Amicus Curiae Brief — David Forsythe, Petitioner v. Denis R. McDonough, Secretary of Veterans Affairs

No. 23-779

In the Supreme Court of the United States

____________

David Forsythe,

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 AMICUS CURIAE OF

MILITARY-VETERANS ADVOCACY

SUPPORTING PETITIONER

____________

MICHAEL E. JOFFRE

COUNSEL OF RECORD

RICHARD A. CRUDO

STERNE, KESSLER, GOLDSTEIN

& FOX, P.L.L.C.

1101 K STREET, N.W.

WASHINGTON, D.C. 20005

(202) 772-8856

MJOFFRE@STERNEKESSLER.COM

February 20, 2024

JOHN B. WELLS

MILITARY-VETERANS

ADVOCACY, INC.

P.O. BOX 5235

SLIDELL, L.A. 70469

i

TABLE OF CONTENTS

INTEREST OF AMICUS CURIAE .......................... 1

SUMMARY OF THE ARGUMENT ........................... 2

ARGUMENT .............................................................. 5

I.

II.

The Court of Appeals’ Decision Conflicts with

the Veterans-Benefits System’s

Pro-Claimant Design. ........................................ 5

A.

Veterans Proceedings Are Strongly and

Deliberately Pro-Veteran. .......................... 5

B.

The Federal Circuit’s Interpretation of

§ 5103(a) Disregards Both the Statute’s

Plain Text and the Pro-Veteran Canon..... 7

C.

The Federal Circuit’s Refusal to Demand

that the VA Follow its Own Regulation

Allows the VA to Flout its Duty to Assist. 9

The Federal Circuit’s Decision Also Conflicts

with Fundamental Principles of

Administrative Law. ........................................ 12

A.

The Federal Circuit Permitted the VA to

Circumvent Notice-and-Comment

Rulemaking. ............................................. 13

B.

The Super-Chevron Deference that the

Federal Circuit Afforded the VA Conflicts

with Pro-Veteran Principles and Has No

Legal or Policy Justification. ................... 16

III. The Federal Circuit’s Decision Will Harm

Veterans and Further Weaken an AlreadyBroken System. ................................................ 19

CONCLUSION ......................................................... 23

ii

TABLE OF AUTHORITIES

Page(s)

Cases

Accardi v. Shaughnessy,

347 U.S. 260 (1954) ..............................................13

Army & Air Force Exchange

Service v. Sheehan,

456 U.S. 728 (1982) ..............................................13

Barrett v. Nicholson,

466 F.3d 1038 (Fed. Cir. 2006) ..............................6

Boone v. Lightner,

319 U.S. 561 (1943) ................................................3

Brown v. Gardner,

513 U.S. 115 (1994) ........................................6, 8–9

Buffington v. McDonough,

143 S. Ct. 14 (2022)........................................16–17

Coffy v. Republic Steel Corp.,

447 U.S. 191 (1980) ................................................5

Comer v. Peake,

552 F.3d 1362 (Fed. Cir. 2009) ........................6, 10

Director, Office of Workers’ Compensation

Programs v. Eastern Association

Coal Corp.,

54 F.3d 141 (3d Cir. 1995) ....................... 13–14, 18

iii

Epic Systems Corp. v. Lewis,

584 U.S. 497 (2018) ................................................8

Fina Oil & Chemical Co. v. Norton,

332 F.3d 672 (D.C. Cir. 2003) ..............................15

Fishgold v. Sullivan Drydock

& Repair Corp.,

328 U.S. 275 (1946) ................................................6

Hayre v. West,

188 F.3d 1327 (Fed. Cir. 1999) ..............................6

Henderson v. Shinseki,

562 U.S. 428 (2011) ................................................8

Henriquez-Rivas v. Holder,

707 F.3d 1081 (9th Cir. 2013)..............................16

Hodge v. West,

155 F.3d 1356 (Fed. Cir. 1998) ........................5, 18

Hudick v. Wilkie,

755 F. App’x 998 (Fed. Cir. 2018) ..................11, 13

Jennings v. Rodriguez,

583 U.S. 281 (2018) ..............................................21

Johnson v. Robinson,

415 U.S. 361 (1974) ..............................................23

King v. St. Vincent’s Hospital,

502 U.S. 215 (1991) ................................................6

Kisor v. McDonough,

995 F.3d 1316 (Fed. Cir. 2021) ..............................8

iv

Lewis v. McDonough,

2023 WL 8519089 (Ct. App. Vet. Cl.

Dec. 8, 2023) ...........................................................4

Locklear v. Nicholson,

20 Vet. App. 410 (2006) ...................................7, 10

Martin v. O’Rourke,

891 F.3d 1338 (Fed. Cir. 2018) ............................21

National Organization of Veterans’

