Veteranclaims’s Blog

November 18, 2015

Mulder v.McDonald, No. 2014-7137(Decided: November 12, 2015); 38 U.S.C. § 5313(a)(1)

Excerpt  from decision below:

“The United States Court of Appeals for Veterans Claims (Veterans Court) affirmed, Mulder v. Gibson, 27 Vet. App. 10 (2014), and Mr. Mulder appealed. For the reasons set forth below, we agree with the Veterans Court that the VA should use the date on which Mr. Mulder pleaded guilty and was convicted when calculating the date on which to reduce his benefits.”


United States Court of Appeals for the Federal Circuit
Appeal from the United States Court of Appeals for
Veterans Claims in No. 12-1222, Judge Lawrence B.
Hagel, Judge Margaret C. Bartley, Judge William A.
Decided: November 12, 2015
TRAVIS JAMES WEST, Pia Anderson Dorius Reynard & Moss, Milwaukee, WI, argued for claimant-appellant.
EMMA BOND, Commercial Litigation Branch, Civil Division,United States Department of Justice, Washington,
DC, argued for respondent-appellee. Also represented by JOYCE R. BRANDA, ROBERT E. KIRSCHMAN, JR., MARTIN F.HOCKEY, JR.; Y. KEN LEE, AMANDA BLACKMON, Office of
General Counsel, United States Department of Veterans Affairs, Washington, DC.
Before NEWMAN, O’MALLEY, and CHEN, Circuit Judges.
CHEN, Circuit Judge.
This case arises from a decision by the Department of Veterans Affairs (VA) reducing the disability compensation of Donald L. Mulder (Mr. Mulder) after he was incarcerated as a result of a felony conviction. The Board of Veterans’ Appeals (Board) found that, under 38 U.S.C. § 5313(a)(1), the VA properly determined the date on
which Mr. Mulder’s benefits should be reduced. The
United States Court of Appeals for Veterans Claims
(Veterans Court) affirmed, Mulder v. Gibson, 27 Vet. App. 10 (2014), and Mr. Mulder appealed. For the reasons set forth below, we agree with the Veterans Court that the VA should use the date on which Mr. Mulder pleaded guilty and was convicted when calculating the date on which to reduce his benefits.
Mr. Mulder served in the United States Army for
three separate periods between 1982 and 1994, collectively
accumulating approximately two years of honorable
service. In 1998, the VA issued a decision assigning Mr.
Mulder a 50% disability rating for two service-connected
In 2005, Mr. Mulder was arrested and charged with
two felony counts. On July 11, 2005, at his initial appearance
in Wisconsin Circuit Court for Milwaukee
County, the judge set Mr. Mulder’s bail at $750,000.00.
Because Mr. Mulder was unable to post bail, he remained
in custody pending trial.
On May 19, 2006, Mr. Mulder pleaded no contest to
one of the two felony charges and the State of Wisconsin
dismissed the second. That same day, the court found
him guilty and ordered that judgment of conviction be
entered on the record. The court then remanded Mr.
Mulder into custody and scheduled his sentencing hearing.
On June 16, 2006, the court sentenced Mr. Mulder to
a prison term of fourteen years, six months. The court
ordered that Mr. Mulder would serve an initial term of
confinement of eight years, six months, followed by six
years of supervised release. In addition, the court gave
Mr. Mulder credit for the 384 days he was in custody
awaiting the conclusion of his criminal proceedings. The
court then entered judgment of conviction listing this
sentence and specifying May 19, 2006, as the “Date(s)
Convicted.” Joint Appendix (J.A.) 198.
The VA has a statutory obligation to reduce benefits
payments if the recipient is “incarcerated in a Federal,
State, local, or other penal institution or correctional
facility for a period in excess of sixty days for conviction of
a felony.” 38 U.S.C. § 5313(a)(1). If the recipient’s disability
rating exceeds 20%, § 5313(a)(1)(A) requires that
the compensation is reduced to 10%. See 38 U.S.C.
§ 1114(a). The reduction in compensation “begin[s] on the
sixty-first day of such incarceration and end[s] on the day
such incarceration ends.” 38 U.S.C. § 5313(a)(1).
