Veteranclaims’s Blog

May 2, 2018

Burris, JR, v. Wilkie, No. 2017-2001 & Thompson v. Wilkie, No. 2017-2003(Decided: May 2, 2018); equitable relief; § 503;

Excerpt from decision below:

“Further, the court may compel only those actions of the Secretary
that are “unlawfully withheld or unreasonably delayed,”id. § 7261(a)(2), and set aside only those Board decisions that are unlawful—i.e., arbitrary, capricious, an abuse of
discretion, or otherwise not in accordance with law; contrary to a constitutional right, power, privilege, or immunity; in excess of statutory jurisdiction, authority, or
limitations, or in violation of a statutory right; or without observance of procedure required by law, id. § 7261(a)(3); see also id. § 7261(a)(4).”

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“The only provision in title 38 that addresses equitable relief in this context is § 503. Titled “Administrative error; equitable relief,” § 503 provides, in relevant part,
that the Secretary may grant relief, “including the payment of moneys to any person whom the Secretary determines is equitably entitled”:

===========================

 

United States Court of Appeals for the Federal Circuit
______________________
CHARLES D. BURRIS, JR.,
Claimant-Appellant
v.
ROBERT WILKIE, ACTING SECRETARY OF
VETERANS AFFAIRS,
Respondent-Appellee
———————————————————————————
BEN H. THOMPSON,
Claimant-Appellant
v.
ROBERT WILKIE, ACTING SECRETARY OF
VETERANS AFFAIRS,
Respondent-Appellee
______________________
2017-2001, 2017-2003
______________________
Appeals from the United States Court of Appeals for
Veterans Claims in Nos. 14-2980, 15-768, Chief Judge
Robert N. Davis, Judge Coral Wong Pietsch, Judge William
Greenberg.
______________________
Decided: May 2, 2018
______________________
BURRIS 2 v. WILKIE
DOUGLAS J. ROSINSKI, Douglas J. Rosinski Esq., Inc.,
Columbia, SC, argued for claimants-appellants.
THOMAS JAMES REED, Widener University, Wilmington,
DE, for claimant-appellant Charles D. Burris, Jr.
VERONICA NICOLE ONYEMA, Commercial Litigation
Branch, Civil Division, United States Department of
Justice, Washington, DC, argued for respondent-appellee.
Also represented by CHAD A. READLER, ROBERT E.
KIRSCHMAN, JR., ELIZABETH M. HOSFORD; Y. KEN LEE,
BRYAN THOMPSON, Office of General Counsel, United
States Department of Veterans Affairs, Washington, DC.
______________________
Before LOURIE, O’MALLEY, and TARANTO, Circuit Judges.
O’MALLEY, Circuit Judge.
Charles D. Burris, Jr. and Ben H. Thompson appeal
from decisions of the United States Court of Appeals for
Veterans Claims (“Veterans Court”) denying their respective
requests for equitable relief. See Burris v. McDonald,
No. 14-2980, 2016 U.S. App. Vet. Claims LEXIS 1941
(Vet. App. Dec. 20, 2016) (“Burris Decision”); Thompson v.
Shulkin, No. 15-0768, 2017 U.S. App. Vet. Claims LEXIS
335 (Vet. App. Mar. 8, 2017) (“Thompson Decision”).
Because we hold that the Veterans Court lacks jurisdiction
to grant the particular form of equitable relief that
Appellants seek, we affirm.
BACKGROUND
These consolidated appeals involve two cases that
present similar issues related to Appellants’ requests for
educational assistance benefits. We summarize each case
below.
BURRIS v. WILKIE 3
I. Burris’s Case (No. 17-2001)
Burris’s father served on active duty in Vietnam from
February 1969 to January 1971, and was granted a
permanent and total disability rating for schizophrenia
effective October 1, 2000. Because of his father’s disability,
Burris was eligible to receive Dependents’ Educational
Assistance (“DEA”) benefits. In October 2010, Burris,
then 35-years old, elected to receive retroactive benefits
for the period beginning on May 7, 2002, and ending on
May 7, 2010. During a portion of that period, Burris was
enrolled as an undergraduate student at Southeastern
Louisiana University.
