# Amicus Curiae Brief — Brown v. Gardner

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385013_0483%3A11

## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 1994
- **Citation:** 513 U.S. 115

## Text

OcToBER TERM, 1994 7

Jesse BROWN, SECRETARY OF VETERANS AFFAIRS,
. Petitioner,

Frep P. GARDNER,
Respondent.

On Writ of Certiorari to the
United States Court of Appeals
for the Federal Circuit

BRIEF FOR THE
NATIONAL VETERANS LEGAL SERVICES PROJECT
AS AMICUS CURIAE IN SUPPORT OF RESPONDENT

RONALD S. FLAGG *

QUESTION PRESENTED

A federal statute initially enacted in 1924 as part of
the World War Veterans Act, 43 Stat. 607, provides dis-
ability compensation to veterans injured as a result of
medical or surgical treatment administered by Depart-
ment of Veterans Affairs (“VA”) personnel:

Where any veteran shall have suffered an injury, or
an aggravation of an injury, as the result of .. .
medical or surgical treatment . . . and not the result
of such veteran’s own willful misconduct, and such
injury or aggravation results in additional disability
to . . . such veteran, disability or death compensation
under this chapter . . . shall be awarded in the same
manner as if such disability, aggravation, or death
were service-connected.

38 U.S.C. § 1151 (1991 & Supp. IV 1994). A VA reg-
ulation limits compensation under the statute to cases in
which the additional disability resulted from an “acci-
dent” or “carelessness, negligence, lack of proper skill,
error in judgment, or similar instances of indicated fault”
on the part of the VA. 38 C.F.R. § 3.358(c)(3)
(1993).

The question in this case is whether the courts below
were correct in striking down the VA regulation because
its accident/fault limitation is inconsistent with the stat-
ute’s plain language, which imposes no such restrictions
on veterans’ right to compensation.

(i)

TABLE OF CONTENTS

QUESTION PRESENTED .....................----.-.---e-e-e0-0-0000

TABLE OF AUTHORITIES

INTEREST OF AMICUS CURIAE

INTRODUCTION AND SUMMARY OF ARGU-
MENT ......... Re oe

I. THE PLAIN LANGUAGE OF THE STATUTE
PRECLUDES IMPOSITION OF A “FAULT”
OR “ACCIDENT” REQUIREMENT AS A
PREDICATE FOR BENEFITS ..................

ll. EACH OF THE THEORIES ADVANCED BY
VA FOR IGNORING THE PLAIN MEANING
OF SECTION 1151 IS MERITLESS.

IIIT ccc cccccncccsenssccecssstetesvectnncsenscoceccecrosnreeseeetonceses

(iii)

19

iv

TABLE OF AUTHORITIES

CASES Page
Bethesda Hosp. Ass'n V. Bowen, 485 U.S. 399
| EE eee er ome et LEE SNEED x
Biddle v. Commissioner, 302 U.S. 573 (1988). ian 25
Central Bank v. First Interstate Bank, 114 S. Ct.
fs RE ae re ee passim
Chevron, U.S.A., Inc. Y. Natural Resources Defense
Council, Inc., 467 U.S. 837 (1984) _......... ee 9, 22
Commissioner V. Glenshaw Glass Co., 348 U.S. 426
eae 25
Community for Creativ e Non-Violence V. Reid, 490
8 RO FS OF eee Soe See a x
Conroy V. Aniskoff, 113 S. Ct. 1562 (1993) ie eats 15, 19
Consumer Prod. Safety Comm'n V. GTE Sylvania,
— Se 2 S ¢ eee 20
Edwards’ Lessee V. Darby, 25 US. (Wheat.) 206
RARE Barer Fie STL 22
Feres V. United States, 340 U.S. 135 (1950) —..... 17
Fogerty V. Fantasy, Inc., 114 8. Ct. 1023 (1994)... 7, 24,
25, 26
Garcia V. United States, 469 U.S. 70 (1984) . 6, 20

Good Samaritan Hosp. V. Shalala, 113 S. Ct. 2151

i 8
King V. St. Vincent’s Hosp., 112 S. Ct. 570 (1991). 12
Koshland v. Helvering, 298 U.S. 441 (1936) . 25
Leary V. United States, 395 U.S. 6 (1969) 7 28
Morrison-Knudsen Constr. Co. V. Director, 461 U. S.

| ERR i a ees mites 11
NOW Vv. Scheidler, 114 8 Ct. 798 (1994) EET eae 22
Neuberger V. Commissioner, 311 U.S. 83 (1940). 9
Pierce Vv. Underwood, 487 U.S. 552 (1988)... 27
Pinter v. Dahl, 486 U.S. 622 (1988)... -...... 11
Rubin Vv. United States, 449 U.S. 424 (1981). 19
Russello v. United States, 464 U.S. 16 (1983)... 4,10
Sorenson V. Secretary of Treasury, 475 U.S. 851

A Pace Ae ne ra as eM 11
Stencel Aero Eng'a Corp. Vv. United States, 431 U.S.

I ee ees 17

United Sav. Ass’n Vv. Timbers of Inwood Forest
Assocs., 484 U.S. 365 (1988) ........................ 10

v

TABLE OF AUTHORITIES—Continued

Page
United States v. American Trucking Ass'n, 310
Gf Fea Ee eee 24
United States v. Calamaro, 354 U.S. 351 (1957)... 25, 27
United States v. James, 478 U.S. 597 (1986) ........ 20
Walters v. National Ass’n of Radiation Survivors,
ko 8 OE a a ee _..6, 16, 17, 18
Zuber V. Allen, 396 U.S. 168 (1969) Bat AR AEE 24
VETERANS APPEALS CASES
Akles v. Derwinski, 1 Vet. App. 118 (1991)... 17
Gilbert v. Derwinski, 1 Vet. App. 49 (1990) ..... _ 18
Green V. Derwinski, 1 Vet. App. 121 (1991) —......... 17
Hyder Vv. Derwinski, 1 Vet. App. 221 (1991)... 17
Littke v. Derwinski, 1 Vet. App. 90 (1990)... 16,17
Myers V. Derwinski, 1 Vet. App. 127 (1991) 18
STATUTES AND REGULATIONS
Act of March 28, 1934, ch. 102, tit. ITI, § 31, 48
Stat. 509 _........ SP RE CE a eee SEs 2
Act of Sept. 2, 1958, Pub. p No. 85-857, 72 Stat.
a LE SRE Ra ee Oe foe 2
Department of Veterans Affairs Codification Act,
Pub. L. No. 102-83, § 5, 105 Stat. 378 (1991)... 2
Economy Act of March 20, 1933, ch. 3, tit. I, § 17,
ea EE ES SR a ae Le 2
Veterans’ Judicial Review Act, Pub. L. No. 100-
687, 102 Stat. 4105 (1988) (codified at 38 U.S.C.
| OU Tt eS 24
World War Veterans Act, 1924, ch. 320, 43 Stat.
SS a Re Oe Ane Oa i,2
Federal Tort Claims ‘Act, 28 USC. § 1346 (b)
NA EE ee 19
Ee CED cecetccnescccccecsemsnenscecesensssensessesmsesesenscse 4,10
FS Sa a 4
Longshore and Harbor Workers’ Compensation
Act, 33 U.S.C. §905(b) (1986) . | 4,10
CK Sn 15
fb eT UE.) a 2
38 U.S.C. § 501a (1952). CArEy: 2

