Amicus Curiae Brief — Nick Feliciano, Petitioner v. Department of Transportation

No. 23-861

IN THE

Supreme Court of the United States

___________________________

NICK FELICIANO,

v.

Petitioner,

DEPARTMENT OF TRANSPORTATION,

Respondent.

___________________________

ON PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE FEDERAL CIRCUIT

___________________________

BRIEF OF MILITARY-VETERANS

ADVOCACY, INC. AS AMICUS CURIAE IN

SUPPORT OF PETITIONER

___________________________

John B. Wells

MILITARY-VETERANS

ADVOCACY, INC.

P.O. Box 5235

Slidell, LA 70469-5235

(985) 641-1855

JohnLawEsq@msn.com

Melanie L. Bostwick

Counsel of Record

Anne W. Savin

ORRICK, HERRINGTON &

SUTCLIFFE LLP

2100 Pennsylvania Ave.

NW

Washington, DC 20037

(202) 339-8400

mbostwick@orrick.com

Counsel for Amicus Curiae

i

TABLE OF CONTENTS

Page

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

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

INTRODUCTION AND SUMMARY OF

ARGUMENT .........................................................2

ARGUMENT ...............................................................3

I.

The Federal Circuit’s Statutory

Interpretation Has Gone Astray. .........................3

A. The Federal Circuit first misconstrued

the differential-pay statute in 2021. ..............4

B. The Federal Circuit doubled down on

its mistaken interpretation here. ...................6

1. Mr. Feliciano is denied differential

pay. .............................................................7

2. 5 U.S.C. § 5538(a) plainly

incorporates only 10 U.S.C.

§ 101(a)(13)(B)’s list of provisions—

not its definition of “contingency

operations.” ................................................8

3. The Federal Circuit’s interpretation

also violates the spirit of the law. .............9

II. The Federal Circuit’s Misinterpretation

Exemplifies Its Recent Substitution Of

Policy Preference For Legislative Text. .............12

A. Educational benefits in Rudisill v.

McDonough....................................................12

B. Disability benefits in Buffington v.

McDonough....................................................13

ii

C. Statutory notice in Forsythe v.

McDonough....................................................15

D. A class-action vehicle in Skaar v.

McDonough....................................................16

III. The Pro-Veteran Canon Would Produce

Federal Circuit Decisions More Consistent

With Congress’s Text..........................................19

A. This Court has long recognized a proveteran canon of construction. ......................19

B. Application of the pro-veteran canon

here would have corrected the Federal

Circuit’s atextual reading. ............................24

CONCLUSION ..........................................................26

iii

TABLE OF AUTHORITIES

Page(s)

Cases

Adams v. Dep’t of Homeland Sec.,

3 F.4th 1375 (Fed. Cir. 2021) ............ 1, 3, 4, 5, 6, 7

Boone v. Lightner,

319 U.S. 561 (1943) .................................... 2, 19, 20

Brown v. Gardner,

513 U.S. 115 (1994) ........................................22, 23

Buffington v. McDonough,

143 S. Ct. 14 (2022)..............................................13

Buffington v. McDonough,

7 F.4th 1361 (Fed. Cir. 2021) .............. 2, 13, 14, 15

Burden v. Shinseki,

727 F.3d 1161 (Fed. Cir. 2013) ............................23

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

Council, Inc.,

467 U.S. 837 (1984) ..............................................24

Coffy v. Republic Steel Corp.,

447 U.S. 191 (1980) ..............................................21

Connecticut Nat’l Bank v. Germain,

503 U.S. 249 (1992) ................................................8

iv

Feliciano v. Dep’t of Transp.,

No. 22-1219, 2023 WL 3449138 (Fed.

Cir. May 15, 2023) .............................................1, 7

Fishgold v. Sullivan Drydock & Repair Corp.,

328 U.S. 275 (1946) ..............................................21

Forsythe v. McDonough,

No. 22-1610, 2023 WL 2638319 (Fed.

Cir. Mar. 24, 2023) .........................................15, 16

George v. McDonough,

596 U.S. 740 (2022) ................................................2

Gilbert v. Derwinski,

1 Vet. App. 49 (1990) ...........................................11

Henderson v. Shinseki,

562 U.S. 428 (2011) .................................... 2, 22, 23

Hodge v. West,

155 F.3d 1356 (Fed. Cir. 1998) ............................23

King v. St. Vincent’s Hosp.,

502 U.S. 215 (1991) ........................................22, 25

Kisor v. McDonough,

995 F.3d 1347 (Fed. Cir. 2021) ..............................3

Kisor v. Wilkie,

139 S. Ct. 2400 (2019)..........................................24

Magwood v. Patterson,

561 U.S. 320 (2010) ................................................8

v

Nichols v. Dep’t of Veterans Affairs,

11 F.3d 160 (Fed. Cir. 1993) ................................23

Nordby v. Soc. Sec. Admin.,

67 F.4th 1170 (Fed. Cir. 2023) ..............................7

NOVA v. Sec’y of Veterans Affairs,

260 F.3d 1365 (Fed. Cir. 2001) ............................23

Oklahoma v. Castro-Huerta,

597 U.S. 629 (2022) ................................................8

Roby v. McDonough,

No. 20-1088, 2021 WL 3378834 (Fed.