Burris’s studies were interrupted in January 2005,
however, when his mother unexpectedly passed away. At
that time, Burris became the primary caretaker for his
father, who suffered from prostate cancer. As a result,
Burris was unable to attend school between August 16,
2004, and May 10, 2010. Burris could not resume his
studies until after his period of DEA eligibility had expired.
The Department of Veterans Affairs (“VA”) notified
Burris that it could not grant DEA benefits after the
expiration of his eligibility period, and thereafter denied
Burris’s request for an extension of that period, citing VA
regulations that prohibit extensions for dependents
“beyond age 31.” 38 C.F.R. §§ 21.3041(g)(1), (g)(2),
21.3043(b). The VA also refused to reimburse Burris for
educational expenses incurred from 2002 to 2004 because
DEA benefits cannot be paid for expenses incurred more
than one year prior to Burris’s October 2010 application
date. The Board of Veterans’ Appeals (“Board”) likewise
denied Burris’s request for an extension. Although it
expressed sympathy for Burris, it stated that it was
bound by applicable law and “is without authority to
grant benefits simply on the basis of equity.” J.A. 34.
BURRIS 4 v. WILKIE
The Veterans Court affirmed on appeal. The court
held that the Board correctly determined that it was
without jurisdiction to grant equitable relief. Burris
Decision, 2016 U.S. App. Vet. Claims LEXIS 1941, at *5–
14. Citing 38 U.S.C. § 503—which gives the Secretary of
the VA authority to pay “moneys to any person whom the
Secretary determines is equitably entitled”—the court
determined that only the Secretary may provide such
relief. Id. at *5–13.
As relevant here, the court also determined that it
could not itself exercise equitable powers to extend Burris’s
eligibility deadline, noting that it is devoid of such
authority. Id. at *14 (citing Fritz v. Nicholson, 20 Vet.
App. 507 (2006); Moffitt v. Brown, 10 Vet. App. 214
(1997); Owings v. Brown, 8 Vet. App. 17 (1995)). The
court therefore affirmed the Board’s decision denying
relief.1
II. Thompson’s Case (No. 17-2003)
Thompson served intermittently in the U.S. Navy and
Air Force from 1975 to 2012. Under statutory law,
Thompson was entitled to receive 48 months of educational
assistance benefits for his time in service. As of
May 2011, Thompson had used 44 months and 22 days of
entitlement and therefore had a period of 3 months and 8
days remaining.
1 At oral argument before this court, the government
represented that Burris petitioned the Secretary for
relief after the Veterans Court rendered its decision. Oral
Arg. at 22:47–23:10, Burris v. Wilkie (No. 2017-2001),
http://oralarguments.cafc.uscourts.gov/default.aspx?fl=20
17-2001.mp3. The Secretary has not yet responded to
that petition and is apparently waiting for the outcome of
these appeals before doing so. Id.
BURRIS v. WILKIE 5
On July 7, 2011, the VA sent Thompson a Certificate
of Eligibility (“COE”) accurately indicating that he had
only 3 months and 8 days of full-time benefits available.2
One day later, however, the VA sent Thompson a second
COE erroneously indicating that he had 36 months of fulltime
benefits remaining. Relying in part on the second
COE, Thompson transferred his remaining eligibility to
his son so that he could attend the University of South
Carolina School of Law, the more expensive of the two
schools that he was considering attending.3
After Thompson’s son enrolled, the VA refused to provide
36 months’ worth of benefits, and Thompson alleges
that he incurred approximately $50,000 of additional
education-related expenses. The Board affirmed the VA,
stating that it “has no authority to grant additional
benefits on an equitable basis,” and noting that only the
Secretary has such authority. J.A. 40.
