Heads I Win, Tails You Lose: Reconciling Brown v. Gardner’s Presumption that Interpretive Doubt be Resolved in Veterans’ Favor with Chevron’s Second Step

In its landmark decision, Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984), the United States Supreme Court altered the interpretive power balance. Prior to Chevron, courts determined the meaning of ambiguous regulatory statutes; after Chevron, agencies determined the meaning of ambiguous regulatory statutes. Yet this simple truism does not hold within veterans law. Within veterans law, there is a third player who plays an interpretive role: the veteran. The veteran plays an interpretive role because of an unusual presumption identified in Brown v. Gardner, 513 U.S. 115 (1994). In Gardner, the Supreme Court directed courts to resolve interpretive doubt in ambiguous statutes in favor of the veterans. This presumption, Gardner's Presumption, is legend in veteran’s jurisprudence; it is raised often by veteran litigants and their counsel, it is cited frequently by the United States Court of Appeals for Veterans Claims, by the Federal Circuit, and, even occasionally, by the Supreme Court.

Yet Gardner’s Presumption conflicts directly with Chevron’s second step. In Chevron, the Supreme Court directed courts to defer to reasonable agency interpretations of ambiguous statutes. Pursuant to Chevron’s first step, a court should determine whether Congress has directly spoken to the precise question at issue. If Congress has not so spoken, then, under Chevron’s second step, a court must accept any reasonable, agency interpretation. Yet Gardner’s Presumption directs that interpretive doubt be resolved in veterans’ favor. Therein lies the conflict: Which controls when a statute is ambiguous, the agency’s reasonable interpretation or the veteran’s interpretation? To date, none of the courts faced with this conflict have resolved this question successfully; indeed, the Court of Appeals for Veterans Claims recently asked the Supreme Court for guidance on this very issue; yet, none has been forthcoming.

In this article, I answer that plea by exploring and resolving the conflict between Chevron’s second step and Gardner’s Presumption. In so doing, I identify how Gardner’s Presumption began as a liberal construction canon and morphed into the veterans’ trump card that it is today. I also explore how courts have used the presumption in the past and note the solutions that have been offered to date, none of which have proven satisfactory. Finally, I solve the conflict. While this discussion is critically relevant to those involved in veterans law, it is also relevant to anyone applying Chevron and remedial based statutory interpretation canons, such as the rule of lenity or the derogation canon. While Chevron directs that deference is owed any reasonable agency interpretation of an ambiguous statute, remedial canons direct that broad interpretations should control when statutes are ambiguous; how should that conflict be resolved? This article answers that question in the context of veterans law.