Petition for Writ of Certiorari — Diana Garvey, Petitioner v. Denis R. McDonough, Secretary of Veterans Affairs

No. _________

================================================================================================================

In The

Supreme Court of the United States

---------------------------------♦--------------------------------DIANA GARVEY,

Petitioner,

v.

DENIS MCDONOUGH,

SECRETARY OF VETERANS AFFAIRS,

Respondent.

---------------------------------♦--------------------------------On Petition For A Writ Of Certiorari

To The United States Court Of Appeals

For The Federal Circuit

---------------------------------♦--------------------------------PETITION FOR A WRIT OF CERTIORARI

---------------------------------♦--------------------------------ROBERT C. BROWN, JR.

TOMMY KLEPPER

& ASSOCIATES

702 Wall Street, Suite 100

P.O. Box 721980

Norman, OK 73070

KENNETH M. CARPENTER

Counsel of Record

KENNETH H. DOJAQUEZ

CARPENTER, CHARTERED

1525 SW Topeka Blvd.,

Suite D

Topeka, KS 66601

(785) 357-5251

kmcarpenter@

mindspring.com

Counsel for Petitioner

================================================================================================================

COCKLE LEGAL BRIEFS (800) 225-6964

WWW.COCKLELEGALBRIEFS.COM

i

QUESTIONS PRESENTED

Chevron, U.S.A., Inc. v. Nat. Res. Def. Council Inc.,

467 U.S. 837, 842 (1984), held, the first question when

interpreting a statute is “whether Congress has directly spoken to the precise question at issue.” Courts

may defer only to an agency’s “permissible construction” of an ambiguous statute. In Brown v. Gardner,

513 U.S. 118 (1994), the Court held that “interpretive

doubt is to be resolved in the veteran’s favor.” Furthermore, in Kisor v. Wilkie, ___ U.S. ___, 139 S.Ct. 2400,

2413 (2019), the Court held, when interpreting an

agency’s regulation, “the possibility of deference can

arise only if a regulation is genuinely ambiguous.”

Petitioner, widow of a Vietnam War veteran, seeks

VA compensation benefits payable to the widow of a

wartime veteran. The Secretary, in his regulation,

treats a veteran who received a discharge or release

from a service department under conditions other than

dishonorable, to nonetheless lawfully bar such veteran,

and his widow, to benefits because of “willful and persistent misconduct.” More importantly, the Federal

Circuit endorsed this by finding the statute ambiguous

without providing any analysis as to the plain meaning

of the text in the statute. The questions presented are:

1. Under Chevron step 1, is it permissible for the Secretary to write a regulation that redefines a “veteran”

where Congress has provided a clear, unambiguous

definition?

ii

QUESTIONS PRESENTED—Continued

2. In the alternative when evaluating the meaning of

a statute

a. Against what threshold must a federal court

evaluate whether a statute’s text and structure, the

traditional canons of construction, and the statute’s

legislative history permit more than one reasonable interpretation of Congress’ intent?

b. What role does Brown v. Gardner and Kisor v.

Wilkie play in the Court’s framework used to interpret

a statute?

iii

RELATED PROCEEDINGS

Diana Garvey v. Robert L. Wilkie, Secretary of Veterans

Affairs, No. 2020-1128 (Fed. Cir. Judgment entered August 27, 2020)

Diana Garvey v. Robert L. Wilkie, Secretary of Veterans

Affairs, No. 18-5059 (Vet. App. Judgment entered October 22, 2019)

iv

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED ................................

i

RELATED PROCEEDINGS ................................

iii

TABLE OF AUTHORITIES ................................. viii

INTRODUCTION ................................................

1

OPINIONS AND ORDERS BELOW....................

3

JURISDICTION ...................................................

4

STATUTORY AND REGULATORY PROVISIONS

INVOLVED .......................................................

4

STATEMENT OF THE CASE..............................

5

Mr. Garvey Performed Faithful Service In Germany; But Like Many Others, That All

Changed After Deploying To Vietnam ..............

5

Mr. Garvey Dies, And Mrs. Garvey’s Claim For

Survivor Benefits Is Denied Because The Secretary Determined That Mr. Garvey’s Discharge Was Due To “Willful And Persistent

Misconduct” ......................................................

6

The Veterans Court Affirms, Ruling 38 C.F.R.

§ 3.12(d) Was Consistent With 38 U.S.C.

§ 5303 ...............................................................

7

The Federal Circuit Affirms Because It Determines That The Term “Under Conditions

Other Than Dishonorable” Is Ambiguous;

Therefore, The Secretary Is Authorized To Define A Discharge For “Willful And Persistent

Misconduct” As A Discharge Under “Dishonorable Conditions” ...............................................

8

v

TABLE OF CONTENTS—Continued

Page

REASONS FOR GRANTING THE PETITION .....

I.

The Decision Of The Federal Circuit Upholding The Validity Of 38 C.F.R. § 3.12(d)(4)

Was Contrary To The Text Of Both 38

U.S.C. § 101(2) And 38 U.S.C. § 5303(a) ....

9

9

A. Under The Relevant Statutes, A Veteran Is Eligible To Receive VA Benefits So Long As Their Discharge Was

Not Dishonorable And They Did Not

Commit One Of The Specified Acts Set

Out In 38 U.S.C. § 5303(a) ................... 10

1. Only Congress Can Specify The

Acts Which Bar A Former Servicemember From Receiving VA Benefits ................................................... 11

2. The Limitation In § 5303(a) Controls What Constitutes A Bar To

Benefits And The Secretary Cannot In Regulation Lawfully Expand

Those Bars ...................................... 12

B. The Federal Circuit’s Interpretation Is

Without Basis In Law.......................... 13

1. Neither § 101(2) Nor § 5303(a) Supports Or Contemplates The Secretary’s Role In Determining What

The Character Of The Veteran’s

Discharge Should Have Been ......... 14

vi

TABLE OF CONTENTS—Continued

Page

II.