Shortly thereafter, Thompson wrote a letter to the
Secretary pleading for equitable relief. The Secretary
denied that request, stating that Thompson was not
entitled to relief because he was “not denied a benefit due
to an error on the part of an employee of the federal
government” and did not “suffer a financial loss due to
reliance on an incorrect decision by the” VA. J.A. 135.
Meanwhile, the Veterans Court affirmed the Board,
reiterating that only the Secretary “has the authority to
act upon requests for equitable relief in certain circumstances.”
Thompson Decision, 2017 U.S. App. Vet. Claims
2 Thompson testified at a Board hearing that he
never received the July 7, 2011 COE.
3 There is some evidence in the record suggesting
that Thompson also relied on a March 22, 2014 VADIR
Information Report and the VA’s website, which indicated
that he had 36 months of remaining eligibility.
BURRIS 6 v. WILKIE
LEXIS 335, at *4. The court also expressed sympathy for
Thompson’s predicament but determined that it “is bound
by the controlling statutes and is without jurisdiction to
grant equitable relief.” Id. at *3–4.
Appellants separately filed timely appeals, which
were consolidated before this court.
DISCUSSION
Appellants argue that the Veterans Court wrongly
concluded that it lacks jurisdiction to grant equitable
relief. Before addressing the Veterans Court’s jurisdiction,
however, we first address our own.
I. Jurisdiction
“This court’s jurisdiction to review decisions by the
Veterans Court is limited.” Wanless v. Shinseki, 618 F.3d
1333, 1336 (Fed. Cir. 2010). We “shall decide all relevant
questions of law, including interpreting constitutional and
statutory provisions.” 38 U.S.C. § 7292(d)(1); see also id.
§ 7292(a); Halpern v. Principi, 384 F.3d 1297, 1300 (Fed.
Cir. 2004). Absent a constitutional issue, however, we
“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).
The government asserts that we lack jurisdiction over
these appeals because Appellants do not raise a constitutional
issue or an issue concerning the validity or interpretation
of a statute or regulation that the Veterans
Court relied upon in its decisions. But, as the government
conceded at oral argument, see Oral Arg. at 20:40–22:37,
these appeals require us to interpret the scope of the
Veterans Court’s jurisdictional statute, 38 U.S.C. § 7252,
an exercise that falls squarely within our jurisdiction, see
Maggitt v. West, 202 F.3d 1370, 1374 (Fed. Cir. 2000)
(“The jurisdictional reach of the Veterans Court presents
a question of law for our plenary review.”); see also Bailey
v. West, 160 F.3d 1360, 1362 (Fed. Cir. 1998) (en banc)
BURRIS v. WILKIE 7
(“Because our review of this decision involves a question
of statutory interpretation—namely the ability of the
Court of Veterans Appeals to equitably toll a particular
statutory time limit and thereby exercise jurisdiction over
a late-filed notice of appeal—we have jurisdiction over
this matter.”). Our review of the Veterans Court’s own
interpretation of its jurisdictional statute, moreover,
presents “questions of legal interpretation” that are also
“clearly within our jurisdiction.” Cox v. West, 149 F.3d
1360, 1362 (Fed. Cir. 1998).
With respect to Burris, the government additionally
argues that his appeal amounts to an impermissible
request for an advisory opinion insofar as he argues that
the Veterans Court may review the Secretary’s denial of
equitable relief under § 503, because Burris failed to
petition the Secretary for such relief before filing his
appeal to the Veterans Court. We disagree. Burris does
not argue that the Veterans Court has jurisdiction to
review the Secretary’s discretionary decisions under § 503;
he assumes it does not for purposes of his appeal. Instead,
he argues that the Veterans Court itself has jurisdiction
to grant the equitable relief that he seeks. Thus,
that Burris did not seek equitable relief before filing his
appeal to the Veterans Court does not render his appeal
to this court a request for an advisory opinion.
