Andrew U.d. Straw v. Robert Wilkie, Secretary of Veterans Affairs

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
ANDREW U.D. STRAW,
Claimant-Appellant
v.
ROBERT WILKIE, SECRETARY OF VETERANS
AFFAIRS,
Respondent-Appellee
______________________
2020-2090
______________________
Appeal from the United States Court of Appeals for
Veterans Claims in No. 18-7129, Judge William S. Green-
berg, Judge Joseph L. Toth, Judge Joseph L. Falvey, Jr.
______________________
Decided: January 15, 2021
______________________
ANDREW U.D. STRAW , Washington, DC, pro se.
ANDREW JAMES H UNTER, Commercial Litigation
Branch, Civil Division, United States Department of Jus-
tice, Washington, DC, for respondent-appellee. Also repre-
sented by JEFFREY B. CLARK , TARA K. H OGAN , R OBERT
EDWARD K IRSCHMAN , JR.
______________________
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STRAW v. WILKIE 2
Before TARANTO , BRYSON , and HUGHES , Circuit Judges.
PER C URIAM.
Appellant Andrew U.D. Straw appeals a panel decision
by the United States Court of Appeals for Veterans Claims
affirming a Board of Veterans’ Appeals decision which de-
nied Mr. Straw payment or reimbursement for non-VA
medical care as a Camp Lejeune family member under
38 U.S.C. § 1787 and 38 C.F.R. § 17.410. We affirm the
Veterans Court’s decision.
I
In 2012, the Honoring America’s Veterans and Caring
for Camp Lejeune Families Act (Act) was enacted to pro-
vide hospital care and medical services to veterans who
were stationed at Camp Lejeune, North Carolina, while
water at Camp Lejeune was contaminated. Straw v.
Wilkie, 32 Vet. App. 374, 375 (2020) (Decision); Pub. L.
No. 112–154, 126 Stat. 1165. Among other benefits, the
Act provides certain healthcare benefits to family members
of veterans who resided at Camp Lejeune for at least
30 days during the period between August 1, 1953, and De-
cember 31, 1987, or who were in utero during the same pe-
riod while their mother resided at Camp Lejeune.
38 U.S.C. § 1787. These healthcare benefits include pay-
ment or reimbursement for non-VA healthcare for covered
illnesses under 38 C.F.R. § 17.400(b), including neurobe-
havioral effects. See 38 C.F.R. § 17.410.
The relevant facts here, as established by the Board,
are that Mr. Straw’s father was a veteran who served as a
member of Marine Heavy Helicopter Squadron 461, based
at Marine Corps Air Station New River, North Carolina.
Decision, 32 Vet. App. at 377. The Board took judicial no-
tice that Marine Corps Air Station New River is very close
to Camp Lejeune. 2018 WL 9670888, at *1 (first citing Yeo-
man v. West, 140 F.3d 1443 (Fed. Cir. 1998); and then cit-
ing Dedicatoria v. Brown, 8 Vet. App. 441 (1995)). Mr.
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STRAW v. WILKIE 3
Straw was born on March 19, 1969, at Camp Lejeune Naval
Hospital where he and his mother stayed until March 22,
1969, when they were discharged. Decision, 32 Vet. App.
at 377. Hospital records and Mr. Straw’s birth certificate
list his parents’ residence as an off-base home address in
Jacksonville, North Carolina. Id.
Mr. Straw argues that he suffered a neurobehavioral
effect associated with Camp Lejeune, and that under
38 U.S.C. § 1787 and 38 C.F.R. § 17.410, he qualifies for
healthcare benefits because he and his mother regularly
visited and were present at Camp Lejeune for at least
30 days, both while he was in utero and after his birth.
Mr. Straw argues that this qualifies as “resid[ing] at”
Camp Lejeune under 38 U.S.C. § 1787. Appellant’s Br.
at 14.1 Construed liberally, Mr. Straw’s brief also argues
that the Veterans Court’s decision denying him medical
benefits was a violation of the Fifth Amendment’s Equal
Protection Clause because Mr. Straw was treated differ-
ently from others who did qualify for such benefits. Id. at 2.
Finally, Mr. Straw argues that the Veterans Court failed
to adjudicate the fact that the Secretary of Veterans Af-
fairs’ brief was untimely, and this was grounds for a pro
forma reversal. Id.
II
Upon appeal from the Veterans Court we have jurisdic-
tion to review “all relevant questions of law, including in-
terpreting constitutional and statutory provisions.”
38 U.S.C. § 7292(d)(1). However, except to the extent that
an appeal presents a constitutional issue, we lack jurisdic-
tion to review a factual determination or an application of
1 Citations to Mr. Straw’s informal brief and motion
to supplement reflect the pagination applied by this court’s
electronic case files system, Docket Nos. 4 and 28 respec-
tively.
