Lead Opinion
NEBEKER, Chief Judge, filed the opinion of the Court, FARLEY, Judge, concurring in the result, and KRAMER, Judge, dissenting in part, filed separate opinions.
The appellant, Esdras S. Tulingan, appeals an April 21, 1994, decision of the Board of Veterans’ Appeals (BVA or Board) which sustained a forfeiture of benefits invoked against him for his membership in the Bureau of Constabulary (BC) under 38 U.S.C. § 6104(a). Record (R.) at 5-13. The Court will affirm the BVA decision for the following reasons.
I. FACTS
Mr. Tulingan had recognized guerilla service in the Philippines from August to September 1942. R. at 51. The service department further certified that he was in a noeasualty status from September 1942 to February 1945, and that he had another period of recognized guerrilla service from March 1945 to February 1946 and Philippine Army service from February to March 1946. Ibid. The veteran reported that he was wounded by a bullet in the upper left thigh in June 1945. R. at 43.
Tulingan was granted service connection for the wound in 1949. R. at 59. In applying for compensation, he had denied “rendering assistance to an enemy of the United
The VA Central Office Committee on Waivers and Forfeitures concluded that Tu-lingan’s eligibility for VA benefits was forfeited due to his rendering of assistance to an enemy. R. at 94-95, 97-98, 100, 102, 104; Suppl. R. at 2, 4, 6-7. The BVA affirmed the Committee’s decision and found that Tu-lingan had been guilty, either directly or indirectly, of rendering assistance to an enemy of the U.S. or its allies, and that he thereby forfeited all accrued or future benefits under the laws administered by VA. R. at 111-12.
VA restored Tulingan’s eligibility for benefits in 1965. R. at 117. However, fifteen years later that eligibility was again terminated because the reinstatement was found clearly and unmistakably erroneous. Supplemental (Suppl.) R. at 16. Tulingan attempted to regain his eligibility with additional evidence. R. at 133. He submitted additional affidavits from Messrs. Alcaraz and Aban. R. at 146, 157-58. He also submitted a joint affidavit from Laureto Alava and Brigido Serapion'dated in January and' March 1989, which reported that they had served in the BC with him and that they all had been “planted” with the consent of their commanding officer, Mr. Aban, in the BC as “intelligence and cover agents.” R. at 154-55. Tulingan also submitted extracts of service orders relating to a sabotage battalion (guerrilla unit) of which Mr. Aban was commander, Mr. Alcaraz was company commander, and Tulingan was a member as of December-1943. R. at 137, 140-43, 149-50. The RO informed the appellant that the additional evidence submitted was not new and material because it was repetitive and cumulative of the evidence previously considered. R. at 152. Tulingan filed a Notice of Disagreement in March 1989. R. at 152. The RO confirmed the decision in June 1990. Suppl. R. at 20-23. Tulingan appealed to the BVA, which concluded that the additional evidence submitted by him was not new and material evidence. R. at 195-96. This Court, in 1993, vacated the BVA decision, and remanded the matter. Tulingan v. Brown, U.S. Vet.App. No. 91-1524 (mem.
The BVA then remanded the claim to the RO for a de novo review. R. at 203-05. The RO denied a revocation of the May 1980 forfeiture decision (R. at 208-10), and returned the case to the BVA. The BVA then reviewed the evidence of record and sustained the forfeiture. R. at 5-14.
II. ANALYSIS
A. “Clearly Erroneous” Analysis
The Court reviews the BVA’s findings regarding forfeiture as a question of fact under the “clearly erroneous” standard of review. Villaruz v. Brown,
Section 6104(a) of title 38, U.S.Code, provides as follows:
(a) Any person shown by evidence satisfactory to the Secretary to be guilty of mutiny, treason, sabotage, or rendering assistance to an enemy of the United States or of its allies shall forfeit all accrued or future gratuitous benefits under laws administered by the Secretary.
38 U.S.C. § 6104(a). The record reflects, and Tulingan does not deny, that he was a member of the BC from December 1943 to November 1944. R. at 70-71; Appellant’s Br. at 1, 5. The Board, in relying on the October 1944 report, stated:
The [BC] has been recognized as having been part of the Japanese military occupation and administration, and as part of the Japanese Imperial Forces. Members of the [BC] were sent for training, and as reported by headquarters staff of the [U.S.]. Army in October 1944, were comprised of enlistees and volunteers. These persons who were members of the [BC] helped Japanese Forces control the local population, made pledges of allegiance to the Japanese Government, were issued weapons, and were sometimes used against American forces.