With respect to Thompson, the government additionally
argues that his appeal requires us to weigh the
equities of his case, which we may not do. Again, we
disagree. Thompson does not request that we address the
merits of the Veterans Court’s decision, and, in fact, he
could not do so given that the court never reached the
merits of Thompson’s challenge. Nor does he ask that we
review the Secretary’s denial of his request for relief
under § 503. The sole issue on appeal is a legal one—i.e.,
whether the Veterans Court may grant the equitable
relief that Thompson seeks. We turn now to the merits of
that issue.
BURRIS 8 v. WILKIE
II. The Veterans Court Does Not Have Jurisdiction
to Grant the Equitable Relief that Appellants Seek

We begin by defining the contours of these appeals.
Importantly, Appellants do not contest, for purposes of
these appeals, that (1) at the time they sought relief from
the VA, they were not eligible for such relief under title 38
of the U.S. Code and applicable VA regulations; and
(2) the Veterans Court lacks authority to review the
Secretary’s grant or denial of equitable relief under § 503.
Instead, Appellants ask us to conclude that the Veterans
Court itself has authority to grant equitable relief as a
general matter. See Appellants Br. 10; Reply 2.
We decline Appellants’ invitation to resolve these appeals
on such broad grounds, as their actual requests for
relief are far more limited in scope. Thompson seeks
restitution in the amount of the out-of-pocket expenses he
incurred paying for his son’s legal education. See, e.g.,
Appellants Br. 24 (“Mr. Thompson sought relief from the
Veterans Court for the difference in out-of-pocket costs to
him from the Secretary’s error.”); Reply 5 n.1 (“Mr.
Thompson is not seeking ‘educational benefits,’ but the
amount he expended because of his detrimental reliance
on the Secretary’s representations.”); Oral Arg. at 3:10–17
(“In Mr. Thompson’s case, it is . . . approximately a
$50,000 reliance harm . . . .”). And, although Burris
asserted for the first time at oral argument that he seeks
“equitabl[e] tolling [of] the time limit for the benefit that
he was seeking below,” Oral Arg. at 3:50–57, that request
is functionally equivalent to one for retroactive DEA
benefits.
In other words, Appellants ask us to conclude that the
Veterans Court should have used its purported equitable
authority to grant monetary relief. We therefore limit our
analysis to this particular issue.
BURRIS v. WILKIE 9
A. The Veterans Court’s Jurisdictional Statute Limits the Reach of its Authority
The Veterans Court, as an Article I tribunal, is a creature
of statute by definition. See 38 U.S.C. § 7251 (“There
is hereby established, under Article I of the Constitution
of the United States, a court of record to be known as the
United States Court of Appeals for Veterans Claims.”).
As such, the court can only act through an express grant
of authority from Congress. See Dixon v. McDonald, 815
F.3d 799, 803 (Fed. Cir. 2016) (“Courts created by statute
can have no jurisdiction but such as the statute confers.”
(quoting Christianson v. Colt Indus. Operating Corp., 486
U.S. 800, 818 (1988)). To resolve Appellants’ challenge,
therefore, we must construe the Veterans Court’s jurisdictional
statute to determine whether it allows the court to
provide the equitable relief they seek. See id. (“The
Veterans Court was created by statute, so we look first to
that statute to determine the scope of its authority.”).
“As in any case of statutory construction, our analysis
begins with the language of the statute.” Hughes Aircraft
Co. v. Jacobson, 525 U.S. 432, 438 (1999) (internal quotation
marks omitted). The Veterans Court’s jurisdictional
statute, 38 U.S.C. § 7252(a), provides it with “exclusive
jurisdiction to review decisions of the Board of Veterans’
Appeals.” Id. § 7252(a). The Board’s jurisdictional statute,
in turn, provides it with jurisdiction to review “[a]ll
questions in a matter which under section 511(a) of this
title is subject to decision by the Secretary.” Id. § 7104(a).
