Amicus Curiae Brief — Peter Van Dermark, Petitioner v. Denis R. McDonough, Secretary of Veterans Affairs
Supreme Court briefSep 25, 2023
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No. 23-178
IN THE
Supreme Court of the United States
___________________________________________________________
PETER VAN DERMARK,
Petitioner,
v.
DENIS R. MCDONOUGH,
SECRETARY OF VETERANS AFFAIRS,
Respondent.
___________________________________________________________
ON PETITION FOR A WRIT OF CERTIORARI TO
THE UNITED STATES COURT OF APPEALS
FOR THE FEDERAL CIRCUIT
___________________________________________________________
BRIEF OF MILITARY-VETERANS ADVOCACY,
JEWISH WAR VETERANS OF THE U.S.A,
NATIONAL ORGANIZATION OF VETERANS’
ADVOCATES, PARALYZED VETERANS OF
AMERICA, ROCKY MOUNTAIN VETERANS
ADVOCACY PROJECT, SERVICE WOMEN’S
ACTION NETWORK, AND VETERANS LEGAL
SERVICES AS AMICI CURIAE IN SUPPORT
OF PETITIONER
___________________________________________________________
Melanie L. Bostwick
Counsel of Record
Melanie R. Hallums
ORRICK, HERRINGTON &
SUTCLIFFE LLP
1152 15th Street, NW
Washington, DC 20005
(202) 339-8400
mbostwick@orrick.com
Counsel for Amici Curiae
i
TABLE OF CONTENTS
Page
TABLE OF AUTHORITIES ...................................... ii
INTERESTS OF AMICI CURIAE ..............................1
INTRODUCTION AND SUMMARY OF
ARGUMENT .........................................................4
ARGUMENT ...............................................................6
I.
Certiorari Is Warranted To Ensure That
Veterans Receive The Protection Congress
Intended. ...............................................................6
A. Veterans living and traveling abroad
face challenges in obtaining health
care. .................................................................6
B. Congress sought to protect veterans
needing emergency treatment. .......................9
II. The Federal Circuit Erred By Failing To
Harmonize Statutes Meant To Benefit
Veterans. .............................................................12
A. The statutes can and should be read
harmoniously. ................................................12
B. The Federal Circuit erred by
disregarding the pro-veteran canon. ............14
C. Other canons of interpretation also
support interpreting these statutes in
favor of veterans. ...........................................20
CONCLUSION ..........................................................22
ii
TABLE OF AUTHORITIES
Page(s)