Cir. Aug. 4, 2021) .................................................23

Rudisill v. McDonough,

55 F.4th 879 (Fed. Cir. 2022) .................... 2, 12, 13

Skaar v. McDonough,

48 F.4th 1323 (Fed. Cir. 2022) ................ 16, 17, 18

Sykes v. Columbus & Greenville Ry.,

117 F.3d 287 (5th Cir. 1997)................................23

Travers v. Fed. Express Corp.,

8 F.4th 198 (3d Cir. 2021)....................................23

Walton v. Cotton,

60 U.S. (19 How.) 355 (1856) ...............................19

Statutes

5 U.S.C. § 5538 .................................. 3, 4, 5, 12, 23, 25

5 U.S.C. § 5538(a).......................................... 4, 5, 8, 11

vi

10 U.S.C. § 101(a)(13)(B) ........................ 4, 5, 6, 7, 8, 9

10 U.S.C. §§ 251-255 ...................................................5

10 U.S.C. § 688 ............................................................5

10 U.S.C. § 12301(a) ................................................5, 6

10 U.S.C. § 12301(d)........................................ 4, 6, 7, 9

10 U.S.C. § 12302 ................................................5, 7, 9

10 U.S.C. § 12304 ........................................................5

10 U.S.C. § 12304a ......................................................5

10 U.S.C. § 12305 ........................................................5

10 U.S.C. § 12406 ........................................................5

14 U.S.C. § 3713 ..........................................................5

38 U.S.C. § 1101 et seq. .............................................11

38 U.S.C. § 1111 ........................................................10

38 U.S.C. § 1118 ........................................................10

38 U.S.C. § 1301 et seq. .............................................11

38 U.S.C. § 3301 et seq. .............................................11

38 U.S.C. § 3327(d)(2) ...............................................13

38 U.S.C. § 4301 ........................................................11

38 U.S.C. § 5103(a)....................................................16

vii

38 U.S.C. § 5103A .....................................................10

38 U.S.C. § 5107 ........................................................11

38 U.S.C. § 5304(c) ....................................................14

38 U.S.C. § 7252 ........................................................16

Act of July 14, 1862, ch. 166, 12 Stat. 566 ...............10

Act of September 29, 1789, ch. 24, 1 Stat. 95...........10

Authorization for Use of Military Force,

Pub. L. No. 107-40, 115 Stat. 224 (2001) ..............9

Economy Act of 1933, Pub. L. No. 73-2,

48 Stat. 8 ........................................................10, 20

Servicemen’s Readjustment Act of 1944,

Pub. L. No. 78-346, 58 Stat. 284 .........................11

Rules and Regulations

38 C.F.R. § 3.102 .......................................................11

38 C.F.R. § 3.159(b)(1) ..............................................16

38 C.F.R. § 3.309 .......................................................10

38 C.F.R. § 3.317 .......................................................10

88 Fed. Reg. 62433 (Sept. 7, 2023) .............................9

Proclamation No. 7463, Declaration of

National Emergency by Reason of

Certain Terrorist Attacks, 66 Fed.

Reg. 48199 (Sept. 14, 2001) ...................................9

viii

Other Authorities

7 U.S. Dep’t of Justice, Rep. of the Atty.

Gen’s. Comm. on Admin. Proc. (1941) ................10

Amy Coney Barrett, Substantive

Canons and Faithful Agency, 90

B.U. L. Rev. 109 (2010) ........................................25

Brett M. Kavanaugh, Fixing Statutory

Interpretation, 129 Harv. L. Rev.

2118 (2016) ...........................................................24

Dave Collins, Bill would give US vets of

1966 Spain bomb accident benefits,

AP News (Apr. 15, 2021)

https://tinyurl.com/5xx6976e ...............................18

Hugh B. McClean, Delay, Deny, Wait

Till They Die: Balancing Veterans’

Rights and Non-Adversarial

Procedures in the VA Disability

Benefits System, 72 S.M.U. L. Rev.

277 (2019) .............................................................18

James D. Ridgway, Recovering An

Institutional Memory: The Origins of

the Modern Veterans’ Benefits

System from 1914 to 1958, 5

Veterans L. Rev. 1 (2013) ....................................10

James D. Ridgway, The Splendid

Isolation Revisited: Lessons from the

History of Veterans’ Benefits Before

Judicial Review, 3 Veterans L. Rev.

135 (2011) .......................................................19, 20

ix

Petition for Writ of Certiorari, Forsythe v.

McDonough, No. 23-779 (U.S. Jan. 16,

2024) .....................................................................15

S. Rep. No. 108-409 (2004) ........................................11

1

INTEREST OF AMICUS CURIAE 1

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 improper

benefits denials, and advocates to protect and expand

servicemembers’ and veterans’ rights and benefits.

MVA has an interest in ensuring that veterans receive all benefits to which they are legally entitled,

including the differential-pay benefit at issue in this

case. MVA wants to ensure the Merit Systems Protection Board and the Federal Circuit’s atextual and punitive

statutory

construction

that

deprives

servicemembers of their full federal salary when they

are called to active duty is reversed.

MVA also has an interest in ensuring that veterans’ benefits statutes are interpreted with reference

to the long-standing interpretive doctrine known as

the “pro-veteran canon.” The court of appeals utterly

neglected the canon when analyzing the differentialpay statute. Feliciano v. Dep’t of Transp., No. 22-1219,

2023 WL 3449138 (Fed. Cir. May 15, 2023); see Adams

v. Dep’t of Homeland Sec., 3 F.4th 1375 (Fed. Cir.

2021). Had it interpreted the statute with Congress’s

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 amicus curiae and their counsel made a monetary

contribution intended to fund the brief’s preparation or submission.

2

pro-veteran purpose in mind, as this Court has long

required, the Federal Circuit would not have gone

astray in its reading of the law. MVA urges this Court

to grant certiorari to reconcile the Federal Circuit to

a proper application of the pro-veteran canon.

INTRODUCTION AND SUMMARY OF

ARGUMENT

The United States has relied throughout its history on citizen-soldiers to defend itself. As a result,

Congress has long legislated “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). This “solicitude is plainly reflected in … laws that ‘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). This Court recognizes a judicial corollary to this congressional solicitude—the “venerable” pro-veteran canon. George v.

