Case: 19-1667 Document: 45 Page: 1 Filed: 08/21/2020
United States Court of Appeals
for the Federal Circuit
______________________
SALLY A. BURKHART,
Claimant-Appellant
v.
ROBERT WILKIE, SECRETARY OF VETERANS
AFFAIRS,
Respondent-Appellee
______________________
2019-1667
______________________
Appeal from the United States Court of Appeals for
Veterans Claims in No. 16-1334, Chief Judge Margaret C.
Bartley, Judge William S. Greenberg, Judge Michael P. Al-
len.
______________________
Decided: August 21, 2020
______________________
SEAN S. TWOMEY, Gibson, Dunn & Crutcher LLP, Los
Angeles, CA, argued for claimant-appellant. Also repre-
sented by ANDREW T. BROWN.
MOLLIE LENORE FINNAN, Commercial Litigation
Branch, Civil Division, United States Department of Jus-
tice, Washington, DC, argued for respondent-appellee.
Also represented by ETHAN P. DAVIS, MARTIN F. HOCKEY,
JR., ROBERT EDWARD KIRSCHMAN, JR.; BRANDON A. JONAS,
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2 BURKHART v. WILKIE
Y. KEN LEE, Office of General Counsel, United States De-
partment of Veterans Affairs, Washington, DC.
______________________
Before DYK, TARANTO, and HUGHES, Circuit Judges.
HUGHES, Circuit Judge.
Sally Burkhart, the widow of a United States Army vet-
eran, appeals the decision of the Court of Appeals for Vet-
erans Claims denying her eligibility for home loan
guaranty benefits from the Department of Veterans Affairs
under title 38, chapter 37. We conclude that, as the sur-
viving spouse of a veteran without a service-connected dis-
ability, Ms. Burkhart is not eligible for home loan guaranty
benefits under any of the statutes she relies upon. And, the
Veterans Court correctly determined that it lacked the
power to grant her equitable relief. We therefore affirm the
decision of the Veterans Court.
I
Ms. Burkhart is the widow of U.S. Army veteran David
Burkhart, who served honorably from August 1952 to July
1954 in the Korean War and was awarded two Bronze
Stars. He had no service-connected disabilities during his
life. Mr. Burkhart’s health declined in the late 1990s, and
he was admitted to a VA inpatient nursing facility. He died
soon after, while still in VA care.
Ms. Burkhart then filed a claim for dependency and in-
demnity compensation (DIC) benefits under 38 U.S.C.
§ 1151 (chapter 11). Section 1151 provides for compensa-
tion related to the death or injury of a veteran in certain
circumstances while the veteran was under VA care.
Compensation under this chapter [11] and depend-
ency and indemnity compensation under chap-
ter 13 of this title shall be awarded for a qualifying
additional disability or a qualifying death of a
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BURKHART v. WILKIE 3
veteran in the same manner as if such additional
disability or death were service-connected.
38 U.S.C. § 1151(a) (2012). For example, an award is made
when the disability or death was caused by “carelessness,
negligence, lack of proper skill, error in judgment, or simi-
lar instance of fault” in the VA care or by “an event not
reasonably foreseeable.”
Id. § 1151(a)(1). Having deter-
mined that Mr. Burkhart’s “death [while in VA care] was
due to an event not reasonably foreseeable,” VA granted
Ms. Burkhart’s request for DIC benefits. Burkhart v.
Wilkie,
30 Vet. App. 414, 416 (2019) (alteration in original);
see 38 U.S.C. § 1151(a)(1)(B). But, as the Veterans Court
later made clear, “[t]here [was] no indication that the cause
of [Mr. Burkhart’s] death was related to a service-con-
nected disability or that [Ms. Burkhart] claimed service
connection in connection with [Mr. Burkhart’s] death.”
Burkhart, 30 Vet. App. at 416.
In 2007, Ms. Burkhart sought a certificate of eligibility
(COE) for home loan guaranty benefits available under ti-
tle 38, chapter 37 of the U.S. Code. VA issued her a COE
that same year, but she never finalized a loan. Six years
later, in 2013, she requested a new COE for a home loan
guaranty. This time, VA determined that Ms. Burkhart
was ineligible for home loan guaranty benefits and that the
initial 2007 COE had been erroneously issued.
Ms. Burkhart disputed VA’s decision and eventually ap-
pealed it to the Board of Veterans’ Appeals.