In The Alternative, When Evaluating The

Meaning Of A Statute:

Against What Threshold Must A Federal

Court Evaluate Whether A Statute’s Text

And Structure, The Traditional Canons

Of Construction, And The Statute’s Legislative History Permit More Than One

Reasonable Interpretation Of Congress’

Intent?

What Role Does Brown v. Gardner And Kisor v. Wilkie Play In The Court’s Framework Used To Interpret A Statute?

A. The Federal Circuit Simply Announced

The Statute Is Ambiguous To Reach A

Desired Result ..................................... 18

III.

The Question Presented Is Recurring And

Important................................................... 21

A. The Federal Circuit’s Exclusive Jurisdiction Over Decisions Of The Veterans Court Favors This Court’s Prompt

Intervention ......................................... 21

B. The Federal Circuit’s Error Affects

Significant Numbers Of Former Service Members ....................................... 22

C. Section 3.12(d) Sanctions The Unlawful Denial Of VA Benefits Contrary To

An Intent To Do So By Any Statute .... 23

vii

TABLE OF CONTENTS—Continued

Page

D. This Case Is An Ideal Vehicle To Invalidate The Provisions Of 38 C.F.R.

§ 3.12(d)(4) ........................................... 24

CONCLUSION..................................................... 25

APPENDIX A Opinion of the Federal Circuit

(Aug. 27, 2020) ............................ App. 1

APPENDIX B Opinion of the Veterans Court

(Sept. 30, 2019) ......................... App. 21

APPENDIX C Decision of VA’s Board of Veterans’ Appeals (Aug. 28, 2018)..... App. 25

APPENDIX D Order Denying Federal Circuit

Rehearing (Dec. 4, 2020)........... App. 41

APPENDIX E Statutes and Regulations Involved in This Case ................... App. 43

viii

TABLE OF AUTHORITIES

Page

CASES

Am. Tobacco Co. v. Patterson, 456 U.S. 63 (1982) .......16

Board of Governors, FRS v. Dimension Financial

Corp., 474 U.S. 361 (1986) .......................................19

Bostock v. Clayton Cnty., 140 S.Ct. 1731 (2020) ........14

Brown v. Gardner, 513 U.S. 118 (1994) .... 3, 15, 18, 20, 22

Camarena v. Brown, 60 F.3d 843 (Fed. Cir. 1995) ......... 7

Chevron, U.S.A., Inc. v. Nat. Res. Def. Council

Inc., 467 U.S. 837 (1984).......................... 8, 18, 19, 20

Fishgold v. Sullivan Drydock & Repair Corp.,

328 U.S. 275 (1946) .................................................20

Food Mktg. Inst. v. Argus Leader Media, 139

S.Ct. 2356 (2019) .....................................................14

Henderson ex rel. Henderson v. Shinseki, 562

U.S. 428 (2011) ...................................... 10, 20, 21, 24

Jaquay v. Principi, 304 F.3d 1276 (Fed. Cir.

2002) ........................................................................12

Kingdomware Techs., Inc. v. United States, 136

S.Ct. 1969 (2016) .....................................................21

Kisor v. Wilkie, ___ U.S. ___, 139 S.Ct. 2400

(2019) ................................................... 2, 3, 18, 19, 21

Milner v. Dep’t of the Navy, 562 U.S. 562 (2011) ........14

Nat’l Lifeline Ass’n v. FCC, 983 F.3d 498 (D.C.

Cir. 2020) .................................................................19

Perrin v. U.S., 444 U.S. 37 (1977) ................................18

ix

TABLE OF AUTHORITIES—Continued

Page

Regan v. Taxation with Representation, 461 U.S.

540 (1983) ................................................................20

Scarborough v. Principi, 541 U.S. 401 (2004) ............21

United States v. Gimbel, 830 F.2d 621 (7th Cir.

1987) ........................................................................17

United States v. Murphy, 809 F.2d 1427 (9th Cir.

1987) ........................................................................17

United States v. Reinis, 794 F.2d 506 (9th Cir.

1986) ........................................................................17

United States v. Riccardi, 989 F.3d 476 (2021) ..........19

Wolfington v. Reconstructive Orthopaedic Assocs.

II PC, 935 F.3d 187 (3d Cir. 2019)...........................19

STATUTES & LEGISLATIVE HISTORY

28 U.S.C. § 1254(1) (2018) ............................................4

38 U.S.C. § 101(2) ................................................ passim

38 U.S.C. § 1310 ............................................................7

38 U.S.C. § 1541 ............................................................7

38 U.S.C. § 5303(a) .............................................. passim

38 U.S.C. § 5303(e) ........................................................6

38 U.S.C. § 7292(c) (2018) ...........................................21

Revision of Veteran’s Benefits Decisions for

Clear and Unmistakable Error Pub. L. No.

105-111, 111 Stat. 2271 (Nov. 21, 1997) .................15

x

TABLE OF AUTHORITIES—Continued

Page

National Defense Authorization Act for Fiscal

Year 1997 Pub. L. No. 104-204, 110 Stat. 2874

(Sep. 26, 1996) .........................................................15

Veterans Claims Assistance Act of 2000 Pub. L.

