Veteranclaims’s Blog

July 3, 2012

Frederick v. Shinseki, No. 2011-7146 (Decided: July 3, 2012); Dependency and Indemnity Compensation Benefits

Excerpt from decision below:
Because the Veterans Court misinterpreted the relevant statute,
we reverse.”

This appeal calls upon us to interpret subsection (e) of the Act, and in the process to answer two questions: does the subsection apply to Mrs. Frederick, and if so, what is the application filing requirement that Mrs. Frederick must meet?

We need not recite the legislative history of subsection (e), admitted by Mrs. Frederick as adverse to her case, by rote, because when the present tense of “submits” is coupled with the correct meaning of “such benefits,” subsection (e) of section 101 is unambiguous.
Mrs. Frederick’s interpretation of subsection (e), as made before the Veterans Court and repeated here, must
FREDERICK v. DVA 12

fail for three reasons, each tied to the text of the statute.
Taken together, these statutory provisions demonstrate both that Mrs. Frederick is covered by subsection (e) and that she was required to file an application for DIC benefits, based on her new-found eligibility, within the one year period between December 16, 2003, and December 16, 2004.
A
First, Mrs. Frederick cannot overcome the correct meaning of “submits an application for such benefits.” As the Veterans Court acknowledged, the statutory language “submits an application for such benefits” in the present tense connotes that a post-enactment application is necessary to secure DIC benefits based on remarriage after the age of 57. The Veterans Court, however, erred in only applying this prospective filing requirement to individuals who remarried after age 57 and who had never earlier applied for and received DIC benefits (group (b) above).
“Such benefits” necessarily refers to DIC benefits that became available for the first time by virtue of subsection (e) for individuals who remarried after the age of 57.
“Such benefits” are the same whether in the hands of an
individual in group (a) or group (b), as described above.
An “application for such benefits” could only be submitted
after “such benefits” came into existence. “Submits”
therefore necessarily is forward-looking from the date of
enactment of the Act. Such interpretation is consistent
with the Dictionary Act, 1 U.S.C. § 1, which notes that
“unless the context indicates otherwise[,] . . . words used
in the present tense include the future as well as the
present” but not the past tense, and Legislative Drafting
Manuals, which prefer the present tense. See Senate
Office of the Legislative Counsel, Legislative Drafting
FREDERICK v. DVA 13

Manual, § 103(a), p. 4 (1997); House Legislative Counsel’s
Manual on Drafting Style, HLC No. 104-1, § 102(c), p. 2,
and § 351(f), p. 60 (1995). Although present tense verbs, like “submits,” are not ordinarily thought to encompass the past, the Supreme Court in Carr v. United States, 130 S. Ct. 2229, 2236 n.5 (2010), noted that “there may be instances in which ‘context’ supports this sort of omnitemporality.”
The context here, however, leaves no room to interpret “submits an application for such benefits” to include an application submitted in 1970. Because the rights Mrs. Frederick seeks to vindicate did not exist in 1970, an application submitted then could not suffice to
secure rights first created in 2004.
============================
Dissent:
“The majority holds that a second application for DIC
benefits should have been filed by Mrs. Frederick during a
narrow one-year window, between December 16, 2003 and
December 16, 2004; that is, Congress created a bounded
period of one year during which applications under the
Act should have been filed. Yet, the Act neither prescribes
filing “during,” “within,” or “between” two dates,
nor requires “a reapplication,” “a new application,” or
“another application.” In clear and plain language, the
Act provides only that “an application” must be submitted
“not later than” December 16, 2004. The Veterans Court
was correct that this clear language should control.
The majority works hard to establish that because the
word “submits” is drafted in the present tense, it indicates
2 “(e) APPLICATION FOR BENEFITS.— In the
case of an individual who but for having remarried would
be eligible for benefits under title 38, United States Code,
by reason of the amendment made by subsection (a), and
whose remarriage was before the date of enactment of
this Act and after the individual had attained age 57, the
individual shall be eligible for such benefits by reason of
such amendment only if the individual submits an application
for such benefits to the Secretary of Veterans
affairs not later than the end of the one-year period
beginning on the date of enactment of this Act.”
FREDERICK v. DVA 4
a fully prospective requirement, i.e., the filing of a new
application for DIC benefits. See Maj. Op. at 12-13.
(“Submits . . . necessarily is forward-looking from the date
of enactment of the Act.”). But the Supreme Court has
recognized that while not the typical understanding in
other circumstances, a word drafted in the present tense
may also be used to encompass past events in “instances
in which ‘context’ supports this sort of omnitemporality.”
Carr v. United States, 130 S. Ct. 2229, 2236 n.5 (2010).
Indeed, English-language scholars know well that the
present tense may refer to the past, a usage grammarians
call the “historical present.” See R. Pence and D. Emery,
A Grammar of Present-Day English, 262-63 (2d ed. 1963).
The historical present uses the present tense commonly in
narratives to express immediacy. Id. Furthermore, the
present tense may be used when time is meant to remain
indefinite.3 Id. In this light, I believe that Congress used
the present tense word “submits” precisely because it did
not wish to limit § 101(e)’s reach to either past or future
applications. See Coal. for Clean Air v. U.S. Envtl. Prot.
Agency, 971 F.2d 219, 224-25 (9th Cir. 1992) (“The present
tense is commonly used to refer to past, present, and
future all at the same time.”); In re Stratford of Tex., Inc.,
3 The majority acknowledges that Congressional
drafting manuals prefer the present tense. Maj. Op. at
12. For example, Congress drafted 42 U.S.C.
§ 7413(c)(2) using the present tense: “any person who
knowingly—(A) makes any false material statement,
. . . (B) fails to notify or report as required under
this Act; . . .” 42 U.S.C. § 7413(c)(2) (emphasis added).
