Bareford v. McDonough
| Decision Date | 28 February 2022 |
| Docket Number | 19-4633 |
| Parties | Richard C. Bareford, Appellant, v. Denis McDonough, Secretary of Veterans Affairs, Appellee. |
| Court | United States Court of Appeals For Veterans Claims |
Argued January 14, 2021
On Appeal from the Board of Veterans' Appeals
Jay Tymkovich, with whom Stephen B. Kinaird was on the brief both of Washington, D.C., for the appellant.
Nathan P. Kirschner, with whom William A. Hudson, Jr., Principal Deputy General Counsel; Mary AnnFlynn, Chief Counsel; and Carolyn F. Washington, Deputy Chief Counsel, all of Washington, D.C., were on the brief for the appellee.
Before B ARTLEY, Chief Judge, and PIETSCH and FALVEY, Judges.
Appellant Richard C. Bareford appeals through counsel a July 1, 2019 Board of Veterans' Appeals (Board) decision denying entitlement to a Government-furnished headstone or marker to memorialize veteran Roy H. Anderson, based on the Board's finding that Mr. Bareford was not a proper applicant for that benefit. Record (R.) at 3-6. This appeal is timely, and the Court has jurisdiction to review the Board decision pursuant to 38 U.S.C. §§ 7252(a) and 7266(a). This matter was referred to a panel of the Court to address Mr Bareford's contention that VA impermissibly restricts, through regulation, who is authorized to apply for a Government-furnished headstone or marker on behalf of an eligible veteran, in excess of the authority conferred on VA by the enabling statute, 38 U.S.C. §2306.[1] For the reasons stated below, the Court holds that there is a gap in section 2306 as to who may apply for Government-furnished headstones and markers, but that § 38.631(c) impose arbitrary and capricious restrictions on who is eligible to apply for memorial headstones and markers. Accordingly, the Court will set aside § 38.631(c), vacate the July 2019 Board decision, and remand the matter for additional development, if necessary, and readjudication consistent with this decision.
On May 11, 1933, President Franklin Delano Roosevelt signed Executive Order 6129, directing that 25, 000 World War I veterans be enrolled in a separate part of the Emergency Conservation Work (ECW) program.[3], [4] Available at http://www.fdrlibrary.marist.edu/_resources/images/eo/eo0002.pdf Under the auspices of the Veterans Work Program, approximately 700 veterans were sent to the Florida Keys to build bridges to complete a highway between Key West and the mainland. Florida Hurricane Disaster: Hearings on H.R. 9486 Before the H Comm. on World War Veterans' Legislation [hereinafter Hearings'], 74th Cong. 6 (1935) (statement of Rep. J. Hardin Peterson, available at https://babel.hathitrust.org/cgi/pt?id=mdp.39015049888574&view=page&seq=10; id. at 33 (statement of Rep. J. Mark Wilcox; id. at 50-51 (statement of Julius F. Stone, Jr., Works Progress Admin.); id. at 110 (statement of Conrad Van Hyning, Adm'r, Fed. Emergency Relief Admin. (FERA)); 75 War Veterans in Gale Death List, N.Y. TIMES, Sept. 4, 1935, at 4, available at https://timesmachine.nytimes.eom/timesmachine/l 93 5/09/04/93481926.html?pageNumber=4.
The project was intended to boost tourism and revitalize the economy in the Keys. Matthew G. Hyland, The Florida Keys Hurricane House: Post-Disaster New Deal Housing, 91 FLA. Hist. Q. 212, 221, available arwww.istor.org/stable/43487496 [hereinafter Hylandl. The veterans assigned to the project were housed in three work camps on Lower Matecumba and Windley Keys that were managed by the Federal Emergency Relief Administration. Id.
On August 30, 1935, the Weather Bureau began publishing advisories about a tropical storm strengthening in the Bahamas. Id. at 222. By September 2, 1935, it looked as though the storm might affect the veteran work camps and FERA began to arrange for a rescue train to transport the veterans from the work camps to the mainland. Id. 222-23. However, through a series of misadventures, the train was delayed, and the veterans were not evacuated before the storm arrived. Id. at 223; Willie Drye, The True Story of the Most Intense Hurricane You've Never Heard Of, available at https://www.nationalgeographic.com/history/article/irma-most-intense-hurricane-florida-keys-1935-history; Hurricane's Dead Dug Out of Debris, N.Y. TIMES, Sept. 6, 1935, at 1, 8 (), available at https://timesmachine.nytimes.com/timesmachine/1935/09/06/issue.html; Storm Inquiry to Centre on Delay of Relief Train, N.Y. TIMES, Sept. 6, 1935, at 11, available at https://timesmachine.nytimes.eom/timesmachine/l 93 5/09/06/93484269.html?pageNumber=ll; see also Ernest Hemingway, Who Murdered the Vets? A First-Hand Report on the Florida Hurricane, THE NEW MASSES, Sept. 17, 1935, at 9 (questioning why the veterans were not evacuated before the storm), available at https://www.unz.com/print/NewMasses-1935sepl7-00009/. When the rescue train finally arrived in the Keys, the passenger cars were blown off the track. Hyland at 224; Ian Shapira, "Deaths Laid to Act of God': The Devastating 1935 Hurricane that Surprised the Florida Keys, WASH. POST, Sept. 7, 2017, available at https://www.washingtonpost.com/news/retropolis/wp/2017/09/07/deaths-laid-to-act-of-god-the-devastating-1935-hurricane-that-surprised-the-florida-keys/.