Finally, § 511(a) states that “[t]he Secretary shall decide
all questions of law and fact necessary to a decision by the
Secretary under a law that affects the provision of benefits
by the Secretary to veterans or the dependents or
survivors of veterans.” Id. § 511(a) (emphasis added). In
other words, the Veterans Court has jurisdiction to review
Secretary decisions, appealed from the Board, made
“under a law” affecting the provision of benefits.
BURRIS 10 v. WILKIE

Section 7261, which sets forth the Veterans Court’s
“scope of review,” similarly permits the court to decide
only “relevant questions of law, interpret constitutional,
statutory, and regulatory provisions, and determine the
meaning or applicability of the terms of an action of the
Secretary[.]” Id. § 7261(a)(1) (emphasis added). Further,
the court may compel only those actions of the Secretary
that are “unlawfully withheld or unreasonably delayed,”
id. § 7261(a)(2), and set aside only those Board decisions
that are unlawful—i.e., arbitrary, capricious, an abuse of
discretion, or otherwise not in accordance with law;
contrary to a constitutional right, power, privilege, or
immunity; in excess of statutory jurisdiction, authority, or
limitations, or in violation of a statutory right; or without
observance of procedure required by law, id. § 7261(a)(3);
see also id. § 7261(a)(4). These provisions make clear that
the Veterans Court is statutorily permitted to review
Secretary decisions involving legal and factual questions
related to statutory benefits. The statutes say nothing
about the court’s ability to grant the extra-statutory relief
that Appellants seek here. That omission, when read in
the context of the Veterans Court’s statutory review
scheme, suggests that the court does not have jurisdiction
to grant such relief.
The only provision in title 38 that addresses equitable
relief in this context is § 503. Titled “Administrative
error; equitable relief,” § 503 provides, in relevant part,
that the Secretary may grant relief, “including the payment
of moneys to any person whom the Secretary determines
is equitably entitled”:
If the Secretary determines that a veteran, surviving
spouse, child of a veteran, or other person has
suffered loss as a consequence of reliance upon a
determination by the Department of eligibility or
entitlement to benefits, without knowledge that it
was erroneously made, the Secretary may provide
such relief on account of such error as the Secre

BURRIS v. WILKIE 11
tary determines is equitable, including the payment
of moneys to any person whom the Secretary
determines is equitably entitled to such moneys.
38 U.S.C. § 503(b) (emphasis added).4 In other words,
§ 503 provides the Secretary with the authority to grant
the precise relief that Appellants request here, and the
Secretary has not delegated that authority. See 38 C.F.R.
§ 2.7(c) (stating that the authority under § 503 “has not
been delegated and is reserved to the Secretary”).
The Veterans Court’s jurisdictional statute, § 7252,
must be interpreted in light of § 503. See King v. Burwell,
135 S. Ct. 2480, 2489 (2015) (stating that courts must
read the words of a statutory provision “in their context
and with a view to their place in the overall statutory
scheme” (internal quotation marks omitted)). That the
equitable relief which Appellants request expressly appears
in § 503 but not in § 511(a)—which, as described
above, is effectively incorporated into the Veterans
Court’s jurisdictional statute—suggests that Congress
intended for § 511(a) not to encompass such relief. See
Russello v. United States, 464 U.S. 16, 23 (1983) (“[W]here
Congress includes particular language in one section of a
statute but omits it in another section of the same Act, it
is generally presumed that Congress acts intentionally
and purposely in the disparate inclusion or exclusion.”
(internal quotation marks omitted)).
Further, that Congress has given the Secretary the
discretionary authority to provide the equitable relief that
4 In 2016, the Secretary granted equitable relief in
twenty cases, many of which involved the payment of
moneys. See Dep’t Vet. Affairs, Disposition of Recommendations
for Equitable Relief Submitted to the Secretary
in Calendar Year 2016, https://www.data.va.gov/
sites/default/files/2016%20Equitable%20Relief.pdf.
BURRIS 12 v. WILKIE
Appellants seek suggests that Congress intended for the
Secretary to be the exclusive avenue by which a claimant
may seek such relief. See TRW Inc. v. Andrews, 534 U.S.
