No. 95-875 In the Supreme Court of the United States OCTOBER TERM, 1995 GOOL COUNTS, PETITIONER v. JESSE BROWN, SECRETARY OF VETERANS AFFAIRS ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FEDERAL CIRCUIT BRIEF FOR THE RESPONDENT IN OPPOSITION DREW S. DAYS, III Solicitor General FRANK W. HUNGER Assistant Attorney General DAVID M. COHEN SHARON Y. EUBANKS WILLIAM P. DONOVAN, JR. Attorneys Department of Justice Washington, D.C. 20530 (202) 514-2217 ---------------------------------------- Page Break ---------------------------------------- QUESTION PRESENTED Whether the court of appeals correctly concluded that it lacked jurisdiction to hear an appeal from the Court of Veterans Appeals where the appellant failed to raise a substantial constitutional claim or an issue as to the interpretation of a statute or regulation. (I) ---------------------------------------- Page Break ---------------------------------------- TABLE OF CONTENTS Page Opinions below . . . . 1 Jurisdiction . . . . 1 Statement . . . . 1 Argument . . . . 6 Conclusion . . . . 10 TABLE OF AUTHORITIES Cases: Albun v. Brown, 9 F.3d 1528(Fed. Cir. 1993) . . . . 9 Aldinger v. Howard, 427 U. S. 1(1976) . . . . 6 Christianson v. Colt Indus. Operating Corp., 486 U.S. 800 (1988) . . . . 6 Cox v. Brown, 5 Vet. App. 95 (1993) . . . . 7 Finley v. United States, 490 U. S. 545 (1989) . . . . 6 Granfinanciera, S.A. v. Nordberg, 492 U.S. 33 (1989) . . . . 8 INS v. National Center for Immigrants' Rights, 502 U.S. 183 (1991) . . . . 8 Kokkonen v. Guardian Life Ins. Co., 114 S. Ct. 1673 (1994) . . . . 6 Oklahoma Tax Comm'n v. Chickasaw Nation, 115 S. Ct. 2214 (1995) . . . .8 Patrick v. Burget, 486 U.S. 94 (1988) . . . . 8 Walters v. National Ass'n of Radiation Survivors, 473 U.S. 305 (1985) . . . . 9 Youakim v. Miller, 425 U. S. 231 (1976) . . . . 8 Constitution, statutes and regulation: U.S. Const. Amend. V (Due Process Clause) . . . . 9 Veterans' Judicial Review Act, Pub. L. No. 100-687, Div. A, 102 Stat. 4105 . . . . 7 38 U.S.C. 3008 . . . . 7 38 U.S.C. 4004(b) . . . . 7 38 U.S.C. 7292(c) (Supp. V 1993) . . . . 6, 7, 8 (III) ---------------------------------------- Page Break ---------------------------------------- IV Statutes and regulation-Continued: Page 38 U.S.C. 7292(d)(2) (Supp. V 1993) . . . . 6,7,8 38 C.F.R. 19.194 (1987) . . . . 7 ---------------------------------------- Page Break ---------------------------------------- In the Supreme Court of the United States OCTOBER TERM, 1995 No. 95-875 GOOL COUNTS, PETITIONER v. JESSE BROWN, SECRETARY OF VETERANS AFFAIRS ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FEDERAL CIRCUIT BRIEF FOR THE RESPONDENT IN OPPOSITION OPINIONS BELOW The opinion of the court of appeals (Pet. App. 1-4) is unpublished, but the decision is noted at 66 F.3d 345 (Table). The opinion of the Court of Veterans Appeals (Pet. App. 5-42) is reported at 6 Vet. App. 473. JURISDICTION The judgment of the court of appeals was entered on September 1, 1995. The petition for a writ of certio- rari was filed on November 30, 1995. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). STATEMENT 1. Petitioner served on active duty in the United States Army from July 28, 1943, to December 14, 1945. (1) ---------------------------------------- Page Break ---------------------------------------- 2 Pet. App. 1. His induction physical examination re- vealed no significant physical defects. Gov't C.A. App. 29-32. Medical records indicate that, on April 25, 1944, petitioner was hospitalized in England for injuries sustained when a truck in which he was a passenger overturned. Gov't C.A. App. 35-48. During a physical examination conducted on April 26, 1944, doctors found no defects in petitioner's bones, joints, or mus- cles. Id. at 44-45. A progress note, dated April 28, 1944, states that lacerations of petitioner's lip and left leg healed cleanly. Id. at 43. An undated "Final Sum- mary" further notes that petitioner's other wounds had healed cleanly and that he was ready to return to duty. Id. at 42. On May 3, 1944, petitioner was dis- charged from the hospital. Pet. 3. On November 30, 1945, petitioner underwent a phys- ical examination prior to his release from active duty. Gov't C.A. App. 59. Among other findings, the exam- iner noted that petitioner had been hospitalized for nine days following the truck accident, but that he "had no subsequent treatment." Id. at 60. An entry on the separation examination form, which appears to be the opinion of an orthopedic consultant, reflects an "impression" of "[c]hronic strain left shoulder" and "possible traumatic arthritis of dorsal spine," and recommends x-rays of the left shoulder and dorsal spine. Id. at 61. The next notation on the form states that "X-rays of left shoulder and spine [were] essen- tially negative" and that no orthopedic treatment was required. Ibid. 