The unnamed hurricane, one of only three Category 5 Atlantic hurricanes to make landfall in the United States in nearly nine decades, see Maggie Astor, No, Hurricane Irma Won't Be a "Category 6" Storm, N.Y. TIMES, Sept. 6, 2017, at A14, available at https://www.nytimes.com/2017/09/06/us/hurricane-irma-category-six.html, killed over 250 veterans from the work camps, Hearings, 74th Cong. 332 (1935) (statement of Conrad Van Hyning, Admin'r, FERA), available at https://babel.hathitrust.org/cgi/pt?id=mdp.39015049888574&view=page&seq= 338&skin=2021.
President Roosevelt ordered that the veterans' bodies be transported "where the next of kin desired and indicated military funerals and burial in Arlington National Cemetery at Washington for some." Hurricane's Dead Dug Out of Debris, N.Y. TIMES, Sept. 6, 1935, at 8, available at https://timesmachine.nytimes.com/timesmachine/1935/09/06/issue.html; see also 3 Inquiries Start in Florida Deaths, N.Y. TIMES, Sept. 7, 1935, at 3, available at https://timesmachine.nytimes.com/timesmachine/1935/09/07/issue.html (reporting that a Veterans Bureau representative stated that public funeral services, with full military honors, would be held for the deceased veterans and their bodies buried where directed by family members). Eighty veterans whose bodies were recovered in the first few days after the hurricane were buried with full military honors on September 7, 1935, in Woodlawn Cemetery, Miami, Florida. Hearings, 74th Cong. 332 (1935) (statement of Conrad Van Hyning, Admin'r, FERA), available at https://babel. hathitrust.org/cgi/pt?id=mdp.39015049888574&view=page&seq=338&skin=2021. But on September 6, 1935, Florida's Governor, David Sholtz, ordered that the remaining bodies be cremated because of public health concerns. See Hearings, 74th Cong. 262-63 (1935) (statement of Dr. J.T. Googe, Fla. Health Dep't), available at https://babel.hathitrust.org/cgi/pt?id=mdp.39015049888574&view=page&seq=268&skin=2021; 3 Inquiries Start in Florida Deaths, N.Y. TIMES, Sept. 7, 1935, at 3, available at https://timesmachine.nytimes.com/timesmachine/1935/09/07/issue.html; Cremations Begun in Key Gale Area, N.Y. TIMES, Sept. 8, 1935, at 37, available at https://timesmachine.nytimes.eom/timesmachine/193 5/09/08/93704680.html?pageNumber=37. At least 168 veterans' bodies were cremated in the Keys. Hearings, 74th Cong. 332 (1935) (statement of Conrad Van Hyning, Admin'r, FERA), available at https://babel.hathitrust.org/cgi/pt?id=mdp.39015049888574&view=page&seq=338 &skin=2021. Veteran and civilian dead were cremated together, and individual remains could not be separated. See Hearings, 74th Cong. 386 (1935) (statement of George E. Ijams, Assistant Admin'r, Veterans' Affairs), available at https://babel.hathitrust.org/cgi/pt?id=mdp.39015049888574&view=page&seq=385&skin=2021. Two years later, the commingled remains were interred in an Islamorada, Florida, memorial to all victims of the 1935 hurricane; the interred veterans are not individually memorialized. See R. at 62; see also U.S. Dep't of the Interior, Nat'l Park Serv., Nat'l Register of Historic Places, Florida Keys Memorial, available at https://npgallery.nps.gov/pdfhost/docs/nrhp/text/95000238.PDF.
Roy H. Anderson was one of the veterans killed in the 1935 hurricane. He served honorably in the U.S. Army from April 1918 to March 1919. R. at 80. His wife died in 1930 and they had no children. R. at 63. He was assigned to one of the work camps on Lower Matecumbe Key. Id. His body was located on October 10, 1936, and his cremated remains were commingled with other veterans and civilians and interred in the Florida Keys Memorial in Islamorada. Id. No other marker or memorial has been provided on his behalf. Id.
In August 2017, Mr. Bareford requested that VA provide a Government-furnished headstone or marker to memorialize Mr Anderson. R. at 79. The application was co-signed by a representative of the South Florida National Cemetery in Lake Worth, Florida, the cemetery that agreed to accept delivery of the headstone or marker. Id. In September 2017, the VA National Cemetery Administration (NCA) denied the request, explaining that Mr. Bareford was not a recognized applicant under 38 C.F.R. §§ 38.630 and 38.631. R. at 77-78. Mr. Bareford filed his Notice of Disagreement the following month. R. at 56-64. He asserted that §§ 38.630 and 38.631...
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