Cases
Boatswain v. Gonzales,
414 F.3d 413 (2d Cir. 2005) .................................18
Boone v. Lightner,
319 U.S. 561 (1943) ..............................................17
Brown v. Gardner,
513 U.S. 115 (1994) .................................... 6, 14, 18
Burden v. Shinseki,
727 F.3d 1161 (Fed. Cir. 2013) ............................18
Caminetti v. United States,
242 U.S. 470 (1917) ..............................................13
Coffy v. Republic Steel Corp.,
447 U.S. 191 (1980) ..............................................17
Crawford Fitting Co. v. J. T. Gibbons, Inc.,
482 U.S. 437 (1987) ..............................................21
Epic Sys. Corp. v. Lewis,
138 S. Ct. 1612 (2018)....................................14, 20
Ernst & Ernst v. Hochfelder,
425 U.S. 185 (1976) ..............................................13
Fishgold v. Sullivan Drydock & Repair Corp.,
328 U.S. 275 (1946) ..............................................17
iii
Henderson v. Shinseki,
562 U.S. 428 (2011) .................. 6, 14, 15, 16, 18, 19
King v. St. Vincent’s Hosp.,
502 U.S. 215 (1991) ..............................................18
Manhattan Gen. Equip. Co. v. Comm’r,
297 U.S. 129 (1936) ..............................................13
Morales v. Trans World Airlines, Inc.,
504 U.S. 374 (1992) ..............................................21
Morton v. Mancari,
417 U.S. 535 (1974) ..............................................20
NOVA v. Sec’y of Veterans Affairs,
260 F.3d 1365 (Fed. Cir. 2001) ............................18
Radzanower v. Touche Ross & Co.,
426 U.S. 148 (1976) ..............................................21
Shinseki v. Sanders,
556 U.S. 396 (2009) ..............................................15
Sykes v. Columbus & Greenville Ry.,
117 F.3d 287 (5th Cir. 1997)................................19
Travers v. Fed. Express Corp.,
8 F.4th 198 (3d Cir. 2021)....................................18
United States v. Oregon,
366 U.S. 643 (1961) ..............................................14
United States v. Ron Pair Enters., Inc.,
489 U.S. 235 (1989) ..............................................13
iv
Walters v. Nat’l Ass’n of Radiation Survivors,
473 U.S. 305 (1985) ..............................................16
Watt v. Alaska,
451 U.S. 259 (1981) ..............................................20
Statutes
36 U.S.C. § 110103(5) ..................................................2
36 U.S.C. § 110103(7) ..................................................2
38 U.S.C. § 1110 ........................................................16
38 U.S.C. § 1131 ........................................................16
38 U.S.C. § 1724 .............. 4, 5, 8, 10, 12, 13, 19, 20, 21
38 U.S.C. § 1724(a)....................................................12
38 U.S.C. § 1725 .................... 4, 5, 6, 10, 11, 12, 13, 21
38 U.S.C. § 1725(a)....................................................10
38 U.S.C. § 1728 .......................... 4, 5, 6, 11, 12, 13, 21
38 U.S.C. § 1728(a)................................................9, 10
38 U.S.C. § 5103A .....................................................16
38 U.S.C. § 5107(b)....................................................16
38 U.S.C. § 7251 ........................................................16
38 U.S.C. § 7252 ........................................................16
v
Other Authorities
145 Cong. Rec. H8392-02 (daily ed.
Sept. 21, 1999) ...............................................10, 11
145 Cong. Rec. H12046-01 (daily ed.
Nov. 16, 1999) ......................................................11
Antonin Scalia & Bryan A. Garner,
Reading Law: The Interpretation of
Legal Texts (2012) ................................................11
Crystal Kupper, Overseas expat: Many
military families choose to live abroad
permanently, Military Families (Mar.
3, 2023), https://tinyurl.com/49mtweky ................7
Find a New Job Overseas for Veterans,
Military-Civilian,
https://tinyurl.com/4mnk6xvd ...............................7
H.R. Rep. No. 100-963 (1988) ...................................16
Katharina Buchholz, U.S. Fighters
From Abroad, Statista (Nov. 17,
2020), https://tinyurl.com/39jwshxc ......................7
Leo Shane III, Tens of thousands of US
vets living overseas left to find
COVID vaccine doses on their own,
Military Times (Apr. 30, 2021),
https://tinyurl.com/2reawvux ................................9
Make a Healthy Difference by
Volunteering Abroad (2023),
https://tinyurl.com/yrs9cz6a ..................................7
vi
S. Rep. No. 92-776 (1972) ................................ 9, 10, 11
U.S. Dep’t of Veterans Affairs, Foreign
Programs (Oct. 12, 2022),
https://tinyurl.com/z5atbf65 ..................................8
U.S. Dep’t of Veterans Affairs, History
Overview (Aug. 17, 2023),
https://tinyurl.com/y6jhxrh2................................15
U.S. Dep’t of Veterans Affairs, The
Origin of the VA Motto (Sept. 16,
2023), https://tinyurl.com/nhem8tc6 ...................15
U.S. Gov’t Accountability Office, GAO20-620, VA Should Continue to
Improve Access to Quality Disability
Medical Exams for Veterans Living
Abroad (Sept. 2020),
https://tinyurl.com/2p8yn6c5 .................................7
William Skipworth, U.S. Travel Abroad
Has Finally Reached Pre-Pandemic
Levels-Here's Where Americans Are
Going, Forbes (Aug. 16, 2023),
https://tinyurl.com/vvztc88v ..................................8
Z. Joan Wang et al., 2021 Survey of
Veteran Enrollees' Health and Use of
Health Care, Advanced Survey
Design, LLC (Sept. 24, 2021),
https://tinyurl.com/3yktdxyk .................................8
1
INTERESTS OF AMICI CURIAE 1
Amici curiae are seven organizations dedicated to
protecting and advancing the rights of our nation’s
veterans. The ruling below, which misapplied statutes intended to benefit veterans and declined to apply the pro-veteran canon, runs contrary to this
Court’s precedent and Congress’s intent in enacting
veterans-benefits laws. Amici are invested in ensuring that veterans receive the full benefits to which
they are entitled and, relatedly, in restoring the proveteran canon to its rightful place among the traditional tools of statutory interpretation.
Military-Veterans Advocacy, Inc. (MVA) is a nonprofit organization that litigates and advocates on behalf of servicemembers and veterans. Established in
2012 in Slidell, Louisiana, MVA educates and trains
servicemembers and veterans concerning rights and
benefits, represents veterans contesting the improper
denial of benefits, and advocates for legislation to protect and expand servicemembers’ and veterans’ rights
and benefits.
The Jewish War Veterans of the United States of
America, Inc. (JWV), organized in 1896 by Jewish veterans of the Civil War, is the oldest active national
veterans’ service organization in America. Incorporated in 1924 and chartered by an act of Congress in
1 The parties were notified of the intention to file this brief
per Rule 37.2(a). No counsel for a party authored the brief in
whole or in part. No party, counsel for a party, or any person
other than amici curiae and their counsel made a monetary contribution intended to fund the preparation or submission of the
brief.