2. Shortly after his separation from the armed forces, petitioner filed a claim with the Veterans' Administration (VA) for service-connected disability ---------------------------------------- Page Break ---------------------------------------- 3 compensation for injuries allegedly related to the truck accident. Pet. 5. In a decision dated April 10, 1946, a VA regional office denied a back-injury claim by petitioner on the ground that the injury had not been found during petitioner's pre-release examination, and deferred a decision on another claim, for herniorrhaphy resid- uals, pending receipt of additional records. Gov't C.A. App. 68. On May 4, 1946, the VA regional office awarded service connection and a ten percent dis- ability rating for a "tender hernia scar." Pet. 5. The notice states that the decision was "based on incom- plete records. Upon receipt of additional records your case will be reviewed and you will be notified of the action taken." Gov't C.A. App. 67. Benefits of $11.50 per month were awarded for the hernia scar. Id. at 66. On July 23, 1947, the regional office issued a de- cision confirming both the ten percent rating for the hernia scar and the denial of service connection for the back injury. Gov't C.A. App. 121. In a letter to petitioner dated August 1, 1947, the regional office stated: "Your compensation claim was reviewed un- der Public Act 458, 79th Congress, which authorized a new rating schedule for evaluating disabilities in con- nection with additional service records." Id. at 122. The letter further stated that "[a] decision was ren- dered that no change was warranted in the status of your claim." Ibid. 3. The VA thereafter conducted physical exam- inations of petitioner in 1948, 1951 and 1960. Gov't C.A. App. 123-133. In 1951, the VA determined that petitioner's hernia scar, although connected to ser- vice, was no longer disabling. The VA further de- termined that a scar on petitioner's left knee was ---------------------------------------- Page Break ---------------------------------------- 4 service-connected but not disabling. Thus, petitioner was deemed ineligible for compensation. Id. at 69. In January, 1960, the VA regional office denied peti- tioner's claims concerning certain "residuals" of in- juries related to the truck accident. Gov't C.A. App. 130-132. Petitioner appealed that decision to the Board of Veterans' Appeals (Board). In September, 1960, the Board denied his claims. The regional of- fice and the Board denied the same claims again in 1961 and 1962, after petitioner submitted additional evidence. Id. at 135; Gov't C.A. Br. 8. Between 1962 and 1987, petitioner submitted num- erous affidavits and statements from private physi- cians regarding his asserted disabilities and pre- sented testimony at personal hearings at the VA regional office. His claims of service connection for residuals of various injuries were denied by Board decisions in 1963, 1965, 1967, 1980,1982, 1984 and 1987. Gov't C.A. App. 134-144. 4. In July, 1988, petitioner submitted copies of sev- eral newspaper articles to the regional office. Gov't C.A. App. 115-120. One of those articles pertains to fines assessed against the VA in litigation unrelated to the present proceedings. Id. at 115. The remainder pertain to an incident during World War II in which 749 American soldiers were killed during training exercises in April, 1944, prior to the invasion of Normandy. Id. at 116-120. In October, 1988, the regional office received copies of two extracts maintained by the Department of the Army, Office of the Surgeon General, bearing peti- tioner's service number, but not containing any names or other identifying information. One of the extracts states that a service member was hospital- ized in May, 1944, in the South Pacific for chronic ---------------------------------------- Page Break ---------------------------------------- 5 cystitis and stricture of the urethra. Pet. 6. The other extract indicates that a service member was hospitalized in April, 1944, for injuries resulting from a truck accident. Ibid. Petitioner asserted that the newspaper clippings and Surgeon General's Office extracts constituted "new and material evidence" requiring reconsid- eration of his benefit claims. Gov't C.A. App. 156-158. In May, 1989, the regional office again declined to re- open the claims. See id. at 146. Petitioner, who was represented by counsel, appealed that decision to the Board and was given the opportunity to testify before the Board. Id. at 134, 146, 153-156. In a decision dated April 15, 1991, the Board determined that the news- paper clippings, the Surgeon General's Office ex- tracts, and petitioner's testimony did not constitute new and material evidence. Id. at 156-160. The Board found, in pertinent part, that petitioner's testimony and the extract regarding