The Ninth Circuit observed that in this instance “Congress
uses the present tense to establish criminal liability
. . . . Yet clearly the 1990 Amendments do not forgive
criminal violations that occurred prior to the Amendments
just because Congress speaks in the present tense.”
Coal. for Clean Air v. U.S. Envtl. Prot. Agency, 971 F.2d
219, 225 (9th Cir. 1992).
FREDERICK v. DVA
5
635 F.2d 365, 369 (5th Cir. 1981) (“[T]he present tense of
a verb may sometimes refer to the past and to the future
as well as to the present.”). Such “omnitemporality”
makes sense in this context, signaling a congressional
intent to recognize that eligibility may be retained by
anyone who filed prior to the date of enactment, or within
a year thereafter. When “submits an application” is
added to the express deadline language “not later than,”
the meaning is irrefutably clear—only one application for
DIC benefits is required, filed any time before December
16, 2004.

United States Court of Appeals
for the Federal Circuit
__________________________
RUTH HILL FREDERICK,
Claimant-Appellee,
v.
ERIC K. SHINSEKI, SECRETARY OF VETERANS
AFFAIRS,
Respondent-Appellant.
__________________________
2011-7146
__________________________
Appeal from the United States Court of Appeals for
Veterans Claims in case No. 09-433.
__________________________
Decided: July 3, 2012
__________________________
PAUL M. SCHOENHARD, Ropes & Gray LLP, of Washington,
DC, argued for claimant-appellee.
JOSHUA E. KURLAND, Trial Attorney, Commercial Litigation
Branch, Civil Division, United States Department
of Justice, of Washington, DC, argued for respondentappellant.
With him on the brief were TONY WEST, Assistant
Attorney General, JEANNE E. DAVIDSON, Director,
and MARTIN F. HOCKEY, JR., Assistant Director. Of counsel
on the brief were DAVID J. BARRANS, Deputy Assistant
General Counsel, and AMANDA R. BLACKMON, Attorney,
FREDERICK v. DVA 2
United States Department of Veterans Affairs, of Washington,
DC.
__________________________
Before RADER, Chief Judge, CLEVENGER and REYNA,
Circuit Judges.
Opinion for the court filed by Circuit Judge CLEVENGER.
Dissenting opinion filed by Circuit Judge REYNA.
CLEVENGER, Circuit Judge.
The Secretary of the Department of Veterans Affairs
(“Secretary”) appeals from the judgment of the United
States Court of Appeals for Veterans Claims (“Veterans
Court”) that Mrs. Ruth Hill Frederick is entitled to dependency
and indemnity compensation (DIC) benefits.
Frederick v. Shinseki, 24 Vet. App. 335 (2011). Because
the Veterans Court misinterpreted the relevant statute,
we reverse.

I
As an initial matter, we must attend to our jurisdiction
over this appeal. In this case, the Veterans Court did
not enter a final judgment ending the litigation. Instead,
it remanded the case for a determination of the proper
effective date for the benefits it conferred on Mrs. Frederick.
Ordinarily, we exercise jurisdiction under 38
U.S.C. § 7292(a) only over final judgments by the Veterans
Court. Adams v. Principi, 256 F.3d 1318, 1320-21
(Fed. Cir. 2001). In limited circumstances, however, we
have jurisdiction to hear non-final judgments by the
Veterans Court. We spelled out those circumstances in
Williams v. Principi, 275 F.3d 1361 (Fed. Cir. 2002).
Thus, when the Veterans Court has rendered a clear and
final decision on a legal issue that will directly govern the
remand proceedings, and there is a substantial risk that
FREDERICK v. DVA 3
the issue will not survive a remand, we may entertain the
appeal. Id. at 1364. Those requirements are met here,
and we may proceed because the appeal presents the
question of the proper interpretation of a statute. See 38
U.S.C. § 7292(a); Forshey v. Principi, 284 F.3d 1335, 1351
(Fed. Cir. 2002) (en banc). We review legal determinations
by the Veterans Court independently without deference.
Prenzler v. Derwinski, 928 F.2d 392, 393 (Fed. Cir.
1991).
II
Mrs. Frederick was previously married on February
25, 1961, to World War II veteran Fred T. Hill. Mr. Hill
died on May 26, 1970, and upon his death, Mrs. Hill
became entitled to DIC benefits as the surviving spouse of
a veteran whose death resulted from service-related
injury or disease. See 38 U.S.C. §§ 1310-1318. Her entitlement
continued until December 4, 1986, when at the
age of 57 she was remarried to Mr. Spencer Frederick. In
1986, and until January 1, 2004, the law provided that a
surviving spouse receiving DIC benefits lost entitlement
to those benefits upon remarriage. See 38 U.S.C. § 101(3)
(defining “surviving spouse” in part as one who “has not
remarried”). Consequently, when Mrs. Frederick notified
the DVA of her remarriage, her DIC benefits were terminated.
On December 16, 2003, Congress enacted the Veterans
Benefits Act of 2003 (“Act”), with an effective date of
January 1, 2004 (“effective date”). The purpose of the Act
was to improve certain benefits administered by the
Secretary, including DIC benefits to surviving spouses.
The legislative history of the Act reveals that Congress
was concerned that the existing law, which terminated
DIC benefits upon remarriage of a surviving spouse, stood
as disincentive to remarriage for older surviving spouses.
FREDERICK v. DVA 4
See H.R. Rep. No. 108-211, at 12 (2003), reprinted in 2004
U.S.C.C.A.N. 2312, 2315. Consequently, Congress considered
revising the law to overcome the existing law that
terminated DIC benefits upon remarriage. At first, the
House of Representatives considered such a revision for
surviving spouses who remarried after the age of 55.