No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) .............15

REGULATIONS

38 C.F.R. § 3.12(a) .........................................................4

38 C.F.R. § 3.12(c) .........................................................4

38 C.F.R. § 3.12(d)(4)........................................... passim

38 C.F.R. § 3.12(h) .........................................................6

38 C.F.R. § 3.103(a) .....................................................13

OTHER AUTHORITIES

Legal Services Center of Harvard Law School,

Underserved: How the VA Wrongfully Excludes Veterans with Bad Paper (2016),

https://uploads-ssl.webflow.com/5ddda3d7ad

8b1151b5d16cff/5e67da6782e5f4e6b19760b0_

Underserved.pdf ......................................................22

1

INTRODUCTION

The discharge and release of servicemembers from

active duty service is the individual service departments’ responsibility. The character of discharge and

release from active duty service is within the exclusive

purview and discretion of the service departments. Any

change deemed necessary in the character of discharge

and release from active duty service is a function of the

service departments. Congress has never authorized

the Secretary of Veterans Affairs to change the character of a veteran’s discharge or release to preclude receipt of VA benefits. Rather, Congress provided the

Secretary authority only to “prescribe all rules and regulations which are necessary or appropriate to carry

out the laws administered by the Department and are

consistent with those laws.”

This petition asks the Court to invalidate an ultra

vires regulation. A regulation which, without authority

from Congress, permits the Secretary to change the

character of a veteran’s discharge. A discharge characterized by the service department as having been under other than dishonorable conditions necessarily

invokes upon that person veteran status. Yet, the Secretary has given himself the ability to treat a discharge

under other than dishonorable conditions as having

been under dishonorable conditions. This practice is

unlawful and must be stopped.

In the decision below, the Federal Circuit held

that the “willful and persistent misconduct” bar in

the Secretary’s rules governing the character of a

2

servicemember’s discharge was not contrary to the

statute that specified the conditions under which a

former servicemember was ineligible for benefits. The

Secretary’s regulation is not consistent with the plain

language of the statute which invokes veteran status

upon all discharged or released former servicemembers except those who received a discharge under conditions other than dishonorable.

The Federal Circuit also departs from the text of

Congress’s definition of a “veteran” which unambiguously defines a veteran as having been discharged or

released from service under conditions other than dishonorable. Yet, as clear as Congress’s definition is, the

Federal Circuit allowed to stand a regulation which allows the Secretary to deny VA benefits to veterans and

their survivors who meet the definition of a veteran.

In short, the Federal Circuit let stand a regulation

profoundly inconsistent with the statutes permitting

the Secretary to recharacterize a discharge from service which allowed for the receipt of VA benefits based

upon the Secretary’s determination that should be

“considered to have been under dishonorable conditions.”

In the alternative, the Federal Circuit announced,

without any analysis whatsoever, that 38 U.S.C.

§ 101(2) is ambiguous. Under controlling case law, the

Federal Circuit must do more. What is not clear from

the case law is what tools a court must employ when

determining the meaning of a statute. In Kisor v. Wilkie,

this Court explained that before a court can defer to an

3

agency’s interpretation, it must first determine that a

regulation is “genuinely ambiguous.” Although Kisor

dealt with the interpretation of a regulation, there is

no reason to limit its ruling to regulations because

the same rules of interpretation apply equally to the

statute. Additionally, Kisor and other binding precedent directs courts to use all traditional canons of interpretation. The pro-veteran canon of interpretation

announced in Brown v. Garner must inform the court’s

interpretation of the statute because it is a traditional

tool of statutory interpretation.

Because the Federal Circuit has exclusive jurisdiction to decide issues of interpretation of VA regulations, there is no circuit conflict on this question of

regulatory interpretation possible, and the decision below will have immediate nationwide effect on one of

the country’s largest and most important public-benefits programs. This Court’s review is warranted to determine the Secretary’s regulation is invalid in light of

its unquestionable conflict with the relevant statutes

under Title 38 and to end the unlawful denial of VA

benefits to veterans and their survivors legally entitled

to VA benefits.

---------------------------------♦---------------------------------

OPINIONS AND ORDERS BELOW

The opinion of the Court of Appeals is reported

at 972 F.3d 1333, Pet. App. 1-8, and the denial of rehearing and rehearing en banc is reproduced at Pet.

App. 1-20. The opinion of the United States Court

4

of Appeals for Veterans Claims is unreported but is

available at 2019 WL 4739435, Pet. App. 21-24. The

opinion of the Board of Veterans’ Appeals is not officially reported but appears at 2018 WL 9730690. Pet.

App. 25-40.

---------------------------------♦---------------------------------

JURISDICTION

The Federal Circuit entered judgment on August

27, 2020, and denied a timely petition for rehearing

and rehearing en banc on October 9th, 2020. This Court

has jurisdiction under 28 U.S.C. § 1254(1) (2018).

---------------------------------♦---------------------------------

STATUTORY AND REGULATORY

PROVISIONS INVOLVED

This case involves 38 U.S.C. § 101(2): “The term

‘veteran’ means a person who served in the active military, naval, air, or space service, and who was discharged or released therefrom under conditions other

than dishonorable.” This case also involves relevant

portions of 38 U.S.C. § 5303 reproduced at Pet. App. 5354. Relevant portions of 38 C.F.R. §§ 3.12(a), 3.12(c)

and 3.12(d) are reproduced at Pet. App. 61-67.

---------------------------------♦---------------------------------

5

STATEMENT OF THE CASE

Mr. Garvey Performed Faithful Service In Germany; But Like Many Others, That All Changed

After Deploying To Vietnam.

Diana Garvey’s late husband, John P. Garvey,

served in the U.S. Army from February 1966 to May

1970. After training, Mr. Garvey was posted to Germany, where he served until November 1967. While in

Germany, Mr. Garvey was punished under Article 15 of

the Uniform Code of Military Justice for “disorderly

conduct” in an incident with a German taxi driver.