The Board found that Mr. Burkhart had no service-con-
nected disabilities during his lifetime. Nor did he die of a
service-connected disability. And, because chapter 37
home loan guaranty benefits are available only to, as rele-
vant here, “the surviving spouse of any veteran . . . who
died from a service-connected disability,” 38 U.S.C.
§ 3701(b)(2) (2012), and Mr. Burkhart did not otherwise
meet the criteria in 38 U.S.C. § 3701(b)(6), the Board
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4 BURKHART v. WILKIE
confirmed that Ms. Burkhart was indeed ineligible for
home loan guaranty benefits.
Ms. Burkhart appealed three legal issues from the
Board’s decision to the Veterans Court: (1) “whether a vet-
eran’s surviving spouse who is entitled to [DIC] under
38 U.S.C. § 1151 is also thereby entitled to ancillary home
loan guaranty benefits under title 38, chapter 37”;
(2) “whether 38 U.S.C. § 3721 . . . bars VA from contesting
a surviving spouse’s eligibility once the Agency has issued
a COE before a loan is issued”; and (3) “whether the Court
may use equitable principles to grant these home loan
guaranty benefits and order VA to guarantee a loan by em-
ploying equitable estoppel, waiver, laches, or injunctive re-
lief.”
Burkhart, 30 Vet. App. at 415–16.
The Veterans Court majority affirmed the Board’s de-
cision that Ms. Burkhart was ineligible for home loan guar-
anty benefits under the plain language and legislative
history of § 1151 and § 3701.
Id. at 417–21. Judge Green-
berg dissented on this issue, concluding that Ms. Burkhart
“was entitled to the home loan guaranty benefits ancillary
to her section 1151 dependency and indemnity benefits.”
Id. at 427–29.
The Veterans Court also held that 38 U.S.C. § 3721—
the so-called incontestability provision—applies only to
“the relationship between the Government and lending in-
stitutions such as banks, not the Government and COE re-
cipients, and as to the documents guaranteeing the loan,
not a COE.”
Id. at 421. Section 3721 states:
Any evidence of guaranty or insurance issued by
the Secretary shall be conclusive evidence of the el-
igibility of the loan for guaranty or insurance under
the provisions of this chapter and of the amount of
such guaranty or insurance. Nothing in this sec-
tion shall preclude the Secretary from establishing,
as against the original lender, defenses based on
fraud or material misrepresentation. The
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BURKHART v. WILKIE 5
Secretary shall not, by reason of anything con-
tained in this section, be barred from establishing,
by regulations in force at the date of such issuance
or disbursement, whichever is the earlier, partial
defenses to the amount payable on the guaranty or
insurance.
38 U.S.C. § 3721. The Veterans Court reasoned that,
first, § 3721 refers only to the Secretary and lenders, not
individual beneficiaries like Ms. Burkhart; second, § 3721
encompasses “[a]ny evidence of guaranty,” which, read in
light of other sections of chapter 37, refers to the stage of
the loan process where a loan has been procured, not an
early stage like obtaining a COE; and, third, the legislative
history of § 3721 illustrates Congress’s desire to incentivize
a secondary market in VA guaranteed loans.
Burkhart,
30 Vet. App. at 421–25.
Finally, the Veterans Court denied Ms. Burkhart’s re-
quests for equitable relief based on injunctive relief, equi-
table estoppel, laches, and waiver.
Id. at 425. Broadly, the
Veterans Court concluded that to grant Ms. Burkhart relief
“based solely on equity would expand the scope of [its] ju-
risdiction.”
Id. at 426. The court also explained that
Ms. Burkhart would have had to prevail on the merits be-
fore the court could grant an injunction.
Id. Second, equi-
table estoppel has not been applied against the government
as a matter of common law, and where it is available, Con-
gress has created it by statute. See
id. at 426–27. Here,
however, the Veterans Court reasoned that the incontesta-
bility provision reflects Congress’s intent that only lenders
receive this privilege of estoppel.
Id. The Veterans Court
also dismissed Ms. Burkhart’s assertions of laches and
waiver because those two equitable principles are equita-
ble defenses, not affirmative theories of relief.
Id. at 427.
The Veterans Court entered judgment on January 28,
2019. Ms. Burkhart timely appealed. We have jurisdiction
under 38 U.S.C. § 7292.
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6 BURKHART v. WILKIE
II
We review de novo the Veterans Court’s interpretation
of statutes. Wanner v. Principi,
370 F.3d 1124, 1128
(Fed. Cir. 2004); see 38 U.S.C. § 7292(c). On appeal,
Ms. Burkhart raises the same three legal issues that she
did before the Veterans Court. We address each in turn.