McDonough, 596 U.S. 740, 756 (2022) (Sotomayor, J.,

dissenting). The canon is a simple principle—when

Congress provides for veterans’ benefits, it means to

benefit veterans.

Recently, however, the Federal Circuit has neglected or even repudiated the pro-veteran canon. See,

e.g., Rudisill v. McDonough, 55 F.4th 879, 887 (Fed.

Cir. 2022) (en banc) (“Whatever role this canon plays

in statutory interpretation, it plays no role where the

language of the statute is unambiguous.”); Buffington

v. McDonough, 7 F.4th 1361, 1366 n.5 (Fed. Cir. 2021)

(“Because we hold the statutory scheme is silent, we

need not resolve the parties’ dispute regarding the

3

pro-veteran canon.”); see Kisor v. McDonough, 995

F.3d 1347, 1355 (Fed. Cir. 2021) (“[W]e should decline

to find ambiguity for purposes of the pro-veteran

canon merely because a veteran-friendly construction

is possible.”) (Prost, C.J., concurring in denial of rehearing en banc). In this case, the Federal Circuit

eviscerated a plainly remedial statute designed to

make whole servicemembers who must leave their civilian federal jobs to defend the nation. Pet. App. 3a4a. In imposing an interpretation unmoored from the

statutory text, it delivered a result that penalizes servicemembers without recourse to the pro-veteran

canon.

But the pro-veteran canon ensures congressional

text and intent are honored. Had the Federal Circuit

interpreted the differential-pay statute through the

prism of the pro-veteran canon, it would have understood that a more generous reading was appropriate—not “implausible.” The court would not have

adopted an atextual interpretation that risks financial hardship for nearly 200,000 reservists who serve

the federal government as both civilians and servicemembers. Adams, 3 F.4th at 1380; Pet. 10. The Court

should grant certiorari to reverse the Federal Circuit’s anti-veteran course.

ARGUMENT

I.

The

Federal

Circuit’s

Interpretation Has Gone Astray.

Statutory

The Federal Circuit fundamentally misunderstands the differential-pay statute, 5 U.S.C. § 5538.

Beginning in 2021, it ignored the plain language of

4

the statute, instead rewriting it to conform to the

court’s own policy preferences. Where § 5538(a) refers

to reservists called up under “a provision of law referred to in section 101(a)(13)(B),” the court has added

a judicial gloss requiring personnel be “directly called

to serve in a contingency operation.” Infra § I.A. Rather than correct its atextual interpretation, the court

here doubled down on its prejudicial approach. Infra

§ I.B. Not only does the court’s interpretation contradict the statutory language, it contradicts the grateful

benevolence that infuses Congress’s veterans legislation. Infra § I.C. Given these statutory and beneficial

imperatives, the Court should grant certiorari to restore the statute’s plain meaning.

A. The Federal Circuit first misconstrued

the differential-pay statute in 2021.

The Federal Circuit first misconstrued 5 U.S.C.

§ 5538 in Adams v. Department of Homeland Security.

3 F.4th 1375 (Fed. Cir. 2021). Mr. Adams, a Customs

and Border Patrol employee, served in the Arizona

Air National Guard. Id. at 1377. On two occasions in

2018, he was activated under 10 U.S.C. § 12301(d). Id.

The Customs and Border Patrol denied Mr. Adams

differential pay for these active periods, and the Merit

Systems Protection Board affirmed. Id.

The Federal Circuit affirmed the denial of differential pay. The court first acknowledged the text of 5

U.S.C. § 5538(a):

An employee who is absent from a position of

employment with the Federal Government

… to perform active duty in the uniformed

5

services pursuant to a call or order to active

duty under … a provision of law referred to

in section 101(a)(13)(B) of title 10 shall be entitled [to differential pay].

Id. at 1378. The court then reasoned that the provisions of law referenced in § 101(a)(13)(B) “define what

qualifies as a ‘contingency operation.’” Id. In the

court’s estimation, Mr. Adams therefore was only eligible for differential pay if he was “directly called to

serve in a contingency operation.” Id. at 1379. Concluding that Mr. Adams’ service did not “qualif[y] as

an active duty contingency operation,” the court denied him differential pay. Id. at 1380-81.

This interpretation effectively rewrote the statute. Again, § 5538 refers only to “a call or order to active duty under … a provision of law referred to in

section 101(a)(13)(B).” 5 U.S.C. § 5538(a). In turn,

§ 101(a)(13)(B) enumerates certain provisions governing reserve activations: 10 U.S.C. §§ 251-255 (during

insurrections), 688 (retirees), 12301(a) (involuntary

activation during war or national emergency), 12302

(Ready Reserve), 12304 (for duty other than during

war or national emergency), 12304a (for major disaster or emergency response), 12305 (suspending certain personnel actions) and 12406 (federalizing

National Guardsmen), and 14 U.S.C. § 3713 (Coast

Guard augmentation). 10 U.S.C. § 101(a)(13)(B). But

§ 101(a)(13)(B) doesn’t stop there—it includes a

sweeping catchall provision: “or any other provision of

law during a war or during a national emergency declared by the President or Congress.”

6

The Federal Circuit refused to implement the

catchall provision. Instead of awarding differential

pay to an employee called to active duty “under a provision of law referred to in section 101(a)(13)(B),” the

Federal Circuit required that the employee be called

up to serve “directly” in a statutorily defined “contingency operation.” Adams, 3 F.4th at 1378-79. In defense of its de facto redrafting, the court deemed it

“implausible that Congress intended for the phrase

‘any other provision of law during a war or national

emergency’” to mean “§ 12301(d) voluntary duty that

was unconnected to the emergency at hand”—even

though that is plainly the most natural reading of the

statute. 2 Id. at 1380.

