## United States Court of Appeals for the Federal Circuit

2008-5105 PATRICIA R. SHARP, MA RGARET M. HAVERKAMP, and IVA DEAN ROGERS, Plaintiffs-Appellees,

v. UNITED STATES, Defendant-Appellant.

Edward R. Reines , Weil, Gotshal & Manges LLP, of Redwood Shores, California, argued for plaintiffs-appellees. With him on the brief were Michael R. Franzinger and Azra M. Hadzimehmedovic , of Washington, DC. Douglas K. Mickle , Trial Attorney, Commercial Litigation Branch, Civil Division, United States Department of Justice, of Washington, DC, argued for defendantappellant. With him on the brief were Michael F. Hertz , Acting Assistant Attorney General, Jeanne E. Davidson , Director, and Bryant G. Snee , Assistant Director. Of counsel on the brief were Kelly L. McGovern , Personnel Branch, Army Litigation Division, United States Army, of Arlington, Virginia, and Scott Lafferty , Senior Associate Counsel, Office of the General Counsel, Military and Civili an Pay Law Directorate, Defense Finance and Accounting Servic e, of Cleveland, Ohio. Appealed from: United States Court of Federal Claims Judge George W. Miller

### UNITED STATES COURT OF APPEAL S FOR THE FEDERAL CIRCUIT
2008-5105

PATRICIA R. SHARP, MA RGARET M. HAVERKAMP, and IVA DEAN ROGERS, Plaintiffs-Appellees,

v. UNITED STATES, Defendant-Appellant.

Appeal from the United States Court of Federal Claims in 07-CV-547, Judge George W. Miller.

______________________ DECIDED: August 26, 2009

_______________________ Before MAYER, CLEVENGER, and SCHALL, Circuit Judges

. MAYER, Circuit Judge

. The United States appeals t he judgment of the United States Court of Federal Claims, which denied its motion to dismi ss, and granted the motion for summary judgment of Patricia Sharp, Margaret Haverkamp, and Iva Rogers, permitting them to receive Survivor Benefit Plan (“SBP”) pay ments unreduced by the amount of their reinstated Dependency and Indemnity Co mpensation (“DIC”) payments. Sharp v. United States , 82 Fed. Cl. 222 (2008). Because the Court of Federal Claims correctly determined that 38 U.S. C. § 1311(e) partially repealed 10 U.S.C. § 1450(c)(1), we affirm.BACKGROUND The appellees (collectively referred to in the singular as “Sharp”) are surviving spouses of deceased veterans and military reti rees of the United St ates Armed Forces, each of whom remarried after age 57. This case centers on statutory interpretation and involves two benefit programs: SBP, which is administered by the Department of Defense, and DIC, which is administered by the Department of Veterans Affairs. SBP is an insurance-style program allowing eligible servicemembers and military retirees to elect to have premiums deducted from their pay in order to provide their spouses with additional benefits after their deaths. 10 U.S. C. § 1448 (2006). As the surviving spouse of a deceased military servicemember who c hose to participate in SBP, Sharp is the primary beneficiary of annuit y payments that became effective the first day after her spouse’s death. Id. § 1450(a). DIC is a separate benefit, which is automatically paid to surviving spouses of veterans who died while on active dut y or while suffering from a service-connected disability. 38 U.S.C. § 1310(a) (2006) (“When any veteran dies . . . from a service-connected or compensable disability, the Se cretary shall pay [DIC] to such veteran’s surviving spouse . . . .”). S harp’s spouse died while on active duty or while suffering from a service-connected disabili ty. Thus, she is eligible to receive both SBP and DIC benefits. Prior to 2003, surviving spouses receiv ing DIC payments became ineligible to continue receiving the benefit when they remarried. Congr ess responded by passing the Veterans Benefits Act of 2003 (“the Vete rans Benefits Act”), which restored DIC benefits to surviving spouses who chose to remarry after age 57. Id. § 103(d)(2)(B) (“The remarriage after age 57 of the surviving spouse of a veteran shall not bar the