However, Mr. Garvey’s service record indicates that his

“conduct” and “efficiency” while in Germany were

“[e]xc[ellent].”

Beginning in December 1967, Mr. Garvey was

posted to Vietnam, where his record deteriorated significantly. In June 1968, Mr. Garvey was convicted by

special court-martial of possessing four pounds of cannabis with intent to sell. He was sentenced to 90 days

of confinement, ordered to forfeit a portion of his pay,

and reduced in rank. In November 1968, Mr. Garvey

was convicted by special court-martial of being absent

without leave (“AWOL”) from September 9, 1968, to October 1, 1968. In June 1969, he was convicted by special

court-martial of being AWOL from April 18, 1969, to

June 5, 1969. For each of these convictions he was

given a suspended sentence of confinement and ordered to forfeit a portion of his pay. In April 1970, Mr.

Garvey was convicted by special court-martial of being

AWOL from February 16, 1970, to April 1, 1970. For

6

this conviction, he was sentenced to five months of confinement and again forfeited a portion of his pay.

Because of these events of misconduct, Mr. Garvey

was discharged as unfit for service on May 13, 1970,

with an “Undesirable Discharge.” He waived consideration of his case before a board of officers and acknowledged that he “may be ineligible for many or all

benefits as a veteran under both Federal and State

laws.” On June 23, 1977, under the Special Discharge

Review Program, a procedure by which Vietnam-era

servicemembers could have their discharge status

upgraded if they met certain criteria, Mr. Garvey’s

discharge status was upgraded to “Under Honorable

Conditions (General).” However, on August 1, 1978, a

Discharge Review Board found that Mr. Garvey would

not have been entitled to an upgrade under generally

applicable standards. The apparent effect of this finding was to prevent Mr. Garvey from receiving benefits

on the basis of his upgraded status. See 38 U.S.C.

§ 5303(e); 38 C.F.R. § 3.12(h).

Mr. Garvey Dies, And Mrs. Garvey’s Claim For

Survivor Benefits Is Denied Because The Secretary Determined That Mr. Garvey’s Discharge

Was Due To “Willful And Persistent Misconduct.”

A surviving spouse is entitled to benefits, in her

own right, in two instances. First, where the death of

the veteran is related to service, she is entitled to Dependency and Indemnity Compensation payments.

7

See 38 U.S.C. § 1310. Secondly, a surviving spouse is

entitled to a pension benefit when a veteran who

served during a period of war has died for any reason.

This payment is predicated on minimum service requirements on the part of the veteran, and the surviving spouse having income below limits imposed by

Congress. See 38 U.S.C. § 1541.

Diana Garvey married Mr. Garvey on November

10, 1979. Mr. Garvey died on August 13, 2010. On September 4, 2012, Mrs. Garvey applied for dependency

and indemnity compensation and death pension benefits on the basis of Mr. Garvey’s service.

On August 28, 2018, the Board of Veterans’ Appeals (“Board”) denied Mrs. Garvey’s claim. The Board

concluded that Mr. Garvey was ineligible for benefits

because he was discharged for “willful and persistent

misconduct,” which under 38 C.F.R. § 3.12(d)(4) precludes a finding of veteran status.

The Veterans Court Affirms, Ruling 38 C.F.R.

§ 3.12(d) Was Consistent With 38 U.S.C. § 5303.

On September 30, 2019, the United States Court

of Appeals for Veterans Claims (“Veterans Court”) affirmed the Board’s decision, rejecting Mrs. Garvey’s

contention that the “willful and persistent misconduct”

bar, section 3.12(d)(4), is contrary to 38 U.S.C. § 5303.

The Veterans Court concluded it was bound by the Federal Circuit’s holding in Camarena v. Brown, 60 F.3d

843 (Fed. Cir. 1995) which affirmed the Veterans

Court’s prior ruling.

8

The Federal Circuit Affirms Because It Determines That The Term “Under Conditions Other

Than Dishonorable” Is Ambiguous; Therefore,

The Secretary Is Authorized To Define A Discharge For “Willful And Persistent Misconduct”

As A Discharge Under “Dishonorable Conditions.”

Mrs. Garvey appealed to the Federal Circuit,

which affirmed the decision of the Veterans Court.

However, whereas the Veteran’s Court upheld the regulation because it was consistent with § 5303, the

Federal Circuit determined that § 3.12(d)(4) was a

reasonable interpretation of § 101(2). The Federal Circuit announced, without any analysis, that the term

“conditions other than dishonorable” in § 101(2) is ambiguous; therefore, the Secretary is authorized to interpret it. Pet. App. 10.

Having found the statute ambiguous, the Federal

Circuit turned to a thorough review of the Congressional record. Ultimately, the Federal Circuit, citing

Chevron, U.S.A., Inc. v. Nat. Res. Def. Council Inc., 467

U.S. 837 (1984), determined “[w]hether the statute is

interpreted to expressly delegate to the VA the interpretation of ‘conditions other than dishonorable,’ or instead the delegation is implicit, we conclude that the

VA has authority to define the term consistent with the

Congressional Purpose.” Pet. App. 16.

---------------------------------♦---------------------------------

9

REASONS FOR GRANTING THE PETITION

I.

The Decision Of The Federal Circuit Upholding The Validity Of 38 C.F.R. § 3.12(d)(4)

Was Contrary To The Text Of Both 38 U.S.C.

§ 101(2) And 38 U.S.C. § 5303(a).