R. at 12. The BVA then concluded by inference that the appellant had made “an oath of allegiance to an organization which was under the control and domination of a foreign power, and which was at war with the United States.” R. at 12.
By Tulingan’s own affidavit, he was a member of the BC in Nueva Vizcaya. R. at 77. There is no geographical question (Op. infra at 493), as judicial notice of any reputable map of the Philippines, finds the province in question to be part of the north Luzon island, the same area at issue in the Report. R. at 160; see National GeogRaphic Atlas of the World, 82. (6th ed.1992). Moreover, as relied upon by the Board, the Report pointed out that the BC’s mémbers included “younger persons who adopted this method of securing a living, [and further] that there was not known to have been a single case in which a person was physically or mentally coerced into joining the [BC].” R. at 9.
The Board rejected Aban’s affidavit and the extracts of service orders relating to a sabotage battalion on the grounds that the sabotage battalion was not a recognized guerrilla unit and that, because Tulingan had no recognized guerrilla service during this period, he could not have been planted in the BC on behalf of an official Philippine or American unit. R. at 13. The Board rejected Coloma’s affidavit because the BVA found that he had no personal knowledge relating to Tuíingan’s enlistment in the BC. Ibid. The Board rejected the affidavits from Alearaz, Alava, and Serapion after considering their
B. Exercise of Jurisdiction
Judge Farley’s concurrence harkens to the language in 38 U.S.C. § 6104(a) (“evidence satisfactory to the Secretary”), which preexisted the Veterans’ Judicial Review Act (VJRA), Pub.L. No. 100-687, 102 Stat. 4105 (1988) (codified at 38 U.S.C. §§ 7251-7298), as a basis to permit the Court to decline review of the decision in this case. At the time that language was enacted the statute’s purpose, whatever else it was, was not to permit a reviewing court to decline review, for as Judge Farley observes, judicial review was prohibited. The question then is whether upon passage of the VJRA the “evidence satisfactory to the Secretary” clause is to be given a new meaning and purpose — one it could not have had upon its earlier enactment. We think not, in view of the plenary grant of the right of judicial review of Board decisions adverse to veterans and other claimants to veterans benefits. If the Court is to have discretion to allow an appeal in forfeiture cases, such power must, in view of the general right of appeal under the VJRA, be specifically granted, as it is in virtually all courts where review is a matter of grace and not right. We are unwilling to read into section 6104(a) such a limitation on the right of appeal where the Board orders or sustains a forfeiture.
III. CONCLUSION
Accordingly, upon consideration of the record and the briefs of the parties, the Board’s decision of April 21, 1994, is AFFIRMED.
Concurrence Opinion
concurring:
I concur in the conclusions that there is a plausible basis in the record for the Board’s factual findings and that those findings are not clearly erroneous. Therefore, I also concur in the judgment which affirms the BVA’s ruling that the forfeiture of the appellant’s benefits was proper. I must note, however, that this is a begrudging concurrence, one given reluctantly and only because I believe that I am bound to follow the precedential decision in Villaruz v. Brown,
For my part, I have come to realize that we (I was a member of the Villaruz panel) neglected to consider, much less resolve, a determinative threshold issue in Villaruz. I now believe that § 6104(a) commits the decision in this matter to the unfettered discretion of the Secretary and that the Court should exercise restraint, decline to review the BVA decision, and dismiss this appeal.
I.
The principle of judicial review was established (perhaps “presumed” is the better word) by Chief Justice Marshall in 1803 in the landmark decision of Marbury v. Madison,
As is the case with general rules, however, there are exceptions to this rule of reviewa-bility. Courts would not and could not undertake judicial review of agency action where such review was proscribed by statute or where the decision was committed to the sole discretion of the agency. One commentator has described the latter as embracing “actions that are exempt from review because of judicial self-restraint.” Ronald M. Levin, Understanding Unreviewability in Administrative Law, 74 Minn. L.Rev. 689, 691 (1990). For an example of preclusion by statute, we need look no farther than the history of veterans benefits adjudications. Prior to the 1988 enactment of the Veterans Judicial Review Act (VJRA), Pub.L. No. 100-687, 102 Stat. 4105, decisions on veterans benefits were not subject to review outside the Veterans’ Administration. See 38 U.S.C. § 211(a) (1987) (“[T]he decisions of the Administrator [ (now the Secretary) ] on any question of law or fact under any law administered by [VA] providing benefits for veterans and their dependents or survivors shall be final and conclusive and no other official or any court of the United States shall have power or jurisdiction to review any such decision by an action in the nature of mandamus or otherwise.”).