vi

TABLE OF AUTHORITIES—Continued

Page
38 U.S.C. § 1110 (1991) _.............. ¢<EE: Peeve _..... passim
NG FF ee a passim
38 U.S.C. § 1151 (1991 & Supp. IV 1994) . nee passim
38 U.S.C. $§ 56101-5108 (1991) .................................... 17
38 U.S.C. § 7105(d) (1991) -....................... inion 18
38 U.S.C. § 7251 et seq. (1991) PIES Se Rl 24
38 U.S.C. § 7316 (1991 & Supp. [IV 1994) 00. 19
Federal Employers’ Liability Act, 45 U.S.C. § 51

| EES aoe a See 4,10
Act for the Security of Life on Board of Vessels,

46 U.S.C. § 491 (1958) .. - Pa lee San 10
Jones Act, 46 U.S.C. § 688 (a) (1975) . 10
$8 C.F.R. $ 3.168 (1986)..................-..... 17
38 C.F.R. § 3.3038(a) (1993) -.................... ens PE abst re 17
38 C.F.R. § 3.310(a) (1993) -................... Shae 14
38 C.F.R. § 3.358 (c) (3) (1993) .......... ; _....... passim
43 Fed. Reg. 34505 (1978) ...................-..... 22
VA Regulation No. 137 (June 11, 1926) . 23
VA Regulation No. 157 (Sept. 15, 1926) _ sae ee 23
VA Regulation No. 167 (Feb. 21,1927) —........... . 23

OTHER AUTHORITIES
Co ee 26
134 Cong. Rec. $16,643 (daily ed. Oct. 18, 1988) .. 27
H.R. Rep. No. 963, 100th Cong., 2d Sess. (1988),

reprinted in 1988 U.S.C.C.A.N. 5782 _... Saas 24
Hearings Before the House Committee on World

War Veterans’ Legislation, 68th Cong., 1st Sess.

(1924) ........ 20, 21
Workmen’s Compensation Acts, 36 Op. Att’y Gen.

61 (1929) -.......... 23
VA General Counsel’s Op. “No. 99-90 (Dec. 24,

IIT =... tics real ceieeaietebinaeaesiemeniagniaiatiaininidetian 9
VA General Counsel’s Op. No. 80-90 (July 18,

1990) _....... 14
VA General Counsel’s Op. No. 2-78 ( Oct. 25,

1978) 24
59 VA General Counsel’s Op. 458 (1929) 23

InN THE

Supreme Court of the United States

OCTOBER TERM, 1994

No. 93-1128

JESSE BROWN, SECRETARY OF VETERANS AFFAIRS,
" Petitioner,
FRED P. GARDNER,
Respondent.

On Writ of Certiorari to the
United States Court of Appeals
for the Federal Circuit

BRIEF FOR THE
NATIONAL VETERANS LEGAL SERVICES PROJECT
AS AMICUS CURIAE IN SUPPORT OF RESPONDENT

This brief amicus curiae is filed with the consent of
the parties, as provided for in the Rules of the Court.

INTEREST OF AMICUS CURIAE

The National Veterans Legal Services Project
(“NVLSP”) is a non-profit, tax-exempt organization
which serves as a national support center in the area of
veterans law, including disability compensation cases.
The NVLSP regularly represents veterans before the
Board of Veterans Appeals, the United States Court of
Veterans Appeals (“COVA”) and the United States
Court of Appeals for the Federal Circuit. The NVLSP
also publishes informational materials for veterans and
their advocates and conducts training events for veterans
advocates. The services of the NVLSP are provided to
individual veterans and classes of veterans service organi-

2

zations, state and county veterans offices, community-
based veterans organizations, volunteer attorneys, pri-
vate bar attorneys, legal services attorneys, and other
veterans advocates nationwide.

INTRODUCTION AND SUMMARY OF ARGUMENT

The question raised in this case is narrow and straight-
forward: whether a regulation of the Department of
Veterans Affairs (“VA”), 38 C.F.R. § 3.358(c)(3)
(1993), is inconsistent with the statute it purports to
implement, 38 U.S.C. § 1151 (1993).

Section 1151 provides, in relevant part, that:

Where any veteran shall have suffered an injury or
an aggravation of an injury, as the result of hospitali-
zation, medical or surgical treatment, or the pursuit
of a course of vocational rehabilitation . . . awarded
under any of the laws administered by the Secre-
tary... . not the result of such veteran’s own willful
misconduct, and such injury or aggravation results
in additional disability to or the death of such vet-
eran, disability or death compensation . . . shall be
awarded in the same manner as if such disability,
aggravation, or death were service-connected.

38 U.S.C. § 1151 (1991).' Thus, Section 1151 expressly
sets forth four requirements for compensation:

(1) “an injury, or aggravation of an injury;”

' The predecessor of Section 1151 was Section 213 of the World
War Veterans Act, 1924, ch. 320, 43 Stat. 607, 623. In 1933, Con-
gress repealed the statute, Economy Act of March 20, 1933, ch.
8, tit. I, $17, 48 Stat. 8, 11, but reenacted it in substantially similar
form in 1934, Section 31 of the Act of March 28, 1934, ch. 102, tit.
Ill, 48 Stat. 509, 526, formerly codified at 38 U.S.C. § 50la (1952)
The 1934 enactment was recodified at 38 U.S.C. § 351 in 1958, Act
of Sept. 2, 1958, Pub. L. No. 85-857, 72 Stat. 1105, 1124, which was
redesignated Section 1151 in 1991. Department of Veterans Affairs
Codification Act, Pub. L. No. 102-83, $5, 105 Stat. 378, 406 (1991)
For ease of reference, unless otherwise specified, we will refer to
the statute throughout this brief as “Section 1151.”

3

(2) “as the result of [VA] hospitalization, medical
or surgical treatment, or the pursuit of a course
of vocational rehabilitation;”

(3) “not the result of such veteran’s own willful
misconduct;” and

(4) the “injury or aggravation results in additional
disability to or the death of such veteran.”

If these four requirements are met, the statute commands
that “compensation shall be awarded in the same manner
as if such disability, aggrevation, or death were service-
connected.” Jd. (emphasis supplied). Congress specified
no other limitations or requirements beyond these four.

VA's interpretation of this statute appears at 38 C.F.R.
$ 3.358 (1993). After summarizing the statutory lan-
guage and listing the criteria that govern a determination
of whether a veteran has incurred additional disability,
the regulation sets forth, at subsection (c), requirements
applicable to a determination of the cause of any addi-
tional disability. Subsection (c)(3) provides that:

Compensation is not payable for either the contem-
plated or foreseeable after results of approved medi
cal or surgical care properly administered, no matter
how remote, in the absence of a showing that addi-
tional disability or death proximately resulted through
carelessness, negligence, lack of proper skill, error in
judgment, or similar instances of indicated fault on
the part of [VA]. However, compensation is pay-
able in the event of an “accident” (an unforeseen,
untoward event), causing additional disability or
death proximately resulting from [VA] hospitaliza-
tion or medical or surgical care.
38 C.F.R. $ 3.358(c)(3) (1993). At the center of the
instant controversy is the requirement of the VA regula-
tion that, to obtain compensation, a veteran miust prove
that his or her additional disability resulted from an “ac
cident” or “carelessness, negligence, lack of proper skill
error in judgment, or similar instances of indicated fault”
on the part of VA. 38 C.P.R. § 3.358(c)(3) (1993)

4

Fairly read, there is nothing in the plain language of
Section 1151 and its four requirements to indicate that
Congress intended to require, as a predicate for benefits
under that provision, a showing of an “accident” or “care-
lessness,” “negligence” or “fault” on the part of the VA.
None of those terms appear on the face of the statute.
By contrast, the statute does expressly address fault on
the part of the veteran, explicitly precluding compensa-
tion to veterans whose disability is the result of their
“own willful misconduct.” “Where Congress includes
particular language in one section of a statute but omits
it in another section of the same. Act, it is generally pre-
sumed that Congress acts intentionally and purposefully
in the disparate inclusion or exclusion.” Russello vy.
United States, 464 U.S. 16, 23 (1983).

