Petition for Writ of Certiorari — Veteran Warriors, Inc., et al., Petitioners v. Denis R. McDonough, Secretary of Veterans Affairs

Supreme Court briefOct 14, 2022

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No. 22IN THE

Supreme Court of the United States

___________

VETERAN WARRIORS, INC., ANDREW D. SHEETS, KRISTIE

SHEETS,

Petitioners,

SECRETARY OF VETERAN 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

___________

BARTON F. STICHMAN

RENEE BURBANK

NATIONAL VETERANS

LEGAL SERVICES

1600 K Street, N.W.

Suite 500

Washington, D.C. 20005

(202) 621-5677

MICHAEL R. FRANZINGER*

RYAN C. MORRIS

MATTHEW B. MAHONEY

SIDLEY AUSTIN LLP

1501 K Street, N.W.

Washington, D.C. 20005

(202) 736-8583

mfranzinger@sidley.com

TIMOTHY Q. LI

SIDLEY AUSTIN LLP

787 Seventh Avenue

New York, NY 10019

(212) 839-5300

Counsel for Petitioners

October 14, 2022

*Counsel of Record

QUESTIONS PRESENTED

The central premise of deference to agency interpretations under Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984), is

that statutory ambiguity marks a delegation of authority from Congress. Because Congress legislates

against the backdrop of canons of statutory construction, courts must employ all applicable canons to determine whether Congress has in fact delegated interpretative authority to an agency. Id. at 843 n.9. Here,

the Federal Circuit concluded that provisions in the

Caregiver Act were ambiguous and therefore interpretations from the Department of Veterans Affairs were

entitled to deference without first applying the ProVeteran Canon.

The questions presented are:

1. Whether courts can defer to the construction of a

statute by the Department of Veterans Affairs without

first considering whether the statute permits a proveteran construction pursuant to the Pro-Veteran

Canon.

2. Whether Chevron should be clarified or replaced

to protect canons of construction, including the ProVeteran Canon, from becoming a nullity.

(i)

PARTIES TO THE PROCEEDING AND

RULE 29.6 STATEMENT

Petitioners Veteran Warriors, Inc., Andrew D.

Sheets and Kristie Sheets were the petitioners in the

U.S. Court of Appeals for the Federal Circuit.

The Secretary for Veterans Affairs, Denis

McDonough, was the respondent in the U.S. Court of

Appeals for the Federal Circuit. Mr. McDonough is

being sued in his official capacity only.

Pursuant to this Court’s Rule 29.6, Petitioner

Veteran Warriors, Inc. states as follows: Veteran

Warriors, Inc. is a non-profit organization with no

parent corporation.

iii

RELATED PROCEEDINGS

Veteran Warriors, Inc. v. Sec’y of Veterans Affs., 29

F.4th 1320 (Fed. Cir. 2022).

TABLE OF CONTENTS

Page

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

PARTIES TO THE PROCEEDING AND RULE

29.6 STATEMENT ...........................................

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

iii

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

vii

PETITION FOR A WRIT OF CERTIORARI ......

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

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

STATUTORY AND REGULATORY PROVISIONS INVOLVED ..........................................

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

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

I. LEGAL BACKGROUND..............................

A. The Pro-Veteran Canon ...........................

B. Chevron Deference ...................................

II. BACKGROUND OF THE CASE .................

A. The Caregiver Act and VA Mission Act ..

B. Proceedings Below ...................................

REASONS FOR GRANTING THE PETITION ..

CERTIORARI IS NEEDED BECAUSE

THE DECISION BELOW IS INCONSISTENT WITH THIS COURT’S PRECEDENTS AND SOWS FURTHER CONFUSION.....................................................

A. The Federal Circuit’s Decision Conflicts

with Chevron’s Requirement to Apply All

the Tools of Construction .........................

B. The Pro-Veteran Canon Is a Traditional

Tool of Construction That Must Be Applied Under Chevron Step One ................

C. The Federal Circuit’s Reasoning Is Unavailing .......................................................

II. CERTIORARI IS WARRANTED TO PROTECT THE PRO-VETERAN CANON

FROM BECOMING A NULLITY ................

A. The Pro-Veteran Canon Is a Tie-Breaker

That Must Be Considered Before Deferring to the Agency Under Chevron ..........

B. The Importance of Veterans’ Benefits

Warrants Both a Grant of Certiorari and

a Skepticism Toward Agency Deference

Here ..........................................................

III. CERTIORARI IS PARTICULARLY WARRANTED

HERE

ADDRESS

WHETHER CHEVRON MUST BE CLARIFIED OR REPLACED TO PROTECT

OTHER CANONS FROM BECOMING A

NULLITY......................................................

CONCLUSION ....................................................

APPENDICES

APPENDIX A: Veteran’s Warriors, Inc. v. Sec’y

Of Veterans Affs., 29 F.4th 1320 (Fed. Cir.

2022) ..................................................................

APPENDIX B: Veteran’s Warriors, Inc. v. Sec’y

Of Veterans Affs., (Fed. Cir. Mar. 25, 2022)

(judgment) ......................................................... 59a

APPENDIX C: Veteran’s Warriors, Inc. v. Sec’y

Of Veterans Affs., (Fed. Cir. June 17, 2022)

(denying rehearing en banc) ............................ 60a

APPENDIX D: 38 U.S.C. § 1720G ......................

62a

vii

CASES

TABLE OF AUTHORITIES

Page

Am. Hosp. Ass’n v. Becerra, 142 S. Ct. 1896

(2022) .........................................................

Astoria Fed. Sav. & Loan Ass'n v. Solimino,

501 U.S. 104 (1991) ...................................

Barnhart v. Sigmon Coal Co., 534 U.S. 438

(2002) ......................................................... 7, 18

Boone v. Lightner, 319 U.S. 561 (1943) ....... 2, 4

Brown v. Gardner, 513 U.S. 115

(1994) .............................................. 5, 19, 23, 24

Buffington v. McDonough, 7 F.4th 1361

(Fed. Cir. 2021) .........................................

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

Council, Inc., 467 U.S. 837 (1984) ......... passim

Coffy v. Republic Steel Corp., 447 U.S. 191

(1980) .........................................................

Cnty. of Oneida v. Oneida Indian Nation,

470 U.S. 226 (1985) ...................................

DeBeaord v. Principi, 18 Vet. App. 357

(2004) .........................................................

Dixson v. United States, 465 U.S. 482

(1984) .........................................................

Epic Sys. Corp. v. Lewis, 138 S. Ct. 1612

(2018) .........................................................

Fishgold v. Sullivan Drydock & Repair

Corp., 328 U.S. 275 (1946) ....................... 2, 4, 19

Halliburton Energy Servs., Inc. v. M-I LLC,

514 F.3d 1244 (Fed. Cir. 2008) .................

Heino v. Shinseki, 683 F.3d 1372 (Fed. Cir.

2012) ..........................................................

Henderson ex rel. Henderson v. Shinseki,

562 U.S. 428 (2011) ................................ passim

King v. Burwell, 576 U.S. 473 (2015) .......... 26, 28

viii

TABLE OF AUTHORITIES – continued

Page

King v. St. Vincent’s Hosp., 502 U.S. 215

(1991) ..................................................... 5, 19, 20

Kisor v. McDonough, 995 F.3d 1316 (Fed.

Cir. 2020), cert. denied, 142 S. Ct. 756

(2022) .........................................................

Kisor v. McDonough, 995 F.3d 1347 (Fed.

Cir. 2021) ................................................ passim

Kisor v. Shulkin, 880 F.3d 1378 (Fed. Cir.

2018) .......................................................... 8, 9

Kisor v. Wilkie, 139 S. Ct. 2400 (2019) ..... passim

Michigan v. EPA, 576 U.S. 743 (2015) ........

