GIVE VETERANS THE BENEFIT OF THE DOUBT: CHEVRON, AUER, AND THE VETERAN'S CANON.

• Author: Harper, Chadwick J.

As the Civil War drew to a close, President Lincoln spoke of the nation's duty "to care for him who shall have borne the battle and for his widow and his orphan." (1) Congress's attempts to fulfill that duty have created some hard questions for the courts. Hayburn's Case, (2) now better known for what it reveals about Founding-era ideas of judicial review and the separation of powers, (3) originated in a Revolutionary War veteran's efforts to claim benefits. (4) For about 200 years thereafter, however, Congress exempted decisions concerning veterans' benefits from judicial review. (5) Congress changed that in 1988 when it passed the Veterans' Judicial Review Act (VJRA). (6) The VJRA created the Court of Appeals for Veterans Claims (CAVC), a non-Article III court with jurisdiction over decisions made by officials within the Department of Veterans Affairs (VA,7) and gave the Federal Circuit power to review CAVC decisions on questions of law. (8) Thus judicial review of veterans' benefits decisions returned. With it came more hard questions for the courts.

Courts face one such question when doctrines of deference like Chevron (9) and Auer (10) conflict with the veteran's canon--the Supreme Court's "rule that interpretive doubt is to be resolved in the veteran's favor." (11) When a statute or regulation is ambiguous, (12) should a reviewing court defer to the VA under agencv deference doctrines, or follow the veteran's canon and resolve the doubtful language in favor of the veteran? The Federal Circuit has yet to answer that question. (13) And though a case involving this conflict (14) led the Supreme Court to grant certiorari on whether the Court should overrule Auer, the Court declined to address the conflict between the veteran's canon and agency deference. (15) So the question remains a live one.

This Note answers that question by arguing that in those interpretive battles, the veteran's canon should triumph over Chevron and Auer. The veteran's canon is a traditional tool of interpretation, (16) and as such, it should be applied to resolve ambiguity before courts defer to the VA's views on a statute or regulation. (17) This use of the veteran's canon reflects Congress's general intent in providing judicial review of the VA's decisions, (18) and its specific intent in legislating in the area of veterans' benefits. (19)

Moreover, several elements of veterans law support this result. As a practical matter, because veterans sometimes endure injuries or illnesses unique to the conditions of war, those maladies are often not well-understood. The veteran's canon helps ensure that veterans are not denied benefits when science moves at a slower pace than suffering. (20) As a structural matter, the single chain of review established by the VJRA erases the uniformity concern that may support deference elsewhere. (21) For all those reasons and more, courts should apply the veteran's canon before Chevron or Auer and thereby give veterans the benefit of the doubt in the law.

This Note makes that case in three parts. Part I provides some background on Chevron, Auer, and the veteran's canon. Part II illustrates the tension between Chevron, Auer, and the veteran's canon through the story of "blue water" Navy veterans' litigation involving Agent Orange legislation and regulation, (22) and briefly surveys the positions scholars have taken on how to resolve this conflict. Finally, Part III concludes by arguing that where such conflict exists, the veteran's canon should take priority in the interpretation of statutes and regulations in veterans' benefits schemes.

1. CHEVRON, AUER, AND THE VETERAN'S CANON: AN INTRODUCTION

   Veterans law exists in an odd, long-isolated outpost of law's empire. (23) Even so, administrative law atmospherics affect the whole realm. (24) As such, this Part situates this particular puzzle of veterans law within the broader conversation about Chevron and Auer. (25)

   1. Chevron's Revolution and Evolution

      In Chevron, the Supreme Court handed down a decision it believed to be a restatement of "well-settled principles" of "deference to administrative interpretations." (26) The Court's distillation of those principles seemed simple: When interpreting statutes administered by an agency, unless Congress had "directly spoken to the precise question at issue," courts should defer to agency interpretations "based on a permissible construction of the statute." (27) For a construction to be permissible, the Court noted that it need not be "the only one [the court] permissibly could have adopted to uphold the construction, or even the reading the court would have reached if the question initially had arisen in a judicial proceeding." (28) Instead, when faced with ambiguity or silence in a statute, (29) agencies should get deference for any reasonable interpretation. (30) Thanks to the papers of Justice Blackmun, we know that this rule reflected the disposition of the Chevron opinion's author, Justice Stevens--"When I am so confused, I go with the agency." (31)