19, 28 (2001) (“Where Congress explicitly enumerates
certain exceptions to a general prohibition, additional
exceptions are not to be implied, in the absence of evidence
of a contrary legislative intent.” (internal quotation
marks omitted)); see also Jackson v. Shinseki, 338 F.
App’x 898, 902 (Fed. Cir. 2009) (per curiam) (affirming
the denial of a petition for a writ of mandamus, and
noting that the Veterans Court has held “that the Secretary’s
authority to grant equitable relief under section 503
is wholly within the Secretary’s discretion and that the
Veterans Court does not have the power to compel the
Secretary to exercise his authority to grant equitable
relief”). This interpretation is consistent with the relevant
legislative history, which refers only to the Veterans
Court’s authority to review benefits provided by statute,
not equity. See, e.g., H.R. Rep. No. 100-963, at 5 (1988)
(“The Court of Veterans Appeals would have exclusive
jurisdiction to consider all questions involving benefits
under laws administered by the VA. This would include
factual, legal, and constitutional questions.”); S. Rep. No.
100-418, at 29 (1988) (noting that “the basic purpose” of
creating judicial review in federal courts “is to ensure that
veterans and other claimants before the VA receive all
benefits to which they are entitled”).
A contrary interpretation of the Veterans Court’s jurisdiction,
moreover, would raise serious concerns involving
the Appropriations Clause of the Constitution, U.S.
Const., art. I, § 9, cl. 7, which mandates that “payment of
money from the Treasury must be authorized by statute,”
Office of Pers. Mgmt. v. Richmond, 496 U.S. 414, 424
(1990). If the Veterans Court’s jurisdictional statute were
read to allow claimants to obtain, on equitable grounds,
monetary relief that they are not otherwise eligible to
receive under substantive statutory law, claimants could
BURRIS v. WILKIE 13
invoke the court’s jurisdiction as an end run around that
law. Such extra-statutory monetary relief against the
government presents potential Appropriations Clause
problems. See Richmond, 496 U.S. at 426 (“[J]udicial use
of [an] equitable doctrine . . . cannot grant . . . a money
remedy that Congress has not authorized.”); McCay v.
Brown, 106 F.3d 1577, 1581 (Fed. Cir. 1997) (“Although
equitable estoppel is available against the government, it
is not available to grant a money payment where Congress
has not authorized such a payment or the recipient
doesn’t qualify for such a payment under applicable
statutes.”). We decline to interpret the Veterans Court’s
jurisdictional statute in a manner that runs afoul of—or,
at a minimum, raises serious questions pertaining to—
this constitutional restriction. See Jennings v. Rodriguez,
138 S. Ct. 830, 836 (2018) (“Under the constitutional avoidance
canon, when statutory language is susceptible
of multiple interpretations, a court may shun an interpretation
that raises serious constitutional doubts and instead
may adopt an alternative that avoids those
problems.”).
We reach this same conclusion analyzing the issue
through the lens of sovereign immunity. The doctrine of
sovereign immunity bars suits against the United States
unless Congress has effected a waiver. See United States
v. Sherwood, 312 U.S. 584, 586–87 (1941). That waiver
“must be unequivocally expressed in statutory text, and
will not be implied.” Lane v. Pena, 518 U.S. 187, 192
(1996) (citation omitted). The Veterans Court’s jurisdictional
statute does not contain an express waiver of
sovereign immunity with respect to the particular relief
that Appellants seek. Cf. Smith v. Gober, 14 Vet. App.
227, 231 (2000) (refusing “to infer from the general language
of section 503 that Congress has expressly consented
to a waiver of sovereign immunity allowing the
payment of interest”), aff’d, 281 F.3d 1384 (Fed. Cir.
2002).