Application of this principle in this case is reinforced
by the fact that, both prior and subsequent to 1924
(when the predecessor to Section 1151 was enacted),
when Congress has intended to impose a fault-based sys-
tem of liability in other contexts, it has done so explicitly
by using terms such as “negligence.” See, e.g., Federal
Employers’ Liability Act, 45 U.S.C. § 51 (1986); Fed-
eral Tort Claims Act, 28 U.S.C. $8 2672, 2674 (1986):
Longshore and Harbor Workers’ Compensation Act, 33
U.S.C. $ 905(b) (1986). If Congress had wanted to im-
pose VA fault as a predicate for compensation under Sec-
tion 1151, it could have and would have done so. How-
ever, it did not.

Notwithstanding these circumstances, the Secretary ar-
gues that five words in Section 1151—-“injury” and “as a
result of”-—potentially carry some connotation of fault
or, at very least, create some interpretive ambiguity.
These arguments are demonstrably meritless.

The Secretary’s argument with respect to the term “in-
jury” would require this Court to find that Congress in-
tended the term to have two different meanings within

5

the same sentence of Section 1151. Section 1151 com-
mences with the phrase: “Where any veteran shall have
suffered an injury, or an aggravation of an injury .. .”
The Secretary concedes that the phrase “aggravation of
an injury” relates to a veteran’s condition prior to any
VA treatment at issue and thus carries with it no conno-
tation of fault. Pet. Br. 15 n.8. The Secretary’s argu-
ment that Congress intended to impose a fault-based
compensation system when it employed the term “injury”
six words earlier in the same sentence, flatly violates the
principle that, when identical words appear in different
parts of the same act, they are intended to have the same
meaning. The Secretary can point to nothing in the stat-
ute indicating that Congress intended to deviate from
this familiar principle.

The Secretary’s argument that the phrase “as a result
of” may create a fault-based compensation system is
equally flawed. As the court of appeals correctly found,
read literally, the words “as a result of” create merely a
causation requirement. Indeed, the VA’s own regulations
(38 C.F.R. § 3.358(c)(6) (1993) )—which require no
showing of fault in connection with an injury “resulting
from ... the pursuit of vocational rehabilitation”’—dem-
onstrate that not even the VA believes in this argument.

Further, the Secretary’s argument that the terms “in-
jury” or “as a result of” imply a fault-based compensa-
tion system under Section 1151 is also belied by the fact
that nearly identical terms appear in the veterans com-
pensation provisions applicable to service-connected dis-
ability (38 U.S.C. §§ 1110, 1151 (1991)), as to which
the Secretary concedes a no-fault system applies. Con-
gress could have stated explicitly that a different compen-
sation system was to apply under Section 1151 to com-
pensation for non-service-connected conditions. It did
not. To the contrary, it stated that compensation under
Section 1151 “shall be awarded in the same manner as
if such disability, aggravation, or death were service-
connected.”

6

Finally, the simple and straight-forward language of
the statute is reinforced by the overall structure of the
statutory scheme of veterans benefits. As this Court de-
scribed in detail in Walters v. National Ass'n of Radia-
tion Survivors, 473 U.S. 305 (1985), Congress intended
the VA benefits system to be nonadversarial and in-
formal—a system totally at odds with the adversarial and
formal fault-based system that the Secretary claims can
be read into Section 1151.

Notwithstanding the plain language of Section 1151,
the Secretary advances four arguments in support of his
claim that Congress intended a fault-based system in
enacting the statute. The Secretary argues that (1) the
legislative history surrounding the enactment of Section
1151, (2) the VA’s purportedly contemporaneous inter-
pretation of the statute shortly after its enactment, (3)
the reenactment of the statute in 1934, and (4) congres-
sional silence on the issue subsequent to 1934, all support
the VA’s fault-based regulation. None of the factors
asserted by the Secretary, however, justifies ignoring the
plain meaning of the statute.

The Secretary asserts that the legislative history sur-
rounding the enactment of Section 1151 supports the con-
clusion that Congress intended to impose a fault-based
system. As the Secretary concedes, however, at least
some of the legislative history directly supports the con-
clusion that Congress never intended to impose on injured
veterans the burden of proving VA fault or negligence.
Under these circumstances, the Secretary has not made
the “extraordinary showing of contrary intentions. . .
[that] would justify” ignoring the plain language of the
Statute. Garcia v. United States, 469 U.S. 70, 75
(1984).

The Secretary next argues that VA’s interpretation of
Section 1151 should be given considerable weight be-
cause it was made contemporaneously with the enactment
of the statute in 1924. To the contrary, the initial deci-

7

sions to come out of the VA field offices in the two years
following enactment of the statute were consistent with
the notion that fault was not an element of a claim for
benefits. Further, the VA General Counsel opinions and
VA regulations that followed these initial decisions show
a pattern of varied interpretation and inconsistent appli-
cation and, accordingly, do not provide any basis for
modifying or ignoring the language of the statute.

For similar reasons, the Secretary’s argument that the
1934 reenactment of Section 1151 represented Congress’
implicit endorsement of the VA’s fault requirement is
also baseless. To begin with, there is nothing to indicate
that Congress actually considered the fault/no fault issue
in 1934. Moreover, given the inconsistency of the VA’s
interpretations in the prior decade, it cannot be said that
there was any “uniform construction which Congress
might have endorsed.” Fogerty v. Fantasy, Inc., 114 S.
Ct. 1023, 1032 (1994).

Finally, the Secretary urges this Court to find that
Congress acquiesced to the VA’s interpretation because
it remained silent on the fault/no fault issue when it
amended the statute subsequent to 1934. As this Court
has recently held, these types of acquiescence arguments
“deserve little weight in the interpretive process.” Central
Bank vy. First Interstate Bank, 114 S. Ct. 1439, 1453
(1994). This principle clearly applies here where the
Secretary offers no evidence from which to conclude that
Congress ever considered the VA’s regulation in the
process of amending the statute.

8
ARGUMENT

I. THE PLAIN LANGUAGE OF THE STATUTE PRE-
CLUDES IMPOSITION OF A “FAULT” OR “ACCI-
DENT” REQUIREMENT AS A PREDICATE FOR
BENEFITS.

A. “The starting point in interpreting a statute is its
language, for ‘if the intent of Congress is clear, that is
the end of the matter.’” Good Samaritan Hosp. vy. Sha-
lala, 113 §. Ct. 2151, 2157 (1993) (quoting Chevron,
U.S.A., Inc. v. Natural Resources Defense Council, Inc.,
467 U.S. 837, 842 (1984)); see also Community for
Creative Non-Violence v. Reid, 490 U.S. 730, 739
(1989). In order to derive the statute’s plain meaning,
the court must examine the specific language at issue and
the overall structure of the statute. Bethesda Hosp. Ass'n
Vv. Bowen, 485 U.S. 399, 403-05 (1988).

Section 1151 commands that compensation “shall be
awarded in the same manner” as compensation is
awarded for service-connected disabilities * if the four re-
quirements (i.e., injury, caused by VA treatment, not due
to veteran’s fault, and resulting in disability or death)
are met. The specific language of Section 1151 does not
contain even the faintest hint of a legislative expression
that fault by VA personnel or an accident is a prerequisite
to obtaining compensation for additional disability. In-
deed, while arguing that Congress meant to create a
fault-based system in this very litigation, the Secretary
previously conceded that Section 1151 on its face does
not include the “fault” or “accident” requirement im-
posed by the regulation. See Appellee’s Response to

2 “Service-connected disabilities” refer to disabilities incurred
during, or as a result of, an individual’s military service. Injury
caused by VA treatment for such disabilities is compensable under
provisions other than Section 1151. See 38 U.S.C. §§ 1110, 1131
(1991). Section 1151 provides identical compensation for veterans
disabilities due to VA treatment for conditions not attributable to,
or incurred during, active military service.

