## United States Court of Appeals for the Federal Circuit

02-7378

DOUGLAS B. MORGAN,

> Claimant-Appellant,

v\.

ANTHONY J. PRINCIPI, Secretary of Veterans Affairs,

> Respondent-Appellee.

[William A. L'Esperance]{.underline}, of Albuquerque, New Mexico, for
claimant-appellant.

[John S. Groat]{.underline}, Trial Attorney, Commercial Litigation
Branch, Civil Division, Department of Justice, of Washington, DC, for
respondent-appellee. With him on the brief were [Robert D. McCallum,
Jr.]{.underline}, Assistant Attorney General; [David M.
Cohen]{.underline}, Director; and [Harold D. Lester, Jr.]{.underline},
Assistant Director. Of counsel on the brief were [Richard J.
Hipolit]{.underline}, Deputy Assistant General Counsel; and [Michael J.
Timinski]{.underline}, Attorney, Department of Veterans Affairs, of
Washington, DC.

Appealed from: United States Court of Appeals for Veterans Claims

Judge Jonathan R. Steinberg

**United States Court of Appeals for the Federal Circuit**

#### 

02-7378

DOUGLAS B. MORGAN,

> Claimant-Appellant,

v\.

ANTHONY J. PRINCIPI, Secretary of Veterans Affairs,

> Respondent-Appellee.

\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_

DECIDED: May 6, 2003

\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_

Before RADER, [Circuit Judge]{.underline}, PLAGER, [Senior Circuit
Judge]{.underline}, and BRYSON, [Circuit Judge]{.underline}.

PLAGER, [Senior Circuit Judge]{.underline}.

This case raises the question of the effect of Congress's recent
amendment of the jurisdictional statute under which we review decisions
of the Court of Appeals for Veterans Claims. The case arose when Douglas
B. Morgan sought review of the March 14, 2002 decision of the United
States Court of Appeals for Veterans Claims, which decision affirmed a
September 28, 1999 decision of the Board of Veterans' Appeals (BVA).

The BVA found that a Department of Veterans Affairs regional office
(VARO) had properly denied Mr. Morgan's request for an extension of time
in which to file a substantive appeal, and that his substantive appeal
was not timely filed. The Court of Appeals for Veterans Claims affirmed.
On appeal to this court, Mr. Morgan for the first time raises the
question of whether equitable tolling is available under the applicable
limitations statute.

The Government, in its October 2002 brief as respondent-appellee, argued
that Mr. Morgan did not present an issue over which this court has
jurisdiction. The Government's position was based on our recent en banc
opinion in [Forshey v. Principi]{.underline}, 284 F.3d 1335 (Fed. Cir.)
(en banc), [cert. denied]{.underline}, 123 S. Ct. 110 (2002).
Subsequently, however, in a supplemental filing dated March 2003, the
Government, based on the amendment to this court's jurisdictional
statute contained in the Veterans Benefits Act of 2002, enacted December
6, 2002, conceded that we had jurisdiction, and withdrew its argument to
the contrary.

We are faced, then, with the question of whether we properly have
jurisdiction over Mr. Morgan's appeal, and if so, what disposition is to
be made of it. We conclude that, as a matter of statutory
interpretation, the Government is correct that we have jurisdiction to
hear Mr. Morgan's case. We decline, however, as a prudential matter to
consider the merits of the sole issue he presents to this court, and
accordingly affirm the judgment of the Court of Appeals for Veterans
Claims.

I. Background

The facts can be briefly stated, since the issues before us are solely
those of law. Section 7105 of title 38, United States Code, and its
implementing regulations establish the requirements for filing a
substantive appeal of a VARO determination to the BVA. The time limit
for filing an appeal is sixty days from the date the statement of the
case is mailed to the appellant, or one year from the date the
notification of the determination is mailed, whichever is later. 38
C.F.R. § 20.302(b). In Mr. Morgan's case, the deadline for appealing the
denial of his claim for dependents' educational assistance was December
4, 1993, one year from the date notification of the denial was mailed.