In other words, although it used the broad phrase

“any other provision of law during a war or national

emergency,” the Federal Circuit concluded that Congress didn’t mean it.

B. The Federal Circuit doubled down on its

mistaken interpretation here.

Explaining that it was “bound by Adams,” the

Federal Circuit repeated its error in this case.

2 The only substantive difference between the enumerated

§ 12301(a) and the unenumerated § 12301(d) is that the former

authorizes involuntary activation and the latter voluntary activation. 10 U.S.C. § 12301(a), (d). It makes even less sense to presume Congress would want to punish those who volunteer while

rewarding those who do not.

7

1. Mr. Feliciano is denied differential

pay.

Mr. Feliciano, an air traffic controller, served in

the Coast Guard Reserve. Pet. App. 2a. The Department of Defense activated him from July 2012 to July

2013 pursuant to 10 U.S.C. § 12302 and from July

2013 to September 2014 pursuant to 10 U.S.C.

§ 12301(d). 3 Id. Mr. Feliciano’s federal employer denied him differential pay for his service between October 2012 and September 2014. Id. The Merit

Systems Protection Board affirmed. Id.

Pointing to Adams, the Federal Circuit quickly

disposed of Mr. Feliciano’s appeal. It held that eligibility for differential pay depends on the federal employee’s service “‘pursuant to a call to active duty that

meets the statutory definition of contingency operation.’” Pet App. 3a (quoting Adams, 3 F.4th at 1378).

And if the employee is activated under the catchall

provision in 10 U.S.C. § 101(a)(13)(B) rather than one

of the enumerated statutes, the court added the requirement that “‘there must be a connection between

the voluntary military service and the declared national emergency’”—a direct connection at that. Pet.

App. 4a (quoting Nordby v. Soc. Sec. Admin., 67 F.4th

1170, 1173 (Fed. Cir. 2023)). Because he did not meet

this atextual requirement, the court deemed Mr. Feliciano ineligible for differential pay. Id.

3 Mr. Feliciano’s orders called him “to support a Department

of Defense contingency operation.” 2023 WL 3449138, at *1.

8

2. 5

U.S.C.

§

5538(a)

plainly

incorporates

only

10

U.S.C.

§ 101(a)(13)(B)’s list of provisions—

not its definition of “contingency

operations.”

The statutory language is unambiguous—5

U.S.C. § 5538(a) entitles a federal employee to differential pay if he is activated pursuant to “a provision

of law referred to in [10 U.S.C.] § 101(a)(13)(B).” In

addition

to

certain

enumerated

provisions,

§ 101(a)(13)(B) refers to “any other provision of law

during a war or during a national emergency declared

by the President or Congress.” This language dictates

a simple statutory inquiry: Was the employee activated pursuant to any provision of law during a national emergency declared by the President or by

Congress?

Rather than implement this unambiguous statutory text, the Federal Circuit “replace[d] the actual

text with speculation[s] as to Congress’ intent.” Magwood v. Patterson, 561 U.S. 320, 334 (2010); see Oklahoma v. Castro-Huerta, 597 U.S. 629, 642 (2022) (“the

text of a law controls over purported legislative intentions unmoored from any statutory text.”); Connecticut Nat’l Bank v. Germain, 503 U.S. 249, 253-54

(1992) (“courts must presume that a legislature says

in a statute what it means and means in a statute

what is says there”). The Federal Circuit mistook a

simple incorporation by reference of a list of statutory

provisions for a broader intent to transpose a complex

definition of “contingency operation.” This unnecessarily complicates the analysis, because only through

9

such contortions do definitions of “contingency operations,” “directly involved,” and “connection” become

relevant. Pet. App. 3a-4a. Finally, the court compounded its error by speculating about the plausibility of Congress’s intent.

Consistent with the simple textual inquiry, Mr.

Feliciano is entitled to differential pay. He was activated pursuant to 10 U.S.C. §§ 12301(d) and 12302.

Section 101(a)(13)(B) enumerates § 12302, and

§ 12301(d) falls within the “any other provision of

law” rubric. Mr. Feliciano indisputably activated during a national emergency declared by the President.

Proclamation No. 7463, Declaration of National

Emergency by Reason of Certain Terrorist Attacks, 66

Fed. Reg. 48199 (Sept. 14, 2001), renewed annually,

most recently 88 Fed. Reg. 62433 (Sept. 7, 2023); see

Authorization for Use of Military Force, Pub. L. No.

107-40, 115 Stat. 224 (2001). Having been activated

pursuant to any provision of law during a presidentially declared national emergency, no further analysis is required to award Mr. Feliciano differential pay.

This Court should grant certiorari to overturn

this damaging line of precedent.

3. The Federal Circuit’s interpretation

also violates the spirit of the law.

Punishing citizen-soldiers for taking up the burdens of national defense contradicts not only the differential-pay statute’s text but also the spirit of

grateful benevolence that has always infused veterans law. The First Session of the First Congress in

1789 guaranteed federal payment of state pensions

10

granted to those wounded and disabled during the

Revolutionary War. Act of September 29, 1789, ch. 24,

§ 1, 1 Stat. 95. Such laws have always sought to ease

the adversities that attend military service.

Congress’s earliest efforts to ameliorate the hardships of service focused on conflict-by-conflict grants

of limited benefits. See, e.g., Act of July 14, 1862, ch.

166, § 1, 12 Stat. 566 (pensions for disabled Civil War

veterans). During the Depression, facing broad disenchantment over the treatment of World War I veterans, Congress consolidated and standardized these

benefits, and the governing statutes have been re-codified many times. Economy Act of 1933, Pub. L. No.