2
1983, JWV’s objectives include “encourag[ing] the
doctrine of universal liberty, equal rights, and full justice to all men,” and “preserv[ing] the spirit of comradeship by mutual helpfulness to comrades and their
families.” 36 U.S.C. § 110103(5), (7).
The National Organization of Veterans’ Advocates, Inc. (NOVA) is a nonprofit educational membership organization comprising hundreds of
attorneys and other qualified members who represent
veterans and their families before the Department of
Veterans Affairs and federal courts. NOVA works to
develop high standards of service and representation
for all persons seeking veterans’ benefits.
Paralyzed Veterans of America (PVA) is a congressionally chartered veterans service organization
whose mission is to employ its expertise on behalf of
veterans who have experienced a spinal cord injury or
disorder (SCI/D). PVA provides representation to its
members and other veterans throughout the VA
claims process and in federal court. PVA also seeks to
improve the quality of life for veterans and all people
with SCI/D by advocating for quality healthcare, research, and education addressing SCI/D; for benefits
based on its members’ military service; and for civil
rights, accessibility, and opportunities that maximize
independence for its members and all veterans and
nonveterans with disabilities.
The Rocky Mountain Veterans Advocacy Project
(RMVAP) is a Denver-based non-profit dedicated to
providing affordable legal advocacy to veterans in the
Rocky Mountain region and increasing access to legal
services for veterans, military service members, and
3
their families. The RMVAP strives to ensure these
communities receive proper legal representation,
with special emphasis on assisting prior service members in pursuit of the disability compensation and discharge characterization they rightfully deserve. The
RMVAP also offers experiential learning opportunities to law students as part of its commitment to fostering and expanding the next generation of veterans’
advocates.
Service Women’s Action Network (SWAN) is a nationwide nonprofit organization that advocates for
and supports the needs of both service women and
women veterans, regardless of rank, military branch,
or years of experience. SWAN’s goal is to see service
women receive the opportunities, protections, benefits, and respect they earned. SWAN’s efforts have included opening all military jobs to qualified service
women, working to hold sex offenders accountable in
the military justice system, expanding access to a
broad range of reproductive healthcare services, and
eliminating barriers to disability claims for those who
have experienced military sexual trauma.
Veterans Legal Services (VLS) is an independent
nonprofit organization that provides free and comprehensive civil legal aid services to economically disadvantaged military veterans in Massachusetts. VLS
helps former service members obtain the stability and
financial security necessary to live the healthy,
happy, and dignified lives they deserve. VLS specializes in eviction/homelessness prevention, helping veterans access financial and medical benefits, appealing
discharge orders, and promoting healthy family relationships.
4
Many of amici’s members live or travel outside the
United States and will be harmed by the Federal Circuit’s erroneous statutory interpretation. This Court
should grant certiorari.
INTRODUCTION AND SUMMARY OF
ARGUMENT
More than 18,000 U.S. military veterans enrolled
in the VA health care system live outside of the
United States, and untold numbers of veterans travel
abroad each year. When faced with medical emergencies, these veterans must seek treatment wherever
they are. Although VA generally does not provide routine medical services to veterans abroad, when veterans receive emergency treatment, federal law
requires the agency to reimburse veterans for that
treatment, no matter where they receive it.
Congress passed two statutes that require VA to
reimburse veterans for emergency medical treatment
they receive in non-VA facilities. See 38 U.S.C.
§§ 1725, 1728. Neither statute places any geographic
limit on where treatment is received to be reimbursable. As the Federal Circuit recognized, “there is no
mention of treatment abroad” in either statute. Pet.
App. 24a.
Despite this omission, the Federal Circuit misread the statutes to forbid reimbursement for emergency treatment that veterans receive outside of the
United States. It did so by linking the reimbursement
statutes to 38 U.S.C. § 1724, a separate and more general statute that precludes VA from providing medical
5
care to veterans abroad (unless the medical care relates to a service-connected disability). But nothing in
the text of §§ 1725 and 1728 suggests that they are
cabined in any way by § 1724. And, to the extent there
were any tension between § 1724’s prohibition and
the reimbursement statutes’ commands, there is a
simpler and more reasonable way to reconcile them.
Under the plain language of § 1724, VA cannot provide “medical services” to veterans abroad. By contrast, §§ 1725 and 1728 expressly require VA to
reimburse veterans for “emergency treatment” received in non-VA facilities, with no geographical limitations.