Advocates, Inc. v. Secretary of

Veterans Affairs,

260 F.3d 1365 (Fed. Cir. 2001) ..............................9

Powell v. Heckler,

789 F.2d 176 (3d Cir. 1986) .................................15

Procopio v. Wilkie,

913 F.3d 1371 (Fed. Cir. 2019) ............................17

Rudisill v. McDonough,

55 F.4th 879 (Fed. Cir. 2022) ..............................17

Santana-Venegas v. Principi,

314 F.3d 1293 (Fed. Cir. 2002) ............................11

Sursely v. Peake,

551 F.3d 1351 (Fed. Cir. 2009) ..............................9

Tobin v. Edward S. Wagner Co.,

187 F.2d 977 (2d Cir. 1951) .................................15

Usery v. Kennecott Copper Corp.,

577 F.2d 1113 (10th Cir. 1977)............................15

v

Vitarelli v. Seaton,

359 U.S. 535 (1959) ..............................................13

Walters v. National Association of

Radiation Survivors,

473 U.S. 305 (1985) ................................................7

Statutes

30 U.S.C. § 932(g) ......................................................13

38 U.S.C. § 5103(a)(1) ............. 1–4, 7, 9–10, 13, 19, 23

38 U.S.C. § 5103A(a)(1) .........................................6, 10

Other Authorities

20 C.F.R. § 725.01(a)(31) ..........................................15

20 C.F.R. § 725.101(a)(4) ..........................................14

38 C.F.R. § 3.159(b)(1) .......... 1–3, 9–11, 13, 18–20, 23

65 Fed. Reg. 79,920 (Dec. 20, 2000) ..........................15

66 Fed. Reg. 45,620 (Aug. 29, 2001) .........................20

Loper Bright Enterprises v. Raimondo,

No. 22-451, Brief for Petitioners (July

17, 2023) ...............................................................16

Benjamin P. Pomerance, Fighting on Too

Many Fronts: Concerns Facing Elderly

Veterans in Navigating the United

States Department of Veterans Affairs

Benefits System, 37 HAMLINE L. REV. 19

(2014) ....................................................................10

vi

Benjamin W. Wright, The Potential

Repercussions of Denying Disabled

Veterans the Freedom to Hire an

Attorney, 19 FED. CIR. B.J. 433 (2009) ................22

Bryan A. Liang & Mark S. Boyd, PTSD in

Returning Wounded Warriors: Ensuring

Medically Appropriate Evaluation and

Legal Representation Through

Legislative Reform, 22 STAN. L. & POL’Y

REV. 177 (2011) ....................................................10

Cass R. Sunstein, Law and Administration

After Chevron, 90 COLUM. L. REV. 2071

(1990) ....................................................................16

Characteristics of Claims, VA,

https://www.benefits.va.gov/REPORTS/c

haracteristics_of_claims.asp................................22

December 2023 AMA Metrics Report, Part

1–AMA(W-Y), available at https://www.

benefits.va.gov/REPORTS/AMA/ ........................22

H.R. Rep. No. 100-963 (1988), reprinted in

1988 U.S.C.C.A.N. 5782 ........................................7

Hugh McClean, Delay, Deny, Wait Till

They Die: Balancing Veterans’ Rights

and Non-Adversarial Procedures in the

VA Disability Benefits System, 72 SMU

L. REV. 277 (2019) ................................................23

vii

James T. O’Reilly, Burying Caesar:

Replacement of the Veterans Appeals

Process Is Needed to Provide Fairness to

Claimants, 53 ADMIN. L. REV. 223 (2001) ...........23

Kristi A. Estrada, Welcome Home: Our

Nation’s Shameful History of Caring for

Combat Veterans and How Expanding

Presumptions for Service Connection

Can Help, 26 T.M. COOLEY L. REV. 113

(2009) ..............................................................11, 22

Michael P. Allen, Justice Delayed; Justice

Denied? Causes and Proposed Solutions

Concerning Delays in the Award of

Veterans’ Benefits, 5 U. MIAMI NAT’L

SEC. & ARMED CONFLICT L. REV. 1 (2015) ...........21

OIG Report #21-03061-209, available at

https://www.oversight.gov/sites/default/f

iles/oig-reports/VA/VAOIG-21-03061209.pdf ..................................................................21

Stacey-Rae Simcox, Thirty Years of

Veterans Law: Welcome to the Wild

West, 67 U. KAN. L. REV. 513 (2019) ...................12

The VA Claim Process After You File Your

Claim, VA, https://www.va.gov/

disability/after-you-file-claim/ (last

updated Feb. 5, 2024) ..........................................22

1

INTEREST OF AMICUS CURIAE 1

Military-Veterans Advocacy, Inc. (MVA) is a nonprofit organization that litigates and advocates on

behalf of service members and veterans. Established

in 2012 in Slidell, Louisiana, MVA educates and

trains service members and veterans concerning

rights and benefits, represents veterans contesting

the improper denial of benefits, and advocates for

legislation to protect and expand service members’

and veterans’ rights and benefits.

The VA has a duty to notify veterans of any

additional evidence necessary to substantiate their

claims after evaluating whether the existing evidence

is sufficient. The statute and regulation requiring

such notice are unambiguous on this point.

Specifically, 38 U.S.C. § 5103(a)(1) says that the VA

shall provide the veteran “notice of any information,

and any medical or lay evidence, not previously

provided to the [VA] that is necessary to substantiate

the claim.” (emphasis added). And the effectuating

regulation, 38 C.F.R. § 3.159(b)(1), similarly states

that “when [the] VA receives a complete or

substantially complete initial or supplemental claim,

[the] VA will notify the claimant of any information

and medical or lay evidence that is necessary to

substantiate the claim.” (emphasis added).

1 The parties were timely notified of MVA’s intent to file this

brief. No counsel for a party authored any part of this brief, and

no such counsel or party made a monetary contribution intended

to fund the preparation or submission of this brief. No person

other than amicus curiae, its members, or its counsel made a

monetary contribution to the brief’s preparation or submission.

2

The Federal Circuit disregarded this clear

language to hold that the requisite notice may be

provided as part of a generic form that the veteran

fills out before a claim is even initiated. In so doing,

the court of appeals ignored the role that the proveteran canon plays in statutory interpretation, the

VA’s duty to assist veterans in substantiating their

claims, and the VA’s responsibility to follow the

regulations it promulgates pursuant to that duty.