9

Order of the Court to File a Supplemental Memorandum,
COVA No. 90-120, at 8-9 (Vet. App. filed Feb. 25,
1991) (“the plain language of that provision would
suggest” that. Congress intended to “authorize the pay-
ment of compensation for a veteran’s additional disability
arising from eny unfortunate circumstance arising during
hospitalization”) (emphasis in original). See also VA
General Counsel’s Op. No. 99-90 (Dec. 24, 1990), J.A.
41 (“literal” interpretation would require “strict liabil-
ity”). In short, the plain language of Section 1151 pro-
vides no authority for the VA fault or accident require-
ment that the VA engrafted through its implementing
regulation. Since an agency cannot, under the rubric of
regulation, restrict the scope of a statute, Neuberger v.
Commissioner, 311 U.S. 83, 89 (1940), the Secretary’s
regulation requiring the veteran to prove fault or accident
is invalid. Chevron, U.S.A., Inc., v. Natural Resources
Defense. Council, Inc., 467 U.S. 837, 842-43 (1984)
(where the plain meaning of the statute conflicts with
the administrative regulation, the regulation is invalid).

The plain language of the statute demonstrates that
Congress considered and expressly addressed the issue of
fault and that omission of VA fault in the statute’s lan-
guage is no oversight. The statute addresses the issue of
fault, but only by restricting the universe of veterans who
may seek compensation to those whose additional dis-
ability is not the result of their “own willful misconduct.”
38 U.S.C. § 1151 (1991). The fact that Congress in-
serted this limitation shows that Congress considered the
issue of fault while drafting the statute and determined
that, although fault of the veteran was relevant to a
determination of eligibility for compensation, the fault of
VA personnel in causing the injury was not.

There is no basis for assuming that Congress over-
looked a requirement of fault on the part of the VA
or intended to imply such a requirement where it care-
fully crafted the exclusion to compensation based on the

10

“willful misconduct” of the veteran. “Where Congress
includes particular language in one section of a statute
but omits it in another section of the same Act, it is
generally presumed that Congress acts intentionally and
purposely in the disparate inclusion or exclusion.” Rus-
sello v. United States, 464 U.S. 16, 23 (1983); see also
United Sav. Ass'n v. Timbers of Inwood Forest Assocs.,
484 U.S. 365, 371 (1988). Thus, in this case, Congress
is presumed to know what it was doing when it barred
recovery for the veteran’s willful) misconduct but indi-
cated no other element of fault.

This conclusion is reinforced by the fact that when
Congress has intended to impose a fault-based system of
liability in other contexts, it has done so explicitly. See,
e.g., Federal Employers’ Liability Act (“FELA”), 45
U.S.C. $51 (1986) (enacted in 1908 and providing
that “every common carrier by railroad . . . shall be li-
able in damages to any person suffering injury . . . re-
sulting in whole or in part from the negligence of any of
the officers, agents or employees of such carrier, or by
reason of any defect or insufficiency, due to its negli-
gence, in its . . . equipment”); Jones Act, 46 U.S.C.
$ 688 (1975) (enacted in 1920 and providing a cause
of action for damages to “any seaman” injured “in the
course of his employment” in the same manner as in
“cases of personal injury to railway employees” under
FELA): Federal Tort Claims Act, 28 U.S.C. § 2672
(1986) (enacted in 1948 and providing for administra-
tive adjustment of claims against the United States for
“personal injury or death caused by the negligent or
wrongful act or omission of any employee of the govern-
ment”); Longshore and Harbor Workers’ Compensation
Act, 33 U.S.C. § 905(b) (1986) (enacted in 1972 and
providing that “[i]n the event of injury to a person covered
under this Chapter caused by the negligence of a vessel,
then such person . . . may bring an action against such
vessel as a third party”); Act for the Better Security of
Life on Board of Vessels, 46 U.S.C. § 491 (1958) (en-

acted in 1871 and providing that “any person sustaining
loss or injury through the carelessness, negligence, or
willful misconduct of any master, mate, engineer, or
pilot” may sue those individuals and “recover damages
for any such injury”).

In short, Congress knew how to impose a fault-based
compensation standard when it chose to do so. If, as the
Secretary claims, Congress intended to limit veterans
benefits to instances involving an “accident” or VA
“fault,” “carelessness” or “negligence.” it would have
used those words in the statutory text. See Central Bank.
114 8. Ct. at 1448; Pinter v. Dahl, 486 U.S. 622, 650
(1988). But, it did not.

B. In his brief to this Court, the Secretary argues—
for the first time-—-that the term “injury” may carry with
it some connotation of fault. Pet. Br. 13-16. The Secre-
tary’s failure to raise this argument previously is easily
understood: his argument would require the Court to
hold that Congress intended the word “injury” to have
two different meanings within the same sentence con-
tained in Section 1151.

Section 1151 begins with the phrase: “where any
veteran shall have suffered an injury, or an aggravation
of an injury...” As the Secretary concedes (Pet. Br.
15 n.&). the phrase “aggravation of an injury” relates to
a veteran’s condition prior to treatment and thus carries
with it no requirement of fault. Yet, the Secretary ar-
gues that, when Congress employed the term “injury” six
words earlier, it intended to impose a fault-based com-
pensation system. The Secretary cannot cite to anything
in the statute that supports this newly asserted interpreta-
tion. To the contrary, this Court has made clear that
“identical words used in different parts of the same act
are intended to have the same meaning.” Sorenson v.
Secretary of Treasury, 475 U.S. 851, 860 (1986): see
also Morrison-Knudsen Const. Co. v. Director, 461 U.S.
624, 633 (1983) (same). A fortiori,-this familiar prin-

12

ciple of statutory construction applies when “identical
words” are used twice in the same sentence.

The Secretary next argues (Pet. Br. 16-20) that the
phrase “as the result of” may also carry some connotation
of fault. Again, however, the Secretary points to nothing
clse in the statute which supports the claim that the
phrase is meant to introduce fault into the statutory
scheme. To the contrary, as the court of appeals correctly
observed, the phrase—-literally read—creates only a
causation requirement. Pet. App. 8a.

The soundness of the court of appeals’ conclusion-——in
contrast to the Secretary's proposed interpretation—is
squarely supported by reading the phrase “as a result of”
in its full statutory context. See King v. St. Vincent's
Hosp., 112 S. Ct. 570, 574 (1991) (meaning of statu-
tory language, plain or not, depends on context’). Sec-
tion LIS! addresses an injury or an ageravation of an
injury “as a result of” four circumstances: “hospitaliza-
tion, medical or surgical treatment, or the pursuit of vo-
cational rehabilitation .” If the phrase “as a result
of” was meant to introduce VA fault into Section 1151,
that fault requirement would apply to all four circum.
stances, including “pursuit of vocational rehabilitation.”
However, if a showing of VA fault were being required,
Congress would not have referred to “the pursuit [by the
veteran] of vocational rehabilitation” but rather to “the
provision [by t! : VA] of vocational rehabilitation.” In-
deed, the VA's regulations make clear that the Secretary
does not apply a fault requirement with respect to an in-
jury “as a result of . . . the pursuit of a course of voca-
tional rehabilitation,” but requires only causal connection
between vocational rehabilitation and the veteran’s in-
jury. See 38 C.F.R. § 3.358(c)(6) (1993) (“compen-
sation for disability resulting from the pursuit of voca-
tional rehabilitation is not payable unless there is estab-
lished a direct (proximate) causal connection between
the injury or aggravation of an existing injury and some

13

essential activity or function which is within the scope
of the vocational rehabilitation course”). See also 36 Op.
Atty Gen. 61 (1929) (compensation for injury incurred
while in vocational training requires only showing causa-
tion similar to application of Workmen's Compensation
Acts).”