Congress defined the term “veteran” to mean “a

person who served in the active military, naval, or air

service, and who was discharged or released therefrom

under conditions other than dishonorable.” See 38

U.S.C. § 101(2). Under the plain reading of 101(2), Congress meant to bestow upon all discharged service

members, the status of “veteran” except those who received a dishonorable discharge. Therefore, the Federal

Circuit was wrong, first by finding ambiguity in this

term, and second by finding the Secretary has the authority to restrict the class of persons to which Congress chose to give veteran status.

There is no dispute that Mr. Garvey served on active duty in the U.S. Army from February 1966 to May

1970. There is no dispute that Mr. Garvey on May 13,

1970, received a discharge characterized by the Army

as an “Undesirable Discharge.” It is equally indisputable that although an “Undesirable Discharge” is a discharge under conditions other than dishonorable, it is

not a dishonorable discharge. Therefore, Mr. Garvey,

who did not receive a dishonorable discharge, as a matter of law met the definition of under § 101(2) of a veteran and as such was entitled to receipt of VA benefits.

The only statutory basis which bars former servicemembers who meet the definition of veteran from

10

receipt of VA benefits is 38 U.S.C. § 5303(a). None of

the statutory bars involve “willful and persistent misconduct.” The conduct proscribed by Congress is specific and limited. There is no “gap” for the Secretary to

have filled in the acts set out in § 5303(a).

In light of the pro-veteran canon of construction of

statutes and regulations pertaining to veterans and

their families, under which “provisions for benefits to

members of the Armed Services are to be construed in

the beneficiaries’ favor,” Henderson ex rel. Henderson

v. Shinseki, 562 U.S. 428, 441 (2011) (quoting King v.

St. Vincent’s Hosp., 502 U.S. 215, 220 n.9 (1991)), the

Federal Circuit’s upholding of 38 C.F.R. § 3.12(d) violated the pro-veteran canon of construction because

that regulation is anti-veteran as defined by Congress

in § 101(2) and was without basis in any valid source

of law.

A. Under The Relevant Statutes, A Veteran Is Eligible To Receive VA Benefits

So Long As Their Discharge Was Not

Dishonorable And They Did Not Commit One Of The Specified Acts Set Out

In 38 U.S.C. § 5303(a).

There are only two valid sources of law which bar

a former servicemember from receiving VA benefits.

The first source, and the one at issue here, is Congress’

definition of a “veteran” found in 38 U.S.C. § 101(2). In

accordance with the plain meaning of § 101(2), a veteran is “a person who served in the active military,

11

naval, or air service, and who was discharged or released therefrom under conditions other than dishonorable.” Under this definition, only service members

who received a dishonorable discharge do not meet the

definition of veteran provided by Congress. All other

persons who were discharged from active duty service

“under conditions other than dishonorable,” must be

understood to be eligible, meaning not barred by law,

to receive VA benefits. This interpretation of the term

“veteran” is consistent with the pro-veteran system envisioned by Congress.

Congress recognized that in certain circumstances

former servicemembers could escape a dishonorable

discharge, and therefore, still be entitled to VA benefits. Therefore, Congress delineated, in § 5303, actions,

which if result in a discharge, would also bar a veteran

from receiving VA benefits. Thus, the only former servicemembers who are barred from receiving VA benefits are those who cannot receive veteran status

because they were “dishonorably discharged” from active duty; or they are veterans, but received a discharge as a result of one of the acts described in 38

U.S.C. § 5303(a).

1. Only Congress Can Specify The Acts

Which Bar A Former Servicemember From Receiving VA Benefits.

In 38 U.S.C. § 5303(a), Congress identified the only

acts upon which a veteran’s discharge or dismissal was

12

based which will constitute a lawful basis for the Secretary to deny a veteran or a veteran’s survivor VA

benefits. None of the acts described in § 5303(a) included acts of “willful and persistent misconduct.” The

acts relied upon by the Secretary as “willful and persistent misconduct” were not acts set out in § 5303(a).

More importantly, the acts committed by Mr. Garvey

did not result in a dishonorable discharge. The adverse

and unlawful effect of § 3.12(d) is that it allows the

Secretary to consider acts which did not result in a dishonorable discharge to be determined by the Secretary

to “have been under dishonorable conditions.” Under

§ 5303(a), if the acts described were the basis for discharge, those acts were a bar to VA benefits. Mr. Garvey’s discharge was not based on any act set out in

§ 5303(a). Since Congress did not specify the acts committed by Mr. Garvey, those acts cannot, as a matter of

law, be the basis for a bar to VA benefits.

2. The Limitation In § 5303(a) Controls

What Constitutes A Bar To Benefits

And The Secretary Cannot In Regulation Lawfully Expand Those Bars.

Expanding the acts which constitute a bar to VA

benefits cannot be squared with Congress’s intentionally “paternalistic veterans’ benefits system.” Jaquay

v. Principi, 304 F.3d 1276, 1280 (Fed. Cir. 2002).

In § 3.12(d), generally, and § 3.12(d)(4) specifically,

the Secretary has unlawfully expanded those acts

which constitute a bar to VA benefits. Indeed, the nonadversarial process as designed by Congress makes VA

13

the advocate for veterans and not their adversary. The

Secretary’s promulgation of § 3.12(d)(4) unlawfully

places the Secretary in the position to second guess the

service department regarding the character of discharge.

Based on the statutory definition of a veteran in

§ 101(2) as “a person who served in the active military,

naval, or air service, and who was discharged or released therefrom under conditions other than dishonorable,” § 3.12(d)(4) allows the Secretary to reexamine

the decision of the service department on the character

of the veteran’s discharge. In so doing, the Secretary

becomes the veteran’s de facto prosecutor seeking out

“willful and persistent misconduct” which when found

disqualifies the veteran’s eligibility to receive VA benefits.

