Perfecto P. Belarmino, Petitioner/appellant, v. Edward J. Derwinski, Secretary of Veterans Affairs,respondent/appellee, 931 F.2d 1543 (Fed. Cir. 1991)

Perfecto P. Belarmino appeals the decision of the United States Court of Veterans Appeals, No. 90-503, dated October 26, 1990, dismissing Belarmino's appeal from the Board of Veterans' Appeals (BVA) for lack of jurisdiction. The Court of Veterans Appeals held that it lacked jurisdiction to hear the appeal because Belarmino filed a Notice of Disagreement (NOD) with the Veterans' Administration prior to November 18, 1988. See section 402 of the Veterans' Judicial Review Act of 1988 (VJRA), Pub. L. No. 100-687. We affirm.

DISCUSSION

Belarmino does not contend that the Court of Veterans Appeals erred in finding that he had filed his NOD before November 18, 1988. Instead, Belarmino challenges the constitutionality of section 402 of the VJRA, apparently on Fifth Amendment equal protection grounds, because the Court of Veterans Appeals was given jurisdiction in cases where the veteran filed a NOD on or after November 18, 1988, but not in cases where the veteran, like himself, filed a NOD before that date.

We review an equal protection challenge to social and economic legislation under the rational basis test. See United States R.R. Retirement Bd. v. Fritz, 449 U.S. 166, 175-76, 101 S. Ct. 453, 459-60, 66 L. Ed. 2d 368 (1980). Under that test, disparate treatment of similarly situated groups is not unlawful if (1) a rational purpose underlies the disparate treatment, and (2) Congress has not achieved that purpose in a patently arbitrary or irrational way. Id. at 177, 101 S. Ct. at 460.

Here, there can be no question but that the rational basis test is met. In granting the Court of Veterans Appeals jurisdiction over decisions of the BVA, Congress provided veterans a right to judicial review which they did not possess previously. See 38 U.S.C. § 211(a) (1982). Moreover, the legislative history of the VJRA indicates that Congress had at least two practical reasons for limiting review by the Court of Veterans Appeals to cases in which a NOD is filed on or after the date of enactment of the VJRA. Specifically, Congress made that choice, first, to ensure that the new court would not be overwhelmed by a flood of cases immediately upon the commencement of its authority¹  and, second, to encourage petitioners to the new court generally to seek the representation of attorneys.² 

Accordingly, the determination by Congress in section 402 to limit access to the Court of Veterans Appeals is not contrary to constitutional right, power, privilege or immunity. See 38 U.S.C. § 4092(d) (1) (B) (1988). The court correctly determined that it lacked jurisdiction over Belarmino's appeal.

AFFIRMED.