540 F. App'x 999
Fed. Cir.2013Background
- Veteran Jeronimo Babsa-ay served on active duty 1972–1980 and adopted his nephew Mike Joseph B. Babsa-ay in April 1978 under Philippine law when the child was four.
- The veteran died in May 1980; Babsa-ay filed for VA death benefits in November 2008; the VA regional office denied the claim.
- The Board of Veterans’ Appeals found Babsa-ay did not qualify as a “legally adopted child” under 38 U.S.C. § 101(4)(B) because he resided with his natural mother (the veteran’s sister) rather than with the veteran for at least the year before the veteran’s death.
- The Veterans Court affirmed, applying the § 101(4)(B)(i) criteria for foreign adoptions and finding Babsa-ay did not meet the statutory requirements (age/support/custody/residence) at the veteran’s death.
- On appeal to the Federal Circuit, Babsa-ay challenged the Veterans Court’s factual findings and argued the court should have applied § 101(4)(B)(ii) instead; he also raised constitutional and other arguments.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether court may review Veterans Court’s factual findings on adoption/residence | Babsa-ay: Veterans Court misapplied statute; factual findings wrong and § 101(4)(B)(ii) should apply | Shinseki: Veterans Court correctly applied § 101(4)(B)(i); findings are factual determinations | Dismissed for lack of jurisdiction — factual issues and law-applied-to-facts are not reviewable under 38 U.S.C. § 7292(d)(2) |
| Whether Veterans Court should have applied § 101(4)(B)(ii) rather than (i) | Babsa-ay: He was effectively ‘‘considered’’ adopted as of the veteran’s death, so (ii) governs | Shinseki: Veterans Court found adoption occurred during veteran’s lifetime, so (i) governs | Not reviewable here because it requires revisiting the Veterans Court’s factual finding about timing of adoption |
| Whether asserted constitutional due-process claims permit review | Babsa-ay: Due process violation in adjudication | Shinseki: Claims are challenges to factual application, not true constitutional issues | Court: Claims are constitutional in name only and do not create jurisdiction |
| Whether court should consider issues raised for first time on appeal | Babsa-ay: Raised multiple arguments on appeal | Shinseki: Some arguments were not raised below | Court: Generally will not decide issues raised first on appeal; jurisdictional limits apply |
Key Cases Cited
- Deloach v. Shinseki, 704 F.3d 1370 (Fed. Cir.) (limits on Federal Circuit review of Veterans Court decisions)
- Helfer v. West, 174 F.3d 1332 (Fed. Cir.) (labeling a claim as constitutional does not confer reviewability when the claim challenges factual adjudication)
- Forshey v. Principi, 284 F.3d 1335 (Fed. Cir.) (court generally will not consider issues not raised before the Veterans Court)