Moreover, the Secretary's argument that the terms “in-
jury” or “as a result of” imply a fault-hased compensation
system under Section 1151 is also belied by the fact that
similar terms appear in connection with other veterans
compensation provisions as to which the Secretary con-
cedes a no-fault system applies. The VA administers two
major disability benefits programs for veterans. The first
program is designed to compensate veterans who were in-
jured while in the service. Such benefits are often referred
to as “service-connected” benefits. See 38 U.S.C. §§ 1110,
1131 (1991). Section 1110 provides a guarantee of com-
pensation to active military personnel for “disability resu/t-
ing from personal injury suffered or disease contracted in
line of duty . . . during a period of war.” (Emphasis sup-
plied.) Similarly. Section 1131 provides a guarantee of
compensation for active military personnel for “disability
resulting from personal injury suffered . . . during other
than a period of war.” (Emphasis supplied.) The second
program the one involved im this case—is designed to
provide benefits to veterans no longer in service who are
injured as a result of VA medical treatment, vocational
rehabilitation. or hospitalization. 38 USC. §115!
(1991). This program covers treatment for non-service-
connected conditions. Under Section 1151, benefits are

*The Secretary makes much ado about a statement by the re-
spondent that “[slection 1151 would net provide henefita for an
amputation necessary to remove a gangrenous leg.” Pet. Br. 17-18.
The respondent's common sense application of Section 1151 to this
hypothetical in no way vindicates the “fault” or “accident” require-
ment of the VA's regulation. Compensation under Section 1151
would not be appropriate in this hypothetical because the loss of
the leg was not merely a reasonably foreseeable risk—but the
intended comsequence of the surgical procedure.

14

“awarded in the same manner as if such disability .. .
were service-connected.” These benefits are sometimes re-
ferred to as “quasi-service-connected benefits.”

Although both Sections 1110 and 1131—-similar to
Section 1151-—contain the allegedly ambiguous words
“injury” and “resulting,” the Secretary concedes that, un-
der these statutes, a veteran who suffers a surgical injury
for treatment of a service-connected condition receives
compensation without proof of fault. Pet. Br. 8 n.3. See
38 C.F.R. § 3.310(a) (1993). In an attempt to justify
his disparate interpretation of similarly structured statutes,
the Secretary argues:

The basic premise of compensation for service-
connected disabilities is that the government wil!
assume responsibility for conditions. contracted by
service members “in line of duty.” . . . Compensation
under Section 1151, on the other hand, is not based
on a general assumption of national responsibility for
the veteran's underlying condition, but on some spe-
cific connection between treatment rendered by the
VA and a post-treatment disability. It is not surpris-
ing that Congress would require a showing of fault
or “accident” before assuming responsibility for the
latter class of cases.

Pet. Br. 15 n.8.

However, once again there is no authority—-nor does
the Secretary refer to any—-which supports even an infer-
ence that Congress had this distinction in mind in 1924
or at any time in reeancting Section 1151. Rather, even
the Secretary’s own General Counsel has stated that Con-
gress did not intend a distinction between recipients of
so-called “quasi-service-connected” benefits under Section
1151 and recipients of benefits under Section 1110 and
1131. VA General Counsel’s Op. No. 80-90 (July 18,
1990), J.A. 24.*

* Before the Court of Veterans Appeals, the Secretary argued
that applying the same no-fault standard to both service-connected

a.

—*+

15

Prior to 1924, a veteran treated for a service-connected
condition could obtain compensation for any surgical in-
jury that resulted without proof of fault. With the 1924
Act, Congress simply put the veteran who suffered dis-
ability or death from VA treatment for a non-service-
connected condition on a par with the veteran who suf-
fered disability or death from a service-connected condi-
tion. Rather than incorporating the common law or any
other fault-based system, Congress merely extended the no-
fault compensation system already applicable to service-
connected disabilities. If Congress had intended to pre-
clude payments under Section 1151 in the absence of
fault or “accident,” it would have expressed recognition
of the inconsistency in the standards applicable in these
veterans benefit provisions by specifically imposing a fault
requirement. Thus, the “context of this statute actually
supports the conclusion that Congress meant what [Sec-
tion 1151] says.” Conroy v. Aniskoff, 113 S. Ct. 1562,
1565 (1993).

C. The Secretary further argues that his “view that the
Statute requires legal causation is also consistent with the
common law of medical malpractice” and that the “no-
fault standard advocated by respondent and the court of
appeals, on the other hand, deparis sharply from the
common-law principles of recovery for adverse medical

benefits (under Sections 1110 and 1131) and quasi-service-connected
benefits (under Section 1151) would lead to absurd results. The
Secretary apparently has abandoned this argument in this Court—
with good reason. The circumstances of Section 1151 beneficiaries
can often be virtually identical to beneficiaries under Sections 1110
or 1131. As the Secretary notes (Pet. Br. 15 n.8), in defining what
constitutes “line of duty” under either Section 1110 or 1131, Con-
gress has required only a temporal relationship between duty status
and the onset of a condition. See 38 U.S.C. § 105 (1991). Thus, for
example, if Mr. Gardner—-while on active duty but on leave—had
been injured while surfing in Hawaii and suffered a herniated disc,
any “bad result” of the subsequent in-service or post-service sur-
gery would be treated as service-connected and compensated on a
no-fault basis.

16

outcomes.” Pet. Br. 19. The Secretary's argument as-
sumes—again without citing any support from the stat-
ute—that Congress intended toa adopt a common-law
liability standard in enacting Section 1151 and its
predecessors. To the contrary, Section 1151 expressly
states that if its four requirements are met, compensation
“shall be awarded in the same manner as if such disability

_ were service-connected.” As just described, compen-
sation for service-connected conditions is not governed by
a fault-based or common law system, but is awarded on a
no-fault basis. Where Congress wished to incorporate a
common law fault standard, such as under FELA, it
knew how to do so. In Section 1151, however, Congress
expressly determined not to adopt the common law as its
model, but instead to adopt the already existing statutory
scheme of compensation for service-connected disabilities.