      The Chevron Court justified that rule by casting ambiguous statutory provisions as congressional delegations of policymaking power to the agencies tasked with administering those statutes. (32) Where Congress expressed no specific intent, the Court assumed that Congress intended for the agency to work out the details. (33) As such, those interpreting an ambiguous provision were making a "policy choice." (34) Per the Court, those choices should be made by expert agencies who answer to the President (and thus to the people), not by generalist judges with life tenure. (35)

      Perhaps accidentally, Chevron transformed administrative law. (36) Members of the Executive branch quickly recognized its potential power. According to Professor Eskridge and Lauren Baer, "Reagan Administration officials and appointees proclaimed a 'Chevron Revolution.'" (37) Why would Reaganites celebrate this accidental revolution? Because Chevron's political accountability rationale supported and enabled greater presidential control of administrative agencies. (38) For members of the Reagan Administration, Chevron came as a gift.

      Members of the judiciary also took notice of Chevron, and yet they disagreed about how it should be applied. Judge Kenneth Starr of the D.C. Circuit praised Chevron for its "simple, two-step framework." (39) He understood Chevron to mean that "absent direct evidence of legislative intent, the Agency's interpretation should be allowed if it is a reasonable reading of the statute." (40) With that test, Judge Starr contended, the Chevron Court "eliminated a significant ambiguity in the law" (41) and returned "the power to set policy to democratically accountable officials." (42) By shifting power from courts to agencies, Judge Starr reasoned, Chevron undermined a foundational assumption of other jurisprudential regimes-that "federal courts have a general duty to supervise agencies in much the same way that the Supreme Court supervises lower federal courts." (43) Not so, Judge Starr argued. That supervisory duty belonged to Congress and the President. Chevron made that clear. (44)

      That same year, then-Judge Stephen Breyer of the First Circuit criticized those who read Chevron as a simple, widely applicable rule. (45) Such interpretations of the decision, he maintained, were "seriously overbroad, counterproductive and sometimes senseless." (46) Judge Breyer specifically criticized the D.C. Circuit's emerging Chevron jurisprudence for reading Chevron as a simple test. (47) Treating Chevron as a rule, he argued, represented "a greater abdication of judicial responsibility to interpret the law than seems wise, from either a jurisprudential or an administrative perspective." (48) For Judge Breyer, the judicial duty to interpret the law required consideration of more factors than Chevron-as-a-rule accounted for. (49) Although skeptical of the judiciary's capacity to police agencies' substantive policy decisions, (50) Judge Breyer believed courts should "build a jurisprudence of 'degree and difference' into Chevron's word 'permissible.'" (51) Otherwise, the country would be left with a legal regime which "requires courts to defer to agency judgments about matters of law, but ... also suggests that courts conduct independent, 'in-depth' reviews of agency judgments about matters of policy. Is this not the exact opposite of a rational system?" (52)

      Fast-forward to last year's decision in SAS Institute Inc. v. Iancu (53) to glimpse how much the world has changed since 1986. In that case, the administrator argued in part that he should receive Chevron deference because the statutory language was unclear. (54) Justice Gorsuch, no great fan of Chevron, (55) declined the invitation to reconsider Chevron or apply it to the matter at hand. Instead, he applied the "traditional tools of statutory construction" and found that the statute's language resolved the question. (56) Justice Breyer's dissent revealed that although his view of Chevron has remained remarkably consistent over the decades--for him, Chevron is and ever was a context-sensitive "rule of thumb" rather than a sweeping mandate-much else had changed. (57) Where jurists like Judge Starr had once praised Chevron as a doctrine of judicial restraint, (58) the doctrine is now damned as an abdication of the judicial duty to say what the law is. (59)

      Several current and former Justices have criticized Chevron or its extensions. (60) Some lower court judges have expressed skepticism about the current regime. (61) And the Court has restricted Chevron's domain--for instance, it does not apply to criminal statutes, (62) nor "extraordinary cases" where Congress likely did not intend to delegate significant questions to an agency, (63) nor when agency interpretations emerge from circumstances that do not suggest "delegation meriting Chevron treatment." (64) For now, though, Chevron remains the law of the land, (65) and "a...