Reading the three statutes together, VA may not
provide general medical services to veterans abroad
(unless related to service-connected disabilities), but
it must reimburse veterans for emergency treatment
wherever they receive it. Not only does this interpretation give effect to the plain language of each statute,
but it also supports the legislative purpose of expanding benefits to veterans receiving emergency medical
treatment.
Instead of applying this reasonable (and harmonious) reading of the statutes, however, the Federal
Circuit interpreted the reimbursement statutes
against veterans’ interests. It interpreted statutes designed to reimburse veterans for costs of emergency
treatment as excluding thousands of veterans who
live and travel abroad. And it did so while disregarding the pro-veteran canon.
The pro-veteran canon provides that, in construing a statute concerning veterans, “interpretive doubt
6
is to be resolved in the veteran’s favor.” Brown v.
Gardner, 513 U.S. 115, 118 (1994). This approach effectuates Congress’s legislative intent to “place a
thumb on the scale in the veteran’s favor in the course
of administrative and judicial review of VA decisions.”
Henderson v. Shinseki, 562 U.S. 428, 440 (2011) (citation omitted). Moreover, the canon is meant to provide
clarity and consistency in the laws governing veterans’ benefits. The long history of this Court’s application of this and similar canons illustrates its proper
role.
Congress sought to reimburse eligible veterans
for emergency treatment they receive. The Federal
Circuit misinterpreted §§ 1725 and 1728 to the detriment of potentially millions of veterans who live and
travel abroad. This Court should grant the petition
and reverse.
ARGUMENT
I.
Certiorari Is Warranted To Ensure That
Veterans Receive The Protection Congress
Intended.
The Federal Circuit’s decision has the potential to
adversely affect a large population of U.S. veterans
who live and travel outside the country. This Court’s
review is critical to protect these deserving veterans.
A. Veterans living and traveling abroad
face challenges in obtaining health care.
More than 18,000 veterans enrolled in VA’s
health care system live outside of the United States.
7
See Crystal Kupper, Overseas expat: Many military
families choose to live abroad permanently, Military
Families
(Mar.
3,
2023),
https://tinyurl.com/49mtweky. And there is evidence that the
number of veterans living overseas is increasing.
From 2014 to 2019, for example, the number of disability claims processed for veterans living abroad increased by 14%. See U.S. Gov’t Accountability Office,
GAO-20-620, VA Should Continue to Improve Access
to Quality Disability Medical Exams for Veterans Living Abroad, at 9 (Sept. 2020), https://tinyurl.com/2p8yn6c5. (Unlike medical care, veterans
outside the United States are entitled to the same disability benefits as veterans living domestically.)
Veterans who live outside the United States
choose to do so for many reasons, such as proximity to
family members, marriage to a resident of a foreign
country, or positive experiences during their military
service. See Pet. 31. Moreover, approximately 13% of
U.S. veterans—amounting to 2.3 million individuals—were born outside the United States or are children of immigrants. See Katharina Buchholz, U.S.
Fighters From Abroad, Statista (Nov. 17, 2020),
https://tinyurl.com/39jwshxc. And this figure does not
even account for veterans born outside the country to
U.S.-citizen parents. These veterans may naturally
want to live in the place where they were born or
where their family members reside.
Veterans might also work or volunteer abroad, including in positions related to their service. See, e.g.,
Find a New Job Overseas for Veterans, Military-Civilian, https://tinyurl.com/4mnk6xvd; Make a Healthy
Difference by Volunteering Abroad, Military.com
8
(2023), https://tinyurl.com/yrs9cz6a. Or they might
study overseas under the GI Bill. See U.S. Dep’t of
Veterans Affairs, Foreign Programs (Oct. 12, 2022),
https://tinyurl.com/z5atbf65. In addition, like many
Americans, veterans and their families who live in the
United States may travel abroad. See, e.g., William
Skipworth, U.S. Travel Abroad Has Finally Reached
Pre-Pandemic Levels—Here’s Where Americans Are
Going, Forbes (Aug. 16, 2023), https://tinyurl.com/vvztc88v (reporting that 40 million Americans traveled abroad in 2023 through July).
But veterans who choose to live and travel abroad
must make certain sacrifices, especially when it
comes to routine health care. Approximately 9 million
veterans are enrolled in the VA health care system,
and one third of these enrollees report using VA services for all of their health needs. See Z. Joan Wang
et al., 2021 Survey of Veteran Enrollees’ Health and
Use of Health Care, Advanced Survey Design, LLC, at
1, 95 (Sept. 24, 2021), https://tinyurl.com/3yktdxyk. If
these veterans move or travel outside the country,
however, they must find their own routine hospital
and medical care (again, unless related to a serviceconnected disability). VA is statutorily barred from
“furnish[ing]” hospital care and “medical services outside any State.” 38 U.S.C. § 1724.