The committed-to-agency-discretion exception is “very narrow,” applicable in those rare instances where “ ‘statutes are drawn in such broad terms that in a given case there is no law to apply.’” Citizens to Preserve Overton Park v. Volpe,
[E]ven where Congress has not affirmatively precluded review, review is not to be had if the statute is drawn so that a court would have no meaningful standard against which to judge the agency’s exercise of discretion. In such a case, the statute (“law”) can be taken to have “committed” the decisionmaking to the agency’s judgment absolutely.
Heckler v. Chaney,
[ejomplete administrative authority and decisionmaking freedom is ... created by operation of law. For certain categories of administrative decisions, tradition or common law has evolved unreviewable discretion. Or constitutional theory might operate to deprive the judiciary of a role in certain types of administrative decisions.
2 Charles H. Koch, Jr., Administrative Law and Practice § 9.35[2] (Supp.1996). Two oft-cited examples of decisions committed-to-agency-discretion are (1) matters of national security and (2) the exercise of prose-cutorial discretion. See Webster v. Doe,
The two exceptions to the rule of reviewa-bility, statutory preclusion, and committed-to-agency-discretion, which Professor Davis has referred to as part of the “common law” of judicial review of agency action, 5 Kenneth C. Davis, Administrative Law Treatise § 28:5 (2d ed.1984), were codified in the Administrative Procedures Act (APA). Section 701(a) of title 5, U.S.Code, provides that there shall be judicial review “except to the extent (1) statutes preclude judicial review; or (2) agency action is committed to agency discretion by law.” Although the APA served as a model for at least some sections of the VJRA, compare 5 U.S.C. § 706(2)(A)~ (D) with 38 U.S.C. § 7261(a)(3)(A)-(D), Congress did not expressly state in the VJRA that there is no judicial review where there is a statutory prescription or a commitment to agency discretion. However, with regard to the former exception, such a definitive proscription would hardly have been necessary
Regarding the committed-to-ageney-dis-cretion exception, 38 U.S.C. § 7261 does authorize and direct that the Court overturn decisions of the Board which are found to constitute an “abuse of discretion.” 38 U.S.C. § 7261(a)(3)(A) (emphasis added). However, the “abuse of discretion” standard cannot be contorted into global review authority, or stretched to allow the Court to review matters where “the statute is drawn so that a court would have no meaningful standard against which to judge the agency’s exercise of discretion.” Heckler,
II.
Turning now to the controlling statute in the matter before the Court, 38 U.S.C. § 6104(a), provides:
(a) Any person shown by evidence satisfactory to the Secretary to be guilty of mutiny, treason, sabotage, or rendering assistance to an enemy of the United States or of its allies shall forfeit all accrued or future gratuitous benefits under laws administered by the Secretary.- [Emphasis added.]
This statute was enacted during World War II as section 4 of the Act of July 13, 1943, 57 Stat. 554-55, which later became 38 U.S.C. § 728. The purpose of the statute is clear:
In short, no person, within the meaning of 38 U.S.C.A. § 728, guilty of the proscribed offenses was, as a matter of right, to continue [to be] eligible to receive benefits from the government of the nation whose welfare and security in time of war he sought to impair.
Wellman v. Whittier,
It is worthy of note that the statute does not require an adjudication of guilt by court martial or other judicial entity before forfeiture of benefits; the decisional responsibility for determining whether a person is “guilty” is placed by the statute upon the shoulders of the Secretary without reference to any other tribunal. As the Tenth Circuit held not long ago, in construing similar language contained in 12 U.S.C. § 191 (“whenever the Comptroller shall become satisfied of the insolvency of a national banking association, he may emphasis added), judicial review was precluded because, inter alia, “[s]uch permissive language exudes strong deference to the Comptroller’s decision.” American Bank, N.A. v. Clarke,
III.