BURRIS 14 v. WILKIE
Appellants argue that Congress could not have intended
for § 503 to restrict the authority of the Veterans
Court to grant equitable relief because the predecessor of
the Veterans Court was not created until 1988, long after
the predecessor to § 503 was enacted. See Pub. L. No.
100-687, Title III, Sec. 301, 102 Stat. 4105, 4113 (1988)
(creating predecessor to the Veterans Court); Pub. L. No.
89-785, Title III, Sec. 301, 80 Stat. 1368, 1376 (1966)
(predecessor to § 503, “correction of administrative error”).
But that order of enactment does not compel a
different conclusion. After having created the Veterans
Court, Congress had ample opportunity to amend the
court’s jurisdictional statute to provide for equitable
relief, or, alternatively, repeal § 503, and yet it did not do
so. Despite making several non-substantive changes
between 1991 and 1994 to the statute governing the chief
administrator’s authority and the Board’s jurisdiction,
Congress did not change the statutory language regarding
the scope of the Veterans Court’s jurisdiction, even
though existing Veterans Court precedent held that the
court lacked equitable authority. See, e.g., Schleis v.
Principi, 3 Vet. App. 415, 418 (1992) (“[T]his Court is a
court of law and our jurisdiction is defined by a statute
which precludes consideration of claims which have been
the subject of final denials. Only the Secretary is permitted
by statute to take equitable considerations into account
in reviewing claims for administrative error.”).
This inaction reinforces our conclusion that Congress did
not intend for the Veterans Court to exercise equitable
authority reserved for the Secretary.
Thus, based on a plain reading of the Veterans
Court’s jurisdictional statute, in conjunction with § 503
and the other considerations recited above, we conclude
that the Veterans Court lacks jurisdiction to grant the
equitable relief that Appellants seek.
BURRIS v. WILKIE 15
B. The Veterans Court’s Purported Inherent Equitable Powers Do Not Allow it to Grant the Relief that Appellants Seek
Appellants assert that, notwithstanding the statutory
limits to the Veterans Court’s jurisdiction discussed
above, the Veterans Court has broad inherent equitable
powers to grant their requested relief. In support of that
assertion, they cite to cases where the Veterans Court has
granted—or has been authorized to grant—nonsubstantive
forms of equitable relief during the course of a
proceeding, such as equitable tolling of a filing deadline.
See, e.g., Monk v. Shulkin, 855 F.3d 1312, 1318–22 (Fed.
Cir. 2017) (holding that the Veterans Court has authority
to certify classes); Padgett v. Nicholson, 473 F.3d 1364,
1367–68 (Fed. Cir. 2007) (holding that the Veterans Court
has authority to issue judgment nunc pro tunc); Ribaudo
v. Nicholson, 20 Vet. App. 552, 562–63 (2007) (en banc)
(enjoining the Secretary from staying processing claims at
the Board pending appeal of an unfavorable court decision
and ordering a contrary directive rescinded); Servello v.
Derwinski, 3 Vet. App. 196, 200 (1992) (precluding the VA
from asserting on remand that a claimant’s informal
claim was “not a cognizable claim for effective-date purposes”);
Manio v. Derwinski, 1 Vet. App. 140, 143–45
(1991) (reviewing and considering equitable defenses);
Erspamer v. Derwinski, 1 Vet. App. 3, 9 (1990) (holding
that the court has the authority to issue mandamus to the
Secretary under the All Writs Act); see also Henderson v.
Shinseki, 562 U.S. 428, 441–42 (2011) (holding that the
deadline for filing a notice of appeal with the Veterans
Court is non-jurisdictional).
