The Beating Heart of Veterans Law

Last week, I covered a lot of background material about veterans benefits.  Now it is time to really dig into the substance of veterans law.

At its heart, veterans law is a form of administrative law.  Deference to the agency is therefore a central concern.  In veterans law, there is the unique problem of balancing Chevron and other forms of deference against what is usually referred to as the Gardner presumption, which states that veterans benefits statutes are to be liberally construed in favor of veterans.  The presumption is named after Brown v. Gardner, 513 U.S. 115 (1994), the first Supreme Court case to review a decision originating from the Court of Appeals for Veterans Claims (CAVC).  These two presumptions do not coexist easily.  On their face, they both provide rules for resolving ambiguity that often lead to conflicting outcomes, at least in cases that generate litigation.

The general solution of the courts has been to ignore the problem.  The typical tactic is to cite only to the doctrine that supports the outcome chosen.  In cases in which there are dissents or when the CAVC and Federal Circuit disagree, it is quite common to see both sides proclaim that the plain language clearly favors their chosen result and simply note parenthetically that if the language were not clear, then the appropriate cannon would support the desired outcome.  The Federal Circuit seemed to say in Sears v. Principi, 349 F.3d 1326 (Fed. Cir. 2003), that Chevron trumps Gardner, but citations to Sears have been conspicuously absent from most recent cases addressing the issue.  Recent cert petitions have attempted to have the Supreme Court to resolve the issue, but none have been granted.

Linda Jellum has weighed in with suggestions of how the tension might be resolved.  For myself, I have suggested that the problem might devolve in practice into a rules-vs.-standards debate.  There is plenty more that could be written on the issue, and I will suggest three angles to the intrepid who wish to take a shot.

One angle that could be explored is how the rule in Gardner relates to the remedial purposes canon.  The Gardner presumptions certainly seems analogous to this canon.  Perhaps there is something to be learned from such a comparison.

Another angle to explore is how the Gardner doctrine developed in the Supreme Court.  The line of cases cited by Gardner traces to Boone v. Lightner, 319 U.S. 561 (1943).  As in modern cases, the presumption of veteran-friendly interpretation does not seem to do much actual work.  For example, the soldier lost in Boone, yet the Court dropped included comments such as “[t]he Soldiers’ and Sailors’ Civil Relief Act is always to be liberally construed to protect those who have been obliged to drop their own affairs to take up the burdens of the nation,” even while rejecting the soldier’s argument.  My cursory investigation indicates that not only were these cases written during and shortly after WWII, but they were drafted by a court composed of many WWI veterans who had a second-row view of the Bonus Army fiasco in which veterans and their children were killed on the National Mall while protesting for unpaid benefits.

As a third angle, I think there is an open question as to whether the courts’ application of the two doctrines is consistent with their premises and the separation of powers.  Logically, Chevron should have the most power on procedural issues, as Congress has largely delegated the administration of the system to the agency.  Conversely, Gardner should have the most force when it comes to the actual definition of benefits, as waiving sovereign immunity and defining the payments the government are core functions of the legislative branch.  Nonetheless, my sense of the case law is that — at least at the Federal Circuit level — the results are exactly the opposite.  In big money benefits cases such as Smith v. Nicholson, 451 F.3d 1344 (Fed. Cir. 2006), Haas v. Peake, 525 F. 3d 1168 (Fed. Cir. 2008), and Chandler v. Shinseki, 676 F.3d 1045 (Fed. Cir. 2012), the court gave deference to the agency in defining benefits narrowly, but tended to lean heavily on Gardner and the veteran-friendly nature of the system in dismissing the Secretary’s administrative concerns in making expansive procedural rulings. 

Whether you decide to explore any of these paths, you cannot be involved in veterans law without confronting the tension between these cases.  In nearly every disputed case, the Secretary will have some argument for deference, while the veteran’s advocate will plead for a “friendly” interpretation.  Your views of Chevron and Gardner will heavily affect the answers to many issues that arise.  However, it should not be forgotten that what looks like a reasonable, “veteran friendly” rule given the facts of one case, may look very different if you are designing a set of rules that will make it possible for thousands of non-attorney adjudicators to process millions of claims each year in a timely and accurate fashion.

Comments

[Michael Duff]

Ah, yes, inconsistent Chevron applications. See: William N. Eskridge & Lauren E. Baer, The Continuum of Deference: Supreme Court Treatment of Agency Statutory Interpretations from Chevron to Hamdan, 96 GEO. L.J. 1083, 1090 (2008) (stating “[i]ndeed, from the time it was handed down until the end of the 2005 term, Chevron was applied in only 8.3% of Supreme Court cases evaluating agency statutory interpretations . . . [D]uring this time frame, the Court employed a continuum of deference regimes.”)

[James Ridgway]

I know the Court has been less than fully faithful to Chevron, but are there specific areas where it has routinely relied upon canons that are in as much tension with Chevron as Gardner? I'd be interested in knowing if there is anything that provides for an apt comparison.