Menu
Having found that the Secretary's arguments do not have persuasive value under Skidmore, the Court also observes that this case implicates the presumption announced in Brown v. Gardner, 513 U.S. 115, 118 (1994), that any doubt in the interpretation of a VA statute must be resolved in favor of a veteran. Applying this presumption in the context of its Skidmore analysis, the Federal Circuit has stated that, even where the Secretary's asserted interpretation of a statute is "plausible," adopting an interpretation that is less favorable to the veteran would be appropriate "only if the statutory language unambiguously" required that less favorable interpretation. Sursely, 551 F.3d at 1357. Here, the Secretary's interpretation is not required by the language of section 7107(b) and is clearly less favorable to veterans than the interpretation discussed above, namely, that a claimant who received a personal hearing at one stage of appellate proceedings before the Board is entitled, upon request, to a Board hearing following a remand from this Court. See also Hudgens v. McDonald, 823 F.3d 630, 639 (Fed. Cir. 2016) (applying Gardner and adopting the veteran's interpretation of a regulation as "consistent with the beneficence inherent in the veterans' benefits scheme"); Trafter v. Shinseki, 26 Vet. App. 267, 272 (2013) (stating that theSecretary's interpretation of a statute is entitled to deference except where, inter alia, his "interpretation is unfavorable to veterans, such that it conflicts with the beneficence underpinning VA's veterans benefits scheme, and a more liberal construction is available that affords a harmonious interplay between provisions")What the CAVC did here is subtle, but unsettling. It considered the pro veteran canon only after both steps of Chevron and after deciding Skidmore deference does not apply. This is unsettling because the Supreme Court has said that all veterans benefits statutes must be interpreted "in light of 'the canon that provisions for benefits to members of the Armed Services are to be construed in the beneficiaries’ favor.' " Henderson v. Shinseki, 562 U.S. 428 (2011). In a sense, the pro veteran canon is like a spotlight that illuminates the entire process. It casts what I call a "penumbra of beneficence" over the entire interpretive process. Respectfully, and continuing the metaphor of lighting devices, considering the pro veteran canon at the end of the statutory interpretive process feels less like illuminating the process with a spotlight, and more like peering with a flashlight under the couch of justice, searching for a lost statutory meaning. The Federal Circuit's affirmance, on the other hand, is interesting to me in its distinctive approach to the interpretive question. It begins with the following statement: "[W]e will ascertain the best meaning of § 7107(b) 'by employing the traditional tools of statutory construction; we examine the statute’s text, structure, and legislative history, and apply the relevant canons of interpretation.' Delverde, SrL v. United States, 202 F.3d 1360, 1363 (Fed. Cir. 2000)." Delverde is a statutory interpretation case in which the Circuit "determined that [where] the meaning of the statute is clear, we need not give Chevron deference to [the government's] interpretation." In determining the statute's meaning, Delverde stands for the proposition that the Court will "examine the statute's text, structure, and legislative history, and apply the relevant canons of interpretation" at Chevron step one. Delverde is decidedly a traditional Chevron step one analysis, authored by Circuit Judge Lourie (who authored the Court's opinion in Cook) and joined by Circuit Judge Clevenger (who was on the panel in Cook). There are only six (6) Circuit decisions interpreting statutes in 38 U.S.C that cite to Delverde. In all but two (Heino and Gazelle), Circuit Judge Clevenger was on the panel. In one of the cases, the Federal Circuit found that the veterans canon only applies to ambiguous statutes and cannot be used to " 'override the clear meaning of a particular provision.' "Paralyzed Veterans of Am. v. Sec'y of Veterans Affairs, 345 F.3d 1334, 1340 (Fed. Cir. 2003). In another