Burris: Education benefits, equitable relief

Burris v. Wilkie, 888 F.3d 1352 (May 2, 2018)

HELD: The CAVC lacks the authority to grant substantive (i.e., monetary) equitable relief. 

SUMMARY: In this consolidated case, the sons of two veterans were denied equitable relief for extension of education benefits and reimbursement of education-related expenses. In both cases, the Board held that it did not have the “authority to grant additional benefits on an equitable basis.” The CAVC affirmed the Board’s decisions in both cases, holding that only the Secretary can grant equitable relief in certain circumstances and that the CAVC itself lacked authority to grant such relief. 

On appeal to the Federal Circuit, the appellants argued that the CAVC wrongly determined that it lacked jurisdiction to grant equitable relief. The Federal Circuit disagreed, noting that the relevant statute regarding equitable relief, 38 U.S.C. § 503, only allows the Secretary to provide such relief – not the Court. The Federal Circuit further found that the CAVC’s inherent equitable powers do not allow it to grant the equitable relief sought by the appellants in these cases – namely, monetary relief. The Court acknowledged that the CAVC does have the “authority to grant certain forms of non-substantive equitable relief,” such as the authority to certify classes, issue judgment nunc pro tunc, and consider equitable defenses. However, the Court found that those forms of relief were either based on other statutes or were procedural – and were not the same as the monetary relief sought in the present cases. The Court thus held that the CAVC correctly affirmed the Board’s decisions – and correctly determined that it lacked authority to grant this type of equitable relief.  

FULL DECISION

Eicher: POST-9/11 GI BILL EDUCATION BENEFITS

Eicher v. Shulkin, docket no. 15-1896 (Apr. 19, 2017)

HELD: “Post-9/11 GI Bill education benefits cannot be used to pay for a nonaccredited program at a foreign educational institution taken by distance learning” and the Court cannot grant benefits on the basis of equitable estoppel. Only the Secretary “has the power to grant equitable relief where administrative error leads to a denial of benefits.”

SUMMARY: Veteran James Eicher applied for VA education benefits to take an online Masters program through a foreign institution. The veteran corresponded with VA and the University via email, requesting an update on the status of his application. In an email, a VA representative stated that the “program was approved” and that a letter with information regarding the approval had been sent. The letter stated that such programs “are approved for in-resident training only” and required in-person attendance “in a formal classroom setting.” The veteran submitted a second electronic application, and received a letter from VA notifying him that he was entitled to “benefits for an approved program of education or training.” The letter instructed him to have his school certify his enrollment before he could get paid.

After VA received the University’s enrollment certification, which showed that the program was taken by distance learning, it denied Mr. Eicher’s request for payment, stating that “distance learning is not approved for GI Bill payment at foreign schools.”

Mr. Eicher appealed to the Board of Veterans’ Appeals, which denied his request, reiterating that “Post 9/11 GI Bill ‘benefits cannot be used to pay for a nonaccredited program at a foreign educational institution taken via distance learning.” The Board noted that “38 U.S.C. § 503 provides for equitable relief when there has been administrative error,” but stated that Mr. Eicher would need to petition the Secretary for such relief. The Board found that it “lacked jurisdiction to consider the Secretary’s exercise of authority to award equitable relief under section 503.”

On appeal, Mr. Eicher asked the Veterans Court to grant relief on the basis of equitable estoppel, arguing that he relied, to his detriment, on VA communications. Alternatively, he argued that the Board failed to adequately explain its decision because it failed to discuss the regulation pertaining to requesting equitable relief and “whether a recommendation to the Secretary for consideration of equitable relief was warranted.” The Secretary argued that the CAVC cannot apply equitable estoppel to grant monetary awards against the government and that the Board is not required to discuss the issue of recommendation for relief under section 503.

The Court briefly discussed the history of the Post 9/11 GI bill and the statutory definitions of “program of education” and “independent study.” The Court found that the Board correctly determined that Mr. Eicher was not enrolled in an approved course of study since he completed the program online, and that the relevant statutes and regulations “make clear that Post 9/11 GI Bill education benefits cannot be used to pay for a nonaccredited program at a foreign educational institution taken by distance learning.”

With respect to the equitable estoppel argument, the Court held that even if it were inclined to grant such relief, it could only do so with statutory authority, as the Appropriations Clause of the Constitution “precludes the judiciary from ordering an award of public funds to a statutorily ineligible claimant on the basis of equitable estoppel.” The Court added that even if VA’s email to the University was misleading, “erroneous advice given by a government employee cannot be used to estop the government from denying benefits.”