73-2, § 1(a), 48 Stat. 8; see James D. Ridgway, Recovering An Institutional Memory: The Origins of the

Modern Veterans’ Benefits System from 1914 to 1958,

5 Veterans L. Rev. 1, 4 (2013). The Attorney General’s

Committee on Administrative Procedure captured the

new spirit in veterans’ benefits when it concluded that

“[t]he nature of the work of the Veterans’ Administration as a benefactory agency justifies considerable leniency” toward their adjudication. 7 U.S. Dep’t of

Justice, Rep. of the Atty. Gen’s. Comm. on Admin.

Proc. at 129 (1941).

In this modern era, Congress and VA established

a uniquely pro-claimant system. They codified numerous presumptions to facilitate the award of benefits.

See, e.g., 38 U.S.C. §§ 1111, 1118 (presumptions of

soundness); 38 C.F.R. §§ 3.309, 3.317 (presumptions

of service-connection). Congress imposed a duty to assist veterans to perfect their claims. 38 U.S.C.

§ 5103A. VA grants them the benefit of the doubt in

11

close cases. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. Indeed, the benefit-of-the-doubt rule sets out a “unique

standard of proof” that reflects our nation’s singularly

compassionate treatment of veterans. Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Congress also

awarded generous benefits to help servicemembers

transition to civilian life and to incentivize service in

the all-volunteer era. See, e.g., Servicemen’s Readjustment Act of 1944, Pub. L. No. 78-346, 58 Stat. 284 (the

original “GI Bill”) (providing for veterans’ education,

unemployment, and housing); 38 U.S.C. § 3301 et seq.

(“Post-9/11 GI Bill”); 38 U.S.C. § 1101 et seq. (serviceconnected disability compensation); 38 U.S.C. § 1301

et seq. (service-connected death benefits).

The differential pay statute serves the same beneficial purpose. When reservists are activated, they

may “experience a reduction in pay because their military pay and allowances are less than their basic federal salary.” S. Rep. No. 108-409, at 2 (2004)

(describing near-identical precursor bill); see Pet. 1011. By guaranteeing federal employees the difference

between their higher civilian and lower military salaries, Congress “minimize[s] the disruption to the lives

of persons performing service in the uniformed services.” 38 U.S.C. § 4301 (expression of congressional

purpose in enacting Uniformed Services Employment

and Reemployment Rights Act of 1994).

Given these clear remedial goals, the Federal Circuit’s interpretation of 5 U.S.C. § 5538(a) violates

both the statute’s express language and guiding purpose.

12

II. The Federal Circuit’s Misinterpretation

Exemplifies Its Recent Substitution Of

Policy Preference For Legislative Text.

The Federal Circuit’s misinterpretation of 5

U.S.C. § 5538 unfortunately illustrates how it has recently arrogated Congress’s role, ignoring both statutory text and the pro-veteran canon. As a result, it has

produced a spectrum of tortured, anti-veteran opinions—involving, for example, educational benefits (infra § II.A.), disability benefits (infra §§ II.B.-II.C.),

and class actions (infra § II.D.).

A. Educational

McDonough.

benefits

in

Rudisill

v.

Currently pending before the Court is Rudisill v.

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

cert. granted, 143 S. Ct. 2656 (2023) (argued November 8, 2023), where the Federal Circuit erroneously

capped a veteran’s educational benefits below the

statutorily authorized 48 months of benefits.

Mr. Rudisill served three active-duty tours in the

Army between 2000 and 2011. Id. at 883; id. at 888

(Newman, J., dissenting). He therefore earned benefits under both the Montgomery and the Post-9/11 GI

Bills. Id. at 883; id. at 888 (Newman, J., dissenting).

He used 25 months and 14 days of Montgomery benefits but sought to take advantage of his remaining

benefits under the more generous Post-9/11 bill. Id.

Veterans with qualifying periods of service under

both bills were authorized up to 48 months of benefits.

Id. at 883. In 2011, however, VA deemed Mr. Rudisill

eligible for only 10 months and 16 days of Post-9/11

13

benefits—that is, a total of only 36 months of benefits

under both bills. Id.

Mr. Rudisill appealed. Id. The en banc Federal

Circuit agreed with VA. Focusing on a single provision, 38 U.S.C. § 3327(d)(2), to the exclusion of other

relevant text and context, the court imported into the

statute a punitive exhaustion requirement—a veteran qualified under the Montgomery and Post-9/11

GI Bills must exhaust or waive his remaining Montgomery benefits before using his Post-9/11 benefits.

Id. at 886. Despite earning Post-9/11 benefits through

distinct periods of wartime service, id. at 899 (Reyna,

J., dissenting), the court ruled Mr. Rudisill was entitled only to 12 months of the more generous Post-9/11

GI Bill benefits. Dismissing “[w]hatever role this [proveteran] canon plays,” the Federal Circuit interpreted

a veterans’ benefit statute to take away benefits Mr.

Rudisill “ha[d] already earned … through his significant service.” Id. The court ignored the pro-veteran

canon and contravened its motivating principle by

harming the veteran.

B. Disability benefits

McDonough.

in

Buffington

v.

In Buffington v. McDonough, 7 F.4th 1361 (Fed.

Cir. 2021), the Federal Circuit departed from “bedrock principles of statutory interpretation” to affirm

VA’s withholding of accrued benefits. Buffington v.

McDonough, 143 S. Ct. 14, 15 (2022) (Gorsuch, J., dissenting from denial of certiorari).

VA awarded Mr. Buffington disability benefits in

2000 after he separated from the Air Force. 7 F.4th at

14

1363. In 2003, he returned temporarily to active duty.

Id. VA correctly suspended his disability compensation while he received active-duty pay. Id. When he

left active duty in 2005, VA did not restart his disability payments. Id. In 2009, Mr. Buffington petitioned VA to restart his disability benefits, which it

did—retroactive only to 2008. Id. Mr. Buffington challenged VA’s limited payment as inconsistent with the

governing statute, 38 U.S.C. § 5304(c).

