In one case being argued at the Federal Circuit in July the court appointed counsel as amicus curiae. This case is Loomis v. Collins, a pro se veterans case. In it, Loomis appeals a decision of the Court of Appeals for Veterans Claims. The case presents questions related to educational assistance benefits and the validity of a regulation issued by the Department of Veterans Affairs. This is our argument preview.
In his opening informal brief, Loomis explained how under 38 U.S.C. § 3672(b)(2)(A)(ii) “training that meets certain Federal Aviation Administration (FAA) accreditation standards may be regarded as constructively approved, even if it does not have formal state or VA authorization.” However, Loomis continued, “this constructive approval is ‘subject to’ other specific statutory provisions,” including 38 U.S.C. § 3680A. This provision, he said, “requires that flight training be ‘given by an educational institution of higher learning (“IHL”) for credit toward a standard college degree the eligible veteran is seeking’ with exceptions.” He argued “the Veterans Court . . . erred in its interpretations of [these] statutes and regulation.” Loomis suggested the Veterans Court “rendered section 3680A(b)’s exception clause inoperative.” He explained it is inoperative because the Court found that, “‘to be excused from section 3680A(b)’s criteria, another statutory provision must explicitly exclude’ section 3680A(b)’s IHL requirement.” He argues this interpretation must be incorrect because “such a statutory exclusion does not exist.”
In its informal response brief, the government explained that, “when read together, sections 3672(b)(2)(A) and 3680A(b) provide that a flight training course approved by the FAA offered by an FAA-certified institution is constructively approved for educational assistance.” But, the government continued, “VA cannot approve educational assistance for a veteran enrolling in such a course unless the course is also part of an IHL.” With respect to Loomis’s argument that “the majority’s interpretation renders section 3672(b)(2)(A) superfluous,” the government responded by suggesting the court below had already “correctly addressed this argument when explaining the interplay between a pilot school and an IHL.” The government explained that, because “an IHL and pilot school are not mutually exclusive, it follows that Section 3672(b)(2)(A) can be read to constructively approve some courses offered by IHLs.”
In his informal reply brief, Loomis offered to “immediately withdraw his appeal” if the governement “presents a statute, just one, which meets the Veterans Court’s interpretation of section 3680A(b)’s exception clause.” Loomis, moreover, argued “[i]t’s inconceivable that Congress would have established an Institution of Higher Learning (IHL) requirement, amend section 3680A(b) adding an exception clause to the IHL requirement, then fail to explicitly exempt the IHL requirement in any other provision, if the Veterans Court majority’s interpretation is correct.”
Oral argument is scheduled to be heard on Thursday, July 7 at 10:00 a.m. in Courtroom 402.