To make matters worse, the court devised a form

of super-Chevron deference that defers—not merely

to an agency’s interpretation of a statute and

corresponding regulation—but to what the agency

intended the regulation to be. The panel majority

then invited the VA to modify its regulation to

comport with the agency’s alleged intent.

MVA has an interest in seeing that pro-veteran

principles endure as prominent features of our proveteran benefits system and that veterans are not

subject to the whim of the VA’s unexpressed intent.

SUMMARY OF THE ARGUMENT

Both

§ 5103(a)

and

§ 3.159(b)

require

individualized, post-claim notice to veterans of what

further evidence is needed to substantiate their

claims. This requirement makes sense—the VA

cannot give notice to a veteran about what evidence is

needed until after the claim has been filed and

evaluated.

Yet, the VA has provided “notice” only as a preface

to a generic form that veterans fill out before a claim

is initiated. And the Federal Circuit here permitted

the VA to continue this practice. Not only did the

3

court misinterpret the statute, it dismissed the VA’s

regulation as “outdated” and “unlikely” to reflect what

“the agency intended.” Pet. App. 9a. The court then

“urge[d]” the VA to amend the rule to “avoid further

confusion” in the future. Id. at 9a n.1. In other words,

rather than hold the agency to the statute and the

actual regulation it promulgated, the court deferred

to an interpretation that the agency intended but did

not express.

The Federal Circuit’s willingness to afford the VA

the benefit of the doubt is antithetical to the strongly

and uniquely pro-claimant nature of the veteransbenefits system. By design, the system is supposed to

favor the veteran—rather than the government—at

every turn. See infra Section I.A.

Emblematic of this design are two principles

relevant here. The first is the pro-veteran canon,

which requires that veterans-benefits statutes

“always . . . be liberally construed to protect those

who have been obliged to drop their own affairs to

take up the burdens of the nation.” Boone v. Lightner,

319 U.S. 561, 575 (1943). Even if § 5103(a) were

ambiguous as to whether individualized, post-claim

notice is required, the pro-veteran canon should have

tipped the balance in veterans’ favor to require such

notice. See infra Section I.B.

The second relevant principle is the VA’s duty to

assist, which requires the VA to help veterans

substantiate their claims. Again, even if § 5103(a)

were ambiguous, the VA was obligated to assist

veterans by following its own regulation, § 3.159(b),

requiring post-claim notice. See infra Section I.C.

4

Yet the Federal Circuit ignored both principles; its

opinion says nothing at all about the pro-claimant

nature of the veterans-benefits system. That is reason

enough for the Court to grant the petition.

Even apart from pro-veteran considerations, the

Federal Circuit’s ruling is deeply problematic from an

administrative-law standpoint. By allowing the VA to

comply with the regulation it allegedly intended but

did not promulgate, the Federal Circuit permitted the

VA to circumvent notice-and-comment rulemaking.

See infra Section II.A. And, in so doing, the court went

well beyond merely deferring to the VA’s

interpretation of § 5103(a) as reflected in the agency’s

regulation under Chevron. Rather, the court deferred

to the agency’s unwritten “inten[t],” notwithstanding

the regulation. Chevron deference is generally

problematic and is particularly so in the veteransbenefits context because it derogates the pro-veteran

principles described above. But here, the problem is

even worse—the court of appeals devised a new,

super-deferential interpretative canon that takes

Chevron to the extreme. See infra Section II.B.

Finally, the court of appeals’ holding has real and

harmful consequences. As Judge Mayer noted in

dissent, the pre-claim notice used by the VA is

prohibitively dense and confusing, and many veterans

do not get a chance to read, let alone understand, the

document. Pet. App. 17a–18a (Mayer, J., dissenting).

As a result, more claims are being denied now than

ever before. Indeed, the Federal Circuit’s decision has

already been invoked to deny benefits, see Lewis v.

McDonough, 2023 WL 8519089, at *3–4 (Ct. App. Vet.

Cl. Dec. 8, 2023), and will continue to be if permitted

to stand. The decision also weakens the veterans-

5

benefits system itself. The VA’s post-claim-notice

practice has led to more supplemental claims being

filed, as well as lengthier and more complicated

proceedings, which only exacerbates the VA’s alreadysevere

and

well-documented

administrative

problems. See infra Section III.

In short, allowing the VA to ignore the notice

statute and its own regulation does not advance the

paternalistic character that the veterans-benefits

system is designed to reflect. On the contrary, it

would be difficult to devise a “notice” that is less

helpful than the one the VA provides. The Court

should grant the petition, reaffirm the importance of

the pro-veteran canon and duty to assist, and

establish that the type of agency deference exercised

by the Federal Circuit here has no place in the law,

let alone in veterans-benefits cases.

ARGUMENT

I.

THE COURT OF APPEALS’ DECISION CONFLICTS

WITH THE VETERANS-BENEFITS SYSTEM’S PROCLAIMANT DESIGN.

A.

Veterans Proceedings Are Strongly and

Deliberately Pro-Veteran.

From its inception, the veterans-benefits system

was intended to be “strongly and uniquely proclaimant.” Hodge v. West, 155 F.3d 1356, 1362 (Fed.

Cir. 1998) (citing Coffy v. Republic Steel Corp., 447

U.S. 191, 196 (1980)). “Congress’ intent in crafting the

veterans benefits system [was] to award entitlements

to a special class of citizens, those who risked harm to

serve and defend their country,” and, consequently,

6

the “entire scheme is imbued with special beneficence

from a grateful sovereign.” Barrett v. Nicholson, 466

F.3d 1038, 1044 (Fed. Cir. 2006) (cleaned up); Hayre

v. West, 188 F.3d 1327, 1334 (Fed. Cir. 1999) (noting

that

“systemic

justice

and

fundamental

considerations of procedural fairness carry great

significance” in the regime), overruled on other

grounds by Cook v. Principi, 318 F.3d 1334 (Fed. Cir.

