Next week is Court Week at the Federal Circuit, and three cases scheduled to be considered next week attracted amicus briefs. One is Buffington v. McDonough, a veterans case presenting the question of whether the Secretary of Veterans Affairs validly exercised rulemaking authority when promulgating a regulation related to the timing of payment of disability benefits. This is our argument preview.
In his opening brief, Buffington takes the position that a part of 38 C.F.R. § 3.654(b)(2) limiting the resumption of payment of disability benefits (to “the day following release from active duty if [a] claim for recommencement of payments is received within 1 year from the date of such release”) is not a valid exercise of the general rulemaking authority of the Secretary of Veterans Affairs under 38 U.S.C. § 501(a). Buffington supports this position with two arguments.
First, he argues “the regulation conflicts with relevant statutes, which do not impose a one-year claim requirement that may result in disability compensation forfeiture, but which instead state that ‘the United States will pay’ compensation to any disabled veteran commencing on the effective date of the compensation award, 38 U.S.C. §§ 1110, 5110, except that such pay will be discontinued ‘for any such period for which such person receives active service pay,’ 38 U.S.C. § 5304(c).”
Second, he argues “the regulation’s one-year claim requirement and resulting forfeiture do nothing to prevent duplication of disability compensation during periods of active service, the stated purpose of section 5304(c).”
According to Buffington, the question presented “is governed by the two-step framework of Chevron U.S.A., Inc. v. NRDC, 467 U.S. 837 (1984),” and the government fails at both steps.
In response, the Secretary of Veterans Affairs argues that while “Congress prohibits veterans from receiving both disability compensation from the VA and active service pay” and “Congress specified the date for the discontinuation of VA benefits based on receipt of active service pay,” Congress did not “address the effective date and terms for the recommencement of benefits.” As a result, according to the Secretary, “Section 3.654(b)(2) is a valid exercise of the Secretary’s rulemaking authority under 38 U.S.C. § 501(a).” Regarding Chevron, the Secretary maintains that “Congress did not speak to the precise question at issue – whether the Secretary may predicate the effective date for the recommencement on the date of the veteran’s claim – and a gap remained for VA to fill.”
As applied here, the Secretary contends that “Section 3.654(b)(2) is not inconsistent with the statute’s pro-claimant scheme simply because it does not provide for a pro-claimant outcome in every instance – such as where a veteran, like Mr. Buffington, delays filing an application to recommence disability benefits for more than a year after release from active duty.” In this situation, the Secretary argues, “section 3.654(b)(2) provides that the effective date will be one year prior to the date of the claim.”
In his reply brief, Buffington stresses that “[t]he plain meaning of ‘any period’ in section 5304(c) is that discontinuance runs with the start and end of active-duty service,” which he argues is “consistent with the stated purpose of section 5304(c), prohibiting dual compensation.” He also contends that “application of the regulation to veterans like Mr. Buffington produces the result that veterans who do not advise VA that they have returned to active service are treated better than those who do, the former having disability compensation discontinued just during their period of active service and the latter potentially also outside of that period.” According to Buffington, this is an “absurd result” highlighting “that regulation 3.654(b)(2) is arbitrary and capricious and thus invalid.”
The New Civil Liberties Alliance filed an amicus brief in support of Buffington. It “agrees with Buffington that federal law requires the VA to pay disability benefits to veterans for any post-discharge period during which they are not in active service (subject to limited exceptions not applicable here).” It, however, argues that the government’s position fails even prior to a Chevron analysis because “[t]here is simply no reason to ‘presume’ that Congress intended to delegate to the VA authority to adopt a rule withholding otherwise-available disability benefits depending on the date on which a veteran seeks reinstatement of benefits.” According to the NCLA, “[t]he Veterans Court’s invocation of Chevron deference was unwarranted in light of the conflicting presumption that Congress intends any ambiguities in §§ 1110 and 5304(c) to be resolved in favor of Buffington, the veteran.” Indeed, NCLA recommends that the Federal Circuit in this case finally “address the interplay between the pro-veteran canon and the Chevron deference doctrine.” It goes further, however, and asks the Federal Circuit to “to note the constitutionally problematic nature of [the Chevron] doctrine.”
The oral argument is scheduled for Monday, May 3. We will monitor this case and report on relevant activity.