Montana v. Blackfeet Tribe of Indians, 471

U.S. 759 (1985) ..........................................

Pacheco v. Gibson, 27 Vet. App. 21 (2014) ..

Pereira v. Sessions, 138 S. Ct. 2105 (2018) .

Procopio v. Wilkie, 913 F.3d 1371 (Fed. Cir.

2019) .......................................................... 9, 28

SAS Inst. Inc. v. Iancu, 138 S. Ct. 1348

(2018) ......................................................... 7, 17

Shinseki v. Sanders, 556 U.S. 396 (2009) ... 5, 20

SmithKline Beecham Corp. v. Apotex Corp.,

439 F.3d 1312 (Fed. Cir. 2006) .................

United States v. Home Concrete & Supply,

LLC, 566 U.S. 478 (2012)..........................

United States v. Oregon, 366 U.S. 643

(1961) .........................................................

West Virginia v. EPA, 142 S. Ct. 2587

(2022) ......................................................... 26, 27

Wilson v. Omaha Indian Tribe, 442 U.S. 653

(1979) .........................................................

STATUTES AND REGULATIONS

28 U.S.C. § 1254 ...........................................

38 U.S.C. § 502 .............................................

TABLE OF AUTHORITIES – continued

Page

38 U.S.C. § 511(a) .........................................

38 U.S.C. § 1720G ........................................

38 U.S.C. § 1720G(a)(2) ................................ 10, 12

38 U.S.C. § 1720G(a)(2)(C) ........................... 10, 12

38 U.S.C. § 1720G(a) ....................................

38 U.S.C. § 1720G(b) ....................................

38 U.S.C. § 1720G(d) ....................................

38 U.S.C. § 7292 ...........................................

124 Stat. 1130 (2010) ...................................

132 Stat. 1393 (2018) ...................................

38 C.F.R. § 71.10 .......................................... 13, 14

38 C.F.R. § 71.15 .......................................... 12, 14

38 C.F.R. § 71.40(c)(4) ..................................

85 Fed. Reg. 46,226 (July 31, 2020) ............ 11, 14

LEGISLATIVE MATERIALS

U.S. Gov’t Accountability Off., GAO 14-675,

Report to Congressional Requesters, VA

Health Care: Actions Needed to Address

Higher-Than-Expected Demand for the

Family Caregiver Program (Sept. 2014),

https://www.gao.gov/assets/gao-14675.pdf .......................................................

U.S. Gov’t Accountability Off., GAO-21-348,

VA Disability Benefits: Veterans Benefits

Administration Could Enhance Management of Claims Processor Training (June

2021), https://www.gao. gov/assets/gao21-348.pdf ..................................................

TABLE OF AUTHORITIES – continued

SCHOLARLY AUTHORITY

Page

Chadwick J. Harper, Give Veterans the

Benefit of the Doubt: Chevron, Auer, and

the Veteran’s Canon, 42 Harv. J.L. & Pub.

Pol’y 931 (2019) ..................................... 4, 25, 29

Justice Scalia Headlines the Twelfth CAVC

Judicial Conference, Veterans L.J. 1, 1

(2013) .....................................................

PETITION FOR A WRIT OF CERTIORARI

Petitioners Veteran Warriors, Inc., Andrew Sheets,

and Kristie Sheets (collectively, “Veteran Warriors”)

respectfully petition for a writ of certiorari to review

the judgment of the U.S. Court of Appeals for the Federal Circuit in this case.

OPINIONS AND ORDERS BELOW

The Federal Circuit’s opinion is reported at 29 F.4th

1320 and is reproduced at Pet. App. 1a-58a.

JURISDICTION

The Federal Circuit entered judgment on March 25,

2022 (Pet. App. 59a) and denied Veteran Warriors’

timely petition for rehearing and rehearing en banc on

June 17, 2022 (Pet. App. 60a-61a). This Court has jurisdiction under 28 U.S.C. § 1254.

STATUTORY AND REGULATORY PROVISIONS

INVOLVED

The statutory provision involved is 38 U.S.C.

§ 1720G and is set out in the appendix to this petition.

Pet. App. 62a-77a. VA’s Final Rule is reported at 85

Fed. Reg. 46,226 (July 31, 2020).

INTRODUCTION

The Federal Circuit disregarded a cardinal principle

underlying Chevron and this Court’s related precedents by concluding that courts need not employ all

canons of construction before determining that a statutory provision is ambiguous and, accordingly, that

Congress has delegated interpretive authority to an

agency. In reviewing challenges to a rule adopted by

the Department of Veteran Affairs (“VA”), the court of

appeals deferred to the agency’s interpretations of the

statute at issue without first employing the Pro-Veteran Canon of construction. See, e.g., Pet. App. 10a11a. Indeed, the Federal Circuit declined to apply the

Pro-Veteran Canon at any point in its analysis, instead holding that VA was free to adopt a construction

against the veteran because the statute neither compelled nor excluded the pro-veteran construction. See,

e.g., id. The Federal Circuit’s holding conflicts with

this Court’s precedents on statutory construction,

agency deference, and veterans’ benefits.

In Chevron v. Natural Resources Defense Council,

Inc., the Court held that courts must apply all the traditional tools of construction before deciding whether

a statute is truly ambiguous. 467 U.S. 837, 843 n.9

(1984). “The judiciary is the final authority on issues

of statutory construction and must reject administrative constructions which are contrary to clear congressional intent.” Id. “If a court, employing traditional

tools of statutory construction, ascertains that Congress had an intention on the precise question at issue,

that intention is the law and must be given effect.” Id.;

see Kisor v. Wilkie, 139 S. Ct. 2400, 2415 (2019). This

is because Congress legislates against the backdrop of

canons of construction, and Chevron is premised on the

pursuit of congressional intent. Chevron, 467 U.S. at

842-43.

The Pro-Veteran Canon has been a well-established

tool of statutory construction for almost 80 years. See

Boone v. Lightner, 319 U.S. 561, 575 (1943); see also

Fishgold v. Sullivan Drydock & Repair Corp., 328 U.S.

275, 285 (1946). Yet, the court below refused to employ

the canon before reaching the conclusion that the statutory provisions at issue are ambiguous and the

agency’s interpretations are owed deference. The Fed-

eral Circuit’s decision conflicts with this Court’s instruction that a court must consider the Pro-Veteran

Canon, see Henderson ex rel. Henderson v. Shinseki,

562 U.S. 428, 440 (2011) (unanimous decision), before

it can properly decide that the “legal toolkit is empty,”

see Kisor, 139 S. Ct. at 2415. The Court should grant

certiorari to resolve this conflict and ensure that the

Federal Circuit, which has been entrusted with reviewing veterans’ benefits appeals, is adjudicating

these important matters in line with this Court’s

cases.

Certiorari is also warranted to resolve inconsistency

and disagreement within the Federal Circuit regarding the Pro-Veteran Canon’s use within the Chevron

framework. As judges within the Federal Circuit have

recognized, both the Pro-Veteran Canon and Chevron

prescribe rules to follow in the event of statutory ambiguity. Guidance from this Court is necessary regarding how these doctrines operate together, if at all. See

Kisor v. McDonough, 995 F.3d 1347, 1358 (Fed. Cir.

2021) (Prost, C.J., concurring in the denial of rehearing en banc). The questions and confusion arising from

the interplay of Chevron and the Pro-Veteran Canon

call out for this Court’s guidance and clarity.

The need for further direction from the Court on the

interplay between the Pro-Veteran Canon and Chevron deference cannot be overstated. The Veterans’ Judicial Review Act of 1988 makes the Federal Circuit

and the U.S. Court of Appeals for Veterans Claims (the

“Veterans Court”) the sole judicial arbiters of disputes

over the proper construction of statutes for veterans’

benefits. See 38 U.S.C. §§ 502, 511(a), 7292. No splits

among the regional Circuits are possible. Here the

split is between the judges of the Federal Circuit.