In July 1993, five months before the filing deadline, Mr. Morgan filed a
request for a thirty-day extension of time in which to file his appeal,
apparently believing that he had to file his appeal within sixty days
from the date the statement of the case was mailed in May 1993 and
unaware that the alternate one-year provision applied. The VARO
responded with a letter explaining that Mr. Morgan had one year from the
date notification of the denial of benefits was mailed in which to
perfect his appeal. Mr. Morgan filed a substantive appeal on December
16, 1993, twelve days past the filing deadline.

In a June 30, 1997 decision, the BVA requested the VARO to provide Mr.
Morgan with another statement of the case addressing the issues of
whether Mr. Morgan's request for an extension should have been granted
and whether his December 16, 1993 substantive appeal was timely filed.
The VARO issued a statement of the case, in which it explained that the
VARO's July 1993 letter essentially denied the request for a thirty-day
extension of time and that the substantive appeal was untimely. In a
September 28, 1999 decision, the BVA found that the VARO acted properly
in denying the extension request and that Mr. Morgan's substantive
appeal was not timely filed. On March 14, 2002, the Court of Appeals for
Veterans Claims affirmed.

In his appeal brief filed with this court, Mr. Morgan argues only that
the Court of Appeals for Veterans Claims should have applied the
doctrine of equitable tolling to 38 U.S.C. § 7105, a theory that was not
presented to or considered by either the BVA or the Court of Appeals for
Veterans Claims.

II\. Jurisdiction

Section 7292 of title 38, United States Code, sets out the
jurisdictional parameters within which this court functions when we
review a decision of the Court of Appeals for Veterans Claims. The
statute as currently applicable reads:

> \(a\) After a decision of the United States Court of Appeals for
> Veterans Claims is entered in a case, any party to the case may obtain
> a review of the decision 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 (other than a determination as to a factual
> matter) that was relied on by the Court in making the decision.
>
> . . .
>
> (d)(2) Except to the extent that an appeal under this chapter presents
> a constitutional issue, 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 (2000), [amended by]{.underline} Veterans Benefits Act
of 2002, Pub. L. No. 107-330, § 402(a), 116 Stat. 2820, 2832.

To say that the statute is less than brilliant in its clarity is perhaps
to gild it beyond its entitlement. As we said in [Forshey]{.underline},
"jurisdictional issues under section 7292 have proved difficult and have
arisen frequently. Despite our clarification of those provisions today,
this will continue." 284 F.3d at 1353.

Our effort in [Forshey]{.underline} focused on the language in section
7292 that provided that any party to a case before the Court of Appeals
for Veterans Claims "may obtain a review \[before the Court of Appeals
for the Federal Circuit\] of the decision with respect to the validity
of any statute or regulation . . . or any interpretation thereof . . .
that was relied on by the Court in making the decision." 38 U.S.C.
§ 7292(a) (2000) (emphasis added). The "relied on" language had been the
subject of prior cases, and of considerable debate about the proper
scope of that phrase given the various possibilities for presentation of
an issue or issues in a case as it wends its way through the
administrative and judicial machinery of the veterans' benefits system.
[See, e.g.]{.underline}, [Smith v. West]{.underline}, 214 F.3d 1331
(Fed. Cir. 2000), [cert. denied]{.underline}, 531 U.S. 1144 (2001);
[Belcher v. West]{.underline}, 214 F.3d 1335 (Fed. Cir. 2000), [cert.
denied]{.underline}, 531 U.S. 1144 (2001).

In [Forshey]{.underline} we described the text of the statute as
granting us "issue jurisdiction" over appeals from the Court of Appeals
for Veterans Claims, as distinct from the broader "case jurisdiction"
such as we have when an appeal comes to us from a final judgment of a
district court, for example. 284 F.3d at 1348. Combining the notion of
"issue jurisdiction" with the "relied on" language, we concluded that
our jurisdiction is limited to: (1) issues concerning the validity of
statutes or regulations on which the decision of the Court of Appeals
for Veterans Claims depended; (2) issues of interpretation if the Court
of Appeals for Veterans Claims elaborated the meaning of a statute or
regulation and the decision depended on that interpretation; (3) issues
of validity or interpretation raised before the Court of Appeals for
Veterans Claims but not explicitly decided, if the decision would have
been altered by adopting the position that was urged; and (4) other
"relevant"[^1] questions of law. [Id.]{.underline} at 1338.