The Federal Circuit affirmed. Section 5304(c)

states that “compensation ... pa[id] on account of any

person’s own service shall not be paid to such person

for any period for which such person receives active

service pay.” 38 U.S.C. § 5304(c). Without deciding

whether the statute was ambiguous, the court held

that “Congress left a gap in the statutory scheme”—

“when or under what conditions compensation recommences once a disabled veteran leaves active service”—that VA could fill. 7 F.4th at 1364-65.

According to the Federal Circuit, this gap rendered

the pro-veteran canon irrelevant. Id. at 1366 n.5. VA’s

rule requiring disabled veterans to reapply for benefits after a period of active duty was “a reasonable

gap-filling regulation” warranting Chevron deference.

Id. at 1367.

Judge O’Malley dissented. She explained that the

majority failed to “apply traditional tools of statutory

construction” to evaluate ambiguity, instead “fasttrack[ing] past this step” to identify a purported statutory gap. Id. at 1368. Noting § 5304(c) creates “an

exception to the continuous payment obligation,” she

explained that the statute makes clear that “Congress

only wanted a veteran’s benefits to discontinue for

15

‘any period for which such person receives active service pay.’” Id. at 1369 (italics original). Outside that

window, Mr. Buffington “remain[ed] entitled to the

benefits for which he originally qualified.” Id. The majority contradicted the statute’s plain meaning by concluding “that ‘any period’ encompasses more than just

the time period in which a veteran receives active service pay.” Id. at 1372.

C. Statutory

notice

McDonough.

in

Forsythe

v.

In Forsythe v. McDonough, No. 22-1610, 2023 WL

2638319 (Fed. Cir. Mar. 24, 2023), the Federal Circuit

again misconstrued a disability benefits statute and

abdicated responsibility for enforcing a valid regulation.

In 1988, during a three-year Navy tour, Mr. Forsythe injured his shoulder. Id. at *1. In the years following his service, Mr. Forsythe “suffered persistent

shoulder problems.” Pet. at 11, Forsythe v.

McDonough, No. 23-779 (U.S. Jan. 16, 2024). In

March 2019, Mr. Forsythe sought compensation for

his shoulder disability, supporting his claim with an

opinion by his private physician deeming his disability “more likely than not … related to his military service.” Id. After receiving his claim, VA did not notify

Mr. Forsythe that he could or should submit additional supporting evidence, such as treatment records

or lay statements. A VA medical examiner then disagreed with Mr. Forsythe’s doctor, and VA denied Mr.

Forsythe’s claim, based on the lack of such evidence.

Id. at 12-13.

16

On appeal, Mr. Forsythe challenged VA’s notice

pursuant to 38 U.S.C. § 5103(a), arguing that both the

statute and its implementing regulation, 38 C.F.R.

§ 3.159(b)(1), required the agency to provide an evidentiary notice after receiving a veteran’s claim. 2023

WL 2638319, at *2. VA violated these provisions “by

providing notice on the claim form itself, rather than

waiting until after [Forsythe] had submitted his

claim.” Id. The Federal Circuit misconstrued

§ 5103(a) to permit pre-claim notice even though the

statute expressly refers to “notice of any information

… not previously provided to” VA—which contemplates notice after the veteran has provided some information. Id. The court compounded its error by

allowing VA to ignore its regulation explicitly requiring notice be sent after “VA receives a complete or

substantially complete … claim.” Id. at *3. Inexplicably, the court excused VA from enforcing its own regulation because it thought the operative regulation

“outdated.” Id.

D. A class-action

McDonough.

vehicle

in

Skaar

v.

Statutory misinterpretation also led the court to

deny veterans a meaningful class-action vehicle. In

Skaar v. McDonough, 48 F.4th 1323 (Fed. Cir. 2022),

cert. denied, 143 S. Ct. 2637 (2023), the court vacated

a class certification order that would have accelerated

relief to aging veterans intentionally exposed to nuclear radiation. Disregarding the lower court’s authority under 38 U.S.C. § 7252 and the All Writs Act,

the court imposed an atextual jurisdictional exhaustion requirement on every class member rather than

only the named class representative.

17

Mr. Skaar served in the Air Force. In 1966, he and

1,400 other servicemembers decontaminated the site

of a nuclear accident in Palomares, Spain. Id. at 1326.

Although the Air Force initially monitored them, in

1967 it concluded their health “was not in ‘jeopardy.’”

Id. In 1998, however, Mr. Skaar was diagnosed with

leukopenia. Id. His doctor concluded Mr. Skaar’s exposure to the ionizing radiation in Spain was to

blame. Id. VA denied his claim for disability compensation in 2000. Id.

In 2011, Mr. Skaar moved to reopen his claim. Id.

Relying on an Air Force radiation dose-estimate

methodology, VA again denied his claim. Id. While

Mr. Skaar’s appeal of this denial was pending, “the

Air Force discovered [it] was underestimating doses.”

Id. at 1327. In 2016, VA obtained a new dose estimate

opinion for Mr. Skaar but again denied the claim. Id.

Even after Mr. Skaar produced another medical report connecting his leukopenia to his radiation exposure, the Board affirmed VA’s denial of his claim. Id.

Before the Veterans Court, Mr. Skaar challenged

the Board’s reliance on “unsound dose estimates.” Id.

