Donald E. Bitzer v. Eric K. Shinseki, Secretary of Veterans Affairs

NOTE: This order is nonprecedential.

# United States Court of Appeals for the Federal Circuit

DONALD E. BITZER,
Claimant-Appellant,
V.
ERIC K. SHINSEKI, SECRETARY OF VETERANS
AFFAIRS,
Respondent-Appellee.

2011-7008

Appeal from the United States Court of Appeals for
Veterans Claims in 09-2698, Judge Robert N. Davis.

ON MOTION

Before NEWMAN, SCHALL, AND DYK, Circuit Judges.
NEWMAN, Circuit Judge.

ORDER

The Secretary of Veterans Affairs moves to waive the
requirements of Fed. Cir. R. 27(f) and summarily affirm
the decision of the United States Court of Appeals for
Veterans Claims denying veteran Donald E. Bitzer enti-

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tlement to payment of interest on retroactive disability
compensation. Bitzer opposes. The Secretary replies.

While on active duty in May of 1978, Bitzer was in-
jured in a motorcycle accident. Bitzer's spine was frac-
tured resulting in incomplete bilateral paralysis. In
August 1979, a Department of Veterans Affairs regional
office (RO) awarded Bitzer entitlement to service connec-
tion for "fracture, dislocation, T12-L1, with incomplete
paraplegia."

In March 2006, Bitzer sought a revision of the August
1979 decision. He asserted that the RO's determination
contained clear and unmistakable error (CUE) in not
granting him service connection and special monthly
compensation (SMC) for loss of use of both extremities
and for failing to grant higher level of SMC for loss of use
of both extremities and loss of bowel and bladder control.
The RO agreed. Bitzer thus became entitled- to receive
approximately $700,000, the nominal amount that he
would have received had there never been any error.

Bitzer, however, argued that he was additionally enti-
tled to interest on that amount. The Board of Veterans'
Appeals disagreed. The Board cited the well-established
"no-interest rule," which provides that unless the gov-
ernment expressly waives its sovereign immunity no
payment of interest on government entitlements is owed.
See Angarica v. Bayard, 127 U.S. 251, 260 (1888) (“The
case, therefore falls within the well-settled principle, that
the United States are not liable to pay interest on claims
against them, in the absence of express statutory provi-
sion to that effect.").

The Board explained that a similar argument was re-
jected by this court in Smith v. Principi, 281 F.3d 1384
(Fed. Cir. 2002). Smith also involved a denial of entitle-
ment to interest on additional compensation resulting
from CUE. There, we held that none of the relevant

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statutory provisions cited to the court expressly waived
the government's sovereign immunity from payment of
interest. Thus, no payment could be made despite the
equities and public policy arguments to the contrary.

In his appeal to the Court of Appeals for Veterans
Claims, Bitzer contended that the no-interest rule is
either inapplicable to the veterans benefits system or at
least his specific circumstances. Explaining that it was
bound by Smith and our subsequent decision in Sand-
strom v. Principi, 358 F.3d 1376 (Fed. Cir. 2004), the
court sustained the Board's decision. The government
now urges us to summarily affirm this appeal on the
grounds that the Board's denial of entitlement to interest
is controlled by Smith and Sandstrom. Summary affir-
mance of a case "is appropriate, inter alia, when the
position of one party is so clearly correct as a matter of
law that no substantial question regarding the outcome of
the appeal exists." Joshua v. United States, 17 F.3d 378,
380 (Fed. Cir. 1994).

Bitzer contends that his arguments in support of a
waiver of the no-interest rule have not been addressed by
this court. Specifically, he contends that (1) our holdings
in Smith and Sandstrom are fundamentally inconsistent
with the veterans' benefits adjudicatory system; (2) that
the "commercial activity" exception to the "no interest
rule" applies to his claim; (3) that an exception to the "no
interest rule" should be made to his case based on the size
of the claim; and (4) that not paying interest amounted to
an unconstitutional taking of his property.

Although we have carefully considered Bitzer's posi-
tion, we are persuaded that our prior cases have already
squarely rejected his arguments. Smith expressly re-
jected application of the commercial enterprise exception
to the Department as an administrator of veterans' bene-
fits. 281 F.3d at 1388. Moreover, Smith and Sandstrom
unequivocally rejected the argument that no matter how

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BITZER v. DVA

compelling the equities or public policy argument in favor
of awarding interest, the Department is without authority
to do so in the absence of express statutory language.
Finally, Bitzer's unconstitutional takings claim must also
be rejected in light of our prior cases because he does not
point to any statutes authorizing payment of interest.
Thus, he has not asserted a cognizable property interest
for purposes of a Fifth Amendment takings claim.

Accordingly,
IT IS ORDERED THAT:

(1) The Secretary's motion to summarily affirm is
granted.

(2) Each side shall bear its own costs.

FOR THE COURT

JUL 8 2011

.

Date

/s/ Jan Horbaly
Jan Horbaly
Clerk

FILED
U.S. COURT OF APPEALS FOR
THE FEDERAL CIRCUIT

JUL 0 8 2011

cc: David M. vonHartitzsch, Esq.
Alex P. Hontos, Esq.

s19

JAN HORBALY
CLERK