Thus, it is critical that the Federal Circuit acts consistently with Supreme Court precedent.

STATEMENT OF THE CASE

I. LEGAL BACKGROUND

A. The Pro-Veteran Canon

The Pro-Veteran Canon has been part of this Court’s

jurisprudence for almost 80 years. See Kisor, 995 F.3d

at 1366 (O’Malley, J., dissenting from denial of rehearing en banc) (collecting cases). In 1943, this Court instructed in Boone v. Lightner that “[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.”

319 U.S. at 575. This principle recognizes the sacrifices

that veterans have made for the United States, and

the country’s corresponding obligations to them. See

Chadwick J. Harper, Give Veterans the Benefit of the

Doubt: Chevron, Auer, and the Veteran’s Canon, 42

Harv. J.L. & Pub. Pol’y 931, 948 (2019).

A few years later, in Fishgold v. Sullivan Drydock &

Repair Corp., this Court reinforced that veterans statutes are “to be liberally construed for the benefit of

those who left private life to serve their country in its

hour of great need.” 328 U.S. at 285. This Court clarified that the Court’s “problem is to construe the separate provisions of the [Selective Service] Act as parts

of an organic whole and give each as liberal a construction for the benefit of the veteran as a harmonious interplay of the separate provisions permits.” Id.

In the nearly 80 years since Boone and Fishgold, this

Court has consistently applied the Pro-Veteran Canon

as a tool of statutory construction for the benefit of veterans. In 1961, this Court explained in United States

v. Oregon that “[t]he solicitude of Congress for veterans is of long standing.” 366 U.S. 643, 647 (1961). In

1980, this Court reinforced in Coffy v. Republic Steel

Corp. that “[t]he statute is to be liberally construed for

the benefit of the returning veteran.” 447 U.S. 191, 196

(1980).

In 1991, this Court held in King v. St. Vincent’s Hospital that it “would ultimately read the provision in

[the veteran’s] favor under the canon that provisions

for benefits to members of the Armed Services are to

be construed in the beneficiaries’ favor.” 502 U.S. 215,

220 n.9 (1991) (emphasis added). Not only did this

Court make clear that the Pro-Veteran Canon is a tool

of statutory construction, but it also clarified that it

“will presume congressional understanding of such interpretive principles,” and that “Congress legislates

with knowledge of our basic rules of statutory construction.” Id. (citing and quoting McNary v. Haitian

Refugee Ctr., Inc., 498 U.S. 479, 496 (1991)).

Shortly thereafter, the Court explained in Brown v.

Gardner that the Pro-Veteran Canon is “the rule that

interpretive doubt is to be resolved in the veteran’s favor.” 513 U.S. 115, 117-18 (1994). The Court further

questioned whether it was even “possible” for “the existence of an ambiguity to be resolved” against the veteran “after applying th[is] rule.” Id.

In 2009, this Court once again recognized in Shinsheki v. Sanders that “Congress has expressed special

solicitude for the veterans’ cause.” 556 U.S. 396, 412

(2009). “A veteran, after all, has performed an especially important service for the Nation, often at the

risk of his or her own life,” “[a]nd Congress has made

clear that the VA is not an ordinary agency.” Id. “Rather, the VA has a statutory duty to help the veteran

develop his or her benefits claim.” Id. In that regard,

“the adjudicatory process is not truly adversarial, and

the veteran is often unrepresented during the claims

proceedings.” Id.

In 2011, this Court stated in Henderson ex rel. Henderson v. Shinseki that “[t]he solicitude of Congress for

veterans is of long standing,” and this “solicitude is

plainly reflected in the VJRA, as well as in subsequent

laws that ‘place a thumb on the scale in the veteran’s

favor in the course of administrative and judicial review of VA decisions.’” 562 U.S. at 440. The Court

noted that while “[w]hile the terms and placement of

§ 7266 provide some indication of Congress’ intent,

what is most telling here are the singular characteristics of the review scheme that Congress created for the

adjudication of veterans’ benefits claims.” Id.

After setting out those singular characteristics, this

Court concluded: “We have long applied ‘the canon that

provisions for benefits to members of the Armed Services are to be construed in the beneficiaries’ favor,’”

and “[p]articularly in light of this canon, we do not find

any clear indication that the 120–day limit was intended to carry the harsh consequences that accompany the jurisdiction tag.” Id. at 411 (emphases

added).

B. Chevron Deference

Nearly forty years after Boone and Fishgold, the

Court in Chevron established a two-step process to determine the extent to which a court reviewing agency

action should give deference to the agency’s construction of a statute that the agency has been delegated to

administer. Chevron, 467 U.S. at 842. Under Chevron,

“[f]irst, always, is the question whether Congress has

directly spoken to the precise question at issue.” Id. If

yes, “that is the end of the matter; for the court, as well

as the agency, must give effect to the unambiguously

expressed intent of Congress.” Id. at 842-43. “The inquiry ceases if the statutory language is unambiguous

and the statutory scheme is coherent and consistent.”

Barnhart v. Sigmon Coal Co., 534 U.S. 438, 450 (2002)

(cleaned up).

Second, if “the statute is silent or ambiguous with

respect to the specific issue, the question for the court

is whether the agency’s answer is based on a permissible construction of the statute.” Chevron, 467 U.S. at

843; see also Michigan v. EPA, 576 U.S. 743, 751

(2015) (“Even under this deferential standard [Chevron Step Two], however, ‘agencies must operate within

the bounds of reasonable interpretation.’”); cf. Kisor,

139 S. Ct. at 2416 (for ambiguous regulations, an

agency answer must “come within the zone of ambiguity” and the “outer bounds of permissible interpretation” set by the “traditional tools” of construction).

Critically, at step one, courts must employ canons of

construction to determine whether statutory provisions are ambiguous or speak to the issue at hand.

“Even under Chevron, [the Court] owe[s] an agency’s

interpretation of the law no deference unless, after

‘employing traditional tools of statutory construction,’

[the Court] find[s] [itself] unable to discern Congress’s

meaning.” SAS Inst. Inc. v. Iancu, 138 S. Ct. 1348,

1358 (2018) (quoting Chevron, 467 U.S. at 843 n.9).

Recently, in the context of interpreting a regulation

on veterans’ benefits in Kisor v. Wilkie, the Court reiterated that a court must consider all the tools of construction before deciding that a statutory provision is

ambiguous. 139 S. Ct. at 2415. On remand from this

Court, however, the Federal Circuit declined to include

the Pro-Veteran Canon as one of those tools of construction, and the Federal Circuit instead proceeded

directly to finding that the text at issue was unambiguous. Kisor v. McDonough, 995 F.3d 1316, 1322, 132526 (Fed. Cir. 2021) (panel opinion on remand), cert. denied, 142 S. Ct. 756 (2022); Kisor v. McDonough, 995

F.3d at 1358 (Fed. Cir. 2021) (denying rehearing en

banc).

Four judges disagreed with that approach, explaining in dissent from rehearing en banc that the panel

erred by ignoring the Pro-Veteran Canon in deciding

whether the text is ambiguous. Kisor, 995 F.3d at

1363-76 (O’Malley, J., dissenting; Reyna, J., dissenting).

Five judges, however, concurred in the Federal Circuit’s denial of rehearing en banc. These judges joined

in pertinent part a concurring opinion by then-Chief

Judge Prost, who explained that Auer/Chevron deference and the Pro-Veteran Canon are in tension with

one another because (in Chief Judge Prost’s view) each

doctrine is triggered by ambiguity, and there is no

guidance regarding which doctrine operates first after

such ambiguity is found. Kisor, 995 F.3d at 1358

(Prost, C.J., concurring). Chief Judge Prost did not

propose how to ultimately resolve this question, but

she noted that “[f]urther guidance is necessary to reconcile these competing doctrines.” Id.