Such action by the Secretary is inconsistent with

the VA’s duty to assist and the Secretary’s statement of

policy found in 38 C.F.R. § 3.103(a) (“it is the obligation

of VA to assist a claimant in developing the facts pertinent to the claim and to render a decision which grants

every benefit that can be supported in law”). The Secretary’s adversarial role under § 3.12(d) generally, and

§ 3.12(d)(4) specifically, is the antithesis of his duty to

assist and his obligation to develop facts to award benefits.

B. The Federal Circuit’s Interpretation Is

Without Basis In Law.

Although it was ostensibly interpreting § 101(2)

and § 5303(a), the Federal Circuit committed a

14

fundamental error: it failed to start with the text. Bostock v. Clayton Cnty., 140 S.Ct. 1731, 1737 (2020); Food

Mktg. Inst. v. Argus Leader Media, 139 S.Ct. 2356,

2364 (2019) (“In statutory interpretation disputes, a

court’s proper starting point lies in a careful examination of the ordinary meaning and structure of the law

itself.”) (citation omitted); Milner v. Dep’t of the Navy,

562 U.S. 562, 569-72 (2011). In fact, the Federal Circuit

made no examination of the text of either statute and

instead merely made an unsubstantiated conclusion

that § 3.12(d) was not contrary to either statute.

By declining to start with the text of § 101(2) and

§ 5303(a) and instead grounding its reasoning in legislative comments, the Federal Circuit employed the

kind of faulty, atextual reasoning that this Court has

described as “a relic from a ‘bygone era of statutory

construction.’ ” Food Mktg., 139 S.Ct. at 2364. The Federal Circuit was attempting to craft a policy solution

based on an attempt to discern congressional intent,

but “[w]hen the express terms of a statute give us one

answer and extratextual considerations suggest another, it’s no contest.” Bostock, 140 S.Ct. at 1737.

1. Neither § 101(2) Nor § 5303(a) Supports Or Contemplates The Secretary’s Role In Determining What

The Character Of The Veteran’s Discharge Should Have Been.

It is evident that the Secretary’s regulation allows

him to revisit the character of the veteran’s discharge.

15

This is problematic in light of the plain language of

both relevant statutes. The statutory definition of the

term “veteran” found in § 101(2) does not support the

Secretary making an independent examination of the

veteran’s behavior while on active duty to determine

whether the discharge should have been considered to

have been under dishonorable conditions. To the contrary, the text of § 101(2) is unambiguous, if the veteran’s discharge was “under conditions other than

dishonorable,” then the servicemember is a veteran.

As opposed to interpreting the law, the Federal

Circuit made a ruling of what they thought the statute

might or should mean. The Court’s job is to interpret

the law as it is written, using the plain language of

that statute. If Congress wants another interpretation,

they will tell us. See Pub. L. No. 105-111, 111 Stat.

2271 (Nov. 21, 1997) (codifying § 3.105(a) in 38 U.S.C.

§ 5109A and superseding the ruling in Smith v. Brown,

35 F.3d 1516, 1526 (Fed. Cir. 1994); Pub. L. No. 104-204,

§ 422(a), 110 Stat. 2874, 2926-27 (1996) (abrogating,

in part, Brown v. Gardner, 513 U.S. 115 (1994)); and

Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (superseding the ruling in Caluza v. Brown, 7 Vet. App.

498 (1995), aff ’d, 78 F.3d 604 (Fed. Cir. 1996) that the

duty to assist did not apply until a claim was well

grounded.

The panel magnified its textual errors when it concluded that Congress had chosen not to use a “Dishonorable discharge” bar to minimize the significance of

Congress using the phrase “conditions other than dishonorable.” The panel erroneously determined that

16

unlike a Dishonorable discharge, the phrase “conditions other than dishonorable” is not a term of art in

the military. Mistakenly concluding that there was ambiguity in the phrase, the Federal Circuit incorrectly

turned to the statute’s legislative history to determine

its meaning. No consideration at all was given to Congress’s intent in not using the military term of art,

Dishonorable discharge, was to rely on the ordinary

meaning of the phrase “conditions other than dishonorable.”

The goal of an interpretive endeavor is to identify

and implement Congress’s purpose in enacting a given

statute. See Am. Tobacco Co. v. Patterson, 456 U.S. 63,

68 (1982) (“[W]e assume ‘that the legislative purpose is

expressed by the ordinary meaning of the words

used.’ ” (quoting Richards v. United States, 369 U.S. 1,

9 (1962))). Here, the Federal Circuit did not assume the

evident legislative purpose was being expressed by its

use of the ordinary meaning of the words of the phrase

“conditions other than dishonorable.”

Veteran status is determined based on the character of the military discharge. This regulation permits

the Secretary to determine whether a veteran’s discharge “was issued because of willful and persistent

misconduct.” Nothing in the language Congress used

in § 102(2) is even remotely consistent with authorizing the Secretary to determine whether a veteran’s discharge “was issued because of willful and persistent

misconduct.” Additionally, this regulation allows the

Secretary to make an independent determination as to

whether a former service member’s discharge should

be considered “to have been issued under dishonorable

17

conditions.” As with the other directive of § 3.12(d)(4)

there is no support for this in the statute.

Regulatory language must be constrained by legal

rights set out in statute. United States v. Gimbel, 830

F.2d 621, 626 (7th Cir. 1987); accord United States v.

Reinis, 794 F.2d 506, 508 (9th Cir. 1986). In the tax context, for example, the government has successfully persuaded the courts that the language of a government

form is not a legitimate source of law—except where

the form itself has been promulgated as a regulation—

and must give way to statutory and regulatory text.

