary determines is reasonable in a case in which the payee
demonstrates to the satisfaction of the Secretary that such notification was not
actually received by such payee within a reasonable period after such date. The
Secretary shall include in the notification to the payee a statement of the right of the
payee to submit an application for a waiver under this subsection and a description
of the procedures for submitting the application.
38 U.S.C. § 5302(a). Thus, the Court notes, the absolute prohibition against indebtedness recovery
in § 1.962 ("There shall be no collection") may be inconsistent with the implication in the statutory
section 5302 that the prohibition obtains only if "an application for relief is made within 180 days
from the notification of indebtedness". 38 U.S.C. § 5302(a).
On consideration of the foregoing, it is
ORDERED that, not later than 30 days after the date of this order, the Secretary file, and
serve on the appellant, a memorandum addressing the above matters as well as the question of the
potential applicability of the Veterans Claims Assistance Act of 2000, Pub. L. No. 106-475, 114 Stat.
2096 (Nov. 9, 2000), to the disposition of this appeal. See In Re: Veterans Claims Assistance Act
of 2000, Misc. No. 4-00 (Nov. 13, 2000) (en banc). It is further
ORDERED that, not later than 30 days after service of the Secretary's memorandum, the
appellant file a memorandum in response. It is further
ORDERED that, not later than 30 days after the Secretary files his supplemental
memorandum, any interested individual or entity is invited to file a memorandum addressing the
matters set forth above, including but not limited to responses to points made in the Secretary's
supplemental memorandum. Any such interested individual or entity that intends to file such an
amicus memorandum is requested to notify the Clerk of the Court of such intention, not later than
5 days after the Secretary files his supplemental memorandum.
DATED: November 27, 2000 PER CURIAM.
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