Veteran Warriors, Inc. v. Sec'y of Veterans Affairs

• Decision Date: 25 March 2022
• Docket Number: 2021-1378
• Citation: 29 F.4th 1320
• Parties: VETERAN WARRIORS, INC., Andrew D. Sheets, Kristie Sheets, Petitioners v. SECRETARY OF VETERANS AFFAIRS, Respondent
• Court: U.S. Court of Appeals — Federal Circuit

29 F.4th 1320

VETERAN WARRIORS, INC., Andrew D. Sheets, Kristie Sheets, Petitioners

v.SECRETARY OF VETERANS AFFAIRS, Respondent

2021-1378

United States Court of Appeals, Federal Circuit.

Decided: March 25, 2022

Timothy Q. Li, Sidley Austin LLP, New York, NY, argued for petitioners. Also represented by Michael R. Franzinger, Washington, DC; Barton Frank Stichman, I, National Veterans Legal Services Program, Washington, DC.

Sosun Bae, Commercial Litigation Branch, Civil Division, United States Department of Justice, Washington, DC, argued for respondent. Also represented by Brian M. Boynton, Claudia Burke, Patricia M. McCarthy.

Before Moore, Chief Judge, Reyna and Chen, Circuit Judges.

Moore, Chief Judge.

Veteran Warriors, Inc., Andrew D. Sheets, and Kristie Sheets (Petitioners) petition for review of a final rule promulgated by the Department of Veterans Affairs.¹ They claim seven parts of that rule are invalid under the two-step framework set forth in Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc. , 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). The government challenges Petitioners' standing. For the following reasons, we dismiss in part, grant in part, and deny in part the petition.

BACKGROUND

In 2010, Congress enacted the Caregivers and Veterans Omnibus Health Services Act, Pub. L. No. 111-163, 124 Stat. 1130 (Caregivers Act) (codified in scattered sections of title 38). That Act required the VA to establish two programs, both of which were designed to help individuals who provide eligible veterans with personal care services. One program provided assistance to family caregivers—individuals who provide veterans with personal care services and who are related to or live with those veterans. 38 U.S.C. § 1720G(a) (detailing the family caregivers program). The other program provided assistance to general caregivers—other individuals who provide veterans with personal care services. Id. § 1720G(b) (detailing the general caregivers program). To implement these programs, the VA promulgated a series of regulations. 38 C.F.R. pt. 71 (2015).

In 2018, Congress amended the Caregivers Act. See John S. McCain III, Daniel K. Akaka, and Samuel R. Johnson VA Maintaining Internal Systems and Strengthening Integrated Outside Networks Act, Pub. L. No. 115-182, 132 Stat. 1393 (VA MISSION Act). The VA MISSION Act expanded the class of veterans who qualify as eligible under the family caregivers program. For example, the program now applies to all veterans regardless of their service dates, and there are new avenues for a veteran to qualify as eligible for benefits. Id. § 161, 132 Stat. at 1438–40.

To implement the VA MISSION Act and further improve the family caregivers program, the VA overhauled its regulations. Program of Comprehensive Assistance for Family Caregivers Improvements and Amendments Under the VA MISSION Act of 2018, 85 Fed. Reg. 46,226 (July 31, 2020) (Final Rule ) (to be codified at 38 C.F.R. pt. 71); see also Program of Comprehensive Assistance for Family Caregivers Improvements and Amendments Under the VA MISSION Act of 2018, 85 Fed. Reg. 13,356 (proposed Mar. 6, 2020) (Proposed Rule ) (to be codified at 38 C.F.R. pt. 71). In general, the VA attempted to clarify, streamline, and regularize its implementation of the Caregivers Act.

Veteran Warriors (a veterans advocacy organization), Andrew Sheets (an eligible veteran), and Kristie Sheets (Mr. Sheets' caregiver) petition for review of seven parts of the Final Rule. They challenge six definitions in 38 C.F.R. § 71.15 and the residency requirement imposed in 38 C.F.R. § 71.10(b). The government contests Petitioners' standing.

DISCUSSION

I. Standing

Veteran Warriors claims associational standing to challenge the Final Rule. To succeed in that claim, Veteran Warriors must prove (1) "its members would otherwise have standing to sue in their own right," (2) "the interests it seeks to protect are germane to [its] purpose," and (3) "neither the claim asserted nor the relief requested requires the participation of individual members in the lawsuit." Hunt v. Wash. State Apple Advert. Comm'n , 432 U.S. 333, 343, 97 S.Ct. 2434, 53 L.Ed.2d 383 (1977). And it must do so for each challenged portion of the Final Rule. See Nat'l Org. of Veterans' Advocs., Inc. v. Sec'y of Veterans Affs. , 981 F.3d 1360, 1370 (Fed. Cir. 2020) (en banc) (noting that standing must be shown for "the particular challenged rule"); Mil.-Veterans Advoc. v. Sec'y of Veterans Affs. , 7 F.4th 1110, 1122–32 (Fed. Cir. 2021) (assessing standing on a challenge-by-challenge basis).