case, the Federal Circuit construed a particular statute "as we believe Congress clearly intended," citing to a landmark pro-veteran canon case, Brown v. Gardner. Kilpatrick v. Principi, 327 F.3d 1375, 1385 (Fed. Cir. 2003). In a third case citing Delverde, the Circuit found that in discerning the meaning of words in a statute, courts must consider their statutory context at Chevron step one, citing to the Brown v. Gardner pro veteran canon case. Gazelle v. Shulkin, 868 F.3d 1006, 1012 (Fed. Cir. 2017). And in the fourth case, the Circuit made clear that the pro-veteran canon could not be used to over-ride the clear meaning of a statute. Boyer v. West, 210 F.3d 1351, 1355 (Fed. Cir. 2000). Even more curious is what the Circuit said after extensively analyzing the text of §7107(b): "[T]he text of § 7107(b) better supports Cook’s argument that the Board must provide a claimant an opportunity for a hearing before it decides every appeal." Cook v. Wilkie, slip op. at 10 - 11. In other words, the Circuit appears to have affirmed the Veterans Court's outcome, while doing so at Chevron step one, and not after considering Skidmore deference. Compare, Cook v. Wilkie, slip op. at *4 - 5 (noting the veterans court holding that "the plain language of § 7107(b) did not clearly answer whether a claimant is entitled to a post-remand Board hearing"); Cook v. Wilkie, slip op at *10 (Circuit holds that "the text of § 7107(b) better supports Cook’s argument that the Board must provide a claimant an opportunity for a hearing before it decides every appeal"). I'm not sure what all of that means, but the scarce use of Delverde, its frequent appearance in cases where Circuit Judge Clevenger was on the panel, and its citation in cases defining two distinct roles of the pro-veteran canon (to give clarity to Congress's meaning through the statute's text or history and its unavailability to over-ride clear Congressional intent), are enough to make me raise an eyebrow. Court opinions do not just lay out the rules of law. They are very much a dialogue between superior and inferior courts. Whether this opinion is a part of that dialog, or just Attig looking for a haystack in which to hide a needle, is very much debatable. I throw the idea out to the broader community, and ask you to critique my theory that Cook is a leading indicator of one direction where the Federal Circuit might go in defining the role of the pro-veteran canon in the Chevron statutory framework.
Federal Circuit Court of Appeals Panel:
Circuit Judge Alan D. Lourie (Opinion Author)(link to bio on Federal Circuit Court of Appeals website)
Circuit Judge Pauline Newman (link to bio on Federal Circuit Court of Appeals website) (link to decisions involving Circuit Judge Newman on this blog)
Circuit Judge Raymond C. Clevenger, III (link to bio on Federal Circuit Court of Appeals website)
Veteran Representation at Federal Circuit: Ken Carpenter, Carpenter Chartered (link to decisions involving Ken Carpenter on this blog)
DOJ Attorney at Federal Circuit: Barbara Thomas
Attorney for Amicus NOVA: John Niles, Covington & Burling LLP (link to bio on Covington and Burling website)
Date of Decision: November 13, 2018
Link to Decision on Federal Circuit Court of Appeals Website.
CAVC Panel:
Judge Margaret C. Bartley (CAVC Memorandum Decision Author) (link to bio on CAVC website)
Judge Coral Wong Pietsch (link to bio on CAVC website)
Senior Judge* Lawrence B. Hagel (link to bio on CAVC website)
* At the time of oral argument, Judge Hagel was Chief Judge of the CAVC
Veteran Representation at CAVC: Francis M. Jackson (on the briefs), Ken Carpenter (at argument)
OGC Attorney at CAVC: Nathan P. Kirschner (on the briefs and merits) (link to bio on ...)
Date of CAVC Decision: January 31, 2017
Link to Memorandum Decision on CAVC Website.
Regional Office: Manchester, NH, VA Regional Office
Vets’ Rep at BVA: Penelope E. Gronbeck, Attorney
Board of Veterans Appeals Veterans Law Judge: Milo H. Hawley (link to blog posts involving this BVA VLJ)
Attorney for the BVA: K. L. Wallin, Counsel
Date of Board Decision: February 20, 2015
© 2022 Attig Curran Steel, PLLC
View Our Disclaimer | Privacy Policy
Law Firm Website Design by The Modern Firm