Bowling v. McDonough

• Decision Date: 28 June 2022
• Docket Number: 2021-1945, 2021-1970
• Parties: Charlotte A. BOWLING, Kevin D. Appling, Claimants-Appellants v. Denis MCDONOUGH, Secretary of Veterans Affairs, Respondent-Appellee
• Court: U.S. Court of Appeals — Federal Circuit

38 F.4th 1051

Charlotte A. BOWLING, Kevin D. Appling, Claimants-Appellants

v.Denis MCDONOUGH, Secretary of Veterans Affairs, Respondent-Appellee

2021-1945, 2021-1970

United States Court of Appeals, Federal Circuit.

Decided: June 28, 2022

James Daniel Ridgway, Bergmann & Moore, LLC, Bethesda, MD, argued for claimants-appellants. Also represented by Glenn R. Bergmann, Thomas Polseno.

Meen Geu Oh, Commercial Litigation Branch, Civil Division, United States Department of Justice, Washington, DC, argued for respondent-appellee. Also represented by Brian M. Boynton, Eric P. Bruskin, Patricia M. McCarthy ; Brian D. Griffin, Andrew J. Steinberg, Office of General Counsel, United States Department of Veterans Affairs, Washington, DC.

Before Taranto, Clevenger, and Chen, Circuit Judges.

Taranto, Circuit Judge.

Appellants Charlotte Bowling (substituting as the claimant for her deceased spouse, Charles Bowling) and Kevin Appling argued to the Court of Appeals for Veterans Claims (Veterans Court) that it should declare a longstanding regulation of the Department of Veterans Affairs (VA) to be vague on its face, in violation of the Due Process Clause of the Fifth Amendment. The Veterans Court rejected the argument. We affirm.

Mr. Bowling and Mr. Appling were discharged from military service under conditions other than honorable, and they eventually sought certain veteran's benefits. It is undisputed here that, for each former servicemember, the discharge would statutorily bar the benefits at issue unless he came within an exception applicable where an offense led to the discharge and the servicemember was "insane" at the time of the offense. 38 U.S.C. § 5303(b). A regulation, 38 C.F.R. § 3.354(a), implements the statutory insanity exception. The Board of Veterans' Appeals found the regulatory definition of "insane" not to be met either in the case of Mr. Bowling (for whom Mrs. Bowling had by then been substituted) or in the case of Mr. Appling. On appeal to the Veterans Court, appellants argued the unconstitutional vagueness of the insanity-defining regulation on its face, though not as applied to them; and in support, they asked that court to take judicial notice of material outside the record, such as a publication by advocates for veterans addressing VA actions across a range of cases over many years. The Veterans Court declined to consider the material because it had not been made part of the record before the Board and the standard for judicial notice was not met, and the court then rejected the facial constitutional challenge. Bowling v. McDonough , 33 Vet. App. 385, 399–401 (2021).

In this court, appellants challenge the Veterans Court's refusal to consider the extra-record material, no longer arguing that the standard for judicial notice is met but arguing the futility of developing the record on the constitutional issue before the Board. We reject this challenge, finding no futility even if the Board could not have held the regulation unconstitutional. We also hold that appellants' facial-vagueness challenge fails on the merits.

I

A

Congress has provided that discharge "under conditions other than honorable" sometimes precludes receipt of veterans' benefits. 38 U.S.C. § 5303(a) ; see also 38 U.S.C. § 101(2) (restricting "veteran" status to person "discharged or released ... under conditions other than dishonorable"). But it has also provided an exception if, "at the time of the commission of an offense leading to a person's court-martial, discharge, or resignation, that person was insane." Id. § 5303(b) ; see also 38 C.F.R. § 3.12(b). The threshold bar is not in dispute here, only the exception—specifically, its implementing regulation.

Congress did not define "insane" for purposes of § 5303(b). But since 1961, based on earlier regulations dating to the 1920s, VA has defined the term in a regulation:

(a) Definition of insanity. An insane person is one who, while not mentally defective or constitutionally psychopathic, except when a psychosis

has been engrafted upon such basic condition, [1] exhibits, due to disease, a more or less prolonged deviation from his normal method of behavior; or who [2] interferes with the peace of society; or who [3] has so departed (become antisocial) from the accepted standards of the community to which by birth and education he belongs as to lack the adaptability to make further adjustment to the social customs of the community in which he resides.

38 C.F.R. § 3.354(a) (bracketed numerals added to aid discussion infra ). The regulation adds that a rating agency, considering an insanity claim, "will base its decision on all the evidence procurable relating to the period involved, and apply the definition" above. Id. § 3.354(b).