2002) (en banc).

The solicitous nature of the system is reflected in

several doctrines that inure to the veteran’s benefit.

Two are relevant here. The first is the canon of

construction that “interpretive doubt is to be resolved

in the veteran’s favor.” Brown v. Gardner, 513 U.S.

115, 118 (1994). Recognized as an important tool in

protecting veterans’ rights for the past seventy-five

years, the pro-veteran canon requires courts to give

statutes “as liberal a construction for the benefit of

the veteran as a harmonious interplay of the separate

provisions permits.” Fishgold v. Sullivan Drydock &

Repair Corp., 328 U.S. 275, 285 (1946). Moreover, the

canon forms part of the backdrop against which

Congress is presumed to legislate. King v. St.

Vincent’s Hosp., 502 U.S. 215 n.9 (1991) (“[w]e will

presume congressional understanding of” the canon).

The second doctrine is the VA’s duty to assist. That

duty reflects “the paternalistic nature” of the

veterans-benefits system, Comer v. Peake, 552 F.3d

1362, 1368 (Fed. Cir. 2009), and requires the VA—

unlike almost every other federal agency that

administers a benefits scheme—to “assist a claimant

in obtaining evidence necessary to substantiate the

claimant’s claim,” 38 U.S.C. § 5103A(a)(1). To

discharge its duty, the VA must “fully and

7

sympathetically develop the veteran’s claim to its

optimum before deciding it on the merits.” H.R. Rep.

No. 100-963, at 13 (1988), reprinted in 1988

U.S.C.C.A.N. 5782, 5795.2

As explained below, the Federal Circuit’s ruling

here subverts both of these doctrines.

B.

The Federal Circuit’s Interpretation of

§ 5103(a) Disregards Both the Statute’s

Plain Text and the Pro-Veteran Canon.

The court of appeals glossed over § 5103(a)’s text

and did not mention the pro-veteran canon, let alone

apply it. Rather, focusing on the statute’s legislative

history, the court observed that § 5103(a) was

amended in 2012 to remove language requiring notice

to be given “[u]pon receipt of a complete or

substantially complete application.” Pet. App. 6a–7a.

The court concluded from this amendment that the

statute does not require post-claim notice. This

cursory analysis is misguided.

The statute is clear: the VA must notify the

veteran of information “not previously provided to the

Secretary that is necessary to substantiate the claim.”

This language, which was preserved even after the

2012 amendment, requires post-claim notice because

the VA cannot know what evidence bears on a claim

before the claim is filed. Pet. 18, 20–21; Locklear v.

Nicholson, 20 Vet. App. 410, 416 (2006) (noting that

See

Walters v. National Ass’n of Radiation Survivors, 473 U.S. 305,

2 These are just two examples; there are many others.

309–312 (1985) (surveying pro-veteran features of veteransbenefits system).

8

this language “indicates that some cognitive review of

the claim must be made prior to providing the

notice”). The statute’s clarity should have ended the

inquiry. See Gardner, 513 U.S. at 122 (rejecting an

interpretation of a statute that “flies against the plain

language of the statutory text”).

Even if the statute did not clearly require postclaim notice, it at least casts doubt on the Federal

Circuit’s contrary interpretation. And, under the proveteran canon, any lingering ambiguity in the statute

should have been resolved in Mr. Forsythe’s favor to

require post-claim notice. See Henderson v. Shinseki,

562 U.S. 428, 440–441 (2011) (the canon, like other

pro-veteran doctrines, “place[s] a thumb on the scale

in the veteran’s favor”); Gardner, 513 U.S. at 118.

The legislative history does not compel a contrary

conclusion. To start, “legislative history is not the

law.” Epic Sys. Corp. v. Lewis, 584 U.S. 497, 523

(2018); Pet. App. 16a (Mayer, J., dissenting) (noting

that any alleged congressional intent “did not

explicitly make it into the law”). And, as the petition

explains, the legislative history is not probative of

whether the statute permits pre-claim notice. See Pet.

19–23.

Even if it were, the legislative history should have

been weighed against the pro-veteran canon, which,

as explained above, favors post-claim notice. “While

the canon may not be dispositive of a provision’s

meaning every time it is applied,” courts are at least

“obligated to weigh it alongside the other tools of

construction”—including

any

“countervailing

legislative history”—when the statutory text is

ambiguous. Kisor v. McDonough, 995 F.3d 1316,

9

1336–1337 (Fed. Cir. 2021) (Reyna, J., dissenting),

cert. denied, 142 S. Ct. 756 (2022); see also National

Org. of Veterans’ Advocates, Inc. v. Secretary of

Veterans Affairs, 260 F.3d 1365, 1377–1378 (Fed. Cir.

2001) (invoking pro-veteran canon as a “usual tool” for

resolving statutory ambiguity even in the face of

countervailing legislative history).

Had the Federal Circuit considered the proveteran canon, it would have had to reconcile the

statute’s legislative history with Mr. Forsythe’s

countervailing reading of the statute. And, given that

Mr. Forsythe’s reading is at least as plausible as the

VA’s (and, in fact, more so), that reading should have

prevailed. See Gardner, 513 U.S. at 117–118 (all

“interpretive doubt is to be resolved in the veteran’s

favor”); Sursely v. Peake, 551 F.3d 1351, 1357 (Fed.