2008-5105 2furnishing of benefits [relating to DIC] to such person as the surviving spouse of the veteran.”). The Veterans Benefits Act also provided that, “notwithstanding any other provision of law,” those remarried spouses who are simultaneously eligible for other benefits inuring to surviving spouses of ve terans do not suffer a reduction in their benefits due to the DIC payments. Id. § 1311(e). 1 The SBP and DIC benefit schemes, however , have contradicting provisions regulating offsets for those who receive both benefits. The SBP offset provision, which went into effect September 21, 1972, ca lls for reducing SBP payments by the amount the recipient receives in DI C benefits. 10 U.S.C. § 1450(c)(1) (2006) (“If . . . the surviving spouse . . . is also entitled to [DIC] under section 1311(a) of title 38, the surviving spouse . . . may be paid an annuity under this section, but only in the amount that the annuity otherwise payable under this section would exceed that compensation.”). As stat ed above, however, the DIC sc heme appears to prohibit a reduction in benefits, such as SBP payments, for widows like Sharp, notwithstanding provisions of law like the offs et language in the SBP statute. See 38 U.S.C. § 1311(e) (2006). Nevertheless, the Department of De fense continued to enforce the SBP offset

1 The Veterans Benefits Act of 2003 provides in pertinent part: In the case of an individual who is eligible for dependency and indemnity compensation under this section by r eason of section 103(d)(2)(B) of this title who is also eligible for benef its under another provision of law by reason of such individual’s status as the surviving spouse of a veteran, then, notwithstanding any other provision of law (other than section 5304(b)(3) of this title), no reduction in benefits under such other provision of law shall be made by reason of such individual’s eligibility for benefits under this section. 38 U.S.C. § 1311(e) (2006) (e ffective Jan. 1, 2004).

2008-5105 3provision, and reduced Shar p’s SBP payments by the amount she received in DIC benefits. On July 19, 2007, Sharp filed suit in t he Court of Federal Cla ims, asserting that the government improperly reduced her SBP payments by the amount of her DIC payments. The court granted summary judgment in her favor, holding that “section 1311(e) modifies or partially repeals 10 U.S.C. § 1450(c)(1 ) to the extent that SBP payments are not to be reduced by the am ount of DIC payments to those surviving spouses who receive DIC by virtue of thei r having remarried after the age of 57.” Sharp , 82 Fed. Cl. at 229. T he government appeals, and we hav e jurisdiction under 28 U.S.C. § 1295(a)(3). DISCUSSION We review the trial court’ s grant of summary judgment de novo , reapplying the same standard as the trial court. Palahnuk v. United States , 475 F.3d 1380, 1382 (Fed. Cir. 2007). Summary judgment is appropriate when “the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law.” Rule 56(c) of the Rules of the United States Cour t of Federal Claims; see also Palahnuk , 475 F.3d at 1382.
I. The statutory provisions at issue, 10 U.S.C. § 1450(c)(1 ) and 38 U.S.C. § 1311(e), are at odds: the SBP scheme calls for reduci ng SBP payments by the amount the recipient receives in DIC benefits, whereas the post-2003 DIC scheme prohibits such reductions for surviving spous es who remarry after age 57. Sharp urges,

2008-5105 4and the trial court held, that by its plain la nguage section 1311(e) modifies or partially repeals section 1450(c)(1), so that surviving spouses who receive reinstated DIC by virtue of remarrying after age 57 receive th eir SBP payments unreduced by the amount of their DIC payments. The government more restrictively reads the language of section 1311(e) as precluding the reduction of benefits by DIC payments only for those benefits that are paid to surviving spouses of veterans solely due to their status as surviving spouses. In order for a surviving spouse of a veteran to receive SBP, the veteran must have been eligible for retirement, 10 U.S.C. § 1448(a)(1), have chosen SBP coverage, id. § 1448(a)(2), and have paid premiums for the benefit, id. § 1452. Because eligibility for SBP benefits includes requirements additional to one’s status as a surviving spouse of a veteran, the government concludes that SBP benefits are not included in the section 1311(e) ambit of protection. We agree with Sharp and the tr ial court. To determine Congress’ intent, we use the traditional tools of statutory constructi on, beginning with the text of the statute. Splane v. West , 216 F.3d, 1058, 1068 (Fed. Cir. 2000) (citing United States v. Gonzales , 520 U.S. 1, 4 (1997)). Where the int ent is unambiguously expressed by the plain meaning of the statutor y text, we give effect to that clear language without rendering any portion of it meaningless. Id. Here, Congress’ intention to supersede all other laws (except a provisi on not at issue in this case ), and prevent a decrease in some other benefit payment as a result of section 1311(e)’s restoration of DIC payments to surviving spouses who remarry a fter age 57, is plain on the face of the statute. 38 U.S.C. § 1311(e) (“[N]otwithstanding any other provision of law (other than

