Marasigan v. Dept. Of Veterans Affairs , 433 F. App'x 920 ( 2011 )

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
__________________________
CANDIDO B. MARASIGAN,
Claimant-Appellant,
v.
ERIC K. SHINSEKI, SECRETARY OF VETERANS
AFFAIRS,
Respondent-Appellee.
__________________________
2011-7053
__________________________
Appeal from the United States Court of Appeals for
Veterans Claims in 08-2304, Judge Robert N. Davis.
___________________________
Decided: August 9, 2011
___________________________
CANDIDO B. MARASIGAN, of Bayombong, Nueva Viz-
caya, Philippines, pro se.
K. ELIZABETH WITWER, Trial Attorney, Commercial
Litigation Branch, Civil Division, United States Depart-
ment of Justice, of Washington, DC, for respondent-
appellee. With her on the brief were TONY WEST, Assis-
tant Attorney General, JEANNE E. DAVIDSON, Director,
and TODD M. HUGHES, Deputy Director. Of counsel on the
MARASIGAN v. DVA 2
brief was MICHAEL J. TIMINSKI, Deputy Assistant General
Counsel, United States Department of Veterans Affairs,
of Washington, DC.
__________________________
Before RADER, Chief Judge, LOURIE, and O’MALLEY, Cir-
cuit Judges.
PER CURIAM.
Mr. Candido B. Marasigan appeals the decision of the
United States Court of Appeals for Veterans Claims
(“Veterans Court”), affirming the Board of Veterans’
Appeals’ (“Board’s”) decision concluding that Mr. Marasi-
gan did not submit sufficient new and material evidence
to reopen an earlier claim. Marasigan v. Shinseki, No. 08-
2304, 2010 U.S. App. Vet. Claims LEXIS 1524 (Ct. Vet.
App. Aug. 23, 2010). Because Mr. Marasigan’s sole argu-
ment was not presented to the Veterans Court, and is
merely an assertion that we should interpret a statute in
a manner completely at odds with its express terms, we
dismiss for lack of subject matter jurisdiction.
BACKGROUND
Mr. Marasigan served in the United States Armed
Forces of the Far East (“USAFFE”) during World War II.
In November 1971, he applied to the Department of
Veterans Affairs (“VA”) for benefits. Because his name
appeared in records seized from the Bureau of the Con-
stabulary – a pro-Japanese organization formed during
Japan’s occupation of the Philippines – the VA undertook
an investigation into Mr. Marasigan’s possible involve-
ment with the organization. In a July 1976 decision, the
VA’s Compensation and Pension Service determined that
Mr. Marasigan participated in the Bureau of the Con-
stabulary from May 1943 to December 1944 and had worn
a uniform, carried a weapon, and received training from
3 MARASIGAN v. DVA
the Bureau. Based on these findings, the VA concluded
that Mr. Marasigan had assisted the Japanese in their
efforts against the United States and its allies and had,
thereby, forfeited all rights, claims, and benefits to which
he might otherwise be entitled as a veteran. Mr. Marasi-
gan did not file a timely notice of disagreement, and the
decision became final.
Nearly three decades later, on March 1, 2004, Mr.
Marasigan requested disability benefits for medical
conditions he claims are related to his service in the
USAFFE. The regional office denied the claim on the
basis that Mr. Marasigan had forfeited his entitlement to
any such benefits. Mr. Marasigan appealed to the Board,
arguing that, since the July 1976 decision, he had submit-
ted new and material evidence sufficient to reopen the
VA’s decision that he had forfeited his entitlement to VA
benefits. See A18; Trilles v. West, 13 Vet. App. 314, 325
(2000) (en banc) (“[A] VA benefits recipient or claimant
who has been the subject of a final decision declaring
forfeiture of eligibility for VA benefits may have that final
decision reopened upon the presentment of new and
material evidence or revised based on a finding of [clear
and unmistakable error] in the original forfeiture deci-
sion.”). Upon review of Mr. Marasigan’s submissions, the
Board found that “the evidence received since July 1976
[was] either cumulative of the evidence considered in that
decision or [did] not relate to the central question of
whether the veteran was a member of the [Bureau of the
Constabulary].” A17. Consequently, the Board concluded
that there was no basis to reopen the 1976 forfeiture
decision.
Mr. Marasigan appealed to the Veterans Court. His
sole argument was that the Board erred in determining
that he failed to submit new and material evidence suffi-
cient to reopen the original forfeiture decision. Discerning
MARASIGAN v. DVA 4
no clear error in the Board’s analysis, the Veterans Court
affirmed. Mr. Marasigan timely appealed to this court.
DISCUSSION
Our jurisdiction to review decisions of the Veterans
Court is limited by statute. Forshey v. Principi, 284 F.3d
1335, 1338 (Fed. Cir. 2002) (en banc). Section 7292(a) of
Title 38 provides that this court may review the validity
of a Veterans Court's decision on “a rule of law or of any
statute or regulation . . . or any interpretation thereof . . .
that was relied on by the Court in making the decision.”