Even when care is available abroad, veterans may
face obstacles in receiving it. For example, during the
height of the COVID-19 pandemic, Congress authorized VA to provide vaccines to veterans living abroad
who participate in the Foreign Medical Program (that
is, those who receive care for service-connected disabilities). Yet, except for the Philippines, VA refused to
9
administer vaccines to veterans outside the United
States—offering reimbursement, but leaving veterans on their own to try to find a dose. See Leo Shane
III, Tens of thousands of US vets living overseas left to
find COVID vaccine doses on their own, Military
Times (Apr. 30, 2021), https://tinyurl.com/2reawvux.
Veterans living abroad must navigate these and other
obstacles when trying to obtain medical care.
B. Congress sought to protect veterans
needing emergency treatment.
Although veterans facing these restrictions can
make choices about how they obtain and pay for their
routine medical care, those who need emergency medical treatment often do not have time to find an affordable provider or to find one that is covered by
their health care plan. In recognition of this fact, Congress sought to protect eligible veterans who receive
emergency treatment in non-VA facilities.
In two statutory provisions, Congress directed VA
to reimburse eligible veterans for their out-of-pocket
costs for “emergency treatment.” Under the first provision, VA “shall ... reimburse” a veteran “for the customary and usual charges of emergency treatment”
where the treatment was related to a service-connected disability or provided to a veteran with “a total
disability permanent in nature from a service-connected disability.” 38 U.S.C. § 1728(a). This statute
“broaden[ed] the scope” of VA’s previous practice of
only reimbursing emergency care related to serviceconnected conditions. S. Rep. No. 92-776, at 29 (1972)
(Conf. Rep.). It expanded coverage “to include reim-
10
bursement to veterans with 100 percent service-connected disabilities who are furnished emergency care
and treatment for non-service-connected disabilities.”
Id. In other words, VA must reimburse veterans with
total service-connected disabilities, like Mr. Van Dermark, for their emergency medical treatment.
Under the second provision, VA “shall reimburse”
an eligible veteran “for the reasonable value of emergency treatment furnished the veteran in a non-[VA]
facility.” 38 U.S.C. § 1725(a). This provision further
expanded coverage to include reimbursement for eligible veterans, regardless of whether their emergency
treatment was received for service-connected disabilities or the other conditions listed in Section 1728(a).
Section 1725 also “makes sure that veterans are reimbursed for emergency care no matter where they get
that treatment.” 145 Cong. Rec. H8392-02, H8403
(daily ed. Sept. 21, 1999) (statement of Rep. Reyes, cosponsor) (emphasis added).
Neither provision contains a geographic limitation like the one in § 1724. Nor would it make any
sense to impose a geographic limit on the reimbursement of emergency treatment. By their very nature,
emergencies are unplanned and not confined to any
one part of the world. Moreover, the statutes do not
require VA to provide emergency care directly (which
arguably could conflict with § 1724’s bar), but merely
to reimburse veterans for the cost of such care. And
there is no discernable reason to restrict such reimbursement to just those veterans who receive emergency treatment in the United States.
11
On the contrary, Congress intended through the
reimbursement statutes to expand benefits to veterans. As one of the cosponsors of the legislation that
became § 1725 stated: “Emergency care is a potentially catastrophic ‘hole’ in the safety net veterans believe they have with VA health care.” 145 Cong. Rec.
H12046-01, H12048 (daily ed. Nov. 16, 1999) (statement of Rep. Evans).
Sections 1725 and 1728 were meant to help fill
this hole. As another cosponsor of the legislation observed, “Veterans and their families deserve to know
that they can obtain emergency care and not later be
financially strapped or devastated because the VA refuses to reimburse them. This bill rectifies this situation, following the request of the VA and the
President’s Patients’ Bill of Rights. It also allows VA
to reimburse any high priority enrolled veterans for
medical emergencies.” 145 Cong. Rec. H8392-02,
H8403 (statement of Rep. Reyes); see also S. Rep. 92776, at 29 (explaining that § 1728 “will make clear
that reimbursement of private medical expenses may
be authorized … for [eligible] veterans treated … in a
medical emergency under situations where VA or
other Federal facilities were not feasibly available, or
an attempt to use them would have not been reasonable, sound, wise, or practical”).
The Federal Circuit should have interpreted
these veterans-benefits statutes in a way that benefits veterans. “A textually permissible interpretation
that furthers rather than obstructs the document’s
purpose should be favored.” Antonin Scalia & Bryan
A. Garner, Reading Law: The Interpretation of Legal
Texts § 4, at 63 (2012).
12
II. The Federal Circuit Erred By Failing To
Harmonize Statutes Meant To Benefit
Veterans.
A. The statutes can and should be read
harmoniously.