petitioner's hospitalization following the truck accident were duplicative of evi- dence previously presented to the Board. Id. at 158- 159. The Board also concluded that the news clip- pings and the additional extract concerning the ser- vice member hospitalized in the South Pacific were not material. Ibid. 5. Petitioner appealed to the Court of Veterans Appeals (CVA). In its May 27, 1994, decision, the CVA held that petitioner had not submitted new and material evidence and that the VA did not breach a duty to assist petitioner. Pet. App. 6-26. On Septem- ber 9, 1994, the CVA denied petitioner's motion for review en banc and entered judgment. See Pet. 6. Petitioner then filed an appeal with the United States Court of Appeals for the Federal Circuit. The court of appeals dismissed the appeal for lack of juris- ---------------------------------------- Page Break ---------------------------------------- 6 diction. Pet. App. 1-4. The court noted that it had jurisdiction to review only "challenges to the validity or interpretation of a statute or regulation, or to the interpretation of a constitution provision, that the Court of Veteran's Appeals relied on in its decision." Id. at 2. Petitioner, however, "challenge[d] only fact- ual determinations or the application of law to the facts of his case and [did] not present a genuine constitutional issue or a challenge to the validity or interpretation of a statute or regulation." Id. at 3.1. ARGUMENT The court of appeals correctly determined that it did not have jurisdiction to hear this appeal under 38 U.S.C. 7292(c) and (d)(2) (Supp. V 1993) because peti- tioner did not present a substantial constitutional question or a question as to the validity or interpre- tation of a statute or regulation. Pet. App. 34. 1. Federal courts of appeals are courts of limited jurisdiction. E.g., Aldinger v. Howard, 427 U.S. 1, 15 (1976). For any inferior court to exercise jurisdic- tion, that jurisdiction must have been conferred by an Act of Congress. Finley v. United States, 490 U.S. 545, 548 (1989). Inferior courts may not, even in the interest of justice, extend their jurisdiction where none exists. Christianson v. Colt Indus. Operating Corp., 486 U.S. 800,818 (1988). The law is also clear that an appellant or petitioner has the burden of establishing the jurisdiction of a court of appeals. Kokkonen v. Guardian Life Ins. Co., 114 S. Ct. 1673, 1675 (1994). ___________________(footnotes) 1 Contrary to petitioner's assertion, the government did not concede at oral argument that any service records relating to petitioner are missing. ---------------------------------------- Page Break ---------------------------------------- 7 The Veterans' Judicial Review Act, Pub. L. No. 100-687, Div. A, 102 Stat. 4105, established the CVA and specified the limited circumstances in which the Court of Appeals for the Federal Circuit has juris- diction to consider appeals from CVA decisions. Pursuant to 38 U.S.C. 7292(c) (Supp. V 1993), the court of appeals has exclusive jurisdiction "to review and decide any challenge to the validity of any statute or regulation or any interpretation thereof brought under this section, and to interpret constitutional and statutory provisions, to the extent presented and necessary to a decision." Except to the extent that an appeal presents a constitutional issue, however, the court of appeals "may not review (A) a challenge to a factual determination, or (B) a challenge to a law or regulation as applied to the facts of a particular case." 38 U.S.C. 7292(d)(2) (Supp. V 1993). Petitioner does not challenge the validity of a statute or regulation and he does not present a constitutional issue. The court of appeals therefore correctly dismissed peti- tioner's appeal for lack of jurisdiction. 2. This case does not raise a question as to the validity or interpretation of a statute or regulation. The CVA found that the newspaper articles and two extracts provided by the Office of the Surgeon General did not constitute "new and material evidence" requiring the VA to reopen petitioner's claims. See 38 U.S.C. 3008, 4004(b); 38 C.F.R. 19.194 (1987); Cox v. Brown, 5 Vet. App. 95,98 (1993). Peti- tioner does not challenge the CVA's interpretation of the "new and material" standard; rather, petitioner argues that the CVA should have found that he had met that standard. Pet. 21. Petitioner's claim thus challenges "a law or regulation as applied to the facts ---------------------------------------- Page Break ---------------------------------------- 8 of a particular case." Review of such an issue is pre- cluded under Section 7292(d)(2). 