Cir. 2009) (where two interpretations are “plausible,”

the pro-veteran interpretation should prevail).

Whatever probative value § 5103(a)’s legislative

history has, it does not outweigh the statute’s plain

text or the pro-veteran canon.

C.

The Federal Circuit’s Refusal to Demand

that the VA Follow its Own Regulation

Allows the VA to Flout its Duty to Assist.

Even if § 5103(a) does not require the VA to

provide post-claim notice, it does not prohibit the VA

from promulgating regulations requiring such notice.

Pet. App. 15a–16a (Mayer, J., dissenting). The VA did

just that when it promulgated § 3.159(b)(1). The

regulation requires the VA to provide notice “when

[the] VA receives a complete or substantially complete

initial or supplemental claim”—i.e., after a claim has

been filed. And, critically, even after Congress

10

amended § 5103(a) in 2012, the VA did not amend the

regulation to permit pre-claim notice. Pet. App. 8a.

Yet, rather than require the VA to follow its

regulation, the Federal Circuit relied on the VA’s

2012 congressional testimony to conclude that the

regulation is not what “the agency intended.”

Pet. App. 9a. The court thus “urge[d]” the VA to

change the regulation (but without waiting for the VA

to do so). Id. at 9a n.1. The court’s willingness to let

the VA off the hook is deeply troubling and

inappropriately allows the VA to disregard its duty to

assist.

As explained above, the VA’s duty to assist reflects

“the paternalistic nature” of the veterans-benefits

system, Comer, 552 F.3d at 1368, and requires the VA

to “assist a claimant in obtaining evidence necessary

to substantiate the claimant’s claim,” 38 U.S.C.

§ 5103A(a)(1). Rule 3.159(b) itself is designed to

promote this duty by providing individualized, clear

notice and guidance to those who need it most.

Locklear, 20 Vet. App. at 414. Many veterans are

elderly or suffer from impairments that prevent them

from understanding the system.3 These individuals

are typically “incapable of developing the factual

record alone” and “may not know the requisite

3 See Bryan A. Liang & Mark S. Boyd, PTSD in Returning

Wounded Warriors: Ensuring Medically Appropriate Evaluation

and Legal Representation Through Legislative Reform, 22 STAN.

L. & POL’Y REV. 177, 182 (2011); Benjamin P. Pomerance,

Fighting on Too Many Fronts: Concerns Facing Elderly Veterans

in Navigating the United States Department of Veterans Affairs

Benefits System, 37 HAMLINE L. REV. 19, 47 (2014).

11

language for recognition of benefits claims.”4 Rule

3.159(b) and the VA’s duty to assist ensure that these

individuals receive the guidance needed to at least

apply for benefits rightly owed to them. See infra

Section III.

Given that the VA’s duty to assist forms the

foundation on which the veterans-benefits system is

built, veterans should be entitled to “rely on the VA to

fully comply” with regulations specifically designed to

promote that duty. See Santana-Venegas v. Principi,

314 F.3d 1293, 1298 (Fed. Cir. 2002) (“It is not

unreasonable for veterans to rely on the VA to fully

comply with the comprehensive policies adopted by

the agency including the duty to assist timely.”).

Stated differently, the VA should not be permitted

to “tell a veteran” one thing in its regulation and then

“move the goal-posts” after the veteran has relied on

the regulation. Hudick v. Wilkie, 755 F. App’x 998,

1007 (Fed. Cir. 2018). Such maneuvering hardly

advances—and, in fact, is flatly inconsistent with—

the VA’s duty to assist. And yet, that is exactly what

the VA has done here, with the full endorsement of

the Federal Circuit.

“Each time the VA chips away at the duty to assist,

the VA changes course farther away from its guiding

principles to ensure that claimants are afforded every

4 Kristi A. Estrada, Welcome Home: Our Nation’s Shameful

History of Caring for Combat Veterans and How Expanding

Presumptions for Service Connection Can Help, 26 T.M. COOLEY

L. REV. 113, 125 (2009).

12

opportunity to substantiate their claim[.]”5

Respectfully, the Court should not permit the VA to

continue to do so.

* * *

The Court should grant the petition and reaffirm

the preeminence of the above pro-veteran principles

in veterans-benefits cases.

THE FEDERAL CIRCUIT’S DECISION ALSO

CONFLICTS WITH FUNDAMENTAL PRINCIPLES OF

ADMINISTRATIVE LAW.

II.

The Federal Circuit’s ruling is flawed for another

fundamental reason: it conflicts with well-established

principles of administrative law. The court’s refusal

to require the VA to follow its regulation

impermissibly allows the agency to effectuate a

de facto change to the regulation without going

through notice-and-comment rulemaking. Further,

the court’s deference to what the VA intended (but did

not express in a regulation) significantly departs from

the already misguided principles of agency deference

espoused in Chevron.

These infirmities provide yet another basis for the

Court to grant the petition.

Stacey-Rae Simcox, Thirty Years of Veterans Law:

Welcome to the Wild West, 67 U. KAN. L. REV. 513, 558–559

5

(2019) (cleaned up).

13

A.

The Federal Circuit Permitted the VA to

Circumvent Notice-and-Comment

Rulemaking.

Regardless of what the VA “intended,” § 3.159(b)

is clear on its face, which should have been sufficient

to rule in Mr. Forsythe’s favor: “a federal agency must

comply with its own regulations.” Army & Air Force

Exch. Serv. v. Sheehan, 456 U.S. 728, 733 (1982); see

also Accardi v. Shaughnessy, 347 U.S. 260, 266–267

(1954); Pet. 23–28.