Despite the twin commands of §§ 1725 and 1728,
the Federal Circuit held that a veteran is not entitled
to reimbursement of out-of-pocket costs for emergency
treatment received abroad. The court relied on an earlier-enacted statutory provision, which states that VA
“shall not furnish hospital or domiciliary care or medical services outside any State.” 38 U.S.C. § 1724(a).
It concluded that § 1724’s bar on “furnishing” medical
care abroad cabins the separately enacted reimbursement statutes and prohibits reimbursement of costs
for emergency treatment received by a veteran
abroad. See Pet. App. 10a, 24a.
Faced with what it viewed as a conflict between
§§ 1725 and 1728’s specific commands, on the one
hand, and § 1724’s general prohibition, on the other,
the Federal Circuit purported to “harmonize” all three
provisions by concluding that §§ 1725 and 1728 apply
only to emergency treatment received in the United
States. Pet. App. 23a-24a. This was error.
As an initial matter, a plain reading of the three
statutes demonstrates no obvious textual conflict.
Section 1724 precludes VA from providing hospital
care or medical services to veterans outside the
United States, unless they have a service-connected
disability or are in the Philippines. 38 U.S.C. § 1724.
13
Sections 1725 and 1728 require VA to reimburse veterans for emergency treatment they receive, with no
geographical limits on where they receive such treatment. 38 U.S.C. §§ 1725, 1728.
Section 1724 therefore governs where VA can provide routine medical services. Sections 1725 and
1728, in contrast, govern when VA can cover the costs
of emergency treatment provided by others. None of
these statutes cabins VA’s ability to pay for emergency treatment based on where it takes place. Sections 1725 and 1728 simply require the VA to
reimburse eligible veterans for emergency treatment
they receive. “[W]here, as here, the statute’s language
is plain, ‘the sole function of the courts is to enforce it
according to its terms.’” United States v. Ron Pair Enters., Inc., 489 U.S. 235, 241 (1989) (quoting Caminetti
v. United States, 242 U.S. 470, 485 (1917)).
Rather than enforcing the plain terms of the statutes, however, the Federal Circuit relied on VA’s
“longstanding practice” of not paying for medical
treatment abroad, except in certain circumstances.
App 19a. But that practice does not comply with
§§ 1725 and 1728, which require reimbursement to
veterans who must pay for emergency medical treatment. And an agency rule that “operates to create a
rule out of harmony with the statute[] is a mere nullity.” Manhattan Gen. Equip. Co. v. Comm’r, 297 U.S.
129, 134 (1936); see also Ernst & Ernst v. Hochfelder,
425 U.S. 185, 212-14 (1976) (explaining that an
agency’s “broad view of [a rule] … cannot exceed the
power granted … by Congress”).
14
B. The
Federal
Circuit
erred
by
disregarding the pro-veteran canon.
The Federal Circuit went astray at the outset of
its analysis by ignoring the pro-veteran canon, which
directs courts to construe veterans’ benefits statutes
“in the beneficiaries’ favor.” Henderson, 562 U.S. at
441. That canon, like other “traditional tool[s] of statutory construction,” must guide a court’s determination of whether two statutory schemes are in tension
with one another. Epic Sys. Corp. v. Lewis, 138 S. Ct.
1612, 1630 (2018) (assessing alleged conflict between
Arbitration Act and National Labor Relations Act).
And, even if the Federal Circuit (bearing the canon in
mind) had found some tension between a bar on furnishing medical care and a mandate to reimburse
emergency treatment fees, the pro-veteran canon
should have reminded the court that “interpretive
doubt is to be resolved in the veteran’s favor.” Gardner, 513 U.S. at 117-18.
Yet the Federal Circuit saw “no role for the proveteran interpretive canon” in its statutory analysis.
Pet. App. 12a. The appellate court’s frequent failure
to consider this key guide to congressional intent
makes this Court’s certiorari review crucial.
1. As this Court has explained, the pro-veteran
canon stems from Congress’s intent to help veterans
when enacting legislation providing them benefits.
“The solicitude of Congress for veterans is of long
standing.” United States v. Oregon, 366 U.S. 643, 647
(1961). This Court has consistently “recognize[d] that
Congress has expressed special solicitude for the veterans’ cause. ... A veteran, after all, has performed an
15
especially important service for the Nation, often at
the risk of his or her own life.” Shinseki v. Sanders,
556 U.S. 396, 412 (2009) (citation omitted). And that
special solicitude is “plainly reflected” in laws like the
reimbursement statutes at issue here. Henderson,
562 U.S. at 440.
Throughout its history, this country has prioritized repaying the debt owed to those who risk their
lives and livelihoods to protect the American public.
Dating back to the Revolutionary War, the government has provided medical care and benefits to our
veterans. See U.S. Dep’t of Veterans Affairs, History
Overview
(Aug.