In large part, Veteran Warriors has carried its burden to prove standing. It provided a declaration from Donald Lewis, who has standing to challenge three aspects of the Final Rule. Pet'rs' Reply Br. Ex. 1; see also Government's Suppl. Br. Ex. A ¶ 3 (noting that Mr. Lewis was denied benefits based on the VA's definitions for "in need of personal care services," "inability to perform an activity of daily living," and "need for supervision, protection, or instruction"). It has also proven that Mr. and Ms. Sheets have standing to challenge a fourth aspect of the Final Rule—tying benefit amounts to the GS scale.² Pet'rs' Reply Br. Ex. 6; see Government's Suppl. Br. Ex. A ¶ 8 (noting that Ms. Sheets' monthly stipend was reduced when the VA adopted the GS scale). Likewise, Veteran Warriors has shown that Timothy Chilson can challenge the Final Rule's definition of "serious injury." Mr. Chilson's 60-percent disability rating prevents him from having a "serious injury" under the Final Rule, despite his need for personal care services. Pet'rs' Reply Br. Ex. 8 ¶¶ 4, 7. Veteran Warriors has also identified one of its members who has standing to challenge the residency requirement, John Reay. Id. Ex. 5; see also Government's Suppl. Br. Ex. A ¶ 7 (noting VA denied Mr. Reay benefits based on that requirement). In addition, Veteran Warriors has proven that Jason Wright has standing to challenge part of the Final Rule's definition of "unable to self-sustain in the community," specifically the portion that depends on a veteran being in need of continuous supervision, protection, or instruction. Pet'rs' Reply Br. Ex. 7 ¶¶ 6–7; see also Government's Suppl. Br. at 8. Each of these challenges is germane to Veteran Warriors' purposes as a veterans advocacy organization, and no challenge requires the involvement of an individual member. Thus, Veteran Warriors has proven all three prongs of associational standing for these challenges.

But Veteran Warriors has not carried its burden to prove standing for part of its challenge to the Final Rule's definition of "unable to self-sustain in the community." No declarant has standing to challenge the "three or more activities of daily living" pathway for satisfying that definition. Mr. Wright's declaration is limited to his need for supervision, protection, or instruction. Pet'rs' Reply Br. Ex. 7 ¶ 6–7. Monet Gay has died, preventing her declaration from supporting standing. Government's Suppl. Br. at Ex. A ¶ 4. Todd Servello, Pet'rs' Reply Br. Ex. 3 ¶ 7, and Kaitlyn Laycoax, id. Ex. 4 ¶ 7, claim a need for assistance with all their activities of daily living, undermining any claim of injury in fact. If those allegations are true, Mr. Servello and Ms. Laycoax would be entitled to full benefits regardless of the VA's "three or more" language. Without an individual member who would have standing to sue in his own right, Veteran Warriors cannot establish associational standing for this challenge. Thus, we dismiss Petitioners' challenge to the "three or more activities of daily living" requirement for a veteran to qualify as unable to self-sustain in the community.³

II. Merits

Congress delegated the VA authority to "establish a program of comprehensive assistance for family caregivers of eligible veterans." See 38 U.S.C. § 1720G(a)(1)(A). We must, therefore, defer to VA regulations interpreting the statutory framework. See United States v. Mead Corp. , 533 U.S. 218, 229, 121 S.Ct. 2164, 150 L.Ed.2d 292 (2001) (deferring when "Congress would expect the agency to be able to speak with the force of law").

And we do so under the two-step framework set forth in Chevron , 467 U.S. at 842–43, 104 S.Ct. 2778. Step one asks "whether Congress has directly spoken to the precise question at issue." Id. at 842, 104 S.Ct. 2778. "If the intent of Congress is clear, that is the end of the matter," and we "must give effect to the unambiguously expressed intent of Congress." Id. at 842–43, 104 S.Ct. 2778. If, however, "the statute is silent or ambiguous with respect to the specific issue," we proceed to step two of the Chevron framework, at which we determine "whether the agency's answer is based on a permissible construction of the statute." Id. at 843, 104 S.Ct. 2778.

Petitioners challenge seven parts of the Final Rule. For each challenge, they claim the regulatory text is both inconsistent with and an unreasonable interpretation of the statutory framework. The government, for its part, defends the VA's regulations as reasonable interpretations of statutory silence or ambiguity. We take each challenge in turn.⁴

A. In Need of Personal Care Services

Petitioners' first challenge is aimed at the VA's definition of "in need of personal care services." See 38 C.F.R. § 71.15. The phrase "in need of personal care services" appears only once in the statute:

(2) For purposes of this subsection, an eligible veteran is any individual who ...

(C) is in need of personal care services because of—

(i) an inability to perform one or more activities of daily living;

(ii) a need for supervision or protection based on symptoms or residuals of neurological or other impairment or injury;

(iii) a need for regular or extensive instruction or supervision without which the ability of the veteran to function in daily life would be seriously impaired; or

(iv) such other matters as the Secretary considers appropriate.

38 U.S.C. § 1720G(a) (emphasis...