In July 2007, as required by § 5313(a)(1), the VA sent
a letter to Mr. Mulder explaining that his felony conviction
and resulting incarceration required the VA to reduce
the amount of Mr. Mulder’s disability compensation. The
letter notified Mr. Mulder that the reduction would be
effective on July 19, 2006, the sixty-first day following his
May 19, 2006 felony conviction. The letter also stated
that Mr. Mulder’s disability benefits could be restored to
his original 50% rating after he was no longer incarcerated.
Mr. Mulder responded to the VA by objecting to the
reduction and asserting that his sentence had been vacated.
In fact, while Mr. Mulder had pursued various forms
of post-conviction relief, these proceedings resulted only in
minor re-calculations of his sentence. Although each recalculation
required his sentence to be vacated and reimposed,
Mr. Mulder’s no contest plea and corresponding
conviction were neither reversed nor vacated, and he was
not released from incarceration. Accordingly, the VA
implemented the proposed rating reduction.
Mr. Mulder filed a Notice of Disagreement and ultimately
appealed to the Board. The Board found that July
19, 2006, was the sixty-first day after Mr. Mulder entered
his no contest plea and was found guilty, and thus was
the correct date for the VA to reduce Mr. Mulder’s benefits.
Mr. Mulder appealed to the Veterans Court, arguing
that the causal link between his incarceration and his
felony conviction did not exist until he was sentenced to a
term of imprisonment. According to Mr. Mulder, before
his sentence was imposed, he was incarcerated under the
Wisconsin bail statute, Wis. Stat. § 969.01, rather than
“for conviction of a felony,” as required by § 5313(a)(1). In
other words, Mr. Mulder argued that between his 2005
arrest and his June 16, 2006 sentencing hearing, he was
incarcerated solely because he was unable to post bail.
Mr. Mulder thus asserted that his compensation should
not have been reduced until the sixty-first day after the
June 16, 2006 sentencing hearing, which was twentyeight
days after he pleaded guilty.
The Veterans Court rejected this argument. Specifically,
the Veterans Court determined that § 5313(a)(1)
imposed four elements that must be met before the VA
must reduce a veteran’s compensation: “(1) incarceration
in a penal institution; (2) for a period in excess of 60 days;
(3) a conviction; and (4) a felony.” Mulder v. Gibson, 27
Vet. App. at 14. The Veterans Court concluded that when
Mr. Mulder pleaded no contest, each of these four elements
was present. The Veterans Court therefore rejected
Mr. Mulder’s arguments and affirmed the VA’s
decision to base the effective date for the reduction of Mr.
Mulder’s benefits on the date of his no contest plea. Mr.
Mulder appealed to this court.
Our review of appeals from the Veterans Court is limited
by statute to determining “the validity of a decision of
the [Veterans Court] on a rule of law or of any statute or
regulation . . . or any interpretation thereof . . . .” 38
U.S.C. § 7292(a). We review the Veterans Court’s interpretation
of a statute de novo. Sursely v. Peake, 551 F.3d
1351, 1354 (Fed. Cir. 2009). We must also decide “all
relevant questions of law” and will “set aside any regulation
or any interpretation thereof (other than a determination
as to a factual matter)” relied upon in the decision
of the Veterans Court that we find “(A) arbitrary, capricious,
an abuse of discretion, or otherwise not in accordance
with law; (B) contrary to constitutional right, power,
privilege, or immunity; (C) in excess of statutory jurisdiction,
authority, or limitations, or in violation of a statutory
right; or (D) without observance of procedure required
by law.” 38 U.S.C. § 7292(d)(1).
Statutory interpretation begins with the words of the
statute. Barnhart v. Sigmon Coal Co., Inc., 534 U.S. 438,
450 (2002). “The first step is to determine whether the
language at issue has a plain and unambiguous meaning
with regard to the particular dispute in the case.” Id.
(internal quotation marks omitted). This inquiry “ceases
if the statutory language is unambiguous and the statutory
scheme is coherent and consistent.” Id. (internal
quotation marks omitted).
The VA reduced Mr. Mulder’s disability compensation
pursuant to 38 U.S.C. § 5313(a)(1),1 which provides that
any person who is entitled to compensation or to
dependency and indemnity compensation and who
is incarcerated in a Federal, State, local, or other
penal institution or correctional facility for a period
in excess of sixty days for conviction of a felony
shall not be paid such compensation or dependency
and indemnity compensation, for the period beginning
on the sixty-first day of such incarceration
and ending on the day such incarceration ends, in
an amount that exceeds . . . in the case of a veteran
with a service-connected disability rated at 20
percent or more, the rate of compensation payable
[for a service-connected disability rated ten percent]
. . . .
