Buffington v. McDonough
7f4th1361
| Fed. Cir. | 2021Background
- Thomas H. Buffington was awarded VA disability compensation for service‑connected tinnitus after active duty ending May 2000.
- He was recalled to active duty in 2003; the VA discontinued his compensation under 38 U.S.C. § 5304(c) (no double payment while receiving active service pay).
- He completed active duty in 2004, served again until July 2005, but did not seek recommencement of benefits until January 2009.
- VA applied 38 C.F.R. § 3.654(b)(2), resuming payments effective Feb. 1, 2008 (one year before his recommencement claim), because his claim was filed more than one year after release from active duty.
- Buffington challenged the regulation as inconsistent with 38 U.S.C. § 5304(c) and § 5112(b)(3); the Board and the Veterans Court upheld the regulation; the Federal Circuit affirmed.
- The panel majority applied Chevron deference, found a statutory gap on the recommencement date issue, and held § 3.654(b)(2) a reasonable gap‑filling regulation; Judge O’Malley dissented, urging pro‑veteran construction and rejecting the view that a statutory gap exists.
Issues
| Issue | Plaintiff's Argument (Buffington) | Defendant's Argument (Secretary / VA) | Held |
|---|---|---|---|
| Whether § 5304(c) and related Title 38 provisions fix the effective date for recommencing disability benefits after active service (i.e., no statutory gap) | § 5304(c)’s reference to "any period" of active service means benefits should resume automatically when active pay ends; Congress intended continuous entitlement except during the active‑pay period | Statute is silent on recommencement timing; § 5112(b)(3) fixes discontinuance but Congress did not speak to recommencement timing, leaving a gap for the agency to fill | Court: Congress left a gap; § 5304(c) does not unambiguously set recommencement date, so proceed to Chevron step two |
| Whether the Secretary had authority and whether 38 C.F.R. § 3.654(b)(2) is a permissible construction filling that gap (validity and reasonableness of regulation) | The regulation unlawfully conditions reinstatement on timely reapplication and a one‑year lookback, depriving veterans of their original effective dates and conflicting with veterans‑friendly statutory purposes | Secretary has authority under 38 U.S.C. § 501(a) to prescribe regulations necessary to administer veterans benefits; § 3.654(b)(2) reasonably incentivizes timely claims and preserves some backdating (one‑year lookback) | Court: Regulation is within the Secretary’s rulemaking authority and is a reasonable gap‑filling construction; regulation is entitled to Chevron deference and is upheld |
| Whether pro‑veteran canons or other interpretive tools require resolving any doubt in Buffington’s favor before deferring to the agency | Any ambiguity must be resolved in the veteran’s favor; silence should be interpreted as favoring continuous payment except for the active‑pay period | Agency gap‑filling permissible where Congress was silent; regulatory scheme is reasonable and administratively justified | Court: Because it found statutory silence and proceeded under Chevron, it did not apply the pro‑veteran canon; the regulation stands (dissent disagrees and emphasizes pro‑veteran canon) |
Key Cases Cited
- Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (framework for judicial deference to reasonable agency gap‑filling)
- National Cable & Telecommunications Ass'n v. Gulf Power Co., 534 U.S. 327 (agencies may fill statutory gaps)
- Bates v. United States, 522 U.S. 23 (do not read words into statute)
- National Credit Union Admin. v. First Nat'l Bank & Tr. Co., 522 U.S. 479 (surplusage concerns can defeat an interpretation)
- Long Island Care at Home, Ltd. v. Coke, 551 U.S. 158 (agency rulemaking authority can fill statutory gaps)
- Veterans Just. Grp., LLC v. Secretary of Veterans Affairs, 818 F.3d 1336 (deference to VA’s administrative judgments)
- United States v. Home Concrete & Supply, LLC, 566 U.S. 478 (ambiguity signals possible delegation to agencies)
- Entergy Corp. v. Riverkeeper, Inc., 556 U.S. 208 (statutory silence does not always allow agency discretion)
- Kisor v. Wilkie, 139 S. Ct. 2400 (limits and prerequisites for Auer/Skidmore deference; tools of interpretation must be exhausted)
- Henderson ex rel. Henderson v. Shinseki, 562 U.S. 428 (apply veterans‑benefits canons favoring claimants)