2008-5105 5section 5304(b)(3) of this title), no reducti on in benefits under such other provision of law shall be made by reason of such indi vidual’s eligibility for benefits under this section.”). Because the “notwit hstanding” clause applies to “ any other provision of law,” without relevant limitation, section 1311(e) cannot be gi ven any effect unless its language is construed to modify or partia lly repeal the earlier-promulgated section 1450(c)(1) to the extent necessary to resolve the offset conflict. To the government’s unconvincing argu ment that the only benefits section 1311(e) was meant to protect from offset are those granted solely because of the recipient’s status as the su rviving spouse of a veteran, Sharp responds that the plain language of section 1311(e) supports the reading that the statute applies to benefits for which a recipient’s “status as the surviving spouse of a veteran” is a necessary but not exclusive requirement. Sharp’s reading of the statute is more persuasive because, inter alia , neither party has i dentified a statute that entitles one to benefits solely due to one’s status as a veteran or a spouse of a ve teran; benefits appear al ways to be otherwise conditioned, e.g. , filing necessary paperwork. The government’s position, on the other hand, makes it effectively impossible for any benefit to gain offset protection from section 1311(e). We therefore reject its interpretation, wh ich would violate the canon that we must “give effect, if possible, to ev ery clause and word of a statute” and should avoid rendering any of the statutory text meaningless or as mere surplusage. Duncan v. Walker , 533 U.S. 167, 174 (2001) (internal quotation marks omitted). The government continues that the st atute does not pertain to SBP benefits because SBP is a retirement benefit and not a benefit t hat is conferred based on
veteran status. Although the gover nment correctly states t hat not all veterans are

2008-5105 6retirees, it also concedes that a military retiree will always be a veteran. 2 Thus, Sharp’s status as the surviving spouse of a military retiree unequivocally confers status as the surviving spouse of a veteran. Only military retirees and retirement-eligible servicemembers are permitted to participate in SBP, so an SBP beneficiary always is a surviving spouse (or dependent child) of a veteran. As such, the SBP offset provision, 10 U.S.C. § 1450(c)(1), repr esents “another provision of law” that makes benefits available to an individual “by reason of such individual’s status as the surviving spouse of a veteran” as contemplated by 38 U.S.C. § 1311(e). Because S harp’s eligibility for SBP is predicated upon her stat us as the surviving spouse of a veteran, her SBP benefits are protected from offset.
II. Even though we conclude that the plai n language of 38 U. S.C. § 1311(e) unambiguously precludes the DIC-SBP offset of 10 U.S.C. § 1450(c)(1), we take a look at the legislative history “only to determine w hether a clear intent c ontrary to the plain meaning exists.” Glaxo Operations UK Ltd. v. Quigg , 894 F.2d 392, 396 (Fed. Cir. 1990). To overcome the plain meaning of t he statute, the party challenging it by reference to legislative histor y must establish that the legi slative history embodies “an

‘ extraordinary showing of contrary intentions.’” Id. (quoting Garcia v. United States , 469 U.S. 70, 75 (1984)). The government has failed to present anything that comes close to satisfying this burden.

2 Title 38 defines a veteran as “a person who served in the active military, naval, or air service, and who was discharged or rel eased therefrom under conditions other than dishonorable.” 38 U.S. C. § 101(2) (2006).