Thus, according to the plain language of the statute
the VA must reduce a veteran’s compensation when the
veteran is (1) “incarcerated in a . . . penal institution”;
(2) “for a period in excess of sixty days”; (3) “for conviction
of”; (4) “a felony.” Mr. Mulder concedes that the offense to
which he pleaded no contest was a felony under Wisconsin
law. Mr. Mulder also does not dispute that his no contest
1 The VA implemented this statute in 38 C.F.R.
§ 3.665. Because we rely only on the plain language of the
statute, we need not consider whether this regulation is
entitled to deference. See Chevron, U.S.A., Inc. v. Natural
Res. Def. Council, Inc., 467 U.S. 837, 842–43 (1984).
Further, as both parties recognize, however, the regulation
essentially “parrots” the statutory language; it does
nothing to interpret or elaborate. As such, any interpretation
of this regulation by the VA is not entitled to
deference. See Haas v. Peake, 525 F.3d 1168, 1186–87
(Fed. Cir. 2008). We therefore refer only to the statutory
language appearing in 38 U.S.C. § 5313(a)(1).
plea constitutes a conviction. Instead, Mr. Mulder argues
that the VA erroneously calculated the date on which his
benefits should be reduced based on his conviction date,
rather than using the date of his sentencing. To that end,
Mr. Mulder contends that the necessary causal link
between his incarceration and felony conviction was not
present until he was actually sentenced to a term of
imprisonment exceeding sixty days. Thus, to resolve this
appeal, we need determine only whether Mr. Mulder was
“incarcerated . . . for conviction of a felony,” beginning on
the date he pleaded guilty, as the VA contends, or whether
the requisite causal link was absent until the date of
his sentencing, as Mr. Mulder contends.
In considering whether we should read the word “conviction”
in § 5313(a)(1) to mean “sentencing,” we must
examine the statutory language. Because the word
“sentencing” does not appear in the statutory language,
we must determine whether it should be implied here.
We recently considered a similar argument in Wilson v.
Gibson, 753 F.3d 1363, 1366–67 (Fed. Cir. 2014), where
an incarcerated veteran argued that his benefits could not
be reduced until the sixty-first day after his “final” conviction—
i.e., the date when he had exhausted his appellate
and habeas corpus rights. In Wilson, we observed that
the statute used the word “conviction,” not “final conviction.”
We then concluded that this distinction required us
to reject the appellant’s contention that § 5313(a)(1)’s
reduction of disability compensation could proceed only
after “the conviction bec[ame] final in state courts, or
after complete exhaustion of post-conviction review opportunities.”
Id. at 1367. Similarly, in the present case, we
decline to equate the word “sentencing” with the statutory
term “conviction,” and reject Mr. Mulder’s interpretation
of the statute.
Supporting our reading is the fundamental canon of
statutory construction that, “unless otherwise defined,
words will be interpreted as taking their ordinary, conMULDER
temporary common meaning.” Perrin v. United States,
444 U.S. 37, 42 (1979). The language of § 5313(a)(1)
plainly specifies the “conviction” date is the date on which
the statutory sixty-day clock begins. As we recognized in
Wilson, the word “conviction” is understood as “[t]he act
or process of judicially finding someone guilty of a crime;
the state of having been proved guilty.” 753 F.3d at 1367
(quoting Black’s Law Dictionary 358 (8th ed. 2004)). The
Supreme Court has also equated a guilty plea, such as
Mr. Mulder’s no contest plea, with a conviction: “A plea of
guilty differs in purpose and effect from a mere admission
or an extrajudicial confession; it is itself a conviction.
Like a verdict of a jury it is conclusive. More is not required;
the court has nothing to do but give judgment and
sentence.” Dickerson v. New Banner Inst., Inc., 460 U.S.
103, 112–13 (1983) (quotation marks and citation omitted).
2 A “sentence,” on the other hand, is ordinarily
understood as “[t]he judgment that a court formally
pronounces after finding a criminal defendant guilty” or
“the punishment imposed on a criminal wrongdoer.”