He sought to certify a class of similarly situated veterans. The Veterans Court agreed, certifying a class

consisting of Palomares veterans who: (1) had appealed or could still timely appeal their claim denial;

(2) had a still-pending claim VA had not yet decided;

and (3) had developed a radiation-related condition

but had not yet filed a VA claim. Id. at 1328. A year

later, the Veterans Court concluded the Board inadequately justified its reliance on the Air Force’s doseestimated methodology and remanded the case. Id. at

1329. VA appealed. Id.

18

The Federal Circuit reversed, concluding that

every veteran class member must individually satisfy

the jurisdictional requirements of filing a claim and

receiving a Board decision. Id. at 1333. It therefore

limited the class to those few veterans whose claims

the Board had decided. Id. The court neglected Mr.

Skaar’s argument that the All Writs Act authorized

the Veterans Court to aggregate claims and distinguished district court jurisdiction over agency class

actions—which may include unexhausted claims—

from the Veterans Court’s jurisdiction. Id. at 1333-34.

Instead of providing efficient relief to aging veterans,

the Federal Circuit acquiesced in VA’s protracted

claims process that disabled veterans sadly mock as

“delay, deny, wait till they die.” Hugh B. McClean, Delay, Deny, Wait Till They Die: Balancing Veterans’

Rights and Non-Adversarial Procedures in the VA

Disability Benefits System, 72 S.M.U. L. Rev. 277, 277

(2019). 4

These examples illustrate the adverse effects of

the Federal Circuit’s atextual approach to veteransrelated legislation and disregard of the pro-veteran

canon. The Court should grant certiorari in this case

to remedy the court of appeals’ errors before this parade of horribles grows even longer.

4 In 2021, there were only 300-400 surviving Palomares veterans. Dave Collins, Bill would give US vets of 1966 Spain bomb

accident benefits, AP News (Apr. 15, 2021) https://tinyurl.com/5xx6976e.

19

III. The Pro-Veteran Canon Would Produce

Federal Circuit Decisions More Consistent

With Congress’s Text.

Given the pro-veteran canon’s heritage, the Federal Circuit’s refusal to apply it correctly and routinely frustrates the implementation of duly enacted

law. This Court has long recognized the role this

canon plays in correctly interpreting veterans-related

legislation—often in the employment context at issue

here. Infra § III.A. The court of appeals would more

faithfully interpret federal statutes if it incorporated

the pro-veteran canon into its analysis. Infra § III.B.

A. This Court has long recognized a proveteran canon of construction.

Acknowledging Congress’s well-established intent to help veterans, this Court has recognized the

pro-veteran canon for more than 80 years. 5

The Court first articulated the principle in Boone

v. Lightner, 319 U.S. 561 (1943). As explained above,

supra § I.C., this decision issued when the United

States was modernizing its approach to veterans’ benefits. As part of this drive, Congress authorized the

Executive to issue implementing regulations. James

5 The beneficence animating the canon predates the modern

era of veterans’ benefits. Walton v. Cotton, 60 U.S. (19 How.) 355

(1856) (Revolutionary War pension statute designed to “alleviate

… a class of men who suffered in the military service by the hardships they endured and the dangers they encountered” should

“be so construed as to carry out a benign policy, within the reasonable intent of Congress.”).

20

D. Ridgway, The Splendid Isolation Revisited: Lessons from the History of Veterans’ Benefits Before Judicial Review, 3 Veterans L. Rev. 135, 179 (2011); see

Economy Act of 1933, Pub. L. No. 73-2, 48 Stat. 8. Despite this delegation, however, Congress simultaneously clarified that the Executive Branch could not

water down the strong pro-veteran benefits provided

through legislation. President Roosevelt insisted in a

1933 American Legion speech that “no person, because he wore a uniform, must thereafter be placed in

a special class of beneficiaries over and above all other

citizens.” Ridgway, Splendid Isolation, supra, at 180

(citations omitted). But Congress emphatically rejected this notion, repeatedly overriding presidential

attempts to weaken its pro-veteran legislation. See

generally id. at 179-82.

This Court concurred with Congress’s preference.

In Boone, it considered the Soldiers’ and Sailors’ Civil

Relief Act of 1940, which provided protections for active-duty servicemembers. 319 U.S. at 561, 564-65.

While it ultimately rejected the servicemember’s attempt to delay civil litigation as among the “few cases”

putting the “immunities of the Act” to “unworthy use,”

this Court emphasized that legislation like the 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.” Id. at 575. This Court thus

aligned itself with Congress in rejecting the Executive’s attempt to deprive veterans of the special benefits to which they are entitled by virtue of their service

and sacrifice.

A few years later, addressing the Selective Training and Service Act of 1940, this Court reiterated the

21

same 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). Here too, the Court rejected the veteran’s

claim that the statute, which guaranteed veterans

reemployment without loss of seniority, entitled him

to an increase in seniority. Id. at 285-86. The Court

nonetheless recognized that Congress had provided

for a veteran “to gain by his service for his country an

advantage which the law withheld from those who

stayed behind,” and accordingly stressed the imperative to give each statute “as liberal a construction for

the benefit of the veteran as a harmonious interplay

of the separate provisions permits.” Id. at 284-85.

The Court adhered to this principle in interpreting Vietnam Era legislation. Decades after Boone and

Fishgold, the Court explained 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). And it did exactly that, deeming the steel

industry’s supplemental unemployment benefits plan

to be a perquisite of seniority that must be afforded to

returning veterans. Id. at 205-06.

In two decisions in the 1990s, the Court reinforced

the notion that veterans’ benefits statutes are entitled

to a distinctly generous construction. The first of

these decisions again came in the context of employment rights, with the Court rejecting an attempt to

read an implicit time limitation into a statute. Even

22

if certain surrounding statutory provisions might “unsettle[] the significance” of the relevant subsection’s

“drafting,” the Court “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.”

King v. St. Vincent’s Hosp., 502 U.S. 215, 220-21 n.9

(1991).