A
Ms. Burkhart argues that the Veterans Court erred in
interpreting § 1151(a) and § 3701(b)(2) to exclude widowed
spouses like her from home loan guaranty benefits under
chapter 37. She reasons that she should be eligible for a
home loan guaranty because § 3701(b)(2) defines a veteran
eligible for chapter 37 benefits as “the surviving spouse of
any veteran . . . who died from a service-connected disabil-
ity,” § 3701(b)(2). Though her husband did not die from a
service-connected disability, Ms. Burkhart argues that this
definition still includes her because § 1151(a) requires
treating her husband’s death “as if” it was service-con-
nected for all purposes.
The plain language of § 1151(a) contradicts
Ms. Burkhart’s argument. It expressly provides for com-
pensation “as if” the disability or death were service-con-
nected only for the purposes of chapter 11 and chapter 13
benefits. See § 1151(a) (specifying “[c]ompensation under
this chapter [11] and [DIC] under chapter 13”). 1 But VA’s
home loan guaranty program falls under chapter 37. By
expressly enumerating the chapters to which it applies,
§ 1151 does not redefine a service-connected death or disa-
bility for all benefits; it merely “provides an exception that
1 Note that § 1151(c) also provides for treating an
“additional disability under this section . . . as if it were a
service-connected disability” for title 38, chapters 21
and 39. Again, this provision does not include chapter 37
benefits.
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BURKHART v. WILKIE 7
grants compensation for some non-service-connected disa-
bilities, treating those disabilities for some purposes ‘as if’
they were service-connected.” Alleman v. Principi,
349 F.3d 1368, 1370–71 (Fed. Cir. 2003) (quoting
§ 1151(a)).
Attempting to sidestep this plain language,
Ms. Burkhart cites our decision in Kilpatrick v. Principi,
327 F.3d 1375 (Fed. Cir. 2003), as proof that we have pre-
viously expanded the benefits available to a § 1151 benefi-
ciary beyond those provided in chapters 11 and 13. Indeed,
in Kilpatrick, we concluded that a § 1151 beneficiary was
entitled to receive special adaptive housing benefits under
38 U.S.C. § 2101, even though those benefits fall under
chapter 21, not chapters 11 or 13. The Veterans Court cor-
rectly distinguished Kilpatrick from the case at hand in
multiple respects. In particular, the Kilpatrick panel con-
cluded that the language of § 2101 was not clear and re-
sorted to legislative history.
Kilpatrick, 327 F.3d
at 1378–79, 1381–82. That history led the Kilpatrick panel
to conclude that § 1151 did encompass § 2101 benefits be-
cause the predecessor to § 1151 originally provided benefits
for the predecessor to § 2101, although the 1957 recodifica-
tion of title 38 inadvertently separated the two provisions
,
id. at 1381. The Kilpatrick panel therefore concluded that
Congress originally intended for § 1151 to encompass the
special adaptive housing benefits under § 2101 at issue
there.
Id. at 1382–83. 2
2 Bolstering our conclusion that § 1151 does not ex-
tend chapter 37 benefits to Ms. Burkhart is that, after Kil-
patrick, Congress added § 1151(c), which extended the “as
if” service connection to chapter 21 and chapter 39 benefits.
Veterans Benefits Improvement Act, Pub. L. No. 108-454,
§ 304, 118 Stat. 3598, 3611 (2004). But Congress made no
change to § 1151(a), or elsewhere, that would treat chap-
ter 37 benefits similarly.
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8 BURKHART v. WILKIE
But, as the Veterans Court explained in detail in this
case, § 1151 and the benefits of chapter 37 have no such
shared lineage. See
Burkhart, 30 Vet. App. at 419–20. We
therefore agree with the Veterans Court that Ms.
Burkhart’s Kilpatrick-based arguments are unavailing.
B
Ms. Burkhart next argues that under 38 U.S.C.
§ 3721—the incontestability provision—VA cannot now
dispute the validity of the COE it issued her, albeit errone-
ously, in 2007. We disagree for two reasons: (1) the incon-
testability provision applies only to the relationship
between the lending institution and VA; and (2) the incon-
testability provision applies only once a loan is issued.
