O’Brien: Dependents versus Legal Custody a Question of Statutory Interpretation

O’Brien v. Wilkie, Case Number 16-2651, decided May 4, 2018 considers the whether a grandchild the veteran has legal custody over should be considered a dependent entitling him dependency compensations.

The Court viewed this as a plain language statutory interpretation case.  It stated the term dependent in 38 U.S.C. § 1115 includes only a “child”, as defined by 38 U.S.C. § 101(4)(A).  The definition in 101(A)(4) is

                                                   

a person who is unmarried and—

(i) who is under the age of eighteen years;

(ii) who, before attaining the age of eighteen years, became permanently

incapable of self-support; or

(iii) who, after attaining the age of eighteen years and until completion of education or training (but not after attaining the age of twenty-three years),

is pursuing a course of instruction at an approved educational institution;

and who is a legitimate child, a legally adopted child, a stepchild who is a member of a veteran's household or was a member at the time of the veteran's death.

The veteran argued since “dependent” is not defined in Section 1115 the Corut should interpret it broadly to include persons actually dependent on the veteran.  Here the veteran was the grandfather and had legal custody established by a state court and had raised the child since they were in diapers. 

However, the Court noted the child did not fit within in the definition of dependent found in Section 101(4)(A) and ended its enquiry there.

The veteran also raised a constitutional issue to the VA’s definition of “dependent” as as violating the First Amendment’s right of intimate association. He argued “a government benefit may not be conditioned in a way that penalizes the exercise of a fundamental right, such as the right of family association.” Id. at *8.  He further explained the Court should apply the doctrine of constitutional avoidance, such that if a statute is susceptible to two constructions, one of which raises constitutional questions and one that does not, the latter should control. Id. at *9.  The Court declined to enter into this analysis on the basis that the veteran was not directly challenging the constitutionality of the language and then explaining the plain language of § 1115 is unambiguous and therefore not susceptible to two constructions. Id. at *9.

Judge Greenberg dissented arguing these facts demonstrate the child is an actual dependent and made an argument that Congress intended to support veterans and that the black letter law should be malleable enough to accommodate unusual situations.  He also noted the Social Security statute would allow the child to be considered a dependent and to view the veteran’s statute differently would yield an absurd result at odds with Congressional intent.

Decision by Judge Meredith and jointed in by Judge Pietsch with Judge Greenberg dissenting.