The Court expanded the canon’s application beyond the employment context in Brown v. Gardner,

513 U.S. 115 (1994). Echoing the Executive’s earlier

attempts to restrict veterans’ rights, VA had promulgated a regulation limiting compensation for injuries

caused by VA medical treatment to instances of fault

or negligence. See id. at 116-17. But the statute contained no such limitation. The Court declined the government’s invitation to find ambiguity where it did

not exist—while strongly suggesting that this would

not even “be possible after applying the rule that interpretive doubt is to be resolved in the veteran’s favor.” Id. at 117-18.

Most recently, the Court relied on the pro-veteran

canon in Henderson v. Shinseki, where it acknowledged Congress’s long-standing solicitude for veterans and the uniquely generous nature of veterans’

benefits. 562 U.S. 428, 440-41 (2011). Consistent with

that acknowledgement, the Court reaffirmed “‘the

canon that provisions for benefits to members of the

Armed Services are to be construed in the beneficiaries’ favor.’” Id. at 441 (quoting King, 502 U.S. at 22021 n.9). “Particularly in light of this canon,” the Court

refused to attach jurisdictional consequences to the

23

time limit for seeking judicial review under the Veterans’ Judicial Review Act—a statute that, like 5

U.S.C. § 5538, was “decidedly favorable to veterans.”

Id.

The courts of appeals have followed this Court’s

lead in applying the pro-veteran canon. Shortly after

King and Gardner, for example, the Fifth Circuit cited

this “canon of favorable construction” for its interpretation of an employment statute in the veteran’s favor. Sykes v. Columbus & Greenville Ry., 117 F.3d

287, 294 (5th Cir. 1997). Other circuits have done the

same. See, e.g., 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.”). Before its recent shift away

from the canon, the Federal Circuit routinely, albeit

inconsistently, endorsed it. See, e.g., Roby v.

McDonough, No. 20-1088, 2021 WL 3378834, at *8

(Fed. Cir. Aug. 4, 2021) (remanding “for the Veterans

Court to take into account the pro-veteran canon of

construction”); 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) (calling it one of “the usual

canons of statutory construction”); Hodge v. West, 155

F.3d 1356, 1360, 1362 (Fed. Cir. 1998) (“[t]his court

and the Supreme Court both have long recognized”

the liberal construction of veterans statutes in rejecting materiality test as “inconsistent with the underlying purposes ... of the veterans’ benefits award

scheme”); Nichols v. Dep’t of Veterans Affairs, 11 F.3d

160, 163 (Fed. Cir. 1993) (affirming employee’s right-

24

of-return after three-year active-duty tour because

“the [Vietnam Era Veterans’ Readjustment Assistance] Act is to be liberally construed in favor of the

returning veteran”).

Considering the historic congressional solicitude

underpinning veterans’ benefits legislation, supra

§ I.C., the judiciary’s continued alignment with Congress in guarding against the Executive’s attempts to

re-legislate in this area is essential.

B. Application of the pro-veteran canon

here would have corrected the Federal

Circuit’s atextual reading.

A court’s first job when reviewing an agency’s construction of a statute is to employ “traditional tools of

statutory construction” to examine the statute’s text

and context to determine whether Congress’s intent

is clear. Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837, 843 n.9 (1984). If it is, “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. After all,

Congress’s “intention is the law.” Id. at 843 n.9. The

court’s job is limited: act as Congress’s agent and give

effect to duly enacted law.

Substantive canons, which incorporate presumptions about how Congress means for courts to interpret statutes, are critical to ensuring that courts find

“the best and fairest reading” of a statute, see Kisor v.

Wilkie, 139 S. Ct. 2400, 2430 (2019) (Gorsuch, J., concurring in judgment), and fulfill their obligations under Article III, Brett M. Kavanaugh, Fixing Statutory

25

Interpretation, 129 Harv. L. Rev. 2118, 2120-21

(2016). As then-Professor Barrett explained, applying

a substantive canon is in “no tension” with courts acting as Congress’s “faithful agen[t]” when the canon is

used as a “tie breaker[] between equally plausible interpretations of a statute.” Amy Coney Barrett, Substantive Canons and Faithful Agency, 90 B.U. L. Rev.

109, 123 (2010). That is because, again, the substantive canon incorporates Congress’s intent.

The pro-veteran canon embodies a presumption

about how Congress understands its own enactments

in the veterans context. Thus, where interpretation

may be “unsettled,” a statutory provision should,

where possible, be read in a veteran’s favor. King, 502

U.S. at 220 n.9. For example, had the pro-veteran

canon been applied to the educational benefits statutes in Rudisill, Congress’s manifest purpose to incentivize and reward military service would have

been satisfied by an interpretation that protected—

rather than stripped away—the veterans’ benefits.

And here, if 5 U.S.C. § 5538 weren’t already clear, the

pro-veteran canon would evince Congress’s longstanding interest in ameliorating the financial hardships inflicted on veterans who defend the nation.

Along with dutiful interpretation of a statute’s

plain language, application of the pro-veteran canon

ensures veterans receive the grateful munificence and

remedial benefits Congress intends for them. The

Court should grant certiorari to ensure the Federal

Circuit keeps faith with Congress’s laws and America’s servicemembers and veterans.

26

CONCLUSION

This Court should grant the Petition.

Respectfully submitted,

John B. Wells

MILITARY-VETERANS

ADVOCACY, INC.

P.O. Box 5235

Slidell, LA 70469-5235

(985) 641-1855

JohnLawEsq@msn.com

February 26, 2024

Melanie L. Bostwick

Counsel of Record

Anne W. Savin

ORRICK, HERRINGTON &

SUTCLIFFE LLP

2100 Pennsylvania Ave.

NW

Washington, DC 20037

(202) 339-8400

mbostwick@orrick.com