2008-5105 7The government first points to the C ongressional Budget Office (“CBO”) cost estimate of the Veterans Benefits Act of 2 003, which included the DI C-SBP offset in its calculation, as evidence that Congress inten ded SBP offsets to remain in place. We are unpersuaded. First, the CBO is not Congress, and its reading of the statute is not tantamount to congressional intent. Second, Congress never ratified the CBO’s interpretation, which was completed more than two weeks after Congress took final action on the bill. Finally, section 1311(e) ’s “notwithstanding” cl ause, which repealed the DIC-SBP offset at issue, was not part of the bill’s original text, but was added by amendment. As the trial court noted, the fact that the re peal was not included in the original text of the bill could have resulted in a CBO calculation e rror or oversight. In sum, the government’s CBO argument is no t “an extraordinary showing” that Congress intended the statute to mean so mething contrary to its unambiguous language. To counter the government’s position, Shar p contends that the legislative history of a bill considered by t he preceding Congress and simila r to the one that produced section 1311(e) demonstrates that Congress conveyed its actual intent to partially repeal the DIC-SBP offset. In 2002, Congre ss considered the Veter ans’ and Survivors’ Benefits Expansion Act of 2002, which in cluded language almost identical to the provision in the Veterans Benefits Act of 2003. A House Veterans Affairs Committee report discussing the 2002 legislation expressly stated that the provision at issue is applicable to SBP payment s. H.R. Rep. No . 107-472, at 6 (2002), reprinted in 2002 U.S.C.C.A.N. 1020, 1022 (“[T] he Committee has included language so that [retained DIC payments] will be paid to all remarried su rviving spouses, and that no reduction of other benefits to which the surviving spouse may be entitled, such as Survivor Benefit

2008-5105 8Plan payments, would occur.”). Although this committee repor t does not speak directly to the language of the Veterans Benefits Ac t of 2003, it at leas t confirms that the legislative history does not amo unt to an “extraordinary show ing of contrary intention” required to interpret section 1311(e) as no t partially repealing the DIC-SBP offset. “Surely an interpretation placed by the sponsor of a bill on the very language subsequently enacted by Congress cannot be dismissed out of hand . . . simply because the interpretation was given two years earlier.” United States v. Enmons , 410 U.S. 396, 405 n.14 (1973); see also Huffman v. Office of Pers. Mgmt. , 263 F.3d 1341, 1347 n.1 (Fed. Cir. 2001) (“Congress did not rel ease committee reports, but it is proper for us to look to the legislative histor y from the [previous] Congress for guidance in interpreting the [statute], because the langu age did not change.”). Finally, the government relies on post-2003 congressional activity in its attempt to prove that Congress did not intend a partial repeal of the DIC-SBP offset in 2003. Specifically, it points to ongoi ng legislative efforts to effect a total r epeal of the DIC-SBP offset as evidence that if Congress had int ended the Veterans Benefits Act of 2003 to silently repeal the offset, it would have done so expressly and for all surviving spouses, not just the narrow group of survivors who ma rry after age 57. This argument also is unavailing. As recognized by the trial court, ther e are many plausible explanations for Congress’ decision to repeal the DIC-SBP offset only for su rviving spouses who receive DIC by reason of their having remarried a fter age 57. Perhaps Congress intended to encourage marriage for older surviving spous es. Perhaps section 1311(e) simply represents a first step in an effort to ev entually enact full repeal. After all, the

2008-5105 92008-5105 10 servicemember paid for both benefits: SBP with premiums; DIC with his life. Perhaps it was recognition that the polit ical process is the art of the possible, and that prudence counseled against making the perf ect the enemy of the good. Whatever the reason, the government has failed to make the “extr aordinary showing of [Congress’] contrary intentions” that would permit this court to construe section 1311(e) in a way that eviscerates its plain language. CONCLUSION Accordingly, the judgment of the Unit ed States Court of Federal Claims is affirmed.
AFFIRMED