Under 38 U.S.C. § 7292(d)(2), however, we may not
review: (1) “a challenge to a factual determination” or (2)
“a challenge to a law or regulation as applied to the facts
of a particular case” unless the challenge presents a
constitutional issue.
On appeal, Mr. Marasigan no longer contends that the
Board erred in concluding that he failed to submit new
and material evidence. He only asserts that his “depend-
ents . . . should be given shares out of the pensions and
benefits of the veteran, which were disallowed by the [VA]
for violation of Title 38, United States Code, Section
3504(a) 1 . . . because they have not participated in the
commission of the offense” giving rise to the violation.
Informal Brief of Appellant (“Vet. Br.”) at 2.
In response, the government contends that we lack ju-
risdiction because Mr. Marasigan raised this argument
for the first time on appeal to this court. According to the
1 Formerly 38 U.S.C. § 3504(a), the forfeiture provi-
sion to which Mr. Marasigan refers is currently numbered
38 U.S.C. § 6104(a) and provides: “Any person shown by
evidence satisfactory to the Secretary to be guilty of . . .
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.”
5 MARASIGAN v. DVA
government, “[b]ecause Mr. Marasigan did not raise this
argument below, the Veterans Court has not ‘relied on’ it
in its decision” and the new argument, thus, does not
satisfy the requirements of 38 U.S.C. § 7292(a). Informal
Brief of Appellee (“Gov’t Br.”) at 10 (citing 38 U.S.C. §
7292(a) (establishing this court’s jurisdiction to review
Veterans Court decisions “with respect to the validity of a
decision of the Court on a rule of law or of any statute or
regulation . . . or any interpretation thereof . . . that was
relied on by the [Veterans] Court . . .”) (emphasis added)).
The government cites Smith v. West, 214 F.3d 1331(Fed. Cir. 2000) in support of its jurisdictional argument.
Smith was decided before Congress enacted the Veterans
Benefits Act of 2002 (“VBA”), Pub.L. No. 107-330, how-
ever, “which modified our jurisdiction over appeals from
the Veterans Court.” Flores v. Nicholson, 476 F.3d 1379,
1381 (Fed. Cir. 2007) (citing Morgan v. Principi, 327 F.3d
1357, 1360-61 (Fed. Cir. 2003)). As we held in Morgan,
the VBA expanded our jurisdiction to include cases “in
which the decision below regarding a governing rule of
law would have been altered by adopting the position
being urged . . . even though the issue underlying the
stated position was not ‘relied on’ by the Veterans Court.”
Morgan, 327 F.3d at 1359, 1363 (jurisdiction proper even
though the veteran's sole argument on appeal was “not
presented to or considered by either the” Board or the
Veterans Court); see also Wilson, 391 F.3d at 1203 (“[T]he
VBA added a new jurisdictional basis to our review stat-
ute – ‘rule of law’ jurisdiction – under which we may
review a decision with respect to a rule of law even
though that rule of law was not ‘relied on’ by the [Veter-
ans] Court.”). 2
2 In Wilson, we clarified the contours of this new
“rule of law” jurisdiction and explained that “a ‘rule of
MARASIGAN v. DVA 6
We do not read Morgan, however, to mean that a
claimant may confer jurisdiction on this court by raising,
for the first time, an “interpretation” of a statute that is
directly at odds with its express terms. Mr. Marasigan’s
assertion that his dependents should be given shares of
his pensions and benefits notwithstanding his forfeiture
under 38 U.S.C. § 6104 contravenes the plain language of
the statute he asks us to interpret. Section 6104 provides
that, “[i]n the case of any forfeiture under this section
there shall be no authority after September 1, 1959” to
“make an apportionment award” to “the dependents of the
person forfeiting such benefits.” Mr. Marasigan did not
apply for benefits until November 1971, and his forfeiture
was not declared until July 1976 – well after the Septem-
ber 1959 cutoff imposed by § 6104. See 38 C.F.R. § 3.902(authorizing the Secretary to apportion benefits to de-
pendents “[w]here [the] forfeiture for treasonable acts was
declared before September 2, 1959,” but prohibiting
apportionment for “[f]orfeiture after September 1, 1959”)
(emphasis added). Consequently, this case does not
involve a “position being urged” in the sense contemplated
by Morgan – it involves an assertion that directly contra-
dicts the plain meaning of a controlling statute. This
cannot be sufficient to confer jurisdiction under Morgan or
otherwise.
law’ within the meaning of 38 U.S.C. § 7292 as amended
is not limited to those judicially created, but . . . includes
legislatively created law as well.” Wilson, 391 F.3d at
1209 (holding that we “ha[d] ‘rule of law’ jurisdiction” to
entertain the claimant’s argument regarding the applica-
bility of a statute, even though it was never raised before
the Veterans Court); see also Flores, 476 F.3d at 1381-82(reaching claimant’s argument regarding the proper
interpretation of a statute notwithstanding the govern-
ment’s contention that we lacked jurisdiction because the
Veterans Court “did not interpret or ‘rely upon’ [the]
statute”).
7 MARASIGAN v. DVA
We, accordingly, dismiss for lack of subject matter ju-
risdiction.
Each party shall bear its own costs.
DISMISSED