Veteranclaims’s Blog

October 9, 2021

Philbrook v. McDonough, No. 2020-2233 (Decided: October 8, 2021); criminal judgment; total disability rating; 38 U.S.C. § 5313(c); 38 C.F.R. § 3.341(b); The term “correctional facility” cannot encompass a hospital that treats civil patients, and a hospital cannot be a correctional facility for some patients and not others;

United States Court of Appeals for the Federal Circuit


GARY PHILBROOK,
Claimant-Appellant
v.
DENIS MCDONOUGH, SECRETARY OF
VETERANS AFFAIRS,
Respondent-Appellee


2020-2233


Appeal from the United States Court of Appeals for
Veterans Claims in No. 18-5628, Judge Coral Wong Pietsch,
Judge Joseph L. Toth, Judge William S. Greenberg.


Decided: October 8, 2021


KENNETH M. CARPENTER, Law Offices of Carpenter
Chartered, Topeka, KS, argued for claimant-appellant.
ASHLEY AKERS, Commercial Litigation Branch, Civil
Division, United States Department of Justice, Washington,
DC, argued for respondent-appellee. Also represented
by BRIAN M. BOYNTON, ERIC P. BRUSKIN, ROBERT EDWARD
KIRSCHMAN, JR.; CHRISTOPHER O. ADELOYE, Y. KEN LEE,
Office of General Counsel, United States Department of
Veterans Affairs, Washington, DC.
Case: 20-2233 Document: 41 Page: 1 Filed: 10/08/2021
PHILBROOK 2 v. MCDONOUGH


