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Reconciling Brown v. Gardner and Chevron

| Jun 11, 2012 | Opinion

    In Linda D Jellum.jpg its landmark decision, Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., the United States Supreme Court directed courts to defer to reasonable agency interpretations of ambiguous regulatory statutes. Under Chevron’s first step, a court should determine “whether Congress has directly spoken to the precise question at issue.” If not, then, pursuant to Chevron’s second step, a court must accept any “reasonable” agency interpretation.

    Yet, this truism does not hold true within veterans law, where there is a third player with an interpretive role: the veteran. The veteran has an interpretive role because of an unusual presumption identified by the Court in Brown v. Gardner. In that case, the Court developed “Gardner’s Presumption,” which directs courts to resolved statutory interpretive doubt—equated with ambiguity—in the veteran’s favor. Gardner’s Presumption has become a legend in veterans’ jurisprudence, as veteran-litigants and their counsel raise it often. Yet, Gardner’s Presumption conflicts directly with Chevron’s second step: Which interpretation controls when a statute is ambiguous, the agency’s reasonable interpretation or the veteran-friendly interpretation? To date, none of the courts faced with this conflict have resolved this question. Yet, solutions exist, as I will explain below.
    Gardner’s Presumption began life humbly as a liberal construction canon. Its precursor—Boone’s interpretive canon—made its first official appearance in 1943, in Boone v. Lightner. This case involved litigation between two private parties. Without citing any authority or explaining the import of its statement, the Supreme Court stated that “[the statute at issue] 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.” In this moment, the Court created, or at least articulated for the first time, the interpretive canon that statutes benefitting military personnel should be liberally construed.
    Those US soldier.jpg familiar with statutory interpretation have likely already noted the similarity of Boone’s interpretive canon with the oft-repeated canon of interpretation that instructs that remedial statutes should be construed liberally. Boone’s interpretive canon is similar, if not identical, to the remedial interpretation canon, likely because veterans’ benefits statutes are remedial. Hence, the Court’s development of and lack of explanation for Boone’s interpretive canon is, perhaps, unsurprising. Because the Court did not mention the remedial canon as its basis for creating Boone’s interpretive canon, it is unclear whether the Court believed that liberal interpretation was appropriate simply because veterans’ benefits statutes are remedial in nature or for some other, unstated reason. In later cases, the Court noted that liberally construing veterans’ benefits statutes furthers two important public policies: expressing the nation’s gratitude for veterans’ sacrifice and helping veterans reenter society more readily.
    While Boone’s interpretive canon simply directed courts to construe veterans’ benefits statutes liberally, the Supreme Court transformed this canon into a trump card that veterans could assert to defeat reasonable agency interpretations. The Court began its transformation in 1991 in King v. Saint Vincent’s Hospital, a case that did not involve an agency’s interpretation of a statute. In King, an employer sought a declaratory judgment that a statute should be read to include a reasonable limit on the length of time that a reservist’s position had to be kept open. Rejecting the employer’s interpretation, the Supreme Court found the text of the statute clear and free of any express limitation.
    The Court should have ended its analysis there; it did not. Instead, in a footnote, the Court suggested in dictum that even if the statute were ambiguous, the Court would have resolved any ambiguity in favor of the reservist. Note this dramatic change: Construing a statute liberally and construing a statute in a veteran’s favor are not the same. A statute can be liberally construed and still not favor the veteran-litigant. Thus, in King, the Court transformed a Boone’s liberal construction canon into a veteran’s ace-in-the-hole. Perhaps this ace-in-the-hole makes sense in cases involving private litigants, but should it also apply when an agency interpretation is involved?  Arguably not.
    Until King was decided in 1991, Boone’s interpretive canon was applied only in cases involving non-agency litigants arguing about the interpretation of a statute. No agency interpretations were involved because the U.S. Department of Veterans Affairs’ (“VA”) benefit decisions were not reviewable until 1988. In 1994, the Supreme Court referred to its King dictum in Brown v. Gardner, the case that made Gardner’s Presumption common parlance in veterans law. For the first time, the Court used Boone’s interpretive canon (as reformulated in King) in a case involving a challenge to an agency’s interpretation of a statute. Yet, the Court seemed oblivious to the conflict it was creating.
    In Gardner, the statute at issue provided veterans with compensation for “an injury or an aggravation of an injury” that occurs “as the result of hospitalization, medical or surgical treatment’” not attributable to the veteran’s “willful misconduct.” The VA by regulation had interpreted this statute to cover only those injuries that arose from the fault or accident of the VA and so denied the veteran’s claim. On appeal, the Supreme Court held that the VA’s regulation was inconsistent with the plain language of the statute. After finding the language clear, the Court stated in dictum that even if the government could show ambiguity any “interpretive doubt [was] to be resolved in the veteran’s favor,” citing the footnote dictum from King. The Court thus transformed Boone’s interpretive canon from a directive to courts to interpret veterans’ benefits statutes liberally into
    a directive to resolve any interpretive doubt in veterans’ favor—even in the face of a contrary agency interpretation. In essence, with its footnoted-dicta in both King and Gardner, the Court created a “tie-to-the-veteran” presumption with little explanation about or even apparent awareness of the conflict with Chevron.
    For many years, the lower courts struggled to resolve the conflict. Indeed, the United States Court of Appeals for Veterans Claims specifically asked for guidance from the Supreme Court on this issue. None has been forthcoming. In the absence of guidance, I suggest that this conflict can be solved in a number of ways, two of which I’ll mention here. First, recall that Gardner’s Presumption began as a liberal construction canon. Rather than require courts to interpret all ambiguous statutes to favor veterans, Boone’s Presumption merely directed courts to construe ambiguous veterans’ statutes liberally. Simply restoring Gardner’s Presumption to its humble beginnings would eliminate much of the conflict. As a liberal-construction canon, Gardner’s Presumption would play an interpretive role in Chevron’s first step—as other interpretive canons do; however, it would play absolutely no role in Chevron’s second step.
    Second, and alternatively, Gardner’s Presumption could be viewed as a duty belonging to the VA rather than as an interpretive canon to be applied by courts. Pursuant to this approach, whether the VA considered Gardner’s Presumption in interpreting a statute would be just one factor for a court to consider when deciding whether to defer to the VA’s interpretation. If the VA were unable to explain why a particular interpretation would benefit veterans as a whole, then the VA’s interpretation would be neither reasonable under Chevron nor persuasive under Skidmore v. Swift & Co. This resolution would maintain interpretive power in the VA while constraining its interpretive choices in a way that would benefit veterans as a whole.
    Linda D. Jellum is an Associate Professor of Law at Mercer Law School and the Associate Director of the Association of American Law Schools. This essay is based on her recent article, Heads I Win, Tails You Lose: Reconciling Brown v. Gardner’s Presumption That Interpretive Doubt Be Resolved In Veterans’ Favor With Chevron, 61 Am. U.L. Rev. 59 (2011).