17,
2023),
https://tinyurl.com/y6jhxrh2. This has included pensions for
veterans with disabilities, as well as hospital and
medical care. Id.
In 1865, President Abraham Lincoln gave his second inaugural address as the Civil War was nearing
its end. Seeking to heal a divided nation, he asked the
country “to bind up the nation’s wounds, to care for
him who shall have borne the battle and for his
widow, and his orphan.” U.S. Dep’t of Veterans Affairs, The Origin of the VA Motto (Sept. 16, 2023),
https://tinyurl.com/nhem8tc6. These words later became the VA motto, when two plaques reciting them
were installed at the entrance to VA’s Washington,
D.C., headquarters in 1959. Id. As VA itself has affirmed, “President Lincoln’s words have stood the test
of time, and stand today as a solemn reminder of VA’s
commitment to care for those injured in our nation’s
defense and the families of those killed in its service.”
Id.
16
Congress has repeatedly enacted legislation to ensure that VA carries out that commitment. It created
a non-adversarial claims system to help veterans receive compensation for their service-connected conditions. See 38 U.S.C. §§ 1110, 1131 (establishing
entitlement to compensation); id. § 5103A (requiring
VA to assist veterans with their disability claims); id.
§ 5107(b) (giving claimants the benefit of the doubt in
close cases). Unlike civil litigation, “proceedings before the VA are informal and nonadversarial,” and are
“designed to function throughout with a high degree
of informality and solicitude for the claimant.” Henderson, 562 U.S. at 431, 440 (quoting Walters v. Nat’l
Ass’n of Radiation Survivors, 473 U.S. 305, 311
(1985)). Rather than opposing veterans’ claims, “[t]he
VA is charged with the responsibility of assisting veterans in developing evidence that supports their
claims, and in evaluating that evidence, the VA must
give the veteran the benefit of any doubt.” Id. at 440.
Congress reiterated its intent to provide a cooperative pro-veteran benefits process when it enacted the
Veterans Judicial Review Act, which authorized judicial review of decisions adverse to veterans in federal
court. See, e.g., 38 U.S.C. §§ 7251, 7252. The House
Report explained: “Congress has designed and fully
intends to maintain a beneficial non-adversarial system of veterans benefits.” H.R. Rep. No. 100-963, at
13 (1988). Congress further stated that it “expects VA
to fully and sympathetically develop the veteran’s
claim to its optimum before deciding it on the merits”
and “to resolve all issues by giving the claimant the
benefit of any reasonable doubt.” Id.
17
2. Acknowledging Congress’s clear and well-established intent to help veterans, this Court has recognized the pro-veteran canon for more than 80 years.
In Boone v. Lightner, for example, the Court considered the Soldiers’ and Sailors’ Civil Relief Act of 1940,
a federal law providing protections for active-duty
servicemembers. 319 U.S. 561 (1943). The Court explained that the legislation “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.” Id. at 575.
A few years later, when discussing the Selective
Training and Service Act of 1940, the Court reiterated
this pro-veteran approach to statutory construction:
“This 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.” Fishgold v. Sullivan Drydock & Repair Corp., 328 U.S. 275, 285
(1946). The Court stated that it must “construe the
separate provisions of the 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. Likewise, the Court
explained decades later that the Vietnam Era Veterans’ Readjustment Assistance Act of 1974 “is to be liberally construed for the benefit of the returning
veteran.” Coffy v. Republic Steel Corp., 447 U.S. 191,
196 (1980).
More recently, the Court reaffirmed the canon’s
vitality in construing the Veterans’ Reemployment
Rights Act. The Court noted that, if the meaning of
the text was unclear, it “would ultimately read [an uncertain] provision in [the veteran]’s favor under the
18
canon that provisions for benefits to members of the
Armed Services are to be construed in the beneficiaries’ favor.” King v. St. Vincent’s Hosp., 502 U.S. 215,
220 n.9 (1991). The Court further stated that it “will
presume congressional understanding of such interpretive principles.” Id.
The Court again relied on the pro-veteran canon
in Henderson v. Shinseki, explaining that it has “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 441 (quoting
King, 502 U.S. at 220 n.9). In Henderson, the Court
concluded that Congress did not intend the deadline
for filing a notice of appeal with the Court of Appeals
for Veterans Claims to be jurisdictional. “Particularly
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.