Reinis, 794 F.2d at 508; see also United States v. Murphy, 809 F.2d 1427, 1430-31 & n.4 (9th Cir. 1987). The

language used by the Secretary in his regulations must

be consistent with the language and purpose set by

Congress.

Here, the purpose of Congress was to give veteran

statute to all discharged individuals, except those who

received a dishonorable discharge. Nothing in the

plain language of § 101(2) gives the Secretary any authority to remove, from the rolls of veteran status, the

class of individuals Congress intended to provide benefits.

18

II.

In The Alternative, When Evaluating The

Meaning Of A Statute:

Against What Threshold Must A Federal

Court Evaluate Whether A Statute’s Text

And Structure, The Traditional Canons Of

Construction, And The Statute’s Legislative

History Permit More Than One Reasonable

Interpretation Of Congress’ Intent?

What Role Does Brown v. Gardner And Kisor

v. Wilkie Play In The Court’s Framework

Used To Interpret A Statute?

A. The Federal Circuit Simply Announced

The Statute Is Ambiguous To Reach A

Desired Result.

In its decision, the Federal Circuit stated “the

phrase ‘conditions other than dishonorable’ is not a

term of art in the military. In view of the ambiguity of

that phrase, we turn to the statute’s legislative history.” Pet. App. 10. However, the law demands more. As

articulated above, at a minimum, before reaching the

legislative history, the court must “[f ]irst, always, [determine] whether Congress has directly spoken to the

precise question at issue.” See Chevron, supra, 467 U.S.

at 842.

“A fundamental canon of statutory construction is

that, unless otherwise defined, words will be interpreted as taking their ordinary, contemporary, common

meaning.” Perrin v. U.S., 444 U.S. 37, 42 (1977); citing

Burns v. Alcala, 420 U.S. 575, 580-581 (1975). “If the

statute is clear and unambiguous ‘that is the end of the

matter, for the court, as well as the agency, must give

19

effect to the unambiguously expressed intent of Congress.’ . . . The traditional deference courts pay to

agency interpretation is not to be applied to alter the

clearly expressed intent of Congress.” See Board of

Governors, FRS v. Dimension Financial Corp., 474 U.S.

361, 368 (1986), quoting Chevron, 467 U.S. at 842-843.

Kisor v. Wilkie instructs that an agency’s interpretation must be reasonable or, in other words, “come

within the zone of ambiguity the court has identified

after employing all its interpretive tools.” 139 S.Ct.

2400, 2416 (2019). Kisor does not answer, however,

what framework a court must employ when determining how broadly to draw the zone of ambiguity.

If a court is to call balls and strikes, it must know

whether the strike zone reaches from the chest to the

knees or over some other span. The U.S. Court of Appeals for the Sixth Circuit has correlated the zone of

ambiguity to “the range of meanings that a reasonable

person would understand [the language at issue] to

have.” United States v. Riccardi, 989 F.3d 476, 486

(2021). At least two circuits have suggested, seemingly

more broadly, that the zone of ambiguity embraces all

interpretations that no particular “Step One” consideration, such as a particular traditional canon of construction, rules out. See Nat’l Lifeline Ass’n v. FCC, 983

F.3d 498, 512-513 (D.C. Cir. 2020); Wolfington v. Reconstructive Orthopaedic Assocs. II PC, 935 F.3d 187, 205

(3d Cir. 2019).

20

Here, the Federal Circuit never attempted to determine the “ordinary, contemporary, common meaning” of the statute. Likewise, the Federal Circuit did

not employ the most important traditional tool of statutory construction in veteran’s benefits cases—the proveteran canon. This analysis, is vitally important to

understand what the statute means and Congress’ intent. This Court has held over and over that in every

case Congress meant to “place a thumb on the scale in

the veteran’s favor in the course of administrative

and judicial review of VA decisions.” See Henderson v.

Shinseki, 562 U.S. 428, 44 (2011) (quotation omitted).

See also Fishgold v. Sullivan Drydock & Repair Corp.,

328 U.S. 275, 285 (1946) (citing Boone v. Lightner, 319

U.S. 561, 575 (1943)) (“legislation is to be liberally construed for the benefit of those who left private life to

serve their country in its hour of great need”); Regan v.

Taxation with Representation, 461 U.S. 540, 550-551

(1983) (“our country has a long standing policy of compensating veterans for their past contributions by

providing them with numerous advantages.”); and

Brown, supra (interpretative ambiguities in veterans’

benefit programs are resolved in favor of the beneficiaries).

Therefore, the Court should grant certiorari to

clarify the standard employed by the courts when interpreting a statute, generally, but also the role the traditional pro-veteran canon has in this process. The

Circuits are split on precisely what canons apply or

even if all the canons apply.

21

III. The Question Presented Is Recurring And

Important.

The Federal Circuit’s atextual and anti-veteran

decision potentially affects tens of millions of American veterans, their dependents, and their survivors.

Only this Court can rectify the Federal Circuit’s error.

Furthermore, since Chevron, the circuits are split as to

which canons do or do not apply when interpreting a

statute.

A. The Federal Circuit’s Exclusive Jurisdiction Over Decisions Of The Veterans

Court Favors This Court’s Prompt Intervention.

The Federal Circuit has exclusive jurisdiction to

review decisions of the Veterans Court. 38 U.S.C.

