Philbrook: TDIU and Prison

Philbrook v. Wilkie, Case Number 18-5628, decided May 19, 2020 involves a denial of a grant of TDIU while incarcerated.

The veteran received a PTSD rating of 70% in 2004.  On 2009 he was arrested and in 2011 he entered a plea to Judgment Upon Stipulation and Finding of Guilty Except for Insanity.  It determined his actions constituted the crime of attempted murder, a class A felony.  Consistent with his plea, the Court found him “guilty except for insanity of the crime of attempted murder.”  Under Oregon law, a person “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.”  Given his danger to others, the court ordered him “placed under the jurisdiction of the Psychiatric Security Review Board . . . for care, custody and treatment for a maximum period not to exceed 20 years”; and “committed [him] to the custody of the Oregon State Hospital.”  

While in custody, Mr. Philbrook sought TDIU which was denied that section 5313(c), as implemented by § 3.341(b), prohibited TDIU.

First, the Court had to deal with an issue of mootness because the veteran had eventually been released from custody and granted TDIU, but not for the time while in custody.  Succinctly, the Court stated the

case is not moot because he seeks a determination of entitlement to TDIU for a specific period of time, rather than merely entitlement to TDIU as a general matter.  VA made TDIU effective from April 13, 2018—the day after the veteran was discharged from the Oregon State Hospital. But this excludes the period between Mr. Philbrook's TDIU application date (sometime in September 2011, or in March 2013 at the latest) and his release date, all the while he was confined by the State of Oregon.

Id. at *3-4.

As to the merits of the case, the Court affirmed the Board’s decision.  It started with 38 U.S.C. § 5313(c), which reads:

The Secretary 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, local, or other penal institution or correctional facility for conviction of a felony.

The Court focused on the terms “incarcerated,” “penal institutional or correctional facility,” “conviction” and found they are not defined by the statute or the implementing regulation, § 3.341(b), which merely repeats the disputed statutory text without elaboration.  “Thus, this case turns on statutory, not regulatory, interpretation.”  Id. at *5.

The Court determined:

In our view, the plain meanings of these statutory terms cover Mr. Philbrook's circumstances. In accordance with his plea of guilty except for insanity, a state trial court found that his “actions constituted the crime of attempted murder, a class A felony.”  He was taken into custody and confined at a state mental institution following these criminal proceedings.

Id. at *6.  The Court supported its decision by stating:

For good measure, this interpretation of the plain language of section 5313(c) coheres with the purpose of the statute, which the Federal Circuit noted is “to correct the perceived problem of providing hundreds and thousands of tax free benefits to veterans incarcerated for the commission of felonies 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.

The Secretary and veteran also argued separately that the Court should focus on the State of Oregon’s definition of incarceration or correctional facility, but the Court refused and said it did not believe Congress wanted the statute to turn on state law.

The Court acknowledged this is a hard result because it is likely the veteran’s service connected PTSD led to his imprisonment, but the Court noted

the purpose of section 5313(c)'s prohibition on the award of TDIU to incarcerated veterans is not punitive in nature, and its application in a specific case comes with no moral judgment on the individual veteran concerned. It is a fiscal measure. And under its plain terms, Mr. Philbrook, while confined at taxpayer expense at the Oregon State Hospital after being adjudged guilty except for insanity of attempted murder, fell within its ambit.

Id. at *9.

The case has been appealed to the Federal Circuit.

Decision by Judge Toth and joined in by Judges Pietsch and Greenberg.

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