Moreover, the Secretary's argument that Congress in-
tended to adopt a fault-based system linked to the com-
mon law in enacting Section 1151 also conflicts with the
overall statutory scheme governing the provision of vet-
erans benefits. The adjudication of claims for benefits
(under Sections 1110, 1131 and 1151) is designed to be
both informal and nonadversarial. Walters v. National
Ass'n of Radiation Survivors, 473 U.S. 305, 323-24
(1985):° see also Littke v. Derwinski, 1 Vet. App. 99,
91 71990) (“VA takes pride in operating a system of
processing and adjudicating claims for benefits that is both
informal and nonadversarial”). Congress designed the ad-
judicatory system for veterans benefits to be solicitous of
veterans’ welfare and not to impose substantial or complex
evidentiary burdens on the veterans. The adjudicatory

system set up by Congress, including claims filed under»

5In Walters v. National Ass’n of Radiation Survivors, 473 US.
805 (1985), this Court held that a $10 cap on attorney’s fees
for cases brought before the regional boards did not violate the
First Amendment or the Due Process Clause. The Court found
the limitation on fees to be consistent with a system characterized
as both “informal and nonadversarial.” 473 U.S. at 323.

as

a a OI EA i MOO

17

Section 1151, is not at all consistent with the fault-
based system that the Secretary claims is created under
that statute. ,

The claims process is commenced by the filing of a
claim form by the veteran at one of the VA's regional
offices. 38 U.S.C. $§ 5101-5103 (1991). In most cases,
the claim is referred to a regional rating board, usually
comprised of three people, including a medical specialist.
Hearings before the regional rating boards are “ex parte in
nature,” 38 C.F.R. § 3.103(a) (1993), and “no Govern-
ment official appears in opposition.” Walters, 473 U.S. at
309-10. In fact, in most cases, recovery of benefits is
“swift [and] efficient,” Stence! Aero Eng'g Corp. v. United
States, 431 U.S. 666, 673 (1977), and “normally requires
no litigation.” Feres v. United States, 340 U.S. 135, 145
(1950). This is consistent with the notion that the whole
claims process operates under a congressionally created
umbrella of paternalistic concern for this country’s veter-
ans. Walters, 473 U.S. at 323-24.

The VA has certain duties and obligations designed to
enable the veteran to effectively present his claim. First
the VA has the duty to assist any claimant who has
submitted a well-grounded claim in developing the facts
pertinent to his claim. Littke, 1 Vet. App. at 91.
This duty to assist is neither optional nor discretionary
and requires the VA to conduct a thorough and con-
temporaneous medical evaluation, Green v. Derwinski,
I Vet. App. 121, 124 (1991), order a medical examina-
tion by a specialist, if required, Hyder v. Derwinski, 1 °
Vet. App. 221, 224 (1991), procure relevant medical rec-
ords from private physicians, Littke, 1 Vet. App. at 92
and obtain all relevant records in the possession of any
federal department or agency. Id. Second, the VA is
required to apply a broad and liberal interpretation to its
rules, 38 ©.F.R. § 3.03(a) (1993), and to infer issues or
claims not expressly raised by the claimant. Akles v. Der-
winski, 1 Vet. App. 118, 121 (1991). Finally, the “board

18

is directed by regulation to resolve all “eye — -
) i " t ; se
favor of the claimant.” Walters, 473 U.S. a : a
Gilbert v. Derwinski, 1 Vet. App. 49, 54 dingo 4 soagee
ant prevails where “there is an approximate balance
positive and negative evidence”).

ard issues an unfavorable opinion for the vet-
Prin 5 she may file a notice of disagreement with _
regional office. If upon reconsideration the regional office
adheres to the original decision, the agency must gpa
“statement of the case” which contains a summary 0 4. :
evidence, the applicable law and regulations upon nso yee
the decision was based, and the reasons for the mig 0
the claim. See 38 U.S.C. § 7105(d) (1991). The c —
ant may then appeal to the Board of Veterans Appeals
(“BVA”). The hearings in front of the BVA “are
[also] ex parte, there is no formal questioning or wae
examination, and no formal rules of evidence app a
Walters, 473 U.S. at 311. Indeed, since there is no 9
res judicata effect or statute of limitations, the apps oan
may argue new theories of entitlement and present aay
for different benefits up until the time the BVA ma a os
final decision. Myers v. Derwinski, 1 Vet. App. 127,
(1991). acl ia
fault-based standard the Secretary claims 1s
eacae 1151 is clearly incompatible with the informal and
nonadversarial adjudicatory system created under that stat-
ute. It is inconceivable that Congress would have er
bined a VA fault requirement, which inherently wou
impose a heavy and complex evidentiary hag r
legally untutored veterans, with a system in W a My
veteran was forbidden to pay an attorney more than
Certainly, given the informal and nonadversarial gee
tory scheme for veterans benefits, in the absence of an
explicit indication from Congress that it was imposing
a fault-based system, none should be inferred.

«The Secretary’s argument that Congress intended to yma
fault-based system in enacting Section 1151 is also belied by the

19

Il. EACH OF THE THEORIES ADVANCED BY VA
FOR IGNORING THE PLAIN MEANING OF SEC-
TION 1151 IS MERITLESS.

As demonstrated above, the “statutory command of
§ [1151] is unambiguous, unequivocal, and unlimited.”
Conroy v. Aniskoff, 113 S. Ct. 1562, 1564 (1993). Since
this is the case, “judicial inquiry is complete, except in
‘rare and exceptional circumstances.’” Rubin v. United
States, 449 U.S. 424 (1981) (quoting TVA vy. Hill, 437
U.S. 153, 187 n.33 (1978)). The Secretary attempts to
skirt around the plain meaning of the statute by asserting
that (1) the legislative history surrounding the enactment.
of Section 1151, (2) purportedly contemporaneous inter-
pretations of the statute by the VA, (3) subsequent
reenactment of the statute, and (4) congressional silence
on the issue after 1934 all support a conclusion that Con-
gress contemplated a fault-based system in enacting Sec-
tion 1151. None of the theories advanced by the gov-
ernment changes the plain language of the statute or per-
mits that language to be ignored or modified.”

enactment of the Federal Tort Claims Act ( “FTCA”). The FTCA
was not enacted until 1946 (60 Stat. 842, 843 ( 1946) (codified
at 28 U.S.C. §§ 1346(b), 2671 et seq. (1982) ) ). Subsequently, Con-
gress made clear that the FTCA was the’ exclusive remedy for
malpractice actions against the VA. 38 U.S.C. § 7316 (a) (1) (B)
(1991 & Supp. IV 1994). The exclusivity of the FTCA regime as a
tort-based remedy against the VA further suggests that Section
1151 does not include a fault-based standard.

* Additionally, the Secretary attempts to find support for his
argument with vague references to policy considerations. £.g.,
Pet. Br. 15 n.8, 18-19, 41. The Court has made clear that such
arguments “cannot override [our] interpretation of the Act’s text
and structure,” except to the extent that they might help to show
that “adherence to the text and structure would lead to a result ‘so
bizarre’ that Congress could not have intended it.” Central Bank
Vv. First Interstate Bank, 114 S. Ct. 1439, 1442 (1994) (quoting
Demarest Vv. Manspeaker, 498 U.S. 184, 191 (1991)). The Secretary
has apparently abandoned his prior argument that a no-fault in-

terpretation of Section 1151 would lead to impermissibly absurd
results. See supra note 3.

20

A. Although this Court may “turn to the legislative
history as an additional tool of analysis, [it does] so with
the recognition that only the most extraordinary showing
of contrary intentions from [the] data would justify a
limitation on the ‘plain meaning’ of the statutory lan-
guage.” Garcia v. United States, 469 U.S. 70, 75 (1984);
see also Consumer Prod. Safety Comm’n v. GTE Syl-
vania, Inc., 447 U.S. 102, 108 (1980) (indicating that
where there is no “clearly expressed legislative intention
to the contrary,” the words of the statute “must ordinarily
be regarded as conclusive”). Aithough, as the court of
appeals recognized, “ ‘recourse to the legislative history of
Section 1151 is unnecessary in light of the plain meaning
of the statutory text’” (Pet. App. 9a) (quoting Darby
v. Cisneros, 113 S. Ct. 2539, 2545 (1993)), the legisla-
tive history of the 1924 Act reinforces the plain language
in Section 1151. See United States v. James, 478 US.
597, 606 (1986).

Section 213 of the World War Veterans Act, 1924,
ch. 320, 43 Stat. 607, is the predecessor of Section 1151.
Section 213, designed to be remedial legislation, was pre-
sented as a bill to amend the War Risk Insurance Act.
Hearings Before the House Committee on World War
Veterans’ Legislation, 68th Cong., Ist Sess. 113 (1924)
(“1924 Hearings”). As an initial matter, the fact that
the statute was part of an insurance scheme sup-
ports the conclusion that Congress did not intend for
veterans to prove an element of a fault in order to re-
ceive Section 1151 benefits.