Decisions on claims for benefits are “subject to one review on appeal to the Secretary.
When viewing the evidence in its entirety, the Board considers the appellant’s activity and membership in the Bureau of Constabulary as constituting an extension of the Japanese war effort, as an activity giving aid and assistance to an enemy of the United States.
R. at 13. From this, the Board concluded that “[t]he appellant, beyond a reasonable doubt, was guilty of rendering assistance to an enemy of the United States.” R. at 7. As required by § 6104(a), the Board ruled that the appellant had forfeited his right to VA benefits. Unlike the statutes that deal with entitlement to benefits (see, e.g., 38 U.S.C. §§ 1110, 1121, 1131, 1141, 1151), 38 U.S.C. § 6104(a) contains its own peculiar evidentia-ry standard and, under these circumstances, there simply is, in the words of the Senate report quoted and relied on in Overton Park, “no law to apply” and, therefore, no basis for judicial review. To undertake review in such a situation, the Court would have to place itself in the shoes of the Secretary. In my view, that is not review but the impermissible judicial usurpation of a responsibility committed by statute to the Secretary.
There is a second, and perhaps more practical, consideration which also militates against judicial review of this decision under § 6104(a). The Board concluded here, in a phrase intended perhaps more as a description than a standard of review, “beyond a reasonable doubt” that the appellant was shown by evidence satisfactory to the Secretary to have been guilty of rendering assistance to an enemy of the United States. R. at 7. What standard of review are we to apply in reviewing such a determination? Stated another way, how is the Court supposed to measure the Secretary’s satisfaction? With a Ouija board? A mood ring?
Appellate court standards of review may properly be viewed along a spectrum of the deference to be accorded the decision and the decisionmaker below. The different standards of review which courts employ in reviewing different types of agency action “may be said to express different levels of tolerance for risk of error.” 2 Koch, swpra, § 9.2; see also Miller v. Fenton,
While this issue might appear at first blush to be of only abstract academic interest, the dissenting opinion of Judge Kramer brings it right down to the concrete level. Borrowing from the lyrics of the Rolling Stones of a generation ago, Judge Kramer “can’t get no satisfaction” from what he describes as a “preliminary finding” of the Board. However, 38 U.S.C. § 6104(a) renders his relative satisfaction with the evidence of record perhaps of interest but inconsequential as a matter of law.
All of the above is not to say that a decision under § 6104(a) would never be subject to judicial review. Indeed, as the D.C. Circuit noted almost forty years ago in construing the predecessor to today’s statute,
while 38 U.S.C.A. § 728 authorizes a determination by the Administrator upon “evidence satisfactory to” him, his ruling as we shall develop, is not simply discretionary with him. If it depends upon an erroneous interpretation of law, it may be subject to review by the courts.
Wellman,
Finally, nothing said above would relieve the Secretary of his obligation under 38 U.S.C. § 7104(d)(1) to include “a written statement of ... the reasons or bases for [the Board’s] findings and conclusions, on all material issues of fact and law presented on the record.” For this reason, the Court could, at least in theory, entertain a request for judicial review of the statement of reasons or bases which accompanied a BVA decision under 38 U.S.C. § 6104(a). In fact, the dissent engages in just such an exercise. Apparently based upon the implicit assumption that service in the Bureau of Constabulary (BC) is an inadequate predicate for forfeiture on this record, the dissent would remand for “an adequate statement of reasons or bases” as to why “any service in the BC, regardless of circumstances, constitutes rendering assistance to an enemy within the meaning of 38 U.S.C. § 6104(a).” Op. infra at 494. I do not happen to find the Board’s statement of reasons or bases to be insufficient under 38 U.S.C. § 7104(d) but even if one were to accept that view, judicial review in circumstances such as these would be a triumph of form over substance. If the Court were to find error due to an inadequate statement, the remedy of remand would of necessity be limited to the statement, not the substantive decision. No matter how many times a BVA decision under 38 U.S.C. § 6104(a) returned to this Court, the bottom line would remain the same: the Secretary’s decision under § 6104(a), based upon evidence he finds satisfactory to him and without any other statutory or regulatory standards, could not be the subject of meaningful judicial review since there is “no meaningful standard against which to judge the agency’s exercise of discretion.” Heckler,
IV.
