Diana Garvey v. Denis R. McDonough, Secretary of Veterans Affairs

Chevron, U.S.A., Inc. v. Nat. Res. Def. Council Inc., 467 U.S. 837, 842 (1984), held, the first question when interpreting a statute is “whether Congress has directly spoken to the precise question at issue.” Courts may defer only to an agency’s “permissible construction” of an ambiguous statute. In Brown v. Gardner, 513 U.S. 118 (1994), the Court held that “interpretive doubt is to be resolved in the veteran’s favor.” Furthermore, in Kisor v. Wilkie, ___ U.S. ___, 139 S.Ct. 2400, 2413 (2019), the Court held, when interpreting an agency’s regulation, “the possibility of deference can arise only if a regulation is genuinely ambiguous.” Petitioner, widow of a Vietnam War veteran, seeks VA compensation benefits payable to the widow of a wartime veteran. The Secretary, in his regulation, treats a veteran who received a discharge or release from a service department under conditions other than dishonorable, to nonetheless lawfully bar such veteran, and his widow, to benefits because of “willful and persistent misconduct.” More importantly, the Federal Circuit endorsed this by finding the statute ambiguous without providing any analysis as to the plain meaning of the text in the statute. The questions presented are: 1. Under Chevron step 1, is it permissible for the Secretary to write a regulation that redefines a “veteran” where Congress has provided a clear, unambiguous definition?