This confusion is not new, extending back to at least

2012, when the Federal Circuit observed that “[i]t is

not clear where the Brown canon fits within the Chevron doctrine.” Heino v. Shinseki, 683 F.3d 1372, 1379

n.8 (Fed. Cir. 2012). And in 2018, Judge O’Malley dissented from the denial of a petition for rehearing en

banc in Kisor v. Shulkin. 880 F.3d 1378 (Fed. Cir.

2018). While that case also focused on interpreting a

veterans’ benefits regulation, Judge O’Malley’s opinion underscored the tension between the Pro-Veteran

Canon and agency deference, noting that “where the

agency’s interpretation of an ambiguous regulation

and a more veteran-friendly interpretation are in conflict, it is unclear from our precedent which interpre-

tation should control.” Id. at 1380 (O’Malley, J., dissenting). Judge O’Malley reasoned that the Pro-Veteran Canon requires departing from Chevron deference due to the “special strength of this canon” that

stems from Boone. Id. at 1381. She further explained

that “the Supreme Court has long applied the pro-veteran canon of interpretation to the statutory scheme”

due to the uniquely pro-claimant nature of the veteran’s compensation system. Id. at 1382 (citing Henderson, 562 U.S. at 441).

Recognizing this conflict between the Pro-Veteran

Canon and agency deference, the Federal Circuit in

2019 requested en banc briefing on the role of the ProVeteran Canon in the context of the Agent Orange Act

of 1991 and VA’s implementation of that statute. Procopio v. Wilkie, 913 F.3d 1371, 1376 (Fed. Cir. 2019)

(en banc). However, the Federal Circuit ultimately determined under Chevron step one that Congress’s intent was clear in defining service in “the Republic of

Vietnam” to include “naval personnel who served in

the territorial sea,” without applying the Pro-Veteran

Canon or agency deference.1 Id.

1 The Federal Circuit’s failure to resolve definitively the conflict

between the Pro-Veteran Canon and Chevron has also impacted

the decisions of the Veterans Court, which is bound by Federal

Circuit precedent. See Pacheco v. Gibson, 27 Vet. App. 21, 29

(2014) (en banc) (per curiam) (deferring to VA under Auer); id.

at 42 (Davis, J., concurring in part and dissenting in part) (four

out of nine judges dissenting from the majority’s “fail[ure] to

resolve interpretive doubt in favor of the veteran, as we are

bound to do under Gardner.”). And previously, in 2004, the

Veterans Court invited “guidance from the Supreme Court” “to

resolve this matter definitively.” DeBeaord v. Principi, 18 Vet.

App. 357, 368 (2004).

II. BACKGROUND OF THE CASE

This case concerns the Caregiver Act, a veterans’

benefits statute for which VA issued implementing

regulations. Veterans Warriors challenged those regulations because they fell short of providing the measure of benefits that Congress intended.

A. The Caregiver Act and VA Mission Act

In 2010, Congress passed the “Caregivers and Veterans Omnibus Health Services Act” (“Caregiver Act”).

124 Stat. 1130 (2010). The Caregiver Act directed VA

to establish a “Program of comprehensive assistance

for family caregivers,” and a “Program of general caregiver support services,” and it provided “Definitions”

for the terms, “caregiver,” “family caregiver,” “family

member,” and “personal care services.” 38 U.S.C.

§ 1720G(a), (b), (d).

The Caregiver Act also provided an open-ended definition referring to a “serious injury” as “including

traumatic brain injury, psychological trauma, or other

mental disorder.” Id. § 1720G(a)(2). To qualify for benefits, the Caregiver Act generally provided two alternative statutory eligibility criteria: (1) an inability to

perform one or more activities of daily living; or (2) a

need for supervision or protection. Id.

In 2018, Congress expanded the Caregiver Act (in

the VA Mission Act) to include veterans who incurred

a serious injury prior to September 11, 2001. 132 Stat.

1393, 1441-42 (2018). Congress also generally expanded benefits eligibility by adding a third alternative statutory eligibility criterion: “a need for regular

or extensive instruction or supervision without which

the ability of the veteran to function in daily life would

be seriously impaired.” 38 U.S.C. § 1720G(a)(2)(C)(iii).

B. Proceedings Below

In July 2020, VA promulgated its Final Rule pursuant to the 2018 VA Mission Act (with an October 2020

effective date), but instead of expanding eligibility as

that statute directed, VA actually narrowed eligibility

for benefits, by restricting both the number of veterans

who qualify for benefits and the amount of benefits for

those veterans who do qualify. See 85 Fed. Reg. 46,226

(July 31, 2020) (“Final Rule”).

VA’s Final Rule narrowed eligibility for and reduced

the quantity of caregiver benefits by imposing seven

new requirements: (1) in-person personal care services; (2) a service connected disability rating with a

rating of 70% or higher; (3) receipt of personal care services each time a veteran completes a single activity of

daily life (i.e., 100% of the time); (4) a “functional impairment that directly impacts the individual’s ability

to maintain his or her personal safety on a daily basis”;

(5) residence in a State of the United States; (6) reducing the benefit amount by using a General Schedule

that corresponds to government employee salaries instead of rates comparable to a commercial home health

aide; and (7) reducing the benefit amount by requiring

an inability to self-sustain before a veteran can qualify

for full benefits. 85 Fed. Reg. at 46,293-95.

Veteran Warriors challenged these seven new requirements through a petition to the Federal Circuit.

The Federal Circuit partially ruled in favor of Veteran

Warriors, because VA’s Final Rule limited personal

caregiver benefits to only those veterans whose impairments threatened their ability to maintain their

personal safety on a daily basis, contrary to the unambiguous meaning of the statute. Pet. App. 40a-41a.

However, the Federal Circuit deferred to VA under

Chevron in rejecting Veteran Warriors’ six remaining

challenges to the Final Rule.

Veteran Warriors’ first challenge objected to VA’s Final Rule that veterans must require “in-person” personal care services to qualify for benefits. 38 C.F.R.

§ 71.15. The Caregiver Act provides that an eligible

veteran “is in need of personal care services because of–

(i) an inability to perform one or more activities of daily

living; (ii) a need for supervision or protection based on

symptoms or residuals of neurological or other impairment or injury; … or (iv) such other matters as [VA]

considers appropriate.” 38 U.S.C. § 1720G(a)(2)(C)

(emphasis added). Veteran Warriors contended that

because the statute speaks directly to “in need of personal care services,” VA has no authority to restrict the

statutory eligibility criteria for personal care services

to be in-person, and “that is the end of the matter.” See

Chevron, 467 U.S. at 842; see also Pereira v. Sessions,

138 S. Ct. 2105, 2114 (2018) (“The statutory text alone

is enough to resolve this case.”). Veteran Warriors also

explained that “[t]o the extent that VA could validly

claim that it is resolving a statutory ambiguity in favor

of an in person requirement, any such ambiguity

should be resolved in favor of the veteran based on the

veteran canon.” D.I. 33 at 43.

Veteran Warriors’ second challenge concerned VA’s

definition of “[s]erious injury.” 38 C.F.R. § 71.15. The

statute defines an eligible veteran as “any individual

who . . . has a serious injury (including traumatic brain

injury, psychological trauma, or other mental disorder) incurred or aggravated in the line of duty,” 38

U.S.C. § 1720G(a)(2) (emphasis added). VA’s Final

Rule, however, applied a new definition of serious injury: “[A]ny service-connected disability that: (1) Is

rated at 70 percent or more by VA; or (2) Is combined

with any other service-connected disability or disabilities, and a combined rating of 70 percent or more is

assigned by VA.” 38 C.F.R. § 71.15. Veteran Warriors

explained that the statutory text foreclosed VA’s definition because serious injury must include traumatic

brain injury, but “[t]o the extent that VA could validly

claim the existence of a statutory ambiguity that could

ordinarily be resolved in favor of a service-connected

disability requirement, that ambiguity should instead

be resolved in the veteran’s favor based on the veteran’s canon.” D.I. 33 at 46.