Despite this effort at clarification, or perhaps because of it, both the
majority and the dissent in [Forshey]{.underline} called upon Congress
to amend the statute to correct the perceived problems. The majority
expressly invited Congress "to consider amending section 7292 to confer
'case' jurisdiction (except for a continued bar on the review of fact
issues)." [Id.]{.underline} at 1353; [see also]{.underline}
[id.]{.underline} at 1365 (Mayer, C.J., dissenting) ("Congress should
revisit its legislative handiwork.").

Congress, whether moved by this court's entreaties or the urging of
veterans organizations and interest groups, was not long in responding.
Public Law No. 107-330, enacted December 6, 2002, and known as the
Veterans Benefits Act of 2002, amended the statutes applicable to
veterans' benefits in a number of respects. Section 402(a) amended 38
U.S.C. § 7292(a) by "inserting 'a decision of the Court on a rule of law
or of' in the first sentence after 'the validity of.'"[^2]

When the new language is inserted into the then-existing § 7292(a), the
statute as now amended reads in relevant part that any party to a case
before the Court of Appeals for Veterans Claims "may obtain a review of
the decision 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 Court in making
the decision." § 7292(a). The italicized language is the language added
by the 2002 amendment.

What are we to make of this change in the law? First, there is the
definitional question: what did Congress mean by "a rule of law"? The
dictionary defines "rule of law" as "\[a\] substantive legal principle."
[Black's Law Dictionary]{.underline} 1332 (7th ed. 1999). It is
axiomatic that under federal law there are three sources of substantive
legal principles: Congress, acting through statute; an administrative
agency with rulemaking power; or a judicial body. In the case of
veterans benefits law, though occasionally there are court-made
propositions at issue, the legal principles of general application that
govern are typically statutes enacted by Congress and regulations
promulgated by the Department of Veterans Affairs pursuant to express
grant of authority from Congress.

Secondly, Congress is presumed to legislate against the backdrop of
existing law. [See]{.underline} [Cannon v. Univ. of Chi.]{.underline},
441 U.S. 677, 698-99 (1979). At the time the amendment was adopted, the
jurisdictional conundrums presented by the statute were well known, and
this court had handed down a number of decisions, most recently the
opinion in the [Forshey]{.underline} case, expressing our concerns.

Third, a careful reading of the new language highlights a significant
addition: the statute no longer refers only to "the validity of any
statute or regulation . . . or interpretation thereof," as the original
statute did, but it now refers to "the validity of a decision of the
Court \[of Appeals for Veterans Claims\]." (Italics added.) Furthermore,
the placement of the new phrase at the beginning of the operative
language, followed by the disjunctive "or," suggests that this grant of
authority is to be separate from what follows.

Combining these considerations in light of the history of the statute,
and giving the amended statute its plain meaning, it appears that the
amendment enacted by Congress has the effect of making the review of "a
decision of the Court \[of Appeals for Veterans Claims\] on a rule of
law" a separate jurisdictional basis, and textually independent of
whether that rule of law was "relied on," as that term is understood in
[Forshey]{.underline}, by the Court of Appeals for Veterans Claims in
making its decision. In short, Congress responded to this court's
entreaty by enacting a form of "case" jurisdiction.

We now return to the definitional issue. If the new "case" jurisdiction
extends to all "rules of law" that govern the decisions of the Court of
Appeals for Veterans Claims, as it would appear, what are we to make of
the remaining parts of the statute, the parts following the new
language? On that question, the legislative history, to the extent it is
relevant, raises more questions than it answers.

In May 2002 the National Legislative Director of the Disabled American
Veterans appeared before the Committee on Veterans' Affairs of the
United States Senate. He spoke in support of S. 2079, which contained a
proposed amendment to the jurisdiction of the Federal Circuit. The
problem, he said, was the need to fill "a void in the jurisdiction of
the United States Court of Appeals for the Federal Circuit." He went on
to explain:

> The Federal Circuit is empowered to review an 'interpretation' of a
> statute or regulation by the Veterans Court but not an ordinary
> question of law that does not involve statutory or regulatory
> interpretation. . . . Through judicial precedent, the Veterans Court
> has created several rules of law. . . . When the legal significance of
> a fact is not governed by an interpretation of a statute or
> regulation, per se, it is an ordinary question of law not reviewable
> by the Federal Circuit. Obviously, this limitation on Federal Circuit
> jurisdiction shields decisions by the Veterans Court from review in a
> number of instances.
>
> . . .
>
> . . . \[T\]he jurisdiction of the Federal Circuit should be expanded
> to include ordinary questions of law.