Upon a compromise with the Senate, the age was raised
to 57.
The revision necessary to accomplish this goal was
made by an amendment to 38 U.S.C. § 103(d)(2)(B), which
before amendment provided certain medical care benefits
to surviving spouses who remarried after the age of 55.
The Act retained those medical benefits and added specific
language to section 103(d)(2)(B) that secures eligibility
for DIC benefits for surviving spouses who remarry
after the age of 57. See Veterans Benefits Act of 2003,
Pub. L. No. 108-183, 117 Stat. 2651, 2652 (codified at 38
U.S.C. § 103(d)(2)(B)) (“The remarriage after age 57 of the
surviving spouse of a veteran shall not bar the furnishing
of [DIC] benefits to such person as the surviving spouse of
the veteran.”). Thus, after the effective date, any surviving
spouse who remarries after the age of 57 (but not one
who remarries at an earlier age) remains eligible for DIC
benefits.
Congress also provided new DIC eligibility for surviving
spouses who remarried after the age of 57, but before
the date of enactment of the Act, in subsection (e) of
section 101 of the Act. Id. at 2653. Subsection (e), which
is uncodified, reads as follows:
(e) APPLICATION FOR BENEFITS.— In the case
of an individual who but for having remarried
would be eligible for benefits under title 38,
United States Code, by reason of the amendment
made by subsection (a), and whose remarriage
FREDERICK v. DVA 5
was before the date of enactment of this Act and
after the individual had attained age 57, the individual
shall be eligible for such benefits by reason
of such amendment only if the individual submits
an application for such benefits to the Secretary of
Veterans affairs not later than the end of the oneyear
period beginning on the date of enactment of
this Act.
Subsection (e) refers to an individual who remarried
before the effective date of the Act and who “but for having
remarried would be eligible for [DIC] benefits . . . by
reason of the amendment made by subsection (a).” Id.
The reference to the amendment made by subsection (a)
thus defines a class of surviving spouses who remarry
after the age of 57 and who thus become eligible for DIC
benefits as a result of the Act.
This class necessarily includes two groups of surviving
spouses who remarried after the age of 57: (a) those
who previously applied for and received DIC benefits, and
whose remarriage before the effective date of the Act
destroyed their eligibility for DIC benefits (such as Mrs.
Frederick), and (b) those who for whatever reason never
applied for DIC benefits upon the death of their veteran
spouse, but who remarried before the effective date of the
Act, and thereby lost eligibility for DIC benefits.
The text of subsection (e) further provides that “the
individual [whether in group (a) or (b)] shall be eligible for
such benefits by reason of such amendment only if the
individual submits an application for such benefits to the
Secretary of Veterans Affairs not later than the end of the
one-year period beginning on the date of enactment of this
Act.” Id.
On November 8, 2007, almost three years after enactment
of the above-quoted legislation, Mrs. Frederick
FREDERICK v. DVA 6
wrote the DVA asking it to begin “my DIC again. It was
stopped Dec. 1986.”
III
The Nashville, Tennessee, Regional Office of the Department
of Veterans Affairs (DVA) treated Mrs. Frederick’s
2007 letter as an informal application for DIC
benefits. On February 20, 2008, the Regional Office
denied Mrs. Frederick’s application as untimely, stating
that “all claims for restoration of DIC benefits terminated
due to remarriage on or after age 57 had to have been
submitted in writing during the period of December 16,
2003 [the enactment date] to December 16, 2004.”
Mrs. Frederick appealed to the Board of Veterans Appeals.
She argued that prior to 2007, she had no way of
knowing of her eligibility for restoration of her discontinued
DIC benefits, and that the Secretary had breached his
duty to notify her of her eligibility. Because of the Secretary’s
alleged breach, Mrs. Frederick argued that her
informal application should have been accepted. The
Board rejected her notice argument. The Board reasoned
that Mrs. Frederick’s “application for such benefits” was
untimely, and therefore ineffective.
IV
Mrs. Frederick appealed to the Veterans Court. She
argued entitlement to DIC benefits as a matter of law
under subsection (e) because (1) she is a surviving spouse
eligible for benefits “but for having remarried,” (2) she
was at least 57 years old at the time of her remarriage, (3)
her remarriage was before the date of enactment of the
Act, and (4) her 1970 application for DIC was filed before
December 16, 2004.
In response, the Secretary argued that eligibility
could not be satisfied by an application filed before the
FREDERICK v. DVA 7
enactment of the statute, because the statutory language
is written in the present tense (“only if the individual
submits an application”) and because the Act set forth a
requirement that an application be filed in a window of
time, beginning on the date of enactment of the Act and
ending a year later. In contrast, Mrs. Frederick’s view
treated the application timing requirement as an end
date: so long as an application was filed before the end
date, entitlement is satisfied. Furthermore, the Secretary
recited numerous instances in the legislative history of
subsection (e) that clearly show the intent of legislators
that the filing period in subsection (e) is a window of time,
not merely an end date that could be satisfied by an
application filed before the enactment date. See, e.g., H.R.
Rep. No. 108-211, at 12, 34 (“[S]urviving spouses who
remarried . . . before this provision is enacted would have
one year to apply for reinstatement of their DIC benefit.”);
149 Cong. Rec. S15133 (daily ed. Nov. 19, 2003) (same);
149 Cong. Rec. H11716 (daily ed. Nov. 30, 2003) (same).
Although the Veterans Court appreciated the force of
the Secretary’s argument that the statute’s filing obligation
is prospective from the enactment date, as well as the
import of the legislative history on that issue, the Veterans
Court saw subsection (e) of the Act in a different light.