Those cases, however, either involved relief provided
by other statutes (e.g., the All Writs Act) or interlocutory
or procedural relief not comparable to the substantive,
monetary relief that Appellants seek here. It is clear that
the Veterans Court has authority to grant certain forms of
non-substantive equitable relief required to enable the
BURRIS 16 v. WILKIE
court to carry out its statutory grant of jurisdiction. See
In re Bailey, 182 F.3d 860, 864 n.4 (Fed. Cir. 1999) (“Like
an Article III court, the Court of Appeals for Veterans
Claims has a need to control court proceedings before it
and a need to protect the exercise of its authority in
connection with those proceedings.”); Monk, 855 F.3d at
1320 (noting that the ability to certify a class “can help
the Veterans Court exercise [its] authority by promoting
efficiency, consistency, and fairness, and improving access
to legal and expert assistance by parties with limited
resources”); cf. Estate of Branson v. Comm’r, 264 F.3d 904,
908 (9th Cir. 2001) (stating that the Tax Court—another
Article I tribunal—may exercise equitable authority
within its “statutorily defined sphere”); In re Huntington
Ltd., 654 F.2d 578, 590–91 (9th Cir. 1981) (holding that
Article I bankruptcy courts must have some measure of
equitable authority because, “[w]ithout such authority,
[the courts’ jurisdictional statutes] would be empty jurisdictional
shells and the court would be rendered impotent
to advance effectively and realistically the rehabilitative
purposes of the Bankruptcy Act”).
But the Veterans Court cannot invoke equity to expand
the scope of its statutory jurisdiction. See Comm’r v.
Gooch Milling & Elevator Co., 320 U.S. 418, 421 (1943)
(stating that, to allow a non-Article III tribunal “to give
effect to an equitable defense which of necessity is based
upon a determination foreign to the [tribunal’s] jurisdiction
would be contrary to the expressed will of Congress”);
Manio, 1 Vet. App. at 143 (“[E]quitable doctrines could
properly be asserted in cases over which an Article I court
ha[s] jurisdiction but . . . care must be taken to ensure
that such doctrines not be used to extend the court’s
statutory grant of jurisdiction.”); cf. Branson, 264 F.3d at
908 (“The Tax Court’s jurisdiction is defined and limited
by Title 26 and it may not use general equitable powers to
expand its jurisdictional grant beyond this limited Congressional
authorization.”). Indeed, “[a] court cannot
BURRIS v. WILKIE 17
write its own jurisdictional ticket.” Zerand-Bernal Grp.,
Inc. v. Cox, 23 F.3d 159, 164 (7th Cir. 1994). Appellants’
argument predicated on the Veterans Court’s inherent
equitable powers would allow the court to do just that.
Having resolved Appellants’ particular challenge in
these appeals, we need not determine just how far the
equitable powers of the Veterans Court, as an Article I
tribunal, extend.5 We leave that question for another day.
CONCLUSION
We sympathize with Appellants and recognize that
they point to inequities in their cases. While those inequities
might warrant some form of relief from the Secretary,
neither we nor the Veterans Court has the authority
to provide such relief.
5 At oral argument, Appellants cited to Freytag v.
Commissioner of the Internal Revenue, 501 U.S. 868
(1991), for the proposition that Article I courts possess
Article III powers, including equitable powers. Oral Arg.
at 6:13–7:00. Freytag, however, involved the issue of
whether an Article I tribunal can qualify as a “Court[] of
Law” for purposes of the Appointments Clause. 501 U.S.
at 888–90. In that context, the Supreme Court stated
that Article I tribunals generally exercise the Article III
judicial power of the United States. Id. The Court “has
rejected the notion,” however, “that a tribunal exercises
Article III judicial power simply because it is called a
court and its decisions called judgments.” Oil States
Energy Servs., LLC v. Greene’s Energy Grp., LLC, No. 16-
712, 2018 WL 1914662, at *10 (U.S. Apr. 24, 2018) (internal
quotation marks omitted). In any event, the Freytag
Court did not address Article I tribunals’ equitable authority,
let alone the authority to grant the relief that
Appellants seek here. And, as discussed above, we need
not resolve that issue.
BURRIS 18 v. WILKIE
We have considered Appellants’ additional arguments
and find them unpersuasive. For the reasons stated
above, we affirm the Veterans Court’s decisions denying
relief.
AFFIRMED
COSTS
No costs.

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