Veteran Warriors’ third challenge objected to VA’s

definition of “inability to perform one or more activities

of daily living.” 38 U.S.C. § 1720G(a)(2)(C)(i). VA’s Final Rule amended the definition of inability to perform

an activity of daily living to mean a veteran or service

member requires personal care services each time he

or she performs an activity of daily living. 38 C.F.R.

§ 71.15. Veteran Warriors argued that VA’s Final Rule

regarding an inability to perform activities of daily living each time (i.e., 100% of the time) does not comport

with the statute, which does not permit VA to deny

benefits because a veteran requires assistance only

99% or less of the time. Veteran Warriors also argued

that “[t]o the extent that VA could validly claim the

existence of a statutory ambiguity on the amount of

assistance required for each [activity of daily living],

that ambiguity should be resolved in the veteran’s favor under the veteran’s canon.” D.I. 33 at 48.

Veteran Warriors’ fifth challenge objected to VA’s Final Rule requiring residence in a State (38 C.F.R.

§ 71.10) because the statutory structure contemplates

that both the Caregiver Program and the Foreign Medical Program can provide veterans with access to same

kind of noninstitutional extended care services. Because the Caregiver Program and the Foreign Medical

Program can both provide the same kind of noninstitutional extended care services, VA’s suggestion that

the Caregiver Program could not be administered

through VA’s Foreign Medical Program (85 Fed. Reg.

46,227) defies common sense. Veteran Warriors also

argued that “[e]ven if there were any remaining statutory ambiguity, that ambiguity should be construed in

the veteran’s favor under the veteran’s canon.” D.I. 33

at 53.

Veteran Warriors’ sixth challenge concerned VA’s reduction of the benefit amount by using a General

Schedule that corresponds to government employee

salaries instead of rates comparable to a commercial

home health aide as the statute at issue requires. 38

C.F.R. § 71.10. Veteran Warriors also argued that

“[a]ny doubt should be construed in the veteran’s favor

under the veteran’s canon.” D.I. 33 at 54.

Veteran Warriors’ seventh challenge aimed to set

aside VA’s schedule for stipend payments. Prior to the

VA’s Final Rule, VA

reasonably calculated the

monthly stipend based on the amount and degree of

personal care services provided by the family caregiver, by using an average across seven activities of

daily living and reasonably permitting a lower rating

in a single activity of daily living to be offset by a

higher rating in another activity of daily living. Id. at

56. Veteran Warriors explained that VA’s Final Rule

radically departs from VA’s prior calculations and uses

an arbitrarily high threshold that a veteran is only

“unable to self-sustain” if he or she requires assistance

on three or more activities of daily living 100% of the

time, or he or she needs “supervision, protection, or instruction on a continuous basis.” 38 C.F.R. 71.15; id.

§ 71.40(c)(4)(i)(A). Veteran Warriors also argued that

“[e]ven if VA could claim a statutory ambiguity to be

resolved in favor of an inability to self-sustain requirement, any such ambiguity should be resolved in the

veteran’s favor under the veteran’s canon.” D.I. 33 at

57.

For each of these challenges, the Federal Circuit deferred to VA’s construction of the statute. And in doing

so, it declined to apply the Pro-Veteran Canon, even

though the statute at issue permitted (and Veteran

Warriors explicitly argued for) a pro-veteran construction for each challenge. See Pet. App. 7a n.4. Indeed,

Veteran Warriors argued that “[e]ven if a statute is

ambiguous, VA and the Court must consider the canon

that provisions for veterans’ benefits should be construed in their favor.” D.I. 33 at 17 (all challenges).

Veteran Warriors also argued that “[t]o the extent that

VA’s Final Rule is within any zone of statutory ambiguity, VA’s Final Rule should be set aside under the

canon that benefits for veterans should be construed

in their favor” (D.I. 33 at 41 (all challenges)). Despite

this, the Federal Circuit held that Veteran Warriors

waived arguments regarding the Pro Veteran Canon,

holding that Veteran Warriors “fail[ed] to develop

those arguments, just asserting the rule without explanation.” See Pet. App. 7a n.4 (refusing to apply the

Pro-Veteran Canon).

The court’s ducking of the issue was inappropriate.

As is evident from the description above, Veteran Warriors did more than “just asserting the rule without explanation.” Pet. App. 7a n.4. But, had it done only that

much, even that would have been enough. The Pro-Veteran Canon’s very name discloses what it does: it tips

the balance in favor of the veteran. To claim that more

elucidation was needed is untenable given the simplicity of the point that the Pro-Veteran Canon takes precedence over agency deference: exactly what Veteran

Warriors argued, and enough to dispose of this case in

favor of the Petitioners.

REASONS FOR GRANTING THE PETITION

I. CERTIORARI IS NEEDED BECAUSE THE

DECISION BELOW IS INCONSISTENT

WITH THIS COURT’S PRECEDENTS AND

SOWS FURTHER CONFUSION.

The Federal Circuit refused to apply the Pro-Veteran Canon, despite the fact that this canon is a longstanding tool of construction and this Court’s instruction to apply all such tools before deferring to an

agency interpretation. See Chevron, 467 U.S. at 843

n.9.

Based on its long-recognized role as a means to discern congressional intent, “the pro-veteran canon

should be used alongside traditional tools of statutory

construction.” See Kisor v. McDonough, 995 F.3d at

1372 (O’Malley, J., dissenting). “Where differing plausible, reasonable interpretations of the terms of a regulation are possible, Congress has spoken: it wants

veterans’ benefits to be administered in a ‘pro-claimant’ manner.” See id.

The Federal Circuit’s division on the interaction between the Pro-Veteran Canon and Chevron deference

highlights the need for this Court’s intervention. Resolution of this conflict is crucial to the proper construction of veterans’ benefits statutes. The issue stems

from the fact that Chevron and the Pro-Veteran Canon

suggest competing rules for courts to follow: Chevron

says that statutory ambiguity reveals an implicit delegation of authority that warrants deference to an

agency; the Pro-Veteran Canon says that to the extent

there is any ambiguity in a statute, it must be resolved

in favor of the veteran, not the agency.

As the more specific of these two doctrines, the ProVeteran Canon should obviate any need to resort to

Chevron deference. The Court should grant the petition to resolve the Federal Circuit’s internal split and

clarify that the Pro-Veteran Canon must be considered

and applied before determining that the statute is ambiguous pursuant to Chevron Step One.

“Given the importance of the issue—the scope and

applicability of a canon of construction—and the enormous impact” of the Pro-Veteran Canon on veterans’

benefits statutes, see 995 F.3d at 1374 (O’Malley, J.,

dissenting), which in this case could impact millions of

caregivers for veterans and involve billions of dollars,

see infra Argument § II.B, this Court should grant the

petition for a writ of certiorari.

A. The Federal Circuit’s Decision Conflicts

with Chevron’s Requirement to Apply All

the Tools of Construction.

Chevron’s “principle of deference to administrative

interpretations” expressly requires a court to apply all

“traditional tools of statutory construction” before deciding that the statute is ambiguous. 467 U.S. at 843

n.9, 844. As the Court recently explained in SAS Institute, a court “owe[s] an agency’s interpretation of the

law no deference unless, after ‘employing traditional

tools of statutory construction,’ [the court] find[s] [itself] unable to discern Congress’s meaning.” 138 S. Ct.

at 1358 (quoting Chevron, 467 U.S. at 843 n.9). The

Court further confirmed in Epic Systems Corp. v.