Indeed, “[e]ven when an agency’s rules are more

generous than they are required to be by statute,

these rules still must be followed.” Hudick, 755 F.

App’x at 1005 (citing Vitarelli v. Seaton, 359 U.S. 535,

539 (1959)). Thus, even if the Federal Circuit were

correct that § 5103(a) does not require post-claim

notice and that the VA did not intend that such notice

be provided, the VA was still bound by its more

generous regulation unambiguously requiring postclaim notice.

The Third Circuit’s decision in Director, Office of

Workers’ Compensation Programs v. Eastern

Association Coal Corp., 54 F.3d 141 (3d Cir. 1995)

(“OWCP ”), provides a roadmap for what the Federal

Circuit should have done. There, the court addressed

OWCP’s interpretation of the Black Lung Benefits

Act, which establishes a comprehensive scheme to

compensate coalminers and their surviving

dependents for medical problems caused by black

lung disease. The statute provided that employer

payments under the Act be offset by employee

compensation

received

under

a

“workers’

compensation law.” Id. at 143 (citing 30 U.S.C.

14

§ 932(g) (1986)). The Department of Labor had

implemented a regulation clearly defining “worker’s

compensation law” to include any state law requiring

compensation, irrespective of whether the payment

was funded by employers or by the state’s general

revenues. Id. at 148 (quoting 20 C.F.R. § 725.101(a)(4)

(1978)).

Notwithstanding the regulation’s plain language,

OWCP urged the court to defer to its longstanding

interpretation of the regulation as carving out state

laws that compensate coalminers from the public fisc.

Id. at 148, 149. OWCP argued that its interpretation

comported with what the agency actually intended

and that a contrary interpretation would confer a

windfall on employers. Id. at 149.

The Third Circuit rejected that argument.

Although the court agreed that the statute was

ambiguous and that OWCP’s interpretation made

good policy sense, the court refused to interpret the

regulation based on what the agency “may have

intended.” Id. at 149. “The issue,” the court explained,

“is what the Secretary said through regulation, not

what the Secretary might have intended.” Id. at 148.

The court noted, moreover, that OWCP’s “policy

concerns” must be “address[ed] through rewriting the

regulation[].” Id. at 149. The court emphasized that

the agency “has the means and obligation to amend

its regulation[]” to effectuate any contrary intended

meaning, and so courts “cannot accord more deference

to [OWCP’s] interpretation of the regulation than to

the actual regulation” itself. Id. at 149–150.

The Department of Labor took the hint. Following

the Third Circuit’s decision, the agency amended its

15

regulation to make clear that “[a] payment funded

wholly out of general revenues shall not be considered

a payment under a workers’ compensation law.” 20

C.F.R. § 725.01(a)(31) (2001). In so doing, the agency

explained that its amendment was meant “to reflect

accurately the Department’s intended meaning.” 65

Fed. Reg. 79,920, 79,958 (Dec. 20, 2000). But,

importantly, that intent was not—and could not have

been—binding before the amendment was enacted.

This is how the system is supposed to work.6

The Federal Circuit here got it exactly backwards.

Rather than apply the regulation as written and let

the VA amend the regulation to reflect a contrary

intent going forward, the court inferred a contrary

intent and urged the VA to amend the regulation to

match it. The court’s novel approach to regulatory

interpretation would have disastrous consequences if

ever followed and expanded to other agencies and

contexts. It should be soundly rejected.

6 See also Fina Oil & Chem. Co. v. Norton, 332 F.3d 672, 676

(D.C. Cir. 2003) (agencies may not “circumvent[] the notice-andcomment process by rewriting regulations under the guise of

interpreting them”); Powell v. Heckler, 789 F.2d 176, 179 (3d Cir.

1986) (“[I]t would be improper for us to construe the regulation

to mean what the Secretary might have intended but did not

adequately express.”); accord Usery v. Kennecott Copper Corp.,

577 F.2d 1113, 1117–1119 (10th Cir. 1977); Tobin v. Edward S.

Wagner Co., 187 F.2d 977, 979 (2d Cir. 1951).

16

B.

The Super-Chevron Deference that the

Federal Circuit Afforded the VA Conflicts

with Pro-Veteran Principles and Has No

Legal or Policy Justification.

The flawed nature of the Federal Circuit’s analysis

is particularly evident when viewed through the lens

of Chevron and agency deference.

By now, the Court is well acquainted with

Chevron’s frequently voiced criticisms. As others have

pointed out, for example, Chevron violates

separation-of-powers principles by requiring courts to

abdicate their duty to say what the law is.7 The

doctrine also leads to due-process concerns because

the government is essentially empowered to act as a

judge in its own case. See Buffington v. McDonough,

143 S. Ct. 14, 19 (2022) (Gorsuch, J., dissenting from

denial of certiorari) (Chevron requires courts to “place

a finger on the scales of justice in favor of the most

powerful of litigants, the federal government, and

against everyone else”). And, as a practical matter,

the doctrine has proven to be unadministrable.8

See, e.g., Cass R. Sunstein, Law and Administration After

Chevron, 90 COLUM. L. REV. 2071, 2074–2075 (1990) (referring

to Chevron as “counter-Marbury”); see also Henriquez-Rivas v.

Holder, 707 F.3d 1081, 1087 (9th Cir. 2013) (“If the [agency’s]

construction is reasonable, we must accept that construction

under Chevron, even if we believe the agency’s reading is not the

best statutory interpretation.”).