Black’s Law Dictionary 1485 (9th ed. 2009). Thus, according
to its ordinary meaning, a “conviction” occurs when
the accused is found—or pleads—guilty; the convicted
felon’s “sentencing” is separate and distinct from the
2 In Dickerson, the Supreme Court concluded that a
state’s expungement of a felony conviction had no bearing
on the underlying conviction’s effect on an individual’s
ability to maintain a federal license to manufacture or sell
firearms under 18 U.S.C. § 922(g). 460 U.S. at 119–20.
Congress overruled this outcome in the Firearms Owners’
Protection Act, Pub. L. 99-308, 100 Stat. 449, by providing
that a conviction expunged under state law would not
prevent an individual from maintaining such a license
under § 922(d) or from possessing a firearm under
§ 922(g). See Logan v. United States, 552 U.S. 23, 27–28
determination of guilt. Just as in Wilson, where we held
the plain language of § 5313(a)(1) did not support reading
“conviction” as a final, post-exhaustion of appeals conviction,
here, there is likewise no basis for interpreting
“conviction” to mean conviction and sentencing. Congress,
could have, but did not, draft § 5313(a)(1) to reduce
benefits post-sentencing or post-exhaustion of appeals.
See, e.g., 10 U.S.C. § 12312(a)(2) (providing for involuntary
release from military service if a service-member “is
convicted and sentenced to confinement . . . and the sentence
has become final” (emphasis added)). Such specificity
is absent here.
To overcome the plain meaning of § 5313(a)(1), Mr.
Mulder relies on Wisconsin’s bail statute. Entitled
“[e]ligibility for release,” section 969.01 of the Wisconsin
Statutes authorizes a court to release a criminal defendant
from custody under certain conditions. Mr. Mulder
argues that from the time he was arrested until the day
he received a sentence including a term of imprisonment,
he was incarcerated solely pursuant to section 969.01.
Namely, when Mr. Mulder was first arrested, he was
unable to pay the $750,000.00 bail set by the judge, and
thus remained in custody under section 969.01. After the
judge accepted his no contest plea and found him guilty,
he remained in custody pending sentencing because he
still was unable to make bail. Therefore, according to Mr.
Mulder, until he was sentenced to a term of imprisonment,
he was not incarcerated based on his felony conviction,
but was in fact incarcerated because of his inability
to post bail.
We disagree. Mr. Mulder’s explanation of how Wisconsin’s
bail statute operates is insufficient to persuade
us to abandon the plain language of § 5313(a)(1).3 The
statutory language does not require that the conviction be
the sole reason that the individual is incarcerated. We
recognize that, under section 969.01, Mr. Mulder could
have been released with conditions while awaiting sentencing
for his felony conviction.4 The fact remains,
however, that without Mr. Mulder’s May 19, 2006 conviction,
there would be no authority for his continued incarceration
and his inability to make bail would be
irrelevant. In this way, Mr. Mulder’s May 19, 2006 conviction
is certainly one of the reasons, even if not the sole
reason, for his remaining in custody. The mere possibility
of release does not break the causal link between Mr.
Mulder’s immediate incarceration following his convic-
3 The parties dispute whether Wisconsin law applies
to determine whether incarceration and the felony
conviction are adequately linked. We doubt that Congress
intended the causation analysis to turn on state law. See
Miss. Band of Choctaw Indians v. Holyfield, 490 U.S. 30,
43 (1989) (“We start, however, with the general assumption
that in the absence of a plain indication to the contrary,
. . . Congress when it enacts a statute is not making
the application of the federal act dependent on state law.”
(internal quotation marks omitted)). Nevertheless, because
we conclude that even the Wisconsin bail statute
cannot alter the plain meaning of § 5313(a)(1), we need
not decide whether Congress intended us to look to state
4 We also note that, if Mr. Mulder had been released
pending sentencing under section 969.01(2), we
would be confronted with a different question that we
need not decide today. Under those facts, we would need
to determine whether the “incarceration” element of
§ 5313(a)(1) was met and whether the VA was therefore
required to wait until Mr. Mulder was later incarcerated
after sentencing to begin the sixty-day clock.
tion. In fact, after accepting Mr. Mulder’s guilty plea, the
court immediately “ordered defendant REMANDED into
custody . . . .” J.A. 194.