First, § 3721 makes no reference to a loan beneficiary
like Ms. Burkhart; it only refers to the Secretary and “the
original lender.” 38 U.S.C. § 3721. This strongly implies
that Congress intended § 3721 to govern only the relation-
ship between the Secretary and lenders. Indeed, as the
Veterans Court commented, “it would be odd if the provi-
sion were focused on a beneficiary when that person is
never mentioned.”
Burkhart, 30 Vet. App. at 422.
That the incontestability provision applies only to the
relationship between VA and lenders—not beneficiaries—
is also supported by the lending process described in
38 U.S.C. § 3702(c). See Food & Drug Admin. v. Brown &
Williamson Tobacco Corp.,
529 U.S. 120, 133 (2000) (“A
court must therefore interpret the statute as a symmetrical
and coherent regulatory scheme and fit, if possible, all
parts into an harmonious whole.” (internal quotation
marks and citations omitted)). The first step to receiving a
loan involves establishing the veteran’s eligibility. 3 “An
3 As discussed in Section
I, supra, the eligible vet-
eran includes the “the surviving spouse of any veteran . . .
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BURKHART v. WILKIE 9
honorable discharge shall be deemed to be a certificate of
eligibility to apply for a guaranteed loan.” § 3702(c). Al-
ternatively, the veteran “may apply to the Secretary for a
certificate of eligibility.”
Id. Then, “[u]pon making a loan
guaranteed or insured under this chapter” the lender noti-
fies the Secretary of the required details of the loan and the
Secretary in turn provides the lender “with a loan guaranty
certificate or other evidence of the guaranty.”
Id. It is that
“loan guaranty certificate or other evidence of the guar-
anty” that is the focus of § 3721—not the COE obtained
earlier in the process.
The lending process described in § 3702(c) also sup-
ports that § 3721 does not apply in cases such as this one,
where no loan was ever issued. 4 If a potential beneficiary
like Ms. Burkhart never receives a loan, there simply is no
loan guaranty to contest. There is only what chapter 37
repeatedly refers to as “guaranty entitlement” or “guaranty
or insurance housing loan entitlement.” See, e.g., 38 U.S.C.
§§ 3702(b), 3703(a)(1)(B)–(C). This is not the same as a
guaranty. Compare 38 U.S.C. § 3703(a)(1)(A)(i) (describing
when a loan is “automatically guaranteed” and for what
maximum amount), with § 3703(a)(1)(A)(ii) (discussing
“the maximum amount of guaranty entitlement available to
the veteran”) (emphasis added). We apply “the usual rule
that ‘when the legislature uses certain language in one part
of the statute and different language in another, the court
assumes different meanings were intended.’” Sosa v. Alva-
rez-Machain,
542 U.S. 692, 711 n.9 (2004).
who died from a service-connected disability.” 38 U.S.C.
§ 3701(b)(2).
4 Because such a case is not before us, we leave for
another day the question of whether the incontestability
provision would apply on a different set of facts, such as
where a lender did in fact issue a loan based only on a COE.
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10 BURKHART v. WILKIE
And, as the Veterans Court described, it makes sense
that a guaranty is not issued until a loan is made because,
even with a valid COE, a qualified beneficiary is necessary,
but not sufficient, for a home loan under the VA home loan
program. “Just because a person is eligible to participate
in the program does not mean that the program will guar-
antee any loan he or she wants. The loan must also meet
separate requirements.”
Burkhart, 30 Vet. App. at 423
(emphasis in original). See 38 U.S.C. § 3703(a)(1). For ex-
ample, a loan is automatically guaranteed only if it is for
certain types of property, like property that is “owned and
occupied by the veteran as a home.” 38 U.S.C. § 3710(a).
We note that very little case law helpfully addresses
the incontestability provision. Ms. Burkhart, however, ar-
gues that the First Circuit’s decision in Mt. Vernon Cooper-
ative Bank v. Gleason,
367 F.2d 289 (1st Cir. 1966),
squarely establishes that the incontestability provision re-
solves her case in her favor. There, the First Circuit ob-
served that: “[T]he first sentence of section [3721], the
incontestability provision, concerns only the Administra-
tion’s certificate that a particular veteran is eligible for a
guaranty . . . and that he is entitled to a specified maximum
amount.”
Id. at 291–92. Even if Mt. Vernon were binding
on this court, this quoted language is ambiguous, at best,
especially since it appears no COE was involved in that
case at all. See, e.g.