Appellants in this case did not present to the Veterans Court, and so have not presented to this court, an argument that the regulation is inconsistent with the statute, although the regulatory language does not copy the familiar formulations of the insanity defense in criminal law. See Clark v. Arizona , 548 U.S. 735, 747–53, 126 S.Ct. 2709, 165 L.Ed.2d 842 (2006) (surveying various jurisdictions' formulations addressing cognitive incapacity, volitional capacity, and/or moral incapacity in the criminal-law context). Nor do appellants challenge various interpretations of this regulation. Notably, they do not dispute the Veterans Court's longstanding holdings that the "due to disease" clause (despite its placement in the text) applies equally to clauses [1], [2], and [3] and that, although the "servicemember need not show that insanity caused the misconduct that led to discharge, he or she must show medical evidence confirming insanity existed during the misconduct in question." Bowling , 33 Vet. App. at 398 (citing Zang v. Brown , 8 Vet. App. 246, 252–53 (1995), and Gardner v. Shinseki , 22 Vet. App. 415, 419 (2009) ).

Appellants likewise do not dispute that the Board, in applying the regulation, is bound, under 38 U.S.C. § 7104(c), by a wide-ranging precedential opinion that the VA General Counsel issued in 1997 to interpret the regulation. Veterans Affairs Opinion of General Counsel Prec. 20-97, 1997 WL 34674474 (May 22, 1997) (1997 GC Opinion ). That opinion states that the regulation's opening exclusion of the "constitutionally psychopathic" refers to "a condition which may be described as an antisocial personality disorder

" under the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders (in its fourth edition—DSM-IV—in 1997), which is therefore excluded from the regulation's coverage. 1997 GC Opinion ¶ 3. Turning to the central "due to disease" phrase, it then explains that "a determination as to whether a particular condition may be considered a disease for compensation purposes is essentially an adjudicative matter to be resolved by adjudicative personnel based on accepted medical principles." Id. ¶ 5. The opinion also calls for interpretation of the regulation's terms "in light of the commonly accepted meaning of the term" being defined, i.e. , "insanity." Id. ¶ 6. Based on those standards, and relying on general and medical dictionaries as well as DSMIV's identification of conduct "generally attributable to a substance-abuse disorder," the opinion concludes that such conduct does not qualify under the regulation, id. ¶¶ 5–6, because (as the opinion summarizes) it "does not exemplify the severe deviation from the social norm or the gross nature of conduct which is generally considered to fall with[in] the scope of the term insanity," id. at *7 (holding b).

Evidently interpreting clause [1] of the regulation, the opinion then points to the regulatory history dating to the 1920s as well as Veterans Court precedents to conclude that "a minor episode or episodes of disorderly conduct or mere eccentricity would not constitute insane behavior for purposes of" the regulation. Id. ¶¶ 7–8. As to "how significantly an individual's behavior must deviate from his or her normal method of behavior" to come within clause [1], the opinion says that this remains "a question of fact to be resolved by the factfinder based on consideration of the circumstances of the particular case," evaluated in light of the "principles discussed above governing the gross nature of conduct which is generally considered to fall within the scope of the term insanity." Id. ¶ 9 (citing two circuit courts' recognition of varying circumstances). The opinion goes on to provide interpretations of clauses [2] and [3]. Id. ¶¶ 10–16.

B

Appellant Charlotte Bowling pursues a claim as the surviving spouse of Charles Bowling; appellant Mr. Appling pursues his own claim. Both Mr. Bowling and Mr. Appling were servicemembers who were discharged from military service under conditions other than honorable. For Mr. Bowling, who served in the Marine Corps during two periods from 1961 to 1970, the precipitating offense, after other misconduct, was being absent without leave for months after a tour in Vietnam. For Mr. Appling, who served in the Army from 1979 to 1981, the relevant conduct included certain charged offenses and other misconduct.

As relevant here, when Mr. Bowling and Mr. Appling sought certain veteran's benefits, they invoked § 3.354(a) to try to surmount the barrier presented by the character of their discharges. Mr. Bowling submitted opinions from two private clinical psychologists opining that he had posttraumatic stress disorder from his Vietnam service at the time he went absent without leave. Mr. Appling described his misconduct as the result of depression resulting from racial harassment during service and, at least in part, from alcoholism that began during basic training.

The Board of Veterans' Appeals ruled that neither Mr. Bowling nor Mr. Appling came under the regulation, relying on the 1997 GC Opinion , and so denied them benefits. The Board found that Mr. Bowling had not established a psychiatric disability that caused conduct covered by clauses [1] and [3],...