Even though the statutory language is unambiguous
and we need not consult the legislative history, that
history nevertheless confirms our conclusion. Congress
enacted § 5313 as part of the Veterans’ Disability Compensation
and Housing Benefits Amendments of 1980. At
that time, the principal sponsor of the bill explained that
the purpose of compensation is to replace the lost
earning capability of a disabled veteran where the
impairment is caused by a service-connected condition.
I do not consider it unreasonable to recognize
that individuals who are confined by our
judicial system for commission of a serious offense
against society are no longer available to the labor
market. An economic detriment caused by a disability
is not felt by such individuals during long
periods of confinement.
126 Cong. Rec. 26,118 (1980) (statement of Rep. Montgomery).
In light of the purpose behind providing disability
compensation, Congress did not “see the wisdom” in
providing substantial benefits to disabled veterans “when
at the same time the taxpayers of this country are spending
additional thousands of dollars to maintain these
same individuals in penal institutions.” Id.; see also 126
Cong. Rec. 26,122 (1980) (statement of Rep. 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.”).
Indeed, both this court and the Veterans Court have
previously acknowledged this congressional purpose. See
Snyder v. Nicholson, 489 F.3d 1213, 1215 (Fed. Cir. 2007)
(“Congress recognized that [incarcerated] veterans were
receiving benefits that were not offset to account for
expenses, such as room and board, that were provided by
the prisons.”); Wanless v. Shinseki, 23 Vet. App. 143, 148
(2009), aff’d, 618 F.3d 1333 (Fed. Cir. 2010) (“Congress
has explicitly concluded that if taxpayers are financing a
veteran’s incarceration, it is contrary to the public good to
also pay him full VA disability benefits.”).
These congressional statements further demonstrate
that Congress’s intent is best served by using the date on
which the veteran was found guilty as the start date for
the VA to calculate when the veteran’s benefits will be
reduced. Assuming the veteran is placed in custody after
being found guilty of a felony, using the conviction date,
rather than the later sentencing date, best achieves
Congress’s objective of preventing taxpayers from paying
twice for such a veteran’s living expenses.
Mr. Mulder also asserts that our interpretation of
§ 5313(a)(1) unfairly penalizes those veterans who lack
the financial means to post bail. Mr. Mulder overlooks
the fact that a criminal defendant who is later sentenced
to a term of imprisonment will receive credit towards this
term of imprisonment for incarceration during the criminal
proceedings. See Wis. Stat. § 973.155(1)(a) (“A convicted
offender shall be given credit toward the service of
his or her sentence for all days spent in custody in connection
with the course of conduct for which sentence was
imposed.”); 18 U.S.C. § 3585(b) (“A defendant shall be
given credit toward the service of a term of imprisonment
for any time spent in official detention prior to the date
the sentence commences . . . .”). Accordingly, a veteran
who is incarcerated prior to sentencing will generally be
released earlier than if the veteran was not incarcerated
until after sentencing. Any perceived inequity is remedied
by the earlier resumption of benefits that accompaMULDER
nies an earlier release from incarceration. See
§ 5313(a)(1) (providing that the reduction in disability
benefits “end[s] on the day such incarceration ends”).
Finally, Mr. Mulder asserts that the VA violated its
Duty to Notify and Assist by failing to adequately investigate
Mr. Mulder’s assertions that his sentence has been
vacated. Although Mr. Mulder did inform the VA that his
sentence was repeatedly vacated during his postconviction
proceedings, he never claimed—nor could he
have—that his conviction had been overturned or that he
had been released from custody. In fact, each of his
letters to the VA originated from a correctional facility.
In any event, changes in sentence do not warrant resumption
of benefits under § 5313(a)(1). A veteran’s compensation
reduction does not end until the incarceration ends.
The VA therefore had no obligation to conduct any further
investigation. See Robinson v. Shinseki, 557 F.3d 1355,
1361 (Fed. Cir. 2009) (holding that the VA’s obligation to
assist and read filings in a liberal manner does not extend
to “claims which have no support in the record”).
We have considered the remaining arguments and
find them without merit. For the reasons stated above,
the plain language of § 5313(a)(1) cannot support Mr.
Mulder’s proposed interpretation. Thus, the judgment of
the Veterans Court is affirmed.
No costs.



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