[Hearing on Pending Legislation Before the Senate Comm. on Veterans'
Affairs]{.underline}, 107th Cong. 50 (2002) (statement of Joseph A.
Violante, National Legislative Director, Disabled American Veterans).

In response, the General Counsel of the Department of Veterans Affairs,
appearing at the same hearing, stated to the Committee:

> Section 3 of S. 2079 would authorize the United States Court of
> Appeals for the Federal Circuit to review decisions of the CAVC on a
> rule of law. . . . Proponents of this provision have suggested that it
> is needed to permit review of judicially-created legal rules, such as
> those involving equitable tolling of time limits or the so-called
> "treating physician" rule adopted by courts in Social Security benefit
> claims. VA does not agree with that view. We do not believe that
> purely legal issues are insulated from review by the current statute.
> Notably, the Federal Circuit has decided challenges concerning
> judicially-created legal principles under the existing statute,
> including issues pertaining to equitable tolling and the treating
> physician rule. [See]{.underline} [Bailey v. West]{.underline}, 160
> F.3d 1360 (Fed. Cir. 1998) (en banc); [White v. Principi]{.underline},
> 243 F.3d 1378 (Fed. Cir. 2001).

[Hearing on Pending Legislation Before the Senate Comm. on Veterans'
Affairs]{.underline}, 107th Cong. 20 (2002) (statement of Tom McClain,
General Counsel, Dep't of Veterans Affairs). Although believing that the
new provision was not necessary, the General Counsel stated that the VA
did not object to its enactment. [Id.]{.underline}

S. 2079 was incorporated into S. 2237, which in turn became Public Law
No. 107-330. The explanatory statement that accompanied the Compromise
Agreement between the Senate and House Committees on Veterans Affairs,
in support of S. 2237, stated:

> Section 402 of the Compromise Agreement would also expand the Federal
> Circuit's authority to review CAVC decisions based on rules of law
> that are not derived from a specific statute or regulation. This
> change would allow the Federal Circuit to review comprehensively any
> CAVC decisions of law that adversely affect appellate reviews of
> veterans' claims.

148 Cong. Rec. S11334 (daily ed. Nov. 18, 2002) (statement of Sen.
Reid). The inconsistency between the narrow scope of the first sentence
and the broad scope of the second apparently went unnoticed.

Whatever may be the situation regarding the broader sweep of the
amending language, the issue before us here falls cleanly within both
the language and the presumed purpose: equitable tolling is a rule of
law that is judge-made, and was specifically mentioned by the VA General
Counsel as an example of an issue about which the proponents of the
amendment were concerned. Of course, equitable tolling necessarily
relates to a specific limitations statute, which statute governs the
case, such as the one at bar, suggesting that the VA General Counsel's
view of our existing jurisdictional reach, absent the amendment, may
have been correct.

Nevertheless, the statute has been amended, and it is our responsibility
to state what that amended statute means. As the Supreme Court recently
said, in reference to another of our jurisdictional statutes, "\[o\]ur
task here is not to determine what would further Congress's goal . . .,
but to determine what the words of the statute must fairly be understood
to mean." [Holmes Group, Inc. v. Vornado Air Circulation Sys.,
Inc.]{.underline}, 535 U.S. 826, 833 (2002). For the reasons stated
above, then, we are persuaded from our own research and from the history
of the matter that the congressional amendment to our jurisdictional
statute means at least this much: in a case such as this, in which the
decision below regarding a governing rule of law would have been altered
by adopting the position being urged, this court has jurisdiction to
entertain the matter, even though the issue underlying the stated
position was not "relied on" by the Veterans Court. To that extent at
least the matter is "case" jurisdiction.

This perforce must be the Government's understanding of our jurisdiction
after the 2002 amendment. The only issue in the appeal before us is
whether equitable tolling is available when applying the limitations
period of 38 U.S.C. § 7105, an issue that was neither raised before nor
considered by the Court of Appeals for Veterans Claims. Accordingly, the
Court of Appeals for Veterans Claims in its decision did not
"elaborate\[ \] the meaning of \[the\] statute . . . and the decision
\[did not\] depend\[ \] on that interpretation;" nor was the issue
"raised before the Court of Appeals for Veterans Claims but not
explicitly decided." [Forshey]{.underline}, 284 F.3d at 1337.