Before DYK, O’MALLEY, and HUGHES, Circuit Judges.
HUGHES, Circuit Judge.
Gary Philbrook applied for a total disability rating
based on individual unemployability. The Court of Appeals
for Veterans Claims concluded that Mr. Philbrook was ineligible
for such a rating because he was committed to the
custody of a state hospital in connection with a criminal
judgment. We agree with Mr. Philbrook that the Veterans
Court erred in its determination that a federal statute
barred the assignment of a total disability rating for
Mr. Philbrook. We reverse the Veterans Court’s decision
and remand for further proceedings.
I
Mr. Philbrook served in the Army from 2000 to 2004.
Philbrook v. Wilkie, 32 Vet. App. 342, 343 (2020) (Decision).
Upon leaving service, he was awarded disability compensation
for PTSD. Id.
In April 2011, Mr. Philbrook stipulated to a judgment
of “guilty except for insanity” in connection with a felony.
Id. at 344. Under Oregon law, an individual is guilty except
for insanity if, “as a result of mental disease or defect at the
time of engaging in criminal conduct, the person lacks substantial
capacity either to appreciate the criminality of the
conduct or to conform the conduct to the requirements of
law.” Id. (citing Or. Rev. Stat. § 161.295(1) (2011)). The
court ordered Mr. Philbrook to the custody of the Oregon
State Hospital “under the jurisdiction of the Psychiatric Security
Review Board . . . for care, custody and treatment for
a maximum period not to exceed 20 years.” Id.
While in custody, Mr. Philbrook applied for total disability
based on individual unemployability (TDIU). Id. A
VA regional office concluded that Mr. Philbrook’s PTSD did
not entitle him to TDIU because it did not preclude gainful
Case: 20-2233 Document: 41 Page: 2 Filed: 10/08/2021
PHILBROOK v. MCDONOUGH 3
employment. J.A. 35. Mr. Philbrook appealed to the Board
of Veterans’ Appeals, which did not consider the facts of his
disability in detail, but denied TDIU “as a matter of law”
under 38 U.S.C. § 5313(c) and the VA’s corresponding regulation
38 C.F.R. § 3.341(b). J.A. 67. Section 5313(c) precludes
the assignment of a TDIU rating for any period
“during which the veteran is incarcerated in a Federal,
State, local, or other penal institution or correctional facility
for conviction of a felony.”
The Veterans Court affirmed the Board’s decision, reasoning
that Mr. Philbrook’s stipulation to a judgment of
guilty except for insanity, and his subsequent confinement
at the Oregon State Hospital, qualified as being “incarcerated”
in a “correctional facility” under the statutory language.
Decision, 32 Vet. App. at 346–49. Mr. Philbrook now
appeals the Veterans Court’s decision.
II
In 1980, Congress passed the Veterans’ Disability
Compensation and Housing Benefits Amendments of 1980,
including the relevant language of § 5313(c):
The Administrator shall not assign to any veteran
a rating of total disability based on the individual
unemployability of the veteran resulting from a
service-connected disability during any period during
which the veteran is incarcerated in a Federal,
State, or local penal institution for conviction of a
felony.
Pub. L. No. 96-385, sec. 504(a), 94 Stat. 1528, 1534–35.
A purpose of § 5313(c) expressed by members of Congress
when the statute was promulgated was to address
the perceived problem of providing government benefits to
individuals who were already being provided for by taxpayer
funding of penal institutions. See 126 Cong. Rec.
26,118 (1980) (statement of Rep. G.V. Montgomery) (“I do
not see the wisdom of providing hundreds and thousands
Case: 20-2233 Document: 41 Page: 3 Filed: 10/08/2021
PHILBROOK 4 v. MCDONOUGH
of dollars of tax-free benefits to such individuals when at
the same time the taxpayers of this country are spending
additional thousands of dollars to maintain these same individuals
in penal institutions.”); 126 Cong. Rec. 26,122
(1980) (statement of Rep. Chalmers Wylie) (“In the case of
imprisonment, when a prisoner is being fully supported by
tax dollars that fund the penal institution, it becomes ludicrous
to continue payment of benefits designed to help him
maintain a standard of living.”); see also Wanless
v. Shinseki, 618 F.3d 1333, 1337 (Fed. Cir. 2010).
Section 5313(c) initially applied to veterans “incarcerated
in a Federal, State, or local penal institution.” As part
of the Veterans Benefits, Health Care, and Information
Technology Act of 2006, Congress amended the language of
the statute to cover individuals “incarcerated in a Federal,
State, local, or other penal institution or correctional
facility.” 35 U.S.C. § 5313(c) (2006) (emphasis added) (as
amended by Pub. L. No. 109-461, sec. 1002, 120 Stat. 3403,
3464–65).
The section of the 2006 public law that amended
§ 5313(c) was entitled “Clarification of Correctional Facilities
Covered by Certain Provisions of Law.” See 120 Stat.
at 3464. The accompanying report from the Senate Committee
on Veterans’ Affairs explained that this was a “technical
amendment” to “clarify” the language. S. Rep. No.
109-297, at 41–42 (2006). The purpose of this clarification
was to address a concurring opinion from the Veterans
Court’s decision in Wanless v. Principi, 18 Vet. App. 337,
338 (2004), which suggested that a felon incarcerated in a
private prison might not be covered by the statute. S. Rep.
No. 109-297, at 41–42. The committee explained that “[i]f
VA or the courts were to conclude that private prisons do
not constitute a ‘Federal, State, or local penal institution,’
as the [Veterans Court] has suggested, there would be the
anomalous situation of the section 5313 limitation applying
to a felon in a publicly operated facility and not to a
felon incarcerated for the same crime in a privately
Case: 20-2233 Document: 41 Page: 4 Filed: 10/08/2021
PHILBROOK v. MCDONOUGH 5
operated facility.” Id. Therefore, the 2006 amendment
makes clear that “the section 5313 limitation applies to a
felon incarcerated in any type of penal facility, including
facilities operated by a private contractor.” Id.
III
We have jurisdiction to review questions of law in an
appeal from a Veterans Court decision. 38 U.S.C.
§ 7292(d)(1). We review statutory questions and regulatory
interpretation de novo. See Prenzler v. Derwinski, 928 F.2d
392, 393 (Fed. Cir. 1991).
The question before us is whether the phrase “incarcerated
in a Federal, State, local, or other penal institution or
correctional facility for conviction of a felony” in § 5313(c)
covers Mr. Philbrook’s confinement at the Oregon State
Hospital. We find that the plain language of § 5313(c) does
not cover Mr. Philbrook.
Mr. Philbrook was not confined in a “penal institution
or correctional facility”; he was committed to a mental institution.
1 A mental institution is “a hospital for people
with mental or emotional problems.” Mental Institution,
Merriam-Webster, http://www.merriam-webster.com/dictionary/
mentalinstitution (last visited Sept. 9, 2021). Unlike
“jail” or “prison,” there is no necessary criminal element
leading to treatment in a mental institution. Many psychiatric
facilities (including the Oregon State Hospital) include
both civil and criminal commitment categories. About
1 Mr. Philbrook cites current definitions of the relevant
terms rather than definitions from the time of the
statute’s adoption in 1980 or amendment in 2006. Because
the Secretary does not challenge the use of current definitions
(and indeed argues that such definitions support his
reading of the statute) we accept the current definitions as
representative of the meaning of the terms at the time the
statute was written.
Case: 20-2233 Document: 41 Page: 5 Filed: 10/08/2021
PHILBROOK 6 v. MCDONOUGH
Us, Or. State Hosp., http://www.oregon.
gov/oha/osh/pages/about.aspx (last visited Sept. 9,
2021).
The Oregon State Hospital is not a “correctional facility”
for the purpose of § 5313(c). Both parties provide definitions
of the term “correctional facility.” See Correctional
Institutions, Black’s Law Dictionary 311 (5th ed. 1979) (“[a]
generic term describing prisons, jails, reformatories and
other places of correction and detention”); Correctional Facility,
Merriam-Webster, http://www.merriam-webster.com/dictionary/
correctionalfacility (last visited Sept. 9, 2021) (“a
place where people are kept when they have been arrested
and are being punished for a crime: i.e., prison”). We find
neither definition conclusive as to whether a mental hospital
is a correctional facility, but we reject the Secretary’s
argument that any “place of correction,” that provides
“care, custody, and treatment,” is a correctional facility.
Appellee’s Br. 9–10. Both cited definitions suggest a connection
between a correctional facility and a criminal act.
Under the Secretary’s reading, a mental hospital (or indeed
a hospital in general) is a correctional facility even as applied
to patients unrelated to the criminal justice system.
The term “correctional facility” cannot encompass a hospital
that treats civil patients, and a hospital cannot be a correctional
facility for some patients and not others.

