Amicus Curiae Brief — Charles Flynn, Petitioner v. Department of State
Supreme Court briefFeb 26, 2024
Ask Donna
What actually matters in this document.
Text
No. 23-868
IN THE
Supreme Court of the United States
___________________________
CHARLES FLYNN,
v.
DEPARTMENT OF STATE,
___________________________
Petitioner,
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. Flynn 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
Fishgold v. Sullivan Drydock & Repair Corp.,
328 U.S. 275 (1946) ..............................................21
iv
Flynn v. Dep’t of State,
No. 22-1220, 2023 WL 3449169 (Fed. Cir.
May 15, 2023) .........................................................1
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
Nichols v. Dep’t of Veterans Affairs,
11 F.3d 160 (Fed. Cir. 1993) ................................23
v
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
10 U.S.C. § 101(a)(13)(B) ........................ 4, 5, 6, 7, 8, 9
10 U.S.C. §§ 251-255 ...................................................5
vi
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
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
38 U.S.C. § 5103A .....................................................10
38 U.S.C. § 5107 ........................................................10
vii
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 .......................................................10
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, Feliciano
v. Dep’t of Transp., No. 23-861 (U.S.
Feb. 8, 2024) .....................................................3, 11
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. Flynn v. Dep’t of State, No. 22-1220, 2023
WL 3449169 (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 pro1 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
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. at 10, Feliciano v. Dep’t of Transp., No. 23-861 (U.S. Feb. 8, 2024).
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.
4
Beginning in 2021, it ignored the plain language of
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
5
… to perform active duty in the uniformed
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 Adams dictated the outcome, 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. Flynn is denied differential pay.
Mr. Flynn, a Special Agent in the Department of
State’s Bureau of Diplomatic Security, served in the
Army Reserve. Pet. App. 2a. The Department of Defense activated him from March 2020 to March 2022
pursuant to 10 U.S.C. § 12301(d). Id. Mr. Flynn’s federal employer denied him differential pay for his service. Id. The Merit Systems Protection Board
affirmed. Pet. App. 3a.
Pointing to Adams, the Federal Circuit quickly
disposed of Mr. Flynn’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.’” 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. Flynn ineligible for differential pay.
Id.
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, 10a. Finally, the court compounded its error by speculating about the plausibility of Congress’s intent.
Consistent with the simple textual inquiry, Mr.
Flynn is entitled to differential pay. He was activated
pursuant to 10 U.S.C. § 12301(d). Section 12301(d)
falls within the “any other provision of law” rubric.
Mr. Flynn 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. Flynn 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
granted to those wounded and disabled during the
10
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
close cases. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. Indeed, the benefit-of-the-doubt rule sets out a “unique
11
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. at
10-11, Feliciano v. Dep’t of Transp., No. 23-861 (U.S.
Feb. 8, 2024). 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). 3
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.
3 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. 4
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
4 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
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.