Suzanne V. SKINNER, Claimant-Appellee, v. Jesse BROWN, Secretary of Veterans Affairs, Respondent-Appellant.
No. 93-7071.
United States Court of Appeals, Federal Circuit.
June 22, 1994.
But absent a finding of agency, an inexplicable failure to disclaim, or some comparable circumstance, the fact that Campbell did less than he conceivably could have done to clear up any misimpression does not rationally support the inference that he approved the third party‘s characterization. A candidate does not have a categorical duty to clear up misimpressions created by others. To hold otherwise might permit opponents to eliminate a rival by the simple expedient of poisoning the Hatch Act well.
We need not delve more deeply into this, however, for we are fully satisfied that the Board did not rely on the Kellom party episode to a degree that might have affected the outcome. In view of the relatively minor role that event played in the Board‘s analysis, we harbor no “substantial doubt” that the agency would have drawn the same ultimate inference had the Kellom episode never occurred. Indeed, the evidence in this case is “so one-sided,” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52, 106 S.Ct. 2505, 2512, 91 L.Ed.2d 202 (1986), that any other inference might well be unsupported by substantial evidence.
AFFIRMED.
Stephanie Forester, Nat. Veterans Legal Services Project, of Washington, DC, argued for claimant-appellee. With her on the brief were Gershon M. Ratner, Barton F. Stichman and Ruth E. Eisenberg.
Elizabeth A. Rinaldo, Atty., Commercial Litigation Branch, Dept. of Justice, of Washington, DC, argued for respondent-appellant. With her on the brief were Frank W. Hun-
Before ARCHER, Chief Judge,* MAYER, and PLAGER, Circuit Judges.
MAYER, Circuit Judge.
The Secretary of Veterans Affairs appeals the judgment of the United States Court of Veterans Appeals, Skinner v. Brown, 4 Vet. App. 141 (1993), reversing the denial by the Board of Veterans Appeals of Suzanne V. Skinner‘s claim for benefits under the Restored Entitlement Program for Survivors. We affirm.
Background
Skinner is the daughter of James Skinner, Jr., a Vietnam veteran who died in December 1987 as a result of a service-connected heart condition. At the time of her father‘s death, Skinner was eighteen years old and a full time student at the University of Alabama. More than one year later, she filed an application for benefits under the Restored Entitlement Program for Survivors,
The Board of Veterans Appeals denied her claim, citing a VA regulation limiting retroactivity of REPS benefits to claims filed within eleven months of the date of the claimant‘s first eligibility.
Discussion
The sole question is whether those portions of
I.
We start with the language of the REPS statute, for “[i]f the intent of Congress is clear, that is the end of the matter....” Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 842, 104 S.Ct. 2778, 2781, 81 L.Ed.2d 694 (1984). The statute provides for monthly payments to certain survivors of military personnel who
(A) who is the child of a member or former member of the Armed Forces described in subsection (c);4
(B) who has attained eighteen years of age but not twenty-two years of age and is not under a disability as defined in section 223(d) of the Social Security Act (
42 U.S.C. 423(d) );(C) who is a full-time student at a post-secondary school, college, or university that is an educational institution (as such terms were defined in section 202(d)(7)(A) and (C) of the Social Security Act as in effect before the Omnibus Budget Reconciliation Act of 1981 (Public Law 97-35; 95 Stat. 841)); and
(D) who is not entitled for such month to a child‘s insurance benefit under section 202(d) of the Social Security Act (
42 U.S.C. 402(d) ) or is entitled for such month to such benefit only by reason of section 2210(e) of the Omnibus Budget Reconciliation Act of 1981 (95 Stat. 842).
the amount that the person concerned would have been entitled to receive for such month as a child‘s insurance benefit under section 202(d) of the Social Security Act (as in effect before the amendments made by section 2210(a) of the Omnibus Budget Reconciliation Act of 1981 (95 Stat. 841)), disregarding any adjustments made under section 215(i) of the Social Security Act after August 1981, but reduced for any month by any amount payable to such person for such month under section 2210(c) of the Omnibus Budget Reconciliation Act of 1981 (95 Stat. 842).
Nowhere does the REPS statute limit the amount of benefits an applicant may receive because of a delay in filing. Instead, it directs that the Secretary “shall pay each month” REPS benefits to any person who meets the requirements set out in section 156(b)(1). The language is mandatory, leaving no room for the VA to impose additional restrictions on entitlement. Under REPS, the agency must pay benefits for each month that the recipient meets the statutory requirements expressly set out.
The Secretary argues that the statutory delegation of power to implement REPS through necessary regulations includes the authority to impose time limits on filing applications for REPS benefits. He finds support for the VA regulation to this effect in the statute‘s provision that a child is to receive only those benefits that she would be entitled to receive under the Social Security Act, reasoning that Congress thus intended to incorporate the limitations of that act into REPS. The Secretary points specifically to section 202(j) of the Social Security Act, which provides for child‘s insurance benefits retroactive to six months prior to the application‘s filing date.
This position disregards the full import of the language in REPS section 156(b)(2) that benefits are payable each month “in the amount that the person concerned would have been entitled to receive for such month as a child‘s insurance benefit under section 202(d) of the Social Security Act.” The stat-
The express reference to
The Secretary maintains that since REPS benefits are paid in accordance with section 202(d) of the Social Security Act, the time specific filing limitation on claims filed under that act should apply to REPS as well. But Skinner applied for benefits under REPS, not under the Social Security Act. While the amount of benefits to which she is entitled is determined by reference to
The statute imposes no time restrictions on entitlement; it mandates payment of benefits for each month a covered survivor meets the statutory requirements. The VA‘s regulations to the contrary conflict with the statute‘s plain meaning.