, id. at 290 (detailing that, after the
fraudulent beneficiary applied for the loan, “the bank for-
warded the papers to the [VA] with a request that the [VA]
issue a loan guaranty certificate” which the VA subse-
quently issued as a “loan guaranty”). We agree with the
Veterans Court that Mt. Vernon is only “marginally rele-
vant” and contains “seemingly contradictory observations,
none of which are helpful to the inquiry and all of which
are dicta.”
Burkhart, 30 Vet. App. at 424 n.1.
Read as “an harmonious whole” with the entirety of
chapter 37, Brown & Williamson Tobacco
Corp., 529 U.S.
at 133, the incontestability provision therefore cannot aid
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BURKHART v. WILKIE 11
Ms. Burkhart in her quest for a home loan guaranty. Sec-
tion 3721 operates (1) as to the loan guaranty between VA
and the lender and (2) only once a lender has actually is-
sued a loan.
C
Beyond her two statutory arguments, Ms. Burkhart as-
serts that the Veterans Court erred in declining to grant
her requested equitable relief. Again, we disagree.
Our recent decision in Burris v. Wilkie,
888 F.3d 1352
(Fed. Cir. 2018), addresses the limited scope of the Veter-
ans Court’s equitable powers. We reasoned that, through
38 U.S.C. § 503(b), Congress provided certain equitable
powers to the Secretary of Veterans Affairs—“including the
payment of moneys to any person whom the Secretary de-
termines is equitably entitled.”
Id. at 1358 (citing
§ 503(b)). But it did not provide similar powers to the Vet-
erans Court, an Article I tribunal whose jurisdiction is lim-
ited by statute.
Id. at 1357. These statutes “make clear
that the Veterans Court is statutorily permitted to review
Secretary decisions involving legal and factual questions
related to statutory benefits”—but not necessarily the “ex-
tra-statutory relief that [the Burris] Appellants” sought.
Id. at 1358. And, the fact that § 503(b) is “[t]he only provi-
sion in title 38 that addresses equitable relief in this con-
text,” indicates that Congress did not intend for the
Veterans Court’s jurisdiction to encompass such equitable
powers.
Id.
Ms. Burkhart attempts to distinguish Burris because
there the appellants’ equitable requests were monetary,
whereas a home loan guaranty, she argues, is not—because
the beneficiary may never default. The Veterans Court cor-
rectly identified this as a distinction without a difference.
Burkhart, 30 Vet. App. at 426. A home loan guaranty that
will not provide a monetary benefit to the lender in the case
of default is of little use to the beneficiary or the lender. As
in Burris, where we held that a request for “equitabl[e]
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12 BURKHART v. WILKIE
tolling [of] the time limit for the benefit . . . is functionally
equivalent to one for retroactive [Dependents’ Education
Assistance]
benefits,” 888 F.3d at 1357, a request for enti-
tlement to a home loan guaranty is also monetary in na-
ture.
Ms. Burkhart also claims that Burris does not apply to
her because she did not “suffer[ a] loss as a consequence of
reliance upon a determination by [VA] of eligibility or enti-
tlement to benefits.” 38 U.S.C. § 503(b). So, she says, she
is not seeking relief under § 503 and Burris does not gov-
ern. But the fact that Congress made only one express pro-
vision for the Secretary to grant equitable relief in limited
circumstances, in the form of § 503, indicates that it did so
to the exclusion of other exceptions for the Secretary’s eq-
uitable powers. See Hamdan v. Rumsfeld,
548 U.S. 557,
578 (2006) (“[A] negative inference may be drawn from the
exclusion of language from one statutory provision that is
included in other provisions of the same statute.”).
In sum, the Veterans Court provided a thorough anal-
ysis of Burris and correctly determined that neither that
precedent, nor any statute, would allow the Veterans Court
to “accept[] the appellant’s invitation to exercise equitable
power in this context [because it] would inappropriately ex-
pand [its] jurisdiction.”
Burkhart, 30 Vet. App. at 425. Be-
cause we affirm the Veterans Court decision in this respect,
we decline to opine on the application of the equitable de-
fenses Ms. Burkhart asserted below.
III
We have considered Ms. Burkhart’s remaining argu-
ments and find them unpersuasive. By the plain language
of § 1151 and § 3702, Ms. Burkhart is ineligible for a VA
home loan guaranty. Further, the incontestability provi-
sion does not apply to her. Finally, the Veterans Court cor-
rectly determined it did not have jurisdiction to grant the
equitable relief she requested. We therefore affirm the
judgment of the Veterans Court.
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BURKHART v. WILKIE 13
AFFIRMED
No costs.