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STRAW v. WILKIE 4
law to fact. Id. § 7292(d)(2). Where we have jurisdiction,
we must set aside an interpretation that is “(A) arbitrary,
capricious, an abuse of discretion, or otherwise not in ac-
cordance with law; (B) contrary to constitutional right,
power, privilege, or immunity; (C) in excess of statutory ju-
risdiction, authority, or limitations, or in violation of a stat-
utory right; or (D) without observance of procedure
required by law.” Id. § 7292(d)(1). We review Veterans
Court legal determinations de novo. Prenzler v. Derwinski,
928 F.2d 392, 393 (Fed. Cir. 1991).
III
Section 1787(a) provides that:
a family member of a veteran described in subpar-
agraph (F) of section 1710(e)(1) of this title who re-
sided at Camp Lejeune, North Carolina, for not
fewer than 30 days during the period described in
such subparagraph or who was in utero during
such period while the mother of such family mem-
ber resided at such location shall be eligible for hos-
pital care and medical services furnished by the
Secretary for any of the illnesses or conditions de-
scribed in such subparagraph, notwithstanding
that there is insufficient medical evidence to con-
clude that such illnesses or conditions are attribut-
able to such residence.
The Board’s findings of fact establish that Mr. Straw
was born during the period provided for in the statute and
Mr. Straw contends that he suffers from neurobehavioral
effects which are covered by the statute. Decision,
32 Vet. App. at 376 n.2. However, the Veterans Court
found that Mr. Straw does not qualify for § 1787 benefits
because neither he nor his mother resided at Camp
Lejeune for 30 days as required by the statute. Id. at 379.
Mr. Straw argues that the Veterans Court improperly con-
strued the phrase “resided at” and that under a proper in-
terpretation he resided at Camp Lejeune.
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STRAW v. WILKIE 5
Mr. Straw argues that he should be deemed to have
resided at Camp Lejeune because he was born at Camp
Lejeune Naval Hospital, and because he made numerous
trips to Camp Lejeune with his mother, both in utero and
after his birth. Appellant’s Br. at 11. Mr. Straw argues
that the phrase “resided at” should be construed liberally
to ensure that the statute serves its purpose. Id. at 15. As
evidence of the broad purpose of the Act, Mr. Straw points
to the Section title: “Health care of family members of vet-
erans stationed at Camp Lejeune, North Carolina,” and to
President Barack Obama’s statements when signing the
Act, touting its benefits to Camp Lejeune veterans and
their families without mention of the residency require-
ment. Id. at 29–30. Mr. Straw advances that one interpre-
tation of the residence requirement could include days of
“base access,” at least for infants born at Camp Lejeune
Naval Hospital. Id. at 30.
In supplemental briefing, Mr. Straw also argues that
the plain meaning of residence does not foreclose the possi-
bility of having a residence separate from where one lives.
Appellant’s S. Br. at 2–3. Mr. Straw cites the “variety of
meanings” in the Cambridge English Dictionary, including
“much vaguer definitions such as ‘artist in residence’” or
“Governor’s Residence.” Id. Mr. Straw also argues that the
phrase “primary residence” implies that one could have a
non-primary residence where they do not live. Id.
The Veterans Court denied Mr. Straw’s argument that
he should be deemed to have resided at Camp Lejeune
based on the time that he spent there, finding that this ar-
gument would require the Veterans Court to read language
into the law. Decision, 32 Vet. App. at 378–79. The Veter-
ans Court explained that Congress could have allowed such
a “constructive residence” theory by allowing family mem-
bers to show a regular presence at Camp Lejeune or by im-
posing a residency requirement that included land near
Camp Lejeune, but that it chose not to. Id.
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STRAW v. WILKIE 6
The Veterans Court also denied Mr. Straw’s argument
that residence should be broadly construed to effectuate
the purpose of the Act, finding that the plain meaning of
“resided at” excluded Mr. Straw and that where the mean-
ing of statutory language is plain, a court cannot ignore
this meaning in favor of a judicially determined statutory
purpose. Id. (citing Rodriguez v. United States,
480 U.S. 522, 525–26 (1987) (per curiam)).
We agree with the Veterans Court that “resided at
Camp Lejeune” has a plain meaning that includes only
those who lived on base. Using the dictionary selected by
Mr. Straw, the Cambridge English Dictionary, the first def-
inition of reside is “to live, have your home, or stay in a
place.” See Reside, CAMBRIDGE ENGLISH D ICTIONARY,
https://dictionary.cambridge.org/us/dictionary/english/re-
side. This definition is consistent with the other dictionary
definitions cited by the Veterans Court. Decision,
32 Vet. App. at 378 (citing United States v. Williams,
836 F.3d 1, 7 (D.C. Cir. 2016) (“To ‘reside’ is ‘[t]o dwell per-
manently or for a considerable time’ or ‘to have one’s set-
tled or usual home in or at a particular place.’”) (alteration
in original) (quoting O XFORD E NGLISH D ICTIONARY (2d ed.
