NOTE: This disposition is nonprecedential. 

## United States Court of Appeals for the Federal Circuit

2008-7072

KEVIN J. ROSENBERG, Claimant-Appellant,

v. JAMES B. PEAKE, M.D., Secret ary of Veterans Affairs, Respondent-Appellee.

Kevin J. Rosenberg , of Brooklyn, New York, pro se. Anuj Vohra , Trial Attorney, Commercial Litigat ion Branch, Civil Division, United States Department of Justic e, of Washington, DC, for re spondent-appellee. With him on the brief were Gregory G. Katsas , Acting Assistant Attorney General, Jeanne E. Davidson , Director, and Todd M. Hughes , Deputy Director. Appealed from: United States Cour t of Appeals for Veterans Claims Judge Alan G. Lancer, Sr.NOTE: This disposition is nonprecedential. 

## United States Court of Appeals for the Federal Circuit

2008-7072

KEVIN J. ROSENBERG, Claimant-Appellant,

v. JAMES B. PEAKE, M.D., Secret ary of Veterans Affairs, Respondent-Appellee.

Appeal from the United States Court of A ppeals for Veterans Claims in 05-3184, Judge

Alan G. Lance, Sr.

__________ ________________ DECIDED: October 10, 2008

__________________________ Before MAYER, FRIEDMAN, and DYK, Circuit Judges

. PER CURIAM. Kevin J. Rosenberg appeals t he judgment of t he Court of Appeals for Veterans Claims, which affirmed the Bo ard of Veterans’ Appeals dec ision denying his claim for basic educational assistance under 38 U.S.C. § 3011, known as Chapt er 30 educational benefits. Rosenberg v. Mansfield , No. 05-3184 (Vet. App. A ug. 21, 2007). We affirm

. In August 2002, Rosenberg entered the Univ ersity of Arizona’s Naval Reserve Officer Training Corps (“NROTC”) Unit as a student in the College Program. He did not receive financial assistance fo r his first year in the progr am. In July 1993, however, hewas selected as a midshipman, and awarded a three-year NRO TC scholarship pursuant to 10 U.S.C. § 2107. His scholarship aw ards totaled $3,675 in 1993, $7,350 in 1994, and $3,989 in 1995. In De cember 1996, he signed a Depar tment of Defense Form 2366, in which he acknowledged that he was an NROTC scholarship graduate and therefore not eligible for Chapt er 30 educational benefits. After serving honorably in the Navy fo r four years from 1996-2000, in August 2001 he enrolled as a full time law student at t he Cardozo School of Law. To assist with the cost of law school he applied for Chapter 30 educational benefits, which the Department of Veterans Affairs (“VA”) denied. He began matriculating while he appealed the denial, and in Ja nuary 2002 the VA reversed it s decision and found him eligible for 36 months of Chapt er 30 educational benef its. Rosenberg returned to active duty from February 2003 to May 2003, mid-way through his law school career. When he returned from active duty, he applied to have his Chapter 30 educational benefits restored. The VA informed him that t he benefits were terminated when he ceased attending school, and that he was ineligible for their reinst atement. Nevertheless, the VA decided not to seek reimbursement of t he Chapter 30 educational benefits already disbursed to Rosenberg during his first four semesters of law school, and granted him an additional semester of t he benefits in equitable relief. Rosenberg appealed to the board. He argued that he qualified fo r Chapter 30 educational benefits because: (1) he did not receive financial assistance pursuant to 10 U.S.C. § 2107 during his first year of enrollment in the NROTC pr ogram, and (2) equitable estoppel bars the VA from denying him continuation of the 36 mont hs of benefits for which they found him eligible in 2002.

2008-7072 2The board denied his appeal, finding that he failed to meet the eligibility criteria for Chapter 30 educational benefits as a matter of law, and that the boar d’s previous grant of eligibility was erroneous. Specifically, the board noted that the plain language of 38 U.S.C. § 3011(c)(3) disallows eligibility for Chapt er 30 educational benefits to an individual like Rosenberg, who entered active duty after September 30, 1996, and who received more than $3,400 during each year of participation in a 10 U.S.C. § 2107 progr am of educational assistance . 38 U.S.C. § 3011(c)(3)(B); 38 C.F. R. § 21.7042(f)(3). Contrary to Rosenberg’s contenti on, the relevant parameters for Chapter 30 eligibility for educational benefits under section 3011(c)(3) ar e limited by the amount of financial assistance received during years of partici pation in a 10 U.S.C. § 2107 program of educational assistance , not during years of participatio n in an ROTC program generally. Non-scholarship years, such as Rosenber g’s first year in the NROTC program, are therefore irrelevant to the eligibility inquiry. Becaus e Rosenberg received at least $3,675 for each year of his participation in a section 2107 program of educational assistance, the board found no le gal authority for granting him eligibility for the Chapter 30 educational benefits. ∗ Indeed, a midshipman appoint ee is not even eligible to receive financial assistance in a section 2107 program until the st atutorily required contract is executed. 10 U.S. C. § 2107(b)(4), (b)(5), (c)(1), (c)(3). This did not occur until 1993, in Rosenberg’s second year of college. As such, the board found

∗ It is noteworthy that Rosen berg’s suit ultimately chal lenges only one semester of educational assistance. The DVA used its equitable discretion to endow Rosenberg with financial assistance to which he was not legally entitled for five out of six semesters of law school as a result of its 2002 mistake in granting him a Certific ate of Eligibility for Chapter 30 educational benefits.

2008-7072 32008-7072 4 unpersuasive Rosenberg’s assertion that his fi rst year of college should count as a year in which he participated in a section 2107 fi nancial assistance pr ogram even though he received no financial assi stance that year. The Veterans Court agreed with the board’s analysis, concluding that the terms of section 3011 unambiguously state that a se ction 2107 participant ’s eligibility for Chapter 30 educational be nefits depends upon the amount of financial assistance received during each scholarship year, without regard to non-scholarship years. The court also addressed his equitable estoppel argument. Relying on OPM v. Richmond , 496 U.S. 414, 426 (1990), the court decided that because the Appropriations Clause precludes the judiciary from granting a statut orily ineligible claimant public funds on the basis of equitable estoppel, hi s argument must fail. We agree with the Veterans Court and the board. Because Rose nberg did not participate in a section 2107 financial assistance program during his firs t year of college, there is no basis to use that year as an exception to the e ligibility rule set out in sectio n 3011 with respect to Chapter 30 educational benefits. The Veterans Court was also correct in its interpretation of the law of equitable estoppel. Accordingly, we affirm

.