7

See, e.g., Loper Bright Enters. v. Raimondo, No. 22-451,

Brief for Petitioners 32–40 (July 17, 2023) (cataloging practical

problems with Chevron).

8

17

Chevron deference is especially problematic in the

veterans-benefits context because it requires courts to

defer to VA regulations that harm veterans. Such

deference is, quite literally, antithetical to the proveteran canon. Indeed, as one former Federal Circuit

judge aptly explained:

Congress recognized that veterans

should not have to fight for benefits

from the very government they once

risked their lives to defend. We ignore

this purpose when we fail to apply the

pro-veteran

canon

to

resolve

ambiguities in statutes and regulations

that provide benefits to veterans; and,

by failing to hold that agency deference

must yield to the pro-veteran canon, we

permit agencies to do the same.

Procopio v. Wilkie, 913 F.3d 1371, 1387 (Fed. Cir.

2019) (en banc) (O’Malley, J., concurring); Rudisill v.

McDonough, 55 F.4th 879, 898 (Fed. Cir. 2022)

(Reyna, J., dissenting) (warning that allowing

Chevron to trump the pro-veteran canon “effectively

bends the law to the favor of, and to the deference of,

the agency”), cert. granted, 143 S. Ct. 2656 (2023). In

short, Chevron’s “judicial abdication” in such

circumstances “disserves both our veterans and the

law.” Buffington, 143 S. Ct. at 16 (Gorsuch, J.,

dissenting).

But the problem here is even worse than that.

Here, the Federal Circuit deferred to the VA’s

supposed intent nowhere articulated in any

regulation. It is one thing for a court to defer to an

agency’s regulation interpreting a statute—that is

18

bad enough for all the reasons described above. But it

is something else entirely for a court to defer to what

the agency intended but did not express. That type of

deference amounts to a complete and total abdication

of the court’s duty to interpret the law and gives the

agency nearly unfettered discretion to implement the

law as it sees fit, without notice-and-comment

rulemaking or other accountability protections. There

simply is no legal or policy rationale that would justify

such super-deference—the Federal Circuit certainly

did not articulate one.

In fact, the super-Chevron deference exercised

here is even worse than the deference advocated in

OWCP. At least there, OWCP urged that the

regulation at issue “be liberally construed” in favor of

coalminers, consistent with the “remedial” purpose of

the legislation. 54 F.3d at 149. Here, by contrast, the

VA’s interpretation (at least as inferred by the

Federal Circuit) is adverse to veterans, which flies in

the face of the veterans-benefits system’s “strongly

and uniquely pro-claimant” design. Hodge, 155 F.3d

at 1362. If OWCP’s pro-coalminer interpretation in

OWCP could not override the clear language of the

regulation at issue, then the VA’s anti-veteran

interpretation of § 3.159(b) here should not either.

** *

The Court should grant the petition and make

clear that the VA must follow its duly promulgated

regulations and that courts cannot defer to agency

intent not reflected in any regulation.

19

III. THE FEDERAL CIRCUIT’S DECISION WILL HARM

VETERANS AND FURTHER WEAKEN AN ALREADYBROKEN SYSTEM.

The court of appeals’ refusal to apply the proveteran principles described above not only violates

this Court’s precedent, it also has real and harmful

consequences for millions of veterans currently

eligible for disability compensation, as well as the

veterans-benefits system itself.

As explained below, the timing of the VA’s notice

makes a difference—by providing pre-claim notice

divorced from the particulars of a veteran’s claims,

the VA effectively provides no notice at all. As a

result, an increasing number of claims are being

denied. Accordingly, veterans are either unable to

receive benefits rightly owed to them or forced to file

supplemental claims, which, in turn, has led to longer

proceedings and greater delay—the last thing the VA

needs.

The court of appeals’ misinterpretation of

§ 5103(a) and § 3.159(b) thus leads to the perverse

assumption that the VA intended both to make it

more difficult for veterans to understand the

statutory notice and to further burden and backlog

the VA’s own system. This is an untenable

proposition.

A. Veterans’ ability to understand the VA’s notice

is inextricably linked to when the notice is received.

This is best illustrated by the VA’s historical notice

practice. Before changing course sometime in 2015,

the VA provided post-claim notice in the form of a

three-page, easily digestible letter. See CAFC

Reply Br., Ex A. The letter calls the veteran’s

20

attention to evidence—and a deadline for submitting

it—required to substantiate the claim and explains

what evidence the VA will be responsible for

collecting. Further, at the time the letter is received,

the veteran has already filed a claim and thus has the

requisite context for understanding the letter. The

letter presents the notice, moreover, using clear and

concise language.

The VA abruptly abandoned this practice in 2015,

when—without amending § 3.159(b)—it began

providing the notice that Mr. Forsythe received here:

a seven-page, cluttered preface to Form 21-526EZ

that veterans must fill out to initiate a claim. See

CAFC Appx89. Nothing about this “notice” is helpful.

Rather, it is dense boilerplate that veterans are

unlikely (or unable) to carefully read. Even if a

veteran does carefully review the content, the veteran

may not appreciate at that early stage in the

process—before a claim has been filed—how the

content relates to the veteran’s circumstances (and,

indeed, much of the content may be completely

irrelevant to the veteran’s circumstance).

Even though the VA has acknowledged that the

content of the notice “depends on the amount of

information and evidence VA already has regarding

an individual claim,” 66 Fed. Reg. 45,620, 45,622

(Aug. 29, 2001), the VA’s adopted notice is not tailored

to any particular individual’s claim—it is a one-sizefits-all that fits no one.9 See Pet. 8–10, 29–30.