The comments of General Frank T. Hines, Director of
the Veterans Bureau from 1923 until 1945, are instructive.
In introducing the legislation, he stated:

[I]t seems to me manifestly unjust, that in good faith
the man undergoes an operation, the doctor does the
best he can and without neglect . . . [with the best
medical advice, and still at the end of a certain
period we find the man has a greater disability than

ee eee te 2

POM aa! Sot HN A me wm - “

21

he originally started with, and we have no way of
correcting in any measure that condition.

1924 Hearings at 114 (emphasis supplied). . Similarly,

in a letter to the Chairman of the- Committee, General
Hines wrote:

I concur in the principle that authority should exist
for compensating the cases of disability due to the
hazards of training upon the general theory and prin-
ciple of the workmen’s compensation act. I would
extend the principle beyond this particular proposal
to include also ratable disabilities incurred without

fault and due to the hazards of medical and surgical
treatment.

Id. at 122 (emphasis supplied). The whole compensation
scheme rests upon the notion that the “Government hav-
ing undertaken to bestow a benefit, has, in fact, inflicted
a loss.” Id. at 113 (statement of General Hines).

The Secretary points to comments made by General
Hines where he notes that compensation would be au-
thorized for those injured “as the result of accident or
negligence of treatment or unskillfulness.” Jd. Although
these comments make it clear that there would be com-
pensation in the event of VA fault or negligence, the
comments do not suggest that compensation would be
limited to such circumstances. Indeed, such a conclusion
would be flatly inconsistent with the comments of General
Hines quoted above.

Based on these comments, the Secretary concedes (Pet.
Br. 26) that “parts of the 1924 legislative history sug-
gest that, Congress may have contemplated compensation
for disabilities caused by medical treatment even where
‘the doctor does the best he can * * * without neglect
* * * and with the best medical advice’” (quoting Pet.
App. Ila). The Secretary further concedes that “it is
difficult to draw any confident conclusion about the in-

22

tended scope of Section 213 on the basis of bag
enactment legislative history alone. Pet. Br. 2 ’ ~
may be concluded with confidence is that the a. =
guage of the statute must be given effect since there pA 2
“clearly expressed legislative intent to the contrary. - ed
v. Scheidler, 114 8S. Ct. 798, 806 (1994) (quoting

Sylvania, 447 U.S. at 108)."

_ The Secretary urges this Court to defer to his in-
wae of the Broo because it allegedly — —
contemporaneously. with the statute’s enactment. In =
eral, where the law is “doubtful and ambiguous 2% . ;
contemporaneous construction” is entitled to -de —
See Edwards’ Lessee v. Darby, 25 US. roscoe 4 06,
210-11 (1827). As discussed above, however, Section
1151 is not doubtful or ambiguous—in fact, it Is very
clear: the veteran will be compensated for injuries _
tained as a result of VA treatment or programs. e
Chevron, U.S.A., Inc. v. Natural Resources congo
Council, Inc., 467 U.S. 837, 842-44 (1984) (agency only
entitled to deference concerning its statutory interpreta-
tion where the statutory language has “left a gap” or Is

ambiguous ).

Further, the record does not support the —
assertion that the VA contemporaneously and tego y
interpreted the 1924 statute to require a showing O v
or accident. There were various inconsistent interpre -
tions and applications of Section 213 within the first Ny
years of its enactment, and beyond.

®On August 4, 1978, the VA proposed a regulation “oy”
notice and comment for the first time in its sagen ; oe
Fed. Reg. 34505 .(1978). The proposed amendment to - =
§ 3.358(c) (3) would have provided benefits “without oper in
whether there was fault or negligence of [sic] the os "
Veterans Administration.” 43 Fed. Reg. 34505 ( 1978). - is : _—
was being proposed after a “careful study of the legisla ive hi _
of 38 U.S.C. [$] 351.” Jd. However, VA never published any reg

lation to this effect.

BO Nghe teenie BIN

23

To begin with, as the Secretary concedes, VA field
Offices adjudicated claims on a no-fault basis for at least
two years following Section 213’s enactment. Pet. Br.
27. And later, in a 1929 adjudication, 59 VA General
Counsel’s Op. 458 (1929), benefits were awarded to a
veteran under Section 213 of the 1924 Act without con-
sideration of fault. In determining that a veteran was
entitled to compensation for an injury resulting from
hospitalization, the General Counsel stated, “[t]he prime
place to go for evidence of the intention of Congress is
the statute, which, in this case, is quite without ambiguity,
as far as this Service can discern.” Jd. In addition, a
1929 Attorney General opinion not only made no men-
tion of a fault requirement but interpreted the words in

_the statute in a manner that would be consistent with

Workmen’s Compensation Acts, i.e., without considera-
tion of fault. 36 Op. Att’y. Gen. 61 (1929).

The first VA regulation requiring proof of any element
beside causation was not issued until two years after the
enactment of Section 213. See VA Regulation No. 137
(June 11, 1926) (compensation was available for addi-
tional injury resulting from “improperly given” treat-
ment). Moreover, the regulations promulgated in the next
couple of years continued to be in flux. In 1926, satis-
factory evidence of “malpractice, malfeasance, or misfea-
sance” had to exist for a disability to be compensable.
VA Regulation No. 157 (Sept. 15, 1926). A year later
the malpractice language was replaced with a less strict
standard. VA Regulation No. 167 (Feb. 21, 1927)
(benefits provided for all injuries except those which were
“[t]he usual after results of approved medical care and
treatment properly administered” ). |

In attempting to explain the genesis of the uneven course
of administrative implementation of the statute during
the 1920’s and 1930's, the VA General Counsel stated
that “[slome of the difficulty seems to have resulted from
the fact that administrative officials have not construed
the language of the statute literally in determining whether

24

benefits were payable for additional disability or death
due to hospitalization, medical or surgical treatment.” VA
General Counsel’s Op. No. 2-78 (Oct. 25, 1978), J.A.
18. The non-uniform administrative interpretation of the
statute in the years immediately following its enactment
clearly provides no basis for modifying or ignoring the
plain language of the statute. Indeed, if deference to
administrative interpretation is due at all, it is due to
ihe first field office adjudications which did not require
fault on the part of the Veterans Bureau. /d., J.A. 16.
Those determinations were made most closely upon the
passage of Section 213 when all of the circumstances
surrounding its enactment were well known. See Zuber
v. Allen, 396 U.S. 168, 192 (1969); United States v.
American Trucking Ass'n, 310 U.S. 534, 549 (1940).’

C. The Secretary also argues that, because Congress
reenacted a predecessor of Section 1151 in 1934, Con-
gress adopted the VA’s interpretation of the statute. Be-
fore the Court will apply the reenactment doctrine and
adhere to the interpretation developed in the courts or an
agency, it must find that there has been a consistent con-
struction for Congress to endorse. Central Bank v. First
Interstate Bank, 114 S. Ct. 1439, 1452 (1994); Fogerty
v. Fantasy, Inc., 114 §. Ct. 1023, 1032-33 (1994). As
indicated above, the inconsistencies in the VA interpreta-

® Although the Secretary repeatedly stresses that the regulation
at issue here has existed for nearly 60 years, it was not reviewable
by any court until 1988. In establishing the Court of Veterans
Appeals, Congress recognized that the VA has stood “in splendid
isolation as the single federal administrative agency whose major
functions [we]re explicitly insulated from judicial review.” H.R.
Rep. No. 963, 100th Cong., 2d Sess. 10 (1988), reprinted in 1988
U.S.C.C.A.N. 5782, 5791 (internal quotations omitted). With the
passage of the Veterans’ Judicial Review Act, Pub. L. No. 100-687,
102 Stat. 4105 (1988) (codified at 38 U.S.C. § 7251 et seq.), there
was a mechanism in place that (1) provided for judicial review of
BVA decisions, (2) required the VA to comply with the Adminis-
trative Procedure Act’s rulemaking procedures, and (3) required
the VA to publish General Counsel Precedent Opinions in the Fed-

slat -

25

tions are “hardly the sort of uniform construction which
Congress might have endorsed.” /d. at 1032.