The legislative history of the 2006 amendment suggests
that a mental hospital is not a correctional facility for
the purpose of § 5313(c). The original statutory language
did not include the term “correctional facility,” only “Federal,
State, or local penal institution.” Pub. L. No. 96-385,
sec. 504(a), 94 Stat. 1528, 1534–35. When the term “correctional
facility” was added to the statute in 2006, Congress
explained that this was a “technical” and “clarifying”
amendment not meant to change the original meaning.
S. Rep. No. 109-297, at 41–42. The purpose of the amendment
was to address the notion that an individual incarcerated
in a private prison might not be covered by the
Case: 20-2233 Document: 41 Page: 6 Filed: 10/08/2021
PHILBROOK v. MCDONOUGH 7
statute. Id. Nowhere does the legislative history suggest
that adding the term “correctional facility” was meant to
broaden the statute beyond what could be considered a
“Federal, State, or local penal institution” under the original
statutory language.
The Veterans Court found that the original legislative
history from 1980 supported its reading of the term “correctional
facility” because it suggested that the purpose of
the statute was to avoid paying duplicative benefits to individuals
already provided for at the taxpayer’s expense.
Decision, 32 Vet. App. at 347. At most, these statements of
purpose suggest that Congress did not intend for prisoners
to receive disability benefits while “incarcerated in a Federal,
State, or local penal institution.” We find the Congressional
statements minimally probative as to whether a
mental institution is a correctional facility, particularly
where, as here, the disputed term “correctional facility”
was not a part of the original statute. We decline to read
the Congressional statements as dispositive to the meaning
of a term added to the statute twenty-six years later.
Finally, we note that in an analogous statute, Congress
unambiguously included language that separately covered
individuals in correctional facilities, like those described in
38 U.S.C. § 5313(c), and individuals ordered to mental institutions.
In the Social Security context, Congress limited
benefits for individuals “confined in a jail, prison, or other
penal institution or correctional facility pursuant to his
conviction of a criminal offense,” and also for individuals
“confined by court order in an institution at public expense
in connection with . . . a verdict or finding that the individual
is guilty but insane, with respect to a criminal offense.”
42 U.S.C. § 402(x)(1)(A)(i), (x)(1)(A)(ii)(I). Thus, Congress
used almost identical language to that at issue here, including
the term “correctional facility,” and then separately
identified institutions that house individuals who have
been found guilty, but insane, with respect to a criminal
offense. Congress could have used similar language in
Case: 20-2233 Document: 41 Page: 7 Filed: 10/08/2021
PHILBROOK 8 v. MCDONOUGH
§ 5313(c) if it intended the statute to bar payments to individuals
found guilty except for insanity and placed in the
custody of a mental institution.
IV
Because the Oregon State Hospital is not a “penal institution
or correctional facility” under § 5313(c), we reverse
the Veterans Court’s decision that Mr. Philbrook was
barred from receiving a TDIU rating as a matter of law. We
remand for further proceedings consistent with this opinion.
REVERSED AND REMANDED
Case: 20-2233 Document: 41 Page: 8 Filed: 10/08/2021

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