It agreed with Mrs. Frederick that the statute creates an
end date, not a window of time, for submission of an
application for DIC benefits. But it held that the application
requirement is only applicable to a remarried spouse
who had not previously applied for and received DIC
benefits (group (b) described above). Thus, the Veterans
Court expressly held that “this provision [the application
requirement] does not apply to a remarried surviving
spouse, such as Mrs. Frederick, seeking reinstatement of
DIC.” Frederick, 24 Vet. App. at 342. The Veterans Court
reached that conclusion because it treated Mrs. Frederick
FREDERICK v. DVA 8
as seeking reinstatement of previous DIC benefits, not as
claiming eligibility for newly-conferred DIC benefits. The
Veterans Court thus reasoned that Mrs. Frederick’s
reinstatement request should be governed by 38 U.S.C.
§ 5110(g) and 38 C.F.R. § 3.114, which permit the Secretary
to take the initiative to establish effective dates for
benefits that have been enhanced by a change in law. In
a nutshell, the Veterans Court read the relevant statute
to set forth an end date, December 16, 2004, for applications
to gain DIC benefits, with the application requirement
applying only to the group (b) individuals described
above.
The Veterans Court bolstered its two-part decision in
several ways. First, in deciding that subsection (e) creates
a filing end date time, the Veterans Court relied on
the distinction between the language in subsection (e) and
the language of an existing statutory provision that was
amended by subsection (f) in section 101 of the Act. The
language of the existing provision created a filing window
by stating that the application under the provision must
be filed “during the 1-year period ending on the effective
date.” In subsection (f) of the Act, this “during” language
was changed to “before the end of the one-year period
beginning on the date of enactment.” This amendment
resulted in the same timing language as is found in
subsection (e). From this, the Veterans Court reasoned
that Congress knew how to create a window filing requirement,
as it had in the language amended by subsection
(f), and because it used different language in
subsection (e), that section could not create a window
filing time.
Second, the Veterans Court viewed the argument that
subsection (e) presents a window filing requirement as
inconsistent with 38 U.S.C. § 5110(g) and 38 C.F.R.
§ 3.114. Because nothing in those provisions restricts the
FREDERICK v. DVA 9
time when the Secretary can set an effective date for a
benefit enhanced by a change in law, the Veterans Court
surmised that reading a strict window filing time into
subsection (e) would conflict with those provisions.
Third, the Veterans Court analogized Mrs. Frederick’s
situation to the situation in which a surviving spouse
became ineligible for DIC benefits by remarriage before
the effective date but re-qualified for such benefits upon
the termination of the second marriage, whether by death
or divorce. Citing 38 C.F.R. § 3.55(a) and cases in which
the Secretary restored benefits on the termination of the
second marriage upon informal request by the surviving
spouse, the Veterans Court stated that in those situations,
the surviving spouse was not required to file an
application. If the surviving spouse who reacquires DIC
benefits on the termination of a disqualifying marriage
does not have to file an application for restoration, the
Veterans Court surmised that Mrs. Frederick too should
not be required to file an application.
Because the Veterans Court saw Mrs. Frederick’s case
as a request for establishment of an effective date for the
benefits afforded to her by the Act, it remanded the case
for ascertainment of a correct effective date. The Secretary
timely appealed to this court.
V
Before this court, the parties present again their conflicting
interpretations of the legislation which (1) created
a right for surviving spouses who remarry after the age of
57 to retain DIC benefits that otherwise would cease upon
remarriage, (2) extended that right to surviving spouses
who remarried after the age of 57 before enactment of the
legislation, and (3) set out an explicit requirement that
the an individual who remarried after the age 57 and
before the date of enactment would be eligible for such
FREDERICK v. DVA 10
benefits only if the individual submits an application for
such benefits in the specified time.
Mrs. Frederick continues to argue that the plain language
of the statute only requires an application to have
been filed before the calendar date December 13, 2004.
Consequently, she interprets the one year calculation in
the statute to refer only to its end point, one year after
enactment of the statute. So long as an application for
DIC benefits has been filed before that date, as was her
1970 initial application, she maintains the statute’s
requirements are met. She posits that this reading must
be correct because the DVA has created no forms for
reinstatement of DIC benefits based on subsection (e)—
instead its only relevant form is for initial application of
benefits. Mrs. Frederick rejects the holding of the Veterans
Court that she is not even covered by subsection (e),
describing that holding as harmless error. At oral argument,
Mrs. Frederick argued that the admittedly adverse
legislative history must be overlooked because of what she
believes is the correct interpretation of the statute.
The Secretary argues that the statute imposes a prospective
application filing requirement binding on all
individuals seeking DIC benefits due to remarriage before
the effective date of the Act and after the age of 57. The
Secretary insists that subsection (e) must apply to both
groups (a) and (b) described above, and that both should
be treated the same. An application received any time
before the Act’s enactment, says the Secretary, is a nullity
insofar as the Act’s bestowal of eligibility to remarried
surviving spouses is concerned. Before the Act, Mrs.
Frederick was ineligible for benefits, according to the
Secretary, and it is only because of the Act that, effective
January 1, 2004, Congress created a new avenue for
eligibility. In the Secretary’s view, an application for
FREDERICK v. DVA 11
benefits, filed during a time when such benefits were
understood to terminate upon remarriage, cannot create
an entitlement to the new eligibility created by the Act.