Here, we are being asked to review a decision reached by the Secretary, through Ms delegee, the Board of Veterans’ Appeals. There is no claim that the decision was based on a misinterpretation of law or that it deprived the appellant of a constitutional right, and the record would not support such claims. Therefore, because tMs matter has been committed by statute to the Secretary based upon evidence “satisfactory to the Secretary” and there are no standards wMch would facilitate review or any law to apply, I believe that the Court should decline to review the April 21, 1994, BVA decision and dismiss the appeal.
Although tMs is an Article I court, it does exercise Article III judicial power. See Freytag v. Commissioner,
The judicial power of the Umted States conferred by Article III of the Constitution is upheld just as surely by withholding judicial relief where Congress has permissibly foreclosed it, as it is by granting such relief where authorized by the Constitution or by statute.
Dalton v. Specter,
Concurrence in Part
concurring in part and dissenting in part:
I concur in part II.B., see Villaruz v. Brown,
The [BC] has been reeogmzed as having been part of the Japanese military occupation and administration, and as part of the Japanese Imperial Forces. Members of the [BC] were sent for traimng, and as reported by headquarters staff of the [U.S.] Army in October 1944, were comprised of enlistees and volunteers. These persons who were members of the [BC] helped Japanese Forces control the local population, made pledges of allegiance to the Japanese Government, were issued*493 weapons, and were sometimes used against American forces.
R. at 12 (emphasis added). The BVA then “concluded]” that the appellant took “an oath of allegiance to an organization which was under the control and domination of a foreign power, and which was at war with the United States”; this was a preliminary finding which was a primary basis for the Board’s finding that the appellant had rendered assistance to an enemy of the United States. R. at 12.
The October 1944 report, however, does not state that members of the BC made pledges of allegiance or oaths to either the Japanese Government or an organization under its control. The report is limited to general observations about the activities of the BC only with respect to North Luzon. R. at 77-78. There is nothing in the report, or otherwise in the record on appeal, that places the appellant’s BC activities in North Luzon (including the appellant’s affidavit on which the majority relies but which never speaks of North Luzon) or which shows a relationship between the areas of North Luzon and Nueva Vizcaya (the actual area for the appellant’s BC activities). Despite the majority’s invocation of judicial notice to “illustrate!] [that] the province in question [Nueva Vizcaya] ... [is] part of the northern Luzon island” (ante at 486), it is difficult to draw that conclusion from the referenced map. The map shows the province of Nueva Vizcaya as part of Luzon; however, it does not show any area denominated as northern Luzon. In addition, there is nothing in the report that specifically relates to the appellant. In light of the limited scope, geographical and otherwise, of the October 1944 report and the lack of evidence in the record refuting the appellant’s denial that he ever gave an oath or other formal declaration of allegiance to a foreign state (R. at 30), the Court should hold that the Board’s preliminary finding in this regard is clearly erroneous, see Gilbert v. Derwinski,
The Board rejected Mr. Aban’s affidavit and the extracts of service orders relating to a sabotage battalion on the grounds that the sabotage battalion was not a recognized guerrilla unit and that, because the appellant had no recognized guerrilla service during this period, he could not have been planted in the BC on behalf of an official Philippine or American unit. The Court should conclude that this is not an adequate reason or basis to reject the evidence because the affidavit’s purpose was not to demonstrate that the appellant was working on behalf of a recognized guerrilla unit, but rather that the appellant was not rendering aid or assistance to an enemy of the United States. See 38 U.S.C. § 7104(d)(1); Gilbert,
The Board rejected Mr. Coloma’s affidavit (although his own loyalty is not in question) because the BVA found that he had no personal knowledge relating to the appellant’s enlistment in the BC. Mr. Coloma’s lack of knowledge regarding that enlistment is not an adequate reason or basis for rejecting his entire affidavit because it also stated that the appellant had personally reported to him on activities of the enemy while the appellant was in the BC, a statement that if true, would seem to support the appellant’s contention that he had joined the BC as a spy and remained loyal to the United States and its allies. See ibid. (As to the Board’s rejection of the affidavits from Messrs. Alcaraz, Alava, and Serapion, considering their participation in the BC, the BVA’s finding that their statements were “extremely self-serving and [] not credible,” (R. at 13) was plausible, and thus not clearly erroneous. See Gilbert,
In sum, the evidence of record demonstrates only that the appellant served in the