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
     
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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)

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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)

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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

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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)

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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

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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

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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

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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-

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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.

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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

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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

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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).

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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

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