1989))); see also Reside, M ERRIAM -WEBSTER , https://
www.merriam-webster.com/dictionary/reside (“to dwell
permanently or continuously: occupy a place as one’s legal
domicile”). The other examples cited by Mr. Straw—“artist
in residence” or “Governor’s Residence”—are unavailing
because these phrases are not used in the statute.
Having determined that “resided at” has a plain mean-
ing that includes only those who lived at Camp Lejeune, we
agree with the Veterans Court that the statutory language
does not allow for “constructive residence” based on time
spent on Camp Lejeune because this would defy the plain
meaning of the statute. We also agree with the Veterans
Court that we cannot construe residence to be broader than
its plain meaning based on statutory purpose.
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STRAW v. WILKIE 7
See Rodriguez, 480 U.S. at 525–26 (“[N]o legislation pur-
sues its purposes at all costs”).
Because Mr. Straw and his mother lived at an off-base
residence and did not reside at Camp Lejeune for 30 days,
we affirm the Veterans Court’s decision that he does not
meet the § 1787(a) requirements for entitlement to
healthcare benefits.
IV
Construed liberally, Mr. Straw’s informal brief also ad-
vances a Fifth Amendment equal protection claim, arguing
that if he is not granted § 1787(a) benefits then he is not
being treated equally to those who did live on base and
qualify for such benefits. Appellant’s Br. at 2.
“In areas of social and economic policy, a statutory clas-
sification that neither proceeds along suspect lines nor in-
fringes fundamental constitutional rights must be upheld
against equal protection challenge if there is any reasona-
bly conceivable state of facts that could provide a rational
basis for the classification.” FCC v. Beach Commc’ns, Inc.,
508 U.S. 307, 313 (1993). “A rational basis is ‘any reason-
ably conceivable state of facts’ that support the classifica-
tion.” Briggs v. Merit Sys. Prot. Bd., 331 F.3d 1307, 1318
(Fed. Cir. 2003) (quoting Beach Commc’ns, 508 U.S. at
313).
The statutory classification made in § 1787(a) does not
proceed on suspect lines because the statute does not create
a classification based on race, sex, alienage, or national
origin. See Frontiero v. Richardson, 411 U.S. 677, 688
(1973) (plurality opinion). Thus, we turn to whether Mr.
Straw has met his burden of showing an absence of a ra-
tional basis for the classification. As the Veterans Court
explained, “Congress could have adopted the 30-day resi-
dency requirement for family members for any number of
rational reasons, such as a proxy for the likelihood of harm-
ful exposure to contaminants on the base, or the need for
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STRAW v. WILKIE 8
administrative feasibility.” Decision, 32 Vet. App. at 380
(citations omitted). Because we agree with the Veterans
Court that Mr. Straw has not established a lack of a ra-
tional basis in the statutory classification, we affirm.
V
Finally, Mr. Straw argues that the Veterans Court de-
cision was procedurally deficient because the Secretary’s
brief was untimely, and the Veterans Court failed to ad-
dress the timeliness of the Secretary’s filing in its decision.
Because the Secretary’s filing was timely, it was not error
for the Veterans Court to omit a discussion of timeliness.
Mr. Straw submitted his informal brief to the Veterans
Court on October 10, 2019, but it was not accepted because
Mr. Straw was represented by counsel at the time, and
“[w]hen an appellant is represented, the Court accepts pa-
pers only from the representative.” S.A. at 9. The Veterans
Court granted Mr. Straw’s counsel’s motion to withdraw on
October 17, and ordered that Mr. Straw be treated as self-
represented. Id. at 4. The Veterans Court also accepted
Mr. Straw’s informal brief on October 17. Id. Pursuant to
the Veterans Court’s Rules of Practice and Procedure, the
Secretary had 60 days from October 17 to respond to Mr.
Straw’s brief. U.S. Vet. App. R. 31(a)(2). The Secretary
timely filed his brief on December 16, 2019. Id. at 5.
VI
Because the Veterans Court properly construed the
statute, and because there was no constitutional or proce-
dural violation, we affirm the Veterans Court’s decision.
AFFIRMED
No costs.
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