Thus the Government's initial position in its appellate brief, submitted
in October 2002 before the amendment to section 7292(a) was enacted,
that Mr. Morgan did not raise an issue on appeal over which this court
has jurisdiction, would appear to be sound, at least as far as
[Forshey]{.underline} is concerned. The Government's reversal of its
position, sent to us in the form of a letter of supplemental authority,
simply cites to the language of the 2002 amendment to section 7292, and
states: "Accordingly, we respectfully withdraw our argument that this
Court lacks jurisdiction to consider to \[sic\] question of the
application of the doctrine of equitable tolling."[^3] Of course, the
Government's concession, and its implicit reading of the statute that
compliance with the requirements of [Forshey]{.underline} is no longer
necessary, cannot create jurisdiction where jurisdiction does not exist.
This court, as all courts, must attend to its own jurisdiction, a
necessary prerequisite to any judicial action.

Though we readily find jurisdiction here, we are reluctant to elaborate
further, and indeed it is not necessary. The case was submitted on the
briefs, and the question of the court's jurisdiction as amended by the
2002 Act was not fleshed out beyond the summary, if not cryptic,
statement from the Government. The Government presumably did its
homework, and though it did not share its analysis with us, certainly
the Government cannot complain that we have gone this far, since it is
the Government's position. The appellant cannot complain, since he
succeeded in getting the case before this court. Further explication of
the new language of section 7292, and the question of the fullness of
its reach, must await later cases.

However, recognizing that we have jurisdiction over a matter arising in
this manner, and disposing of it to the appellant's satisfaction, are
two separate issues; it is to the second we now turn.

III\. Disposition of the Appeal

We decline as a prudential matter to address the issue of whether
equitable tolling applies to section 7105, an issue this court has not
addressed previously. As noted, the issue was neither presented to nor
considered by the Court of Appeals for Veterans Claims in this case.
Furthermore, this case does not fall within any of the carefully defined
exceptions in which we should consider an argument not made below. There
has been no new statute or change in jurisprudence since the decision by
the Court of Appeals for Veterans Claims; Mr. Morgan did not appear pro
se before that court; and this is not a case in which we may decide to
apply the correct law to an issue properly before this court because the
issue of equitable tolling was not considered at all by the Court of
Appeals for Veterans Claims. [See]{.underline} [Forshey]{.underline},
284 F.3d at 1355-58.

Mr. Morgan's argument that the BVA improperly relied on [Mayer v.
Brown]{.underline}, 37 F.3d 618 (Fed. Cir. 1994), in its denial of his
motion for reconsideration is without merit. While it is true that
[Bailey v. West]{.underline}, 160 F.3d 1360 (Fed. Cir. 1998) (en banc),
overruled the holding in [Mayer]{.underline} that 38 U.S.C. § 7266(a) is
not subject to equitable tolling, the BVA cited [Mayer]{.underline} for
the benign proposition that the Chairman of the BVA has discretion to
choose which decisions to reconsider. Neither the BVA nor the Court of
Appeals for Veterans Claims considered the question of whether equitable
tolling may apply to 38 U.S.C. § 7105, and for the reasons discussed
above, we decline to address the issue.

Accordingly, we affirm the judgment of the Court of Appeals for Veterans
Claims.

[AFFIRMED]{.underline}.

# 

[^1]: This last refers to a catch-all category that derives from the
    language of subsection (d)(1), and is understood to mean that issues
    relevant to an issue already before the court on appeal are properly
    reviewable, even if not specifically raised or decided below. It
    does not in itself extend our initial jurisdictional reach.
    [See]{.underline} [Forshey]{.underline}, 284 F.3d at 1351.

[^2]: This amendment was expressly made applicable to cases pending in
    the Court of Appeals for the Federal Circuit as of the date of
    enactment, in which a decision had not been rendered as of that
    date. Veterans Benefits Act of 2002 § 402(b). The case before us is
    within that frame.

[^3]: Letter from John S. Groat, U.S. Department of Justice (Mar. 10,
    2003).