II.
Because the plain meaning of the REPS statute shows that Congress did not intend to condition REPS benefits on time specific filing requirements, we need not consider the statute‘s legislative history. Darby v. Cisneros, 509 U.S. 137, 147, 113 S.Ct. 2539, 2545, 125 L.Ed.2d 113 (1993). Even if we choose to look to that history, however, “only the most extraordinary showing of contrary intentions” would lead us to disregard the plain meaning of the statute. Garcia v. United States, 469 U.S. 70, 75, 105 S.Ct. 479, 482, 83 L.Ed.2d 472 (1984). The Secretary has made no such showing here.
REPS was designed to restore to military families benefits that Congress inadvertently eliminated as a part of the broad Social Security reform embodied in the Omnibus Budget Reconciliation Act of 1981,
In the 1981 Omnibus Act, Congress modified Social Security, eliminating child‘s benefits for all new claimants, and continuing the program at a reduced level for those claimants already entitled to receive payments.
The Secretary now argues that because Congress meant REPS to restore the Social Security benefits taken away from military families, we should presume that REPS is subject to the same limitations as Social Security. But REPS benefits were to be comparable, not identical, to the Social Security benefits they were designed to replace.7 Congress intended that REPS correct its mistaken cancellation of a commitment to military families; that the benefits thus provided are not subject to the same strict limitations as those that Congress cancelled does not offend this purpose.
As we said above, the statute itself spells out the requirements for entitlement, but nowhere conditions retroactivity on filing at or near the time of first eligibility. Likewise, the legislative history is devoid of any express statement of intent to restrict retroactivity based on timely filing, while it does contain discussion of other time limitations, such as the effective date and prospective nature of the statute. 128 Cong.Rec. S15,121 (daily ed. Dec. 16, 1982) (statement of Sen. Quayle). This history lacks the clear evidence of contrary intent necessary to justify disregarding the plain meaning of the statute.
III.
Finally, the Secretary asserts that we should give effect to the regulation as the agency‘s reasonable interpretation of a statute it is charged with administering. But an agency‘s interpretation of a statute deserves deference only “if the statute is silent or ambiguous with respect to the specific is-
Indeed, we suspect that even the Secretary has not always believed that the regulation was compelled by an incorporation of the limitations of the Social Security Act. The regulation establishes an eleven month filing period for retroactive benefits, but the statute on which the Secretary relies for support provides for Social Security benefits retroactive to six months prior to the filing of an application. Now the Secretary argues that the regulation should have said six months all along. See 58 Fed.Reg. 34524 (1993). We recognize that an agency may sometimes change its interpretation of a statute and still deserve deference from the courts, Chevron, 467 U.S. at 863, 104 S.Ct. at 2791, but the VA‘s shift in interpretation appears simply to reflect its litigating position. The VA undertook a review of its eleven month rule after the veterans court‘s Cole decision, 2 Vet.App. 400 (1992), on appeal sub nom. Cole v. Brown, No. 93-7003 (Fed.Cir. Feb. 7, 1994), and only then decided that it should adopt a six month filing period. While this shift alone might not justify our disregard for the VA‘s interpretation, it tends to show that the agency did not itself believe that the regulation‘s time specific limitation was mandated by statute. Parker v. Office of Personnel Management, 974 F.2d 164, 166 (Fed.Cir.1992) (“post hoc rationalizations will not create a statutory interpretation deserving of deference“).
Whereas a Social Security applicant always gets at least some retroactivity, a REPS beneficiary, according to the VA, is entitled to none if she misses that first deadline. Far from getting benefits comparable to Social Security, the applicant gets less beneficial treatment under the VA‘s REPS than she would have received under Social Security. This is not what Congress contemplated.
Congress enacted REPS as a remedial measure to aid the survivors of military personnel who had come to rely on the government‘s promise of benefits. It chose to benefit only a small fraction of those from whom aid was taken in the 1981 reforms. Indeed, these benefits apply only to a limited number of military families, and payments last only a few years for each beneficiary. It may be unusual that Congress chose not to tie REPS payments to the same time restrictions that applied under the Social Security Act, but it is hardly absurd to conclude, as the government suggests, that it meant to do so under these circumstances given the plain statutory language.
Conclusion
Accordingly, the judgment of the United States Court of Veterans Appeals is affirmed.
AFFIRMED.
PLAGER, Circuit Judge, dissenting.
I dissent. The majority finds in Chevron the rule that “an agency‘s interpretation of a statute deserves deference only if the statute is silent or ambiguous with respect to the specific issue....” Op. at 1575, quoting Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 843, 104 S.Ct. 2778, 2782, 81 L.Ed.2d 694 (1984). But the full statement of the Supreme Court in Chevron is: “Rather, if 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 permissable construction of the statute.” Chevron, 467 U.S. at 843, 104 S.Ct. at 2782. In this case, the statute says nothing specific about retroactivity of payments, or time limits applicable to retroactive benefits. The Secretary, reasonably, wrote regulations, which he is empowered by Congress to do, that set time limits for retroactive payments. This is a straightforward example of a case in which the federal judiciary is not in charge of the making of rules for administering federal programs—the executive is. “When a challenge to an agency construction of a statutory provision, fairly conceptualized, really centers on the wisdom of the agency‘s policy, rather than whether it is a reasonable choice within a gap left open by Congress, the challenge must fail. In such a case, federal judges—who have no constituency—have a duty to respect legitimate policy choices made by those who do.” Chevron, 467 U.S. at 866, 104 S.Ct. at 2793. I would reverse, and reinstate the decision of the Board of Veterans Appeals which properly applied the regulation.