3. Petitioner argues that Section 7292(d)(2) vio- lates separation of powers because it allows courts to shirk their duty to review judgments merely by hold- ing that the judgments were based on factual findings or the application of law to facts. Pet. 19-21. That argument was not raised before any of the courts below and is not properly before this Court. More- over, the argument is meritless. "As a court of review, not one of first view," Okla- homa Tax Comm'n v. Chickasaw Nation, 115 S. Ct. 2214, 2219 (1995), this Court "usually will decline to consider questions presented in a petition for certio- rari that have not been considered by the lower court." Patrick v. Burget, 486 U.S. 94, 99 n.5 (1988); see also INS v. National Center For Immigrants' Rights, 502 U.S. 183, 188 (1991); Youakim v. Miller, 425 U.S. 231, 234 (1976). This Court will address a ground not raised below "only in exceptional cases." Granfinanciera, S.A. v. Nordberg, 492 U.S. 33, 39 (1989). Petitioner was represented by counsel before the court of appeals and the CVA, and has offered no explanation for his failure to raise the separation of powers claim at an earlier stage of the litigation; nor has petitioner identified any relevant extraordinary circumstances. In any event, petitioner's claim that Section 7292(d)(2) violates separation of powers principles is meritless. The statute's provisions are clear and do not leave courts with undue discretion to refuse to exercise jurisdiction. Read in conjunction with Sec- tion 7292(c), Section 7292(d)(2) requires the court of appeals to dismiss an appeal from the CVA if the appeal "does not raise a constitutional question, a ---------------------------------------- Page Break ---------------------------------------- 9 question as to the interpretation of a constitutional or statutory provision, or the interpretation or valid- ity of a regulation relied upon by the Court of Vet- eran's Appeals." Albun v. Brown, 9 F.3d 1528, 1530 (Fed. Cir. 1993). Provisions confining appellate juris- diction to questions of law are familiar and do not raise any constitutional issues in the government benefits context. 4. The court of appeals correctly determined that this case does not raise a substantial due process issue. 2. Petitioner appears to argue that, because he is an applicant who has been denied benefits, due pro- cess requires that his claims be reopened because he alleges that "records are missing," In support of this argument, petitioner relies on language in a notification dated May 4, 1946, which stated that records were "incomplete" at that time and that petitioner's claim would be reconsidered "upon receipt of additional records." Pet. 5. On August 1, 1947, however, petitioner received notifica- tion that his claim had, in fact, been reconsidered in light of additional records. Gov't C.A. App. 122. No evidence supports petitioner's contention that rec- ords are still missing, indeed, existing documentation of petitioner's condition is quite extensive. The VA's decisions were based on records concerning (a) petitioner's hospitalization in 1944; (b) his medical ___________________(footnotes) 2 The petition asserts that this case presents the question whether "a veteran [has] a property interest protected by the Due Process Clause of the Fifth Amendment in receiving dis- ability benefits." Pet. i, 25. This Court has already decided that veterans have a property interest in the continued re- ceipt of disability benefits that is protected by the Due Process Clause. See Walters v. National Ass'n of Radiation Survivors, 473 U.S. 305,320 n.8 (1985). ---------------------------------------- Page Break ---------------------------------------- 10 examination in 1945; (c) documents received by the VA in 1946; (d) subsequent medical examinations in 1948, 1951 and 1960; and (e) other documents intro- duced in the many VA proceedings petitioner has initiated since the 1940's. See, e.g., id. at 35-48, 59-63, 69-70,121,123-133. Petitioner first applied for benefits in 1945 and has repeatedly been given the opportunity to submit af- fidavits and new evidence, to testify in support of his claims, and to appeal the denial of benefits to the Board and to the CVA. Petitioner was given phys- ical examinations in at least 1944, 1945, 1948, 1951 and 1960. Gov't C.A. App. 52-61, 123-133. Additionally, prior to petitioner's initiation of the current proceed- ings in 1988, decisions were rendered on these same claims in 1946, 1947, 1951, 1960, 1963, 1965, 1967, 1980, 1982, 1984 and 1987. See id. at 68-70, 121-122, 134-136, 138, 141, 143, 159. In view of this extensive consider- ation, petitioner has no substantial claim that due process has been violated. CONCLUSION The petition for a writ of certiorari should be denied. Respectfully submitted. DREW S. DAYS, III Solicitor General FRANK W. HUNGER Assistant Attorney General DAVID M. COHEN SHARON Y. EUBANKS WILLIAM P. DONOVAN, JR. Attorneys FEBRUARY 1996 ---------------------------------------- Page Break ----------------------------------------