9 The VA’s failure to provide post-claim notice also raises

due-process concerns, Pet. 32, which only further undermines

21

It is unsurprising, therefore, that the VA’s current

notice practice has created problems for veterans. A

recent audit of Camp Lejeune water-contamination

claims, for example, revealed that more than 80% of

all incorrectly-processed claims (and more than 40%

of all such denied claims) were caused by the VA’s

failure to provide adequate notice of evidence through

Form 21-526EZ and to provide such notice postfiling.10 This example supports the commonsense

notion that a notice’s timing makes all the difference

in a veteran’s ability to substantiate a claim.

B. The Federal Circuit’s decision endorsing the

VA’s pre-claim notice practice will also further burden

an already (and notoriously) inefficient and

backlogged system. See, e.g., Martin v. O’Rourke, 891

F.3d 1338, 1349, 1351 (Fed. Cir. 2018) (Moore, J.,

concurring) (noting universal agreement that the

veterans-benefits system is “fundamentally” and

“deeply” flawed and traps veterans “for years in a

bureaucratic labyrinth, plagued by delays and

inaction”).11 This is because veterans are forced to file

the Federal Circuit’s reading of the statute and regulation, see

Jennings v. Rodriguez, 583 U.S. 281, 286 (2018) (“Under the

constitutional-avoidance canon, when statutory language is

susceptible of multiple interpretations, a court may shun an

interpretation that raises serious constitutional doubts and

instead may adopt an alternative that avoids those problems.”).

10 OIG Report #21-03061-209, at ii, 4, 9–10, available at

https://www.oversight.gov/sites/default/files/oig-reports/VA/

VAOIG-21-03061-209.pdf.

See also, e.g., Michael P. Allen, Justice Delayed; Justice

Denied? Causes and Proposed Solutions Concerning Delays in

the Award of Veterans’ Benefits, 5 U. MIAMI NAT’L SEC. & ARMED

11

22

supplemental claims to submit evidence that could

have been submitted sooner had the requisite postclaim notice been provided. Pet. App. 32a, 34a.

Indeed, 63% of all currently pending claims are

supplemental claims.12

As a result, benefits determinations are taking

longer than ever before. The available data for 2023

shows that the number of supplemental claims

resolved within 125 days was just 67.8%—many

supplemental claims took much longer.13 And that is

just the tip of the iceberg: when one factors in the

nearly 160 days that the VA takes on average to

adjudicate claims, as well as an endless cycle of

appeals and remands, claims “can take years to

resolve,” often leading veterans to “become

discouraged and simply give up.”14 Meanwhile, it is

CONFLICT L. REV. 1, 3 (2015) (“The VA is perhaps the definition

of a byzantine bureaucracy.”); Benjamin W. Wright, The

Potential Repercussions of Denying Disabled Veterans the

Freedom to Hire an Attorney, 19 FED. CIR. B.J. 433, 433-434 &

n.5 (2009) (collecting cases “demonstrating the glacial pace of the

VA in determining benefits, the difficulty of . . . navigating the

bureaucracy, and VA blunders”).

Characteristics of Claims, VA, https://www.benefits.

va.gov/REPORTS/characteristics_of_claims.asp (last visited

Feb. 14, 2024).

12

13 See December 2023 AMA Metrics Report, Part 1–AMA (WY), available at https://www.benefits.va.gov/REPORTS/AMA/.

The VA Claim Process After You File Your Claim, VA,

https://www.va.gov/disability/after-you-file-claim/ (last updated

Feb. 5, 2024); Kristi A. Estrada, Welcome Home: Our Nation’s

14

Shameful History of Caring for Combat Veterans and How

23

sadly common for elderly claimants to pass away in

the interim, in which case the “government does not

pay” at all.15 Hence the unfortunate but apt slogan:

“delay, deny, wait ’till they die.”16

All this adds up to a bleak picture for veterans

seeking disability benefits and harms the very system

designed to provide such benefits. The Federal

Circuit’s erroneous interpretation of § 5103(a) and

§ 3.159(b) only magnifies these problems, as it will

lead to a lengthier, less efficient, and less pro-veteran

system. The decision should not be permitted to

stand.

CONCLUSION

Our Nation’s veterans have “subject[ed]

themselves to the mental and physical hazards as

well as the economic and family detriments which are

peculiar to military service and which do not exist in

normal civil life.” Johnson v. Robinson, 415 U.S. 361,

380 (1974). The least we can do for them is hold the

VA to its regulations and require it to do what it says

it will do. The Court should grant Mr. Forsythe’s

petition.

Expanding Presumptions for Service Connection Can Help, 26

T.M. COOLEY L. REV. 113, 128 (2009).

Burying Caesar: Replacement of the

Veterans Appeals Process Is Needed to Provide Fairness to

Claimants, 53 ADMIN. L. REV. 223, 224 (2001).

15 James T. O’Reilly,

Hugh McClean, Delay, Deny, Wait Till They Die:

Balancing Veterans’ Rights and Non-Adversarial Procedures in

the VA Disability Benefits System, 72 SMU L. REV. 277 (2019).

16

24

Respectfully submitted,

MICHAEL E. JOFFRE

Counsel of Record

RICHARD A. CRUDO

STERNE, KESSLER, GOLDSTEIN

& FOX, PLLC

1101 K Street, N.W.

Washington, D.C. 20005

(202) 772-8856

mjoffre@sternekessler.com

JOHN B. WELLS

MILITARY-VETERANS

ADVOCACY, INC.

P.O. Box 5235

Slidell, L.A. 70469

Counsel for Amicus Curiae