Lewis that “deference is not due unless a court, employing traditional tools of statutory construction, is

left with an unresolved ambiguity,” and “[w]here …

the canons supply an answer, Chevron leaves the

stage.” 138 S. Ct. 1612, 1630 (2018) (cleaned up).

Most recently, in the context of interpreting a veterans’ regulation in Kisor v. Wilkie, the Court empha-

sized that when it uses the term, “genuinely ambiguous,” the Court “mean[s] it—genuinely ambiguous,

even after a court has resorted to all the standard tools

of interpretation.” See 139 S. Ct. at 2414-15. These

“standard tools” and “traditional tools” include the

“text, structure, history, and purpose” of the statute,

and “will resolve many seeming ambiguities out of the

box.” Id. “The inquiry ceases if the statutory language

is unambiguous and the statutory scheme is coherent

and consistent.” Barnhart, 534 U.S. at 450 (cleaned

up). A court “cannot wave the ambiguity flag just because it found the regulation impenetrable on first

read.” See Kisor v. Wilkie, 139 S. Ct. at 2415.

Under these principles, “hard interpretive conundrums, even relating to complex rules, can often be

solved.” See id. Deference to an agency is warranted

“only when that legal toolkit is empty and the interpretive question still has no single right answer.” See

id. Here, however, the Federal Circuit did not use its

entire legal toolkit, because the Pro-Veteran Canon

went unused. Accordingly, deference to VA was improper.

B. The Pro-Veteran Canon Is a Traditional

Tool of Construction That Must Be Applied Under Chevron Step One.

The Pro-Veteran Canon is a long-standing tool of

statutory construction. This Court has consistently applied the canon in interpreting statutes for nearly 80

years. See supra Statement of the Case § I.A. And the

canon speaks directly to congressional intent—it holds

that courts must interpret statutes in favor of veterans

and that Congress legislates with this principle in

mind when enacting legislation.

The liberal construction principle does not force

courts to automatically adopt any pro-veteran construction that is argued, but it does require that “separate provisions” of veterans’ benefits statutes be

given “as liberal a construction for the benefit of the

veteran as a harmonious interplay of the separate provisions permits.” Fishgold, 328 U.S. at 285. This Court

thus explained as early as 1946 that the structure of a

veterans’ benefits statute—“the harmonious interplay

of the separate provisions”—must be given as liberal a

construction as possible under the Pro-Veteran Canon.

Id. This Court also confirmed as recently as 2011 that

Congress’s “solicitude is plainly reflected in the VJRA,

as well as in subsequent laws that ‘place a thumb on

the scale in the veteran’s favor.’” Henderson, 562 U.S.

at 440. This longstanding history of the Pro-Veteran

Canon in the Court’s jurisprudence further supports

that the Pro-Veteran Canon must be considered before

deciding that the veterans’ benefits statute is truly

ambiguous.

This Court has also instructed that the Pro-Veteran

Canon is a traditional canon of construction. This

Court explained in King that the Pro-Veteran Canon

is “the canon that provisions for benefits to members

of the Armed Services are to be construed in the beneficiaries’ favor.” 502 U.S. at 220 n.9 (emphasis added).

Because the Pro-Veteran Canon is a canon and a

“rule,” it must be applied to resolve “interpretive

doubt” in favor of the veteran. Brown, 513 U.S. at 118.

And in Henderson, this Court confirmed in a unanimous decision that not only is the Pro-Veteran Canon

a canon, but it is also a longstanding one: “We have

long applied ‘the canon that provisions for benefits to

members of the Armed Services are to be construed in

the beneficiaries’ favor.’” 562 U.S. at 440 (emphasis

added).

The Pro-Veteran Canon also reflects Congress’ intent. Not only has this Court emphasized that the ProVeteran Canon is a canon for the benefit of veterans,

but it has also underscored that courts “will presume

congressional understanding of such interpretive principles.” King, 502 U.S. at 220 n.9 (emphasis added)

(quoting McNary, 498 U.S. at 496 (emphasis added)

(“It is presumable that Congress legislates with

knowledge of our basic rules of statutory construction.”)). “[W]here a common-law principle is well established ... the courts may take it as given that Congress

has legislated with an expectation that the principle

will apply except when a statutory purpose to the contrary is evident.” Astoria Fed. Sav. & Loan Ass’n v. Solimino, 501 U.S. 104, 108 (1991) (cleaned up).

This Court also explained in Henderson that the

“singular characteristics of the review scheme that

Congress created for the adjudication of veterans’ benefits claims” are “most telling” in providing an “indication of Congress’ intent.” 562 U.S. at 440 (emphasis

added). The Court further underscored that Congress’

“solicitude is plainly reflected in the VJRA, as well as

in subsequent laws that ‘place a thumb on the scale in

the veteran’s favor in the course of administrative and

judicial review of VA decisions.’” Id. Because “[a] veteran, after all, has performed an especially important

service for the Nation, often at the risk of his or her

own life,” this Court explained, “Congress has made

clear that the VA is not an ordinary agency,” and “VA

has a statutory duty to help the veteran develop his or

her benefits claim.” Shinseki, 556 U.S. at 412. Because

the Pro-Veteran Canon shows Congress’ intent, it must

be applied before deciding the statute at issue is ambiguous.

Thus, even if “[c]anons of construction are an unruly

team, often pulling in opposite directions,” “when the

text yields competing plausible interpretations, all of

the canons ought to be consulted and weighed in the

analysis.” Kisor v. McDonough, 995 F.3d at 1374

(O’Malley, J., dissenting) (cleaned up). The Pro-Veteran Canon must be applied as “one of the many canons of construction to be collectively employed when interpreting veterans benefit provisions.” Id. at 1371.

The Federal Circuit’s decision thus conflicts with

this Court’s cases. The Pro-Veteran Canon is a traditional tool of statutory construction, and Chevron

therefore instructs that it must be employed before

concluding that a statutory provision is ambiguous.

The Federal Circuit’s refusal to apply the canon warrants review and correction by this Court.

C. The Federal Circuit’s Reasoning Is Unavailing.

The Federal Circuit, ignoring this Court’s precedent,

side-stepped application of the Pro Veteran canon by

finding that Veteran Warriors had waived the argument. Pet. App. 7a n.4. This maneuver fails.

First, the question of whether the statute speaks directly to the questions at hand—or is ambiguous—was

put directly to the court of appeals. And Chevron instructs that when such questions arise, courts must

employ all tools of statutory construction because the

central inquiry is whether Congress has spoken directly to the issue before the court. Chevron, 467 U.S.

at 842-43. Once the issue of agency deference was

raised, it is not sufficient for a court to simply duck the

central inquiry because it disagrees with how it was

briefed. Courts have a singular duty—employ the tools

of statutory construction to divine Congress’s intent.

Second, while the Federal Circuit has held that “arguments that are not fleshed out and are merely raised

in footnotes are not preserved,” and are thus waived,

that description is inapt here. See SmithKline Beecham Carp. v. Apotex Corp., 439 F.3d 1312, 1320 (Fed.

Cir. 2006) (discussing footnotes in appeals briefs); see

also Halliburton Energy Servs., Inc. v. M-I LLC, 514

F.3d 1244, 1250 n.2 (Fed. Cir. 2008). In its opening

brief to the Federal Circuit, Veteran Warriors explained in extensive detail, for each of VW’s remaining

six challenges, why and how the Final Rule contravened the unambiguous meaning of the statute at issue, including with respect to all relevant authorities,

including the text, structure, history, and purpose of

the statute at issue. Further, Veteran Warriors expressly explained that even if there were any ambiguity after considering the text, structure, history, and

purpose of the statute, no deference was warranted to

VA because the Pro-Veteran Canon operated as a tiebreaker in favor of the pro-veteran construction. D.I.

33 at 17, 41, 43-44, 46, 48, 50, 53-54, 57; Statement of

the Case § II.B.