Moreover, it is well established that congressional re-
enactment of a statute, without more, does not prove
that Congress approved an agency’s implementing regula-
tion. Commissioner v. Glenshaw Glass Co., 348 U.S.
426, 431 (1955); Biddle v. Commissioner, 302 U.S. 573,
582 (1938); Koshland v. Helvering, 298 U.S. 441, 447
(1936). This principle is particularly true when “there
is nothing to indicate that [the regulation] was ever
called to the attention of Congress” and reenactment “was
not accompanied by any congressional discussion which
throws light on [the statute’s] intended scope.” United
States v. Calamaro, 354 U.S. 351, 359 (1957).

The Secretary points out that, in 1930-31, the House
Committee on Invalid Pensions undertook a study of the
then existing benefits structure. Pet. Br. 32. The Secretary
notes that the Chairman of the Committee compiled a
preliminary report for the Committee members. /d. at
32 n.18. The Secretary offers this event as proof that
Congress was knowledgeable about the VA’s interpreta-
tion of Section 1151 before it reenacted the statute.
To begin with, this Court has “ ‘observed on more than
one occasion that the interpretation given by one Con-
gress (or a committee Member thereof) to an earlier
statute is of little assistance in discerning the meaning
of that statute.” Central Bank, 114 S. Ct. at 1452
(quoting Public Empleyment Retirement System v. Betts,
492 US. 158, 168 (1989)). This principle is clearly
applicable here, because the legislative background ma-
terial referenced by the Secretary does not remotely jus-

eral Register. These three fundamental changes opened up the VA
adjudicatory process for the first time. The fact that the VA’s
regulations were “unscrutinized and unscrutinizable” until] 1988
(Pet. App. 20a) clearly diminishes any presumption of validity
or judicial deference that might otherwise be accorded long-standing
administrative interpretations.

26

tify modifying the language of the statute or support the
conclusion that Congress intended a fault-based system.

First, as conceded by the Secretary, the language of
the preliminary report “could be read to assume a no-
fault interpretation of Section 213.” Pet. Br. 32 n.18.
Second, although, as the Secretary notes, this report makes
it “clear that in 1931 a key congressional committee was
well aware of Section 213 and its application to veterans
with non-service-connected conditions” (id.), the relevant
inquiry is not whether Congress was aware of a section
that it had enacted, but whether it knew that the VA
was imposing a fault requirement on veterans. On
this point, the report is, at best, ambiguous—not a sur-
prising circumstance given the uneven course of the VA's
implementation of the statute prior to 1934.

Thus, even if the VA thought fault or accident were
prerequisites for compensation at the time the statute
was reenacted, given the inconsistent applications of the
Act prior to 1934, it is unlikely that Congress could have
even ascertained with certainty what the VA practice was
at the time of reenactment." See Fogerty, 114 S. Ct. at
1032-33 (refusing to apply the reenactment principle

1 Equally unenlightening as definitive proof of congressional in-
tent are the comments of Senator Steiwer, who, in 1934, introduced
the amendment which restored the benefits formerly provided under
Section 213. Senator Steiwer noted that his proposal was meant
to cover cases where “a veteran is disabled by reason of mistreat-
ment on the part of the Government agent, as in a case of malprac-
tice by a Government surgeon.” 78 Cong. Rec. 3289 (1934). When
asked if Congress was “undertaking to cover cases of malpractice
upon the part of physicians,” Senator Steiwer responded: “Inci-
dentally we would.” Jd. On the same date, the Senator, in referring
to his previous explanation stated, “I shall not explain it further,
except to say that the language employed in this amendment, as
nearly as I can remember, is a mere reenactment of the law as it
existed prior to the Economy Act.” /d. at 3298. Thus, Senator
Steiwer’s comments return the issue to square one: what did
Congress intend when it enacted Section 213 in 1924. “That issue
is our concern here, and we adhere to the statutory text in resolv-
ing it.” Central Bank, 114 S. Ct. at 14538.

27

where there was no “settled construction” that “Con-
gress might have endorsed”). Consequently, “[iJn such
circumstance we consider the reenactment to be without
significance.” Calamaro, 354 U.S. at 359; see Pierce v.
Underwood, 487 U.S. 552, 566-68 (1988).

D. Finally, the Secretary argues that this Court should
read into the congressional silence, following the years
after reenactment, acquiescence to the Secretary's fault/
accident requirements. “[A]s a general matter . . . [ap-
proval through silence] arguments deserve little weight
in the interpretative process.” Central Bank, 114 §S. Ct.
at 1453. Although the statute has been amended several
times since 1934, there is no indication that Congress was
in any way addressing the question at issue here in any of
those instances. Indeed, the Secretary has not offered any
evidence that Congress considered the fault issue at any
time since the statute’s enactment in 1924. Under the
circumstances, “‘[i]t is impossible to assert with any de-
gree of assurance that congressional failure to act repre-
sents affirmative congressional approval of the .. . stat-
utory interpretation.”” Central Bank, 114 S. Ct. at 1452
(quoting Patterson v. McLean Credit Union, 491 US.
164, 175, n.1 (1989)) (inner quotations omitted).™

'! Because VA decisions were not judicially reviewable unti] 1988,
they may not have been as visible as other administrative decisions,
which gain public attention both when they are made and then in
subsequent judicial review proceedings. The Secretary asserts that
“[t|he relevant congressional committees have always paid close
attention to the administration of veterans’ benefits.” Pet. Br. 32.
This is clearly not the uniform view of members of Congress. For
example, Senator Cranston, in introducing the 1988 legislation
which created the Court of Veterans Appeals, noted that:

Although, the Committee on Veterans’ Affairs in both
Houses carry out significant oversight of the activities of the
VA, the limited resources of the Committees do not allow for
thorough review of and congressional action to resolve satis-
factorily all of the legal and policy issues arising in such a
large and complex agency.

134 Cong. Rec. 816,643 (daily ed. Oct. 18, 1988).

28

“Congressional inaction cannot amend a duly enacted
statute,” Central Bank, 114 S. Ct. at 1452 (quoting Pat-
terson, 491 U.S. at 175 n.1), nor can Congress add to
or expand a statute by impliedly approving a regulation
which conflicts with the requirements of the underlying
statute. See Leary v. United States, 395 U.S. 6, 24-25
(1969) (citing Commissioner v. Acker, 361 U.S. 87, 93
(1959) ).
CONCLUSION

The judgment of the court of appeals should be
affirmed.

Respectfully submitted,

RONALD §S. FLAGG *
FRANK R. VOLPE
SIDLEY & AUSTIN
1722 Eye Street, N.W.
Washington, D.C. 20006
(202) 736-8000

GERSHON M. RATNER
NATIONAL VETERANS LEGAL
SERVICES PROJECT
2001 S Street, N.W.
Washington, D.C. 20009
(202) 265-8305

* Counsel of Record

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385013_0483%3A11. Public record. Not legal advice.