The Secretary also argues that the Veterans Court
misunderstood the import of the amendment made in
subsection (f) and erred in seeing the case as governed by
38 U.S.C. § 5110(g). Further, the Secretary correctly
posits that the rule of interpretative doubt favoring
veterans in Brown v. Gardner, 513 U.S. 115 (1994), has no
force if a statute properly interpreted leaves no ambiguity
as to its meaning. The Secretary maintains that the
Veterans Court erred with its analogy to surviving
spouses whose DIC benefits are restored upon termination
of a disqualifying second marriage, and argues that
should any doubt as to the meaning of the statute exist,
we should be guided by the legislative history.
VI
This appeal calls upon us to interpret subsection (e) of
the Act, and in the process to answer two questions: does
the subsection apply to Mrs. Frederick, and if so, what is
the application filing requirement that Mrs. Frederick
must meet?

Statutory interpretation of course starts with the
words of a statute, which must be interpreted in the
context of the Act as a whole. Where ambiguity persists
after application of the standard tools of statutory construction,
legislative history may be used to resolve any
such ambiguity. We need not recite the legislative history
of subsection (e), admitted by Mrs. Frederick as adverse
to her case, by rote, because when the present tense of
“submits” is coupled with the correct meaning of “such
benefits,” subsection (e) of section 101 is unambiguous.

Mrs. Frederick’s interpretation of subsection (e), as
made before the Veterans Court and repeated here, must
FREDERICK v. DVA 12
fail for three reasons, each tied to the text of the statute.
Taken together, these statutory provisions demonstrate
both that Mrs. Frederick is covered by subsection (e) and
that she was required to file an application for DIC benefits,
based on her new-found eligibility, within the oneyear
period between December 16, 2003, and December
16, 2004.
A
First, Mrs. Frederick cannot overcome the correct
meaning of “submits an application for such benefits.”
As the Veterans Court acknowledged, the statutory
language “submits an application for such benefits” in the
present tense connotes that a post-enactment application
is necessary to secure DIC benefits based on remarriage
after the age of 57. The Veterans Court, however, erred
in only applying this prospective filing requirement to
individuals who remarried after age 57 and who had
never earlier applied for and received DIC benefits (group
(b) above).
“Such benefits” necessarily refers to DIC benefits that
became available for the first time by virtue of subsection
(e) for individuals who remarried after the age of 57.
“Such benefits” are the same whether in the hands of an
individual in group (a) or group (b), as described above.
An “application for such benefits” could only be submitted
after “such benefits” came into existence. “Submits”
therefore necessarily is forward-looking from the date of
enactment of the Act. Such interpretation is consistent
with the Dictionary Act, 1 U.S.C. § 1, which notes that
“unless the context indicates otherwise[,] . . . words used
in the present tense include the future as well as the
present” but not the past tense, and Legislative Drafting
Manuals, which prefer the present tense. See Senate
Office of the Legislative Counsel, Legislative Drafting
FREDERICK v. DVA 13
Manual, § 103(a), p. 4 (1997); House Legislative Counsel’s
Manual on Drafting Style, HLC No. 104-1, § 102(c), p. 2,
and § 351(f), p. 60 (1995). Although present tense verbs,
like “submits,” are not ordinarily thought to encompass
the past, the Supreme Court in Carr v. United States, 130
S. Ct. 2229, 2236 n.5 (2010), noted that “there may be
instances in which ‘context’ supports this sort of omnitemporality.”
The context here, however, leaves no
room to interpret “submits an application for such benefits”
to include an application submitted in 1970. Because
the rights Mrs. Frederick seeks to vindicate did not exist
in 1970, an application submitted then could not suffice to
secure rights first created in 2004.
Mrs. Frederick would prefer us to interpret “such
benefits” as limited to the DIC benefits to which she was
entitled in 1970 upon the death of her veteran husband.
But the words of the subsection themselves stand in her
way. The phrase “such benefits” refers to the change in
law made in subsection (a) of the statute and to remarriage
“before the date of enactment of this Act and after
the individual had attained the age of 57.” And, in addition,
the statute provides that “an individual shall be
eligible for such benefits by reason of such amendment
only if the individual submits an application for such
benefits . . . “ (emphasis added). Further, the one-year
filing time has a specific beginning—the date of enactment
of the statute.
There is only one reasonable way to read the relevant
words in the statute. Coupled with the present tense of
“submits,” the statute must be construed to require an
application to be submitted after the date of enactment of
subsection (e) and “not later than the end of the one-year
period beginning on the date of enactment of this Act.”
Indeed, the same “not later than” language creates limited
filing periods for filing of reports and other obliga-
FREDERICK v. DVA 14
tions imposed on the Secretary in sections 601(a)(3) and
602(b) of the Act. Veterans Benefits Act of 2003, Pub. L.
No. 108-183, 117 Stat. 2651, 2668-69. Thus, we must
reject Mrs. Frederick’s view that the application burden
imposed on her in subsection (e) is satisfied by an application
submitted in 1970.
B
Second, the interplay of subsections (e) and (f),
thought by the Veterans Court to support its decision that
subsection (e) sets a timing end date, strongly supports
the Secretary’s view that subsection(e) creates a window
filing requirement. As noted above, the Veterans Court
understood subsection (f) to replace a window filing requirement
with the language enacted in subsections (f)
and (e). Therefore, the Veterans Court reasoned that
subsection (e) as enacted could not create a window filing
requirement.
The Veterans Court overlooked the fact that subsection
(f) is a technical correction, not intended to change
the substantive law being corrected. In the Veterans
Benefits Act of 2002, Congress provided that the remarriage
after the age of 55 would not bar the furnishing of
certain medical benefits to the surviving spouse of a
veteran. In order to qualify for such benefits following
remarriage after the age of 55, the statute conditioned
availability of the medical benefits on the receipt by the
Secretary of an application for such medical care “during
the 1-year period ending on the effective date specified in
subsection (c).” Veterans Benefits Act of 2002, Pub. L. No.