Despite recognizing that Veteran Warriors raised

the Pro-Veteran Canon for each of its six remaining

challenges, the Federal Circuit declined to address the

issue because Veteran Warriors had allegedly provided too little detail on how it applies. Pet. App. 7a

n.4. In asserting that additional detail was necessary,

the Federal Circuit misconstrued Veteran Warriors’

argument. Veteran Warriors did not contend that the

Pro-Veteran Canon applies in some special way to a

subset of veterans’ benefits statutes, including this

one. Rather, VW argued (and continues to argue) that

the Pro-Veteran Canon is a canon of construction that

applies to all veterans’ benefits statutes, including the

statute at issue here. D.I. 33 at 17, 41, 43-44, 46, 48,

50, 53-54, 57. Put simply, Veteran Warriors argued

that the Pro-Veteran Canon is a tie-breaker that must

be considered as part of the legal toolkit before deferring to VA. Id. Applying this canon does not require a

detailed, nuanced elaboration of its mechanics; the

canon simply tips the balance in favor of the veteran

when there are two competing, plausible readings.

The Federal Circuit appeared to distinguish between

a statutory ambiguity and a gap or silence. See Pet.

App. 13a-18a, 41a-44a, 49a. But the Chevron inquiry

is the same in either instance; Chevron requires a

court to consider “all the ‘traditional tools’ of construction,” regardless of whether there is a gap, silence, or

ambiguity in the statute. See United States v. Home

Concrete & Supply, LLC, 566 U.S. 478, 487 (2012)

(“The fact that a statute is unambiguous means that

there is ‘no gap for the agency to fill’ and thus ‘no room

for agency discretion.’”).

The Pro-Veteran Canon must be considered as part

of the analysis when dealing with a statutory ambiguity, gap, and/or silence, even if only at the very end of

the analysis. When there is a tie, such as the Federal

Circuit found in this case, the Pro-Veteran Canon

means that the veteran should win, similar to other

deference-doctrine tools of construction recognized by

this Court such as the Pro-Indian Canon and the Rule

of Lenity. See Wilson v. Omaha Indian Tribe, 442 U.S.

653, 666 (1979) (cleaned up) (“Furthermore, statutes

passed for the benefit of dependent Indian tribes . . .

are to be liberally construed, [with] doubtful expressions being resolved in favor of the Indians.”); Dixson

v. United States, 465 U.S. 482, 501 (1984) (“The rule of

lenity demands that “ambiguity concerning the ambit

of criminal statutes should be resolved in favor of lenity.”).

That is exactly what this Court’s jurisprudence requires for the Pro-Veteran Canon. See Brown, 513 U.S.

at 118. That is also fully consistent with this Court’s

longstanding treatment of the Pro-Veteran Canon as a

canon, and the well-known and well-settled principle

that “VA must give the veteran the benefit of any

doubt.” See Henderson, 562 U.S. at 440.

II. CERTIORARI IS WARRANTED TO PROTECT THE PRO-VETERAN CANON FROM

BECOMING A NULLITY.

A. The Pro-Veteran Canon Is a Tie-Breaker

That Must Be Considered Before Deferring to the Agency Under Chevron.

As this Court has explained, the Pro-Veteran Canon

is a “rule” mandating that “interpretive doubt is to be

resolved in the veteran’s favor.” Brown, 513 U.S. at

118. However, Chevron deference is also based on the

existence of interpretive doubt. Both of these doctrines

resolve ambiguity, but each one resolves it in a different direction. Accordingly, the choice of which one operates first will ordinarily (perhaps always) be dispositive. This case therefore raises a more fundamental

question—whether Chevron deference can ever be

reached in cases concerning the interpretation of veterans benefits statutes.

In her concurrence in the Federal Circuit’s denial of

rehearing en banc in Kisor v. McDonough, then-Chief

Judge Prost recognized this tension between the ProVeteran Canon and Chevron, explaining that each doctrine is triggered by ambiguity, and this Court has not

instructed courts on which doctrine operates first after

such apparent ambiguity is found. 995 F.3d at 1358

(Prost, C.J., concurring). Chief Judge Prost did not

propose a solution to this conundrum, noting “further

guidance is necessary to reconcile these competing doctrines.” Id.

Chief Judge Prost also discussed two formulations of

the Pro-Veteran Canon, the “Boone” formulation that

a veterans’ benefits statute is to be “liberally construed” in the veterans’ favor, and the “Brown” formulation that “interpretive doubt” in a veterans’ benefits

statute must be resolved in the veterans’ favor. Id. at

1351 (Prost, C.J., concurring) (citing Boone, 319 U.S.

at 575, and Brown, 513 U.S. at 118). Under either approach, Chief Judge Prost proposed that the Pro-Veteran Canon “should be considered only after descriptive tools fail to yield a best meaning of the provision.”

Id.

Chief Judge Prost recognized that “if the pro-veteran

canon is used at step one of Chevron to resolve ambiguity in a veteran’s favor, then step two of Chevron will

never be reached.” Id. at 1358. The converse is also

true: because the Pro-Veteran Canon almost always

arises in a dispute between a veteran and VA, relegating the Pro-Veteran Canon until after Chevron deference would render the Pro-Veteran Canon a nullity.

Kisor, 995 F.3d at 1370 n.4 (O’Malley, J., dissenting);

see also Harper, 42 Harv. J.L. & Pub. Pol’y at 949-50

(citing Justice Scalia Headlines the Twelfth CAVC Judicial Conference, Veterans L.J. 1, 1 (2013)) (explaining that “Justice Scalia, in a speech to the Judicial

Conference of the Court of Appeals for Veterans

Claims, suggested that Chevron and the veteran’s

canon simply could not co-exist”).

The Pro-Veteran Canon has a long history of application in this Court’s jurisprudence, including after

Chevron was decided. See Statement of the Case § I.A,

supra. The Court’s continued use of the canon implies

that it retains vitality; the rule favoring veterans is not

swamped by Chevron’s generic rule of deference to

agencies. The Court should grant certiorari to confirm

that Chevron deference does not take precedence over,

and thereby effectively nullify, the Pro-Veteran

Canon.

B. The Importance of Veterans’ Benefits

Warrants Both a Grant of Certiorari and

a Skepticism Toward Agency Deference

Here.

There is ample reason to conclude that Congress did

not intend for courts to defer to VA’s constructions,

given the “deep economic and political significance” of

veteran’s rights. King v. Burwell, 576 U.S. 473, 485

(2015) (cleaned up). Yet the Federal Circuit improperly dismissed Veteran Warriors’ arguments in this regard, by suggesting that the Caregiver Program does

not “involve[] billions of dollars” or “affect[] millions of

people,” based on an excerpt from The United States

Government Accountability Office, GAO 14-675, Report to Congressional Requesters, VA Health Care: Actions Needed to Address Higher-Than-Expected Demand for the Family Caregiver Program (Sept. 2014)

(“GAO Report”). See Pet. App. 9a n.5 (citing King, 576

U.S. at 486 and D.I. 34 at Appx396). Not only did the

Federal Circuit ignore the title of this GAO Report,

which requests action to address “Higher-Than-Expected Demand,” see D.I. 34 at Appx396, but it also

ignored the fact that the second excerpted page of this

GAO Report in the Joint Appendix shows that among

post-9/11 veterans alone, there are more than 1 million

caregivers providing personal caregiver services valued at $3 billion. See D.I. 34 at Appx399.

And most recently, this Court has continued to cabin

the scope of Chevron deference to ensure that agencies

do not exceed statutory authority. In West Virginia v.

EPA, this Court held that the Environmental Protection Agency (“EPA”) exceeded its power under the

Clean Air Act when the EPA changed its prior policies

of setting performance standards for power plants to

reduce pollution, and instead required power plants to

reduce their own production of electricity or to subsidize increased production of electricity by natural gas,

wind, or solar sources. 142 S. Ct. 2587, 2599 (2022).