The Court noted that the Secretary does have the authority under 38 U.S.C. § 503 to grant equitable relief, but found that both the Court and the Board lack jurisdiction to review the Secretary’s refusal to grant such relief. In two footnotes, the Court noted its “confusion” as to why the Board member did not mention the Chairman’s authority to recommend equitable relief to the Secretary. However, the Court determined that the Board was not required to discuss the recommendation process – and that its failure to do so did not amount to a remandable reasons-or-bases error.

In his dissent, Judge Greenberg pointed out that the relevant regulation does not mention “distance learning” and that the definition of “independent study” is one that “is offered without any regularly scheduled, conventional classroom or laboratory sessions” – and does not expressly encompass online courses. (“A veteran is not engaged in ‘independent study’ merely because he attends a course online.”)

Judge Greenberg rejected the Board’s characterization of Mr. Eicher’s online course as “independent study” stating that “independent study is only barred if the educational institute is non accredited” and adding that VA’s interpretation of its regulation as barring distant learning “is utterly inconsistent with the statutory context of congressional limitations on independent study.”

FULL DECISION

ONLY DoD CAN REVISE EFFECTIVE DATES FOR EDUCATION BENEFITS

Garza v. McDonald, docket no. 14-2711 (Aug. 11, 2016)

HELD: Under 38 C.F.R. 21.9625(j), the effective date for the transfer of education benefits from a veteran to an eligible dependent “may not be earlier than the later of either the date the Secretary of the service department concerned approved the transfer or the date the transferor specified in his or her designation.” 

SUMMARY: The appellant in this case is the adult son of the veteran. Mr. Garza attended ITT Technical Institute and was notified April 2010 of a $15,000 tuition payment. On April 16, 2010, the veteran, who was deployed at the time, submitted an online application to transfer his education benefits to Mr. Garza.

The Department of Defense (DoD) subsequently notified the veteran that the service department had approved the transfer of five months of benefits to his son, effective April 16, 2010, the date of his online application.

In October 2010, Mr. Garza’s mother asked VA to backdate the application for benefits to August 1, 2009. She explained that they would have applied for benefits earlier, but ITT did not inform her son until April 2010 that “no financing had been done . . . dating back to August 2009.” She stated that had she known earlier, they would have applied earlier.

The RO then notified Mr. Garza that he had five months of educational benefits, starting April 16, 2010. In a subsequent letter, the RO stated that “DoD makes this determination not the VA.” Mr. Garza submitted a Notice of Disagreement for an August 2009 effective date. The RO issued a Statement of the Case, stating that benefits could not be paid prior to the April 16, 2010 eligibility date and that the “veteran should contact DoD directly for possible resolution.”

Mr. Garza appealed to the Board, arguing that his benefits should go back to August 1, 2009 because “ITT erred in handling his financing.” The Board denied the appeal, finding that “DoD approves the transfer of entitlement to educational assistance” and that “VA has no authority to revise such a DoD determination.”

The Court reviewed the relevant statutes and regulations, specifically 38 U.S.C. § 3319 and 38 C.F.R. §§ 21.9500-9770. The Court found that 38 U.S.C. § 3319(a)(1) authorizes the Secretary of the relevant service department to approve the transfer of educational assistance benefits to eligible dependents, but the statute was “silent as to whether DoD or VA assigns the eligibility dates.” Because of this “gap” in the statute, the Court looked to the relevant regulations.

The Court recognized that 38 C.F.R. § 21.9570(d)(2) “states that VA will accept the transferor’s designations” and that § 21.9570(g) allows “a transferor to modify the designations . . . ‘at any time’” by submitting written notice to both VA and DoD. However, the Court found that these subsections “must be read in light of § 21.9625(j), which provides that the beginning date of an award for educational assistance to an eligible child will be no later than the latest of either the date the DoD approves the transferor to transfer entitlement or the date the transferor specified.” In this case, the Court found that both of these dates were April 16, 2010. The Court concluded that, “as a matter of law, Mr. Garza’s beginning eligibility date cannot be earlier than April 16, 2010.”

The Court found that this interpretation was further supported by the regulatory history. The Court rejected Mr. Garza’s argument that the Board erred by not addressing 38 C.F.R. § 21.9570(g), regarding written requests for modification – because “this regulation speaks only of the transferor’s rights to modification and . . . nothing in the record shows that the veteran (the transferor) submitted any modification.”

The Court stated that while it was sympathetic to Mr. Garza’s frustrations with ITT for not informing him of his financial status earlier, it could not grant the “equitable relief” that he sought.

Advocacy note: While the Court cannot grant “equitable” relief, VA can. And VA may have granted such relief in this case had the veteran – Mr. Garza’s father – submitted a written request for modification under 38 C.F.R. § 21.9570(g).  

FULL DECISION