107-330, 116 Stat. 2820, 2821. Subsection (c), however,
created an effective date of “60 days after the enactment
of this Act.” Id. The law thus created a window of time
for receipt of applications to secure the new benefits. The
problem with the language of the statute was that the
FREDERICK v. DVA 15
window, which lasted for one year, opened even before the
legislation was enacted, and closed shortly thereafter.
The 2002 law, corrected in 2003, thus created a filing
window for securing medical benefits, but opened that
window for a mere and almost meaningless 60 days. The
object of the amendment made in subsection (f) was to
extend the filing period for a longer period. The “during
the 1-year period” language that was amended had created
the short filing period, whereas the “before the end of
the one-year period” simply lengthened the window filing
period. Properly understood, the amendment made by
subsection (f) did not replace a window filing requirement
with an end date filing requirement; instead, the technical
correction simply extended the previously flawed
window filing time to a meaningful period.
C
Third, section 701 of the Act underscores that the interplay
of subsections (e) and (f) supports the Secretary.
Section 701 makes clear, in the context of the statute as a
whole, that there is no difference between the meaning of
“during” and “before the end of.” Section 701 sets forth
time limitations on submission of certain claim information
to the Secretary. Section 701(d)(1) states that the
Secretary will readjudicate a claim if the request for
readjudication is received “not later than the end of the
one-year period that begins on the date of the enactment
of this Act.” This is the language used in subsection (e).
Section 701(d)(4)(A), however, states that the Secretary is
not obligated to readjudicate a claim that “is not submitted
during the one-year period referred to in paragraph
(1).” Section 701 thus shows that Congress did not assign
different meanings to “not later than the end of” and
“during” for purposes of filing time requirements. Consequently,
section 701, together with subsections (e) and (f)
of section 101, and coupled with the correct interpretation
FREDERICK v. DVA 16
of “submits an application for such benefits,” requires that
we interpret subsection (e) to create a filing window for an
individual seeking to secure the DIC benefits afforded by
the Act. In the words of the statute, the window’s “beginning”
is the date of enactment of the Act and its end is
“not later than the one-year period beginning on the date
of enactment.” The application submission requirement
applies to any individual seeking to secure the DIC eligibility
created by subsection (e) of the Act, whether or not
such an individual had previously enjoyed receipt of DIC
benefits.
VII
The points used by the Veterans Court to bolster its
view that Mrs. Frederick is exempt from the Act cannot
suffice to overcome subsection (e) as properly interpreted
in Part VI above.
Contrary to the view of the Veterans Court, 38 U.S.C.
§ 5110(g) and 38 C.F.R. § 3.114 are not necessarily inconsistent
with, and do not stand in the way of, the requirement
that Mrs. Frederick was required to file an
application in the specified window time period. Section
5110(g) permits the Secretary to set the effective date for
an award or increase in amount of DIC benefit, where the
award or increase in amount results from “any Act or
administrative issue.” But any such award or increase
cannot be retroactive “more than one year from the date
of application therefore or the date of administrative
determination of entitlement, whichever is earlier.” For
purposes of this appeal, at least, the Secretary agrees that
section 5110(g) “contemplates that the [Secretary] may
identify and grant previously filed claims that benefit
from a new law upon [his] own initiative, [but] it does not
relieve claimants from having to file a claim for benefits
under a new law when the [Secretary] does not do so.”
FREDERICK v. DVA 17
Appellant Br. 26. The Secretary relies on Wells v. Principi,
3 Vet. App. 307, 309 (1992), in which the Veterans
Court held that the Secretary is not obliged to seek out
beneficiaries of new law. Where the Secretary has not
independently granted a new benefit to a previously filed
claim, as in Mrs. Frederick’s case, the individual is
obliged to apply for the newly-created benefit. The Veterans
Court in Wells, and the Secretary in this case, point
also to 38 U.S.C. § 5101(a), which requires that a claim
must be filed in order for benefits to be paid. Because
Mrs. Frederick’s 1970 application for DIC cannot suffice
to gain her eligibility that only arose in 2003, enforcing
the application requirement of subsection (e) is not necessarily
inconsistent with the authority of the Secretary to
establish effective dates under section 5110(g). The
pertinent regulation, 38 C.F.R. § 3.114 (a)(1) and (3),
recognizes the difference between the case in which the
DVA initiates a new effective date based on a change in
law, and the case in which no such initiative is taken and
the individual files an application.
The situation facing a DIC recipient who remarried
before the Act and whose remarriage terminated (either
by death or divorce) is no different from Mrs. Frederick’s
situation. The relevant statute, 38 U.S.C. § 5110(k),
requires a claim to be filed for reinstatement of benefits
upon annulment of a marriage, and 38 U.S.C. § 5110(l)
sets the effective date for benefits arising from termination
of a remarriage by death or divorce “if application
therefore is received within one year from such termination.”
In short, the Veterans Court overlooked the requirement
of an application in order to reclaim DIC
benefits upon the termination of disqualifying remarriage.
The Veterans Court thus erred in thinking that a person
in the terminated remarriage situation has no duty to
apply, and hence Mrs. Frederick should have no duty to
FREDERICK v. DVA 18
apply. As the Veterans Court noted, it is true that the
Secretary treats informal requests by individuals to
reinstate DIC benefits as sufficient application under
statute. Indeed, in this case the Regional Office accepted
Mrs. Frederick’s informal November 8, 2007, letter as an
application to gain the DIC rights afforded by the Act.
The sufficiency of Mrs. Frederick’s “application” has never
been challenged by the Secretary—only its timeliness.