This Court held that under the “major questions” doctrine, the EPA had no authority to require power

plants to reallocate power generation from existing

power plants to newer cleaner sources of energy. Id. at

2615. Instead, “[a] decision of such magnitude and consequence rests with Congress itself, or an agency acting pursuant to a clear delegation from that representative body.” Id. at 2616.

The same principle applies here. The proper application of the Pro-Veteran Canon to veterans’ benefits

statutes, such as the Caregiver Act and VA Mission

Act, is crucial in preventing VA from adopting a construction of statutory benefits against the veteran that

will adversely impact the distribution of benefits to

millions of veterans and their caregivers. See D.I. 34

at Appx399 (“A RAND study estimated that there are

1.1 million family caregivers of post-9/11 veterans and

that each year they provide personal care services valued at $3 billion”). Proper application also has nationwide implications because the Federal Circuit reviews

veterans benefits cases. It is also critical because of

Congress’ long-standing solicitude for veterans, see supra Statement of the Case § I.A, and this Court’s

longstanding application of the Pro-Veteran Canon as

a canon of construction, see supra Argument § I.B.

Proper application of the Pro-Veteran Canon to veterans’ benefits statutes has a huge impact on veterans.

It impacts not only the Caregiver Program, but all veterans’ benefits statutes. Each year, VA processes more

than 1 million veterans’ benefits claims and disburses

about $88 billion. See U.S. Gov’t Accountability Off.,

GAO-21-348, VA Disability Benefits: Veterans Benefits

Administration Could Enhance Management of

Claims Processor Training 1 (June 2021),

https://www.gao.gov/assets/gao-21-348.pdf. Because

there is no doubt that the Caregiver Program, as well

as other veterans’ benefits statutes, involve billions of

dollars in benefits and affect millions of people, this

Court should reaffirm the importance of the Pro-Veteran Canon to ensure that VA does not exceed its statutory authority. See King, 576 U.S. at 486.

III. CERTIORARI IS PARTICULARLY WARRANTED HERE TO ADDRESS WHETHER

CHEVRON MUST BE CLARIFIED OR REPLACED TO PROTECT OTHER CANONS

FROM BECOMING A NULLITY.

The conflict between the Pro-Veteran Canon and

agency deference also touches upon the broader questions that continue to vex the courts—namely, the

wider controversy surrounding deference to agency interpretations. Kisor v. McDonough, 995 F.3d at 1358

(Prost, C.J., concurring) (“Further guidance is necessary to reconcile these competing doctrines.”); Procopio, 913 F.3d at 1387 (O’Malley, J., concurring) (“I

write separately to lament the court’s failure—yet

again—to address and resolve the tension between the

pro-veteran canon and agency deference.”); see also Kisor, 139 S. Ct. at 2425 (Gorsuch, J., concurring in part)

(explaining in the context of Auer deference that “today’s decision is more a stay of execution than a pardon,” and “[t]he Court cannot muster even five votes to

say that Auer is lawful or wise.”).

As the controversy in Kisor shows, how and when

canons apply in the Chevron framework continues to

plague judges. Chief Judge Prost flags in her concurrence to the denial of rehearing en banc in Kisor that

this conundrum is not limited to the Pro-Veteran

Canon. 995 F.3d at 1358 n.16 (Prost, C.J., concurring).

While “the D.C. Circuit has prioritized the Indian

canon over Chevron step two, the Ninth Circuit has

not.” Id. (comparing Cobell v. Norton, 240 F.3d 1081,

1100–01 (D.C. Cir. 2001), with Rancheria v. Jewell,

776 F.3d 706, 713 (9th Cir. 2015)).

Indeed, the Pro-Veteran Canon shares many parallels with the Pro-Indian Canon, including that both

canons “reflect the unique relationships between particular groups and the government, and the duties

owed by the government to those groups,” “[b]oth canons are traditional tools of interpretation,” and “both

canons can help hold the government to its promises.”

See Harper, 42 Harv. J.L. & Pub. Pol’y at 956-57. The

Pro-Indian Canon holds the government to its promises by establishing that provisions “should be construed liberally in favor of the Indians,” “with ambiguous provisions interpreted to their benefit.” Cnty. of

Oneida v. Oneida Indian Nation, 470 U.S. 226, 247

(1985). This Court has also held that “statutes are to

be construed liberally in favor of the Indians, with ambiguous provisions interpreted to their benefit.” Montana v. Blackfeet Tribe of Indians, 471 U.S. 759, 766

(1985). That is exactly the same analysis that this

Court has used in discussing the Pro-Veteran Canon.

How canons such as the Pro-Veteran Canon apply in

the Chevron framework requires clarification because

ambiguity is often in the eye of the beholder. American

Hospital Association v. Becerra, highlights this. There

the D.C. Circuit held that the statutory text was ambiguous and applied Chevron deference, but this Court

held that the statute was clear and unambiguous. Am.

Hosp. Ass’n v. Becerra, 142 S. Ct. 1896, 1906 (2022).

Becerra also highlights the fact that the government

sometimes argues for and wins cases based on Chevron

deference in the Circuit Courts, but then changes its

position to discount the necessity of Chevron deference

when those cases reach this Court. See, e.g., Gov’t Br.

47, Am. Hosp. Ass’n v. Becerra, No. 20-1114 (U.S. Oct.

20, 2021), 2021 WL 4937288 (arguing that Chevron

deference is “[w]arranted [b]ut [u]nnecessary,” after

successfully arguing for Chevron deference in the D.C.

Circuit). Reaffirming the importance of the Pro-Veterans Canon obviates these issues by giving courts a different rule to follow in the search for congressional intent.

Also currently pending before the Court is another

petition for a writ of certiorari on the conflict between

the Pro-Veteran Canon and Chevron deference. See

Buffington v. McDonough, No. 21-972 (U.S. Jan. 6,

2022) (seeking review of Buffington v. McDonough, 7

F.4th 1361 (Fed. Cir. 2021)) (“Buffington Petition”). If

the Court grants the Buffington Petition, it should also

grant this Petition to ensure review of the full scope of

the Federal Circuit’s current position on these issues.

At a minimum, the Court should hold this petition

pending review of the Buffington Petition.

Veteran Warriors requests that the Supreme Court

grant certiorari to clarify that Chevron footnote 9 requires a court to consider all the tools of statutory construction, including the Pro-Veteran Canon, before deciding that the statute at issue is truly ambiguous and

deferring to the agency construction, to protect the

Pro-Veteran Canon from becoming a nullity. If a reviewing court employs all the traditional tools of construction, a court will almost always reach a conclusion on the best interpretation. This result would also

help clarify and protect all the other canons of construction, such as the Pro-Indian Canon, from becoming a nullity. Certiorari should further be granted because it will permit this Court to resolve the open questions concerning the competing doctrines of the ProVeteran Canon and Chevron deference, and nothing

would be gained from further delaying review.

CONCLUSION

For the foregoing reasons, the Court should grant

this petition for a writ of certiorari.

Respectfully submitted,

BARTON F. STICHMAN

RENEE BURBANK

NATIONAL VETERANS

LEGAL SERVICES

1600 K Street, N.W.

Suite 500

Washington, D.C. 20005

(202) 621-5677

MICHAEL R. FRANZINGER*

RYAN C. MORRIS

MATTHEW B. MAHONEY

SIDLEY AUSTIN LLP

1501 K Street, N.W.

Washington, D.C. 20005

(202) 736-8583

mfranzinger@sidley.com

TIMOTHY Q. LI

SIDLEY AUSTIN LLP

787 Seventh Avenue

New York, NY 10019

(212) 839-5300

Counsel for Petitioners

October 14, 2022

*Counsel of Record

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.