§ 7292(c) (2018). Thus, no circuit conflict can arise regarding the scope of a claim under Title 38. But where,

as here, the Federal Circuit deviates from a statute

and pro-veteran principles, this Court has routinely intervened and corrected the Federal Circuit’s misinterpretation. See S. Ct. R. 10(c); Kisor, 139 S.Ct. at 2424

(remanding to the Federal Circuit to “seriously think

through” its decision that VA regulation was ambiguous); Kingdomware Techs., Inc. v. United States, 136

S.Ct. 1969 (2016) (VA must apply pro-veteran contracting rules to every award where statute says

“shall”); Henderson, 562 U.S. at 441 (120-day deadline

for appealing from Board not jurisdictional “[p]articularly in light of [the pro-veteran] canon”); Scarborough v. Principi, 541 U.S. 401 (2004) (veteran’s

22

EAJA application timely where curative amendment

was filed outside filing period); Brown, 513 U.S. 115

(overturning as inconsistent with controlling statute

VA regulation requiring veterans seeking certain benefits to prove disability resulted from negligent VA

treatment). The Federal Circuit’s atextual and antiveteran interpretation of a benefit claim’s scope likewise warrants this Court’s review and correction.

B. The Federal Circuit’s Error Affects Significant Numbers Of Former Service

Members.

Left unchecked by this Court, the Federal Circuit’s

error could affect the more than 500,000 living former

servicemembers who have been less-than-honorably

discharged. Many of these individuals deployed to

combat, experienced hardships, suffered trauma, and

risked their lives. Many have physical and mental

wounds that persist to this day or as in this case prevent surviving spouses from receiving benefits.

VA relies on its own regulatory bars five times

more often than Congress’s statutory bars. Legal Services Center of Harvard Law School, Underserved:

How the VA Wrongfully Excludes Veterans with Bad

Paper at 11 (2016), https://uploads-ssl.webflow.com/

5ddda3d7ad8b1151b5d16cff/5e67da6782e5f4e6b19760b0_

Underserved.pdf. And of the regulatory bars, the willful and persistent misconduct bar is, by far, the most

frequently used; “84% of eligibility denials by the

Board of Veterans’ Appeals between 1992 and 2015”

23

were based on willful and persistent misconduct. Id. at

23.

C. Section 3.12(d) Sanctions The Unlawful

Denial Of VA Benefits Contrary To An

Intent To Do So By Any Statute.

The Secretary’s regulation at 38 C.F.R. § 3.12(d)

and the Federal Circuit’s ruling have far-reaching consequences never intended by Congress. Among the

most significant is its corrosive effect of allowing the

Secretary to revisit the decisions of the service departments on how a former service member’s discharge will

be characterized. Service departments and not VA are

in the best position to determine whether conduct

while on active duty warrants the loss of VA benefits.

The service departments well understand the consequence of a dishonorable discharge. Congress did not

choose to use this fatal characterization when it defined the term “veteran” in § 101(2) or the acts which

would bar servicemembers from receiving VA benefits

in § 5303(a). There is no statutory authority for the

Secretary of the Department of Veterans Affairs to be

allowed to “consider” what conduct of a servicemember

should be a bar to VA benefits. The exclusive role of the

Secretary should be to assist veterans in obtaining

every benefit which can be supported under law. Congress never intended the role of the Secretary to be the

gatekeeper to decide which former servicemembers

conduct while on active duty should cause the qualifying discharge awarded by the service department to be

24

considered under dishonorable conditions thereby preventing eligibility from receiving VA benefits.

The existence of § 3.12(d) breaks faith with both

the mandate of Congress and the nation’s sacred promise to care for those who are injured in its defense. U.S.

Dep’t of Justice, Final Report of the Attorney General’s

Committee on Administrative Procedure 129 (1941)

(VA is “a benefactory agency” that must act with “considerable leniency”); see also Henderson, 562 U.S. at

440 (federal laws “place a thumb on the scale in the

veteran’s favor in the course of administrative and judicial review of VA decisions”) (quoting Shinseki v.

Sanders, 556 U.S. 396, 416 (2009) (Souter, J., dissenting)).

IV. This Case Is An Ideal Vehicle To Invalidate

The Provisions Of 38 C.F.R. § 3.12(d)(4).

The outcome of this case—and Mrs. Garvey’s entitlement to a decade’s worth of Dependency and Indemnity Compensation (DIC) and non service connected

death benefits—turns squarely on the question of the

validity of the provisions of 38 C.F.R. § 3.12(d)(4). Both

the Veterans Court and the Federal Circuit mistakenly

relied on the validity of this regulation. Thus, only that

legal issue is at stake, without any need to address

complicating factual considerations.

At the same time, the legal question here is certainly outcome-determinative. The facts are not in

dispute. Mr. Garvey was not dishonorably discharged.

Mr. Garvey had an Undesirable Discharge. He was a

25

“veteran” as defined by § 101(2). Finally, he committed

none of the acts set out in § 5303(a). As such, there is

no basis the ultra vires action of the Secretary to recharacterize the character of Mr. Garvey’s discharge in

order to consider is qualifying discharge as dishonorable. Section 3.12(d)(4) is invalid as a matter of law.

Mrs. Garvey’s case tragically starkly demonstrates the

inequities of the Secretary’s invalid rule as the result

of the Federal Circuit’s atextual and anti-veteran rule

interpretation if allowed to stand.

---------------------------------♦---------------------------------

CONCLUSION

The Court should grant the petition for a writ of

certiorari.

Respectfully submitted,

ROBERT C. BROWN, JR.

TOMMY KLEPPER

& ASSOCIATES

702 Wall Street, Suite 100

P.O. Box 721980

Norman, OK 73070

April 2021

KENNETH M. CARPENTER

Counsel of Record

KENNETH H. DOJAQUEZ

CARPENTER, CHARTERED

1525 SW Topeka Blvd.,

Suite D

Topeka, KS 66601

(785) 357-5251

kmcarpenter@

mindspring.com