VIII
For the reasons stated above, subsection (e) must be
interpreted to apply to any individual seeking to secure
the specific DIC benefits newly afforded thereby, and any
such individual is required to have applied for such benefits
after the date of enactment of the Act and before the
end of the one-year period thereafter. Mrs. Frederick’s
view of the statute cannot prevail. At the least, the
factors we have cited cast doubt on Mrs. Frederick’s view
of subsection (e) and would therefore create ambiguity as
to which party has the better interpretative argument.
Mrs. Frederick understandably does not wish to be drawn
into ambiguity, for there she must confront the legislative
history she recognizes is adverse and upon which the
Secretary could rely. See Staub v. Office of Pers. Mgmt.,
927 F.2d 571, 573 (Fed. Cir. 1991) (“Since both parties
claim victory on the face of the statute, we have no reluctance
to examine the legislative history [of the statute].”)
We need not pursue the ambiguity point further, for our
interpretation of the statute leaves no ambiguity as to
what Congress meant by subsection (e).
In the end, with no sustainable statutory interpretation
to assert, and no desire to find ambiguity in the
statute, the only way Mrs. Frederick could prevail is on
the ground found by the Veterans Court: that she is
FREDERICK v. DVA
19
simply not covered by subsection (e). But that door, too, is
closed to Mrs. Frederick.
For the reasons stated above, we must reverse the decision
of the Veterans Court, and remand with instructions
to dismiss Mrs. Frederick’s claim as untimely filed.
REVERSED AND REMANDED
COSTS
Each party shall bear its own costs.
United States Court of Appeals
for the Federal Circuit
__________________________
RUTH HILL FREDERICK,
Claimant-Appellee,
v.
ERIC K. SHINSEKI, SECRETARY OF VETERANS
AFFAIRS,
Respondent-Appellant.
__________________________
2011-7146
__________________________
Appeal from the United States Court of Appeals for
Veterans Claims in case No. 09-433.
__________________________
REYNA, Circuit Judge, dissenting
I do not believe that the United States Court of Appeals
for Veterans Claims (“Veterans Court”) misinterpreted
§ 101(e) of the Veterans Benefits Act of 2003
(“Act”) by restoring dependency and indemnity compensation
(“DIC”) benefits to surviving spouses of veterans who
remarry after age 57 and whose application was submitted
before December 16, 2004. The Veterans Court,
specialists in this area of law, properly held that Mrs.
Frederick met all of the statutory criteria and awarded
her DIC benefits as the remarried widow of a World War
II veteran. The majority decision strips that award from
Mrs. Frederick and thousands of others. I respectfully
dissent because the plain meaning of the statute requires
FREDERICK v. DVA 2
an interpretation favoring Mrs. Frederick; even if ambiguity
can be shown, canons of construction unique to veterans
law require that we resolve any remaining doubt in
her favor.
The relevant facts are uncontested and underscore the
merit of Mrs. Frederick’s claim under the Act. Mrs.
Frederick was married in 1961 to Mr. Fred T. Hill, a
World War II veteran who passed away with a 100%
disability rating in 1970 and she was at that time a
“surviving spouse” under the Act. See § 101(a). Mrs.
Frederick submitted an application for DIC benefits to the
Veterans Administration on June 4, 1970, shortly after
the death of her husband. She received DIC benefits from
the time of her husband’s death in 1970 until 1986, when
the benefits were terminated due to her marriage to Mr.
Spencer Frederick.
There is no question that “but for having remarried
[she] would [have remained] eligible for benefits” under
the Act. See § 101(e). Mrs. Frederick was born on January
4, 1929, and married Mr. Frederick in December of
1986 so at the time of her remarriage, she “had attained
age 57” as required by the Act. See id. Given her 1970
application for DIC benefits, her DIC claim was received
by the Secretary of Veterans Affairs “not later than the
end of the one-year period beginning on the date of the
enactment of th[e] Act,” to wit, before December 16, 2004.
See id. Accordingly, Mrs. Frederick meets every eligibility
requirement on the face of the Act, §§ 101(a)1 and (e),2
and should have been receiving DIC benefits.
1 “(a) The remarriage after age 57 of the surviving
spouse of a veteran shall not bar the furnishing of benefits
specified in paragraph (5) to such person as the surviving
spouse of the veteran.”
FREDERICK v. DVA 3
As the Veterans Court determined, the plain meaning
of the statute provides only an end date—“not later than
the end of the one-year period beginning on the date of
enactment of this Act”—by which an application for DIC
benefits must have been submitted. Frederick v. Shinseki,
24 Vet. App. 335, 338 (2011); § 101(e). I agree that
the Act’s clear language creates a final deadline, as opposed
to a bounded period, for submission of a DIC benefits
application. Mrs. Frederick’s initial 1970 application
for DIC benefits precedes the Act’s critical date by more
than three decades. It was more than timely filed.
The majority holds that a second application for DIC
benefits should have been filed by Mrs. Frederick during a
narrow one-year window, between December 16, 2003 and
December 16, 2004; that is, Congress created a bounded
period of one year during which applications under the
Act should have been filed. Yet, the Act neither prescribes
filing “during,” “within,” or “between” two dates,
nor requires “a reapplication,” “a new application,” or
“another application.” In clear and plain language, the
Act provides only that “an application” must be submitted
“not later than” December 16, 2004. The Veterans Court
was correct that this clear language should control.
The majority works hard to establish that because the
word “submits” is drafted in the present tense, it indicates
2 “(e) APPLICATION FOR BENEFITS.— In the
case of an individual who but for having remarried would
be eligible for benefits under title 38, United States Code,
by reason of the amendment made by subsection (a), and
whose remarriage was before the date of enactment of
this Act and after the individual had attained age 57, the
individual shall be eligible for such benefits by reason of
such amendment only if the individual submits an application
for such benefits to the Secretary of Veterans
affairs not later than the end of the one-year period
beginning on the date of enactment of this Act.”