The canon is also well recognized by the courts of
appeals, including the Federal Circuit in exercising
its exclusive jurisdiction over veterans-benefits matters. See Burden v. Shinseki, 727 F.3d 1161, 1169
(Fed. Cir. 2013) (“[I]n construing veterans’ benefits
legislation ‘interpretive doubt is to be resolved in the
veteran’s favor.’”) (quoting Gardner, 513 U.S. at 118);
NOVA v. Sec’y of Veterans Affairs, 260 F.3d 1365,
1378 (Fed. Cir. 2001) (referring to the pro-veteran
canon as one of “the usual canons of statutory construction”); see also Travers v. Fed. Express Corp., 8
F.4th 198, 208 n.25 (3d Cir. 2021) (“[A]ny interpretive
doubt is construed in favor of the service member, under the pro-veteran canon.”); Boatswain v. Gonzales,
19
414 F.3d 413, 417 (2d Cir. 2005) (noting canon as a
“jurisprudential doctrine[] that counsel[s] for interpretation in favor of … veterans”); Sykes v. Columbus
& Greenville Ry., 117 F.3d 287, 294 (5th Cir. 1997)
(“To the extent that [the Veterans’ Reemployment
Rights Act] is capable of multiple interpretations, [the
veteran] is quite correct that ambiguities should be
resolved in his favor.”).
Here, the Federal Circuit expressly declined to
apply the pro-veteran canon. Reasoning that “each of
the argued-for interpretations” of a single phrase in
§ 1724 “would benefit some veterans at the expense of
others,” the court saw “no role for the pro-veteran interpretive canon.” Pet. App. 12a. In doing so, the court
fundamentally misunderstood the role of the pro-veteran canon in the analytical task at hand. Had it
properly bore in mind Congress’s pro-veteran intent,
the Federal Circuit might have recognized the readily
apparent, harmonious reading of the three statutory
provisions it was considering. See supra IIA. And it at
least would have resolved any arguable tension by
providing a pro-veteran interpretation of the reimbursement statutes. Instead, the Federal Circuit limited the important benefits Congress intended to
confer by these provisions. These are the kinds of
“harsh consequences” that the pro-veteran canon is
meant to check against, Henderson, 562 U.S. at 441.
20
C. Other canons of interpretation also
support interpreting these statutes in
favor of veterans.
The Federal Circuit’s statutory analysis also
failed to account for other traditional tools of construction that would have resulted in a pro-veteran
reading of the reimbursement statutes. Even if the
three provisions were in tension (as the Federal Circuit concluded), the harmonious-reading and general/specific canons of statutory construction support
interpreting the statutes in favor of veterans.
The harmonious-reading canon teaches that provisions of a statute should be interpreted in a way
that makes them compatible, not contradictory. A
court “must read [two allegedly conflicting] statutes
to give effect to each if [it] can do so while preserving
their sense and purpose.” Watt v. Alaska, 451 U.S.
259, 267 (1981). As this Court recently explained,
“[w]hen confronted with two Acts of Congress allegedly touching on the same topic, this Court is not at
‘liberty to pick and choose among congressional enactments’ and must instead strive ‘to give effect to both.’”
Epic Sys., 138 S. Ct. at 1624 (quoting Morton v.
Mancari, 417 U.S. 535, 551 (1974)). Had it faithfully
applied this principle (alongside the pro-veteran
canon), the Federal Circuit could not have concluded
that the reimbursement statutes are in tension with
§ 1724.
The general/specific canon likewise supports this
pro-veteran interpretation. As the petition explains
(at 24-29), where a conflict among statutory provisions cannot be avoided, specific commands should
21
govern over a more general prohibition. See Morales
v. Trans World Airlines, Inc., 504 U.S. 374, 384 (1992)
(“[I]t is a commonplace of statutory construction that
the specific governs the general.”); Crawford Fitting
Co. v. J. T. Gibbons, Inc., 482 U.S. 437, 445 (1987) (“As
always, ‘[w]here there is no clear intention otherwise,
a specific statute will not be controlled or nullified by
a general one, regardless of the priority of enactment.’”) (quoting Radzanower v. Touche Ross & Co.,
426 U.S. 148, 153 (1976)).
Sections 1725 and 1728 are more specific than
§ 1724 in all relevant respects: (i) Emergency treatment is a subset of medical care; (ii) reimbursement
is, at most, a subset of “furnish[ing]” medical care (as
the Federal Circuit has interpreted that term); and
(iii) §§ 1725 and 1728’s focus on proximity to a federal
facility through the definition of “emergency treatment” is more geographically specific than § 1724’s
general provision that prohibits furnishing medical
care abroad. Traditional tools of statutory construction therefore support a pro-veteran reading of the reimbursement statutes.
22
CONCLUSION
Amici respectfully request that the Court grant
the petition for certiorari.
Respectfully submitted,
Melanie L. Bostwick
Counsel of Record
Melanie R. Hallums
ORRICK, HERRINGTON &
SUTCLIFFE LLP
1152 15th Street, NW
Washington, DC 20005
(202) 339-8400
mbostwick@orrick.com
September 25, 2023
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.