FREDERICK v. DVA 4
a fully prospective requirement, i.e., the filing of a new
application for DIC benefits. See Maj. Op. at 12-13.
(“Submits . . . necessarily is forward-looking from the date
of enactment of the Act.”). But the Supreme Court has
recognized that while not the typical understanding in
other circumstances, a word drafted in the present tense
may also be used to encompass past events in “instances
in which ‘context’ supports this sort of omnitemporality.”
Carr v. United States, 130 S. Ct. 2229, 2236 n.5 (2010).
Indeed, English-language scholars know well that the
present tense may refer to the past, a usage grammarians
call the “historical present.” See R. Pence and D. Emery,
A Grammar of Present-Day English, 262-63 (2d ed. 1963).
The historical present uses the present tense commonly in
narratives to express immediacy. Id. Furthermore, the
present tense may be used when time is meant to remain
indefinite.3 Id. In this light, I believe that Congress used
the present tense word “submits” precisely because it did
not wish to limit § 101(e)’s reach to either past or future
applications. See Coal. for Clean Air v. U.S. Envtl. Prot.
Agency, 971 F.2d 219, 224-25 (9th Cir. 1992) (“The present
tense is commonly used to refer to past, present, and
future all at the same time.”); In re Stratford of Tex., Inc.,
3 The majority acknowledges that Congressional
drafting manuals prefer the present tense. Maj. Op. at
12. For example, Congress drafted 42 U.S.C.
§ 7413(c)(2) using the present tense: “any person who
knowingly—(A) makes any false material statement,
. . . (B) fails to notify or report as required under
this Act; . . .” 42 U.S.C. § 7413(c)(2) (emphasis added).
The Ninth Circuit observed that in this instance “Congress
uses the present tense to establish criminal liability
. . . . Yet clearly the 1990 Amendments do not forgive
criminal violations that occurred prior to the Amendments
just because Congress speaks in the present tense.”
Coal. for Clean Air v. U.S. Envtl. Prot. Agency, 971 F.2d
219, 225 (9th Cir. 1992).
FREDERICK v. DVA
5
635 F.2d 365, 369 (5th Cir. 1981) (“[T]he present tense of
a verb may sometimes refer to the past and to the future
as well as to the present.”). Such “omnitemporality”
makes sense in this context, signaling a congressional
intent to recognize that eligibility may be retained by
anyone who filed prior to the date of enactment, or within
a year thereafter. When “submits an application” is
added to the express deadline language “not later than,”
the meaning is irrefutably clear—only one application for
DIC benefits is required, filed any time before December
16, 2004.

We must assume when the words of a statute are irrefutably
clear that Congress said what it meant and
meant what it said, thereby ending our judicial inquiry.
Conn. Nat’l Bank v. Germain, 503 U.S. 249, 253-54
(1992); United States v. LaBonte, 520 U.S. 751, 757
(1997). The legislative history, no matter how creatively
spun, cannot trump the plain and unambiguous language
of the statute. See Ratzlaf v. United States, 510 U.S. 135,
147-48 (1994) (“There are, we recognize, contrary indications
in the statute’s legislative history. But we do not
resort to legislative history to cloud a statutory text that
is clear.”); Van Wersch v. Dep’t of Health & Human Servs.,
197 F.3d 1144, 1152 (Fed. Cir. 1999) (“[W]e are not prepared
to allow the extant legislative history . . . to trump
the irrefutably plain language that emerged when Congress
actually took pen to paper.”).
The Veterans Court found, and I agree, that the legislative
history here is, “at best, ambiguous.” Frederick, 24
Vet. App. at 342. The majority cites a single legislative
history quotation that remarried spouses “would have one
year to apply for the reinstatement of these benefits,” 149
Cong. Rec. S15,133-01 (daily ed. Nov. 19, 2003). Aside
that this language also does not create a defined one year
period for filing of applications, this limitation was not
FREDERICK v. DVA
6
included in the Act as passed. Maj. Op. at 4-5. This
inchoate idea—a bounded window for reinstatement—was
rejected by Congress, as evidenced that the Act was
passed containing language that goes the other way. This
case is a good example of why we should avoid reliance on
“murky, ambiguous, and contradictory” legislative history,
especially when it defies the statute’s plain meaning
and defeats its remedial purpose. Exxon Mobil Corp. v.
Allapattah Servs., Inc., 545 U.S. 546, 568 (2005); see also
Ratzlaf, 510 U.S. at 147-48; Van Wersch, 197 F.3d at
1152.
Even if the statute did admit of ambiguity, we must
be loathe to construe § 101(e) against Mrs. Frederick. The
Act is a remedial statute intended to broaden eligibility
for DIC benefits. The veterans benefits system operates
in a uniquely pro-claimant manner so we must do justice,
ensuring that veterans and their families are treated
fairly. See Barrett v. Nicholson, 466 F.3d 1038, 1044 (Fed.
Cir. 2006); Hodge v. West, 155 F.3d 1356, 1362-64 (Fed.
Cir. 1998). Indeed, the Supreme Court has held that any
interpretive doubt be resolved in the veteran’s favor.
Brown v. Gardner, 513 U.S. 115, 117-18 (1994); Coffy v.
Republic Steel Corp., 447 U.S. 191, 196 (1980); Fishgold v.
Sullivan Dryrock & Repair Corp., 328 U.S. 275, 285
(1946); see also Sursely v. Peake, 551 F.3d 1351, 1355
(Fed. Cir. 2009). The Veterans Court faithfully applied
this important principle, and I would affirm.

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