Bareford v. McDonough, Case Number 19-4633, decided February 28, 2022 discusses eligibility for a headstone or marker.
This case deals with a small cohort of veterans who by executive order in 1935 were sent to the Florida Keys to build bridges between Key West and mainland. As it was a massive category 5 hurricane came through and killed 80 of the 700 veterans sent under the executive order. Mr. Roy Anderson was one of those killed. His body was located after the hurricane and many of the bodies cremated and comingled and buried together in a memorial.
In 2017 Mr. Bareford requested the VA provide a headstone or marker for Mr. Anderson and the application was co-signed by the South Florida National Cemetery, which agreed to accept the headstone. The VA denied saying Mr. Bareford is not a recognized applicant. He appealed and noted the enabling statute (38 USC 2306) does not limit who can apply for the benefit.
Congress has directed that "[t]he Secretary shall furnish, when requested," burial headstones or markers for the unmarked graves of eligible individuals or, when the remains are unavailable, "an appropriate memorial headstone or marker for the purpose of commemorating an eligible individual." 38 U.S.C. § 2306(a), (b).
The Court explained: “VA has promulgated regulations restricting who is authorized to request burial and memorial headstones and markers. For veterans whose remains are identified and available, VA will provide a burial headstone or marker and applicants must be either a family member; a personal representative (as defined in 38 C.F.R. § 3.600); a representative of a congressionally chartered veterans service organization (VSO); a government employee whose responsibilities include providing services to veterans and their families; anyone legally responsible for the disposition of the veteran's remains or related matters; or, in the case of veterans whose service ended before April 6, 1917, any individual. 38 C.F.R. § 38.630(c) (2021). For veterans whose remains are unavailable or unidentified, VA will provide a memorial headstone or marker, but only family members may apply. 38 C.F.R. § 38.631(c) (2021).”
The Court was essentially asked to deal with Section 2306 and address what it meant that the code does not identify who is authorized to request a burial or memorial marker.
The Court began by looking at the statute’s text, structure and legislative history (Chevron Step One). The Court concluded that because Congress was silent as to who is entitled to request a headstone or marker, it left a gap for the VA to fill.
The Court then turned to a Chevron Step Two analysis, which asks is the Agency’s answer for the gap a reasonable one to which the Court must defer or whether the Agency’s gap filling regulation is arbitrary, capricious, and manifestly contrary to the statute.
The Court then turns its focuses on 38 CFR section 38.631(c). It noted this section concerns memorial markers as opposed to burial markers and the VA more narrowly restricts who can apply for memorial headstones and markers. The Court found: “VA has failed to articulate a satisfactory explanation for its 2016 policy of restricting the applicant class for memorial headstones and markers to just family members, to include "a rational connection between the facts found and the choice made" and "a reasoned explanation . . . for disregarding facts and circumstances that underlay or were engendered by the prior policy"; and, ultimately, VA's policy fails to reconcile conflicting policies and fails to represent a reasonable accommodation of conflicting policies that Congress would have sanctioned.”
The Court then concluded:
“The absurd result of the current policy under § 38.631(c)–for which the Court is precluded from supplying its own reasoned basis–is that when no surviving family member is available, the deceased service member and his or her contributions to our country remain unmemorialized, simply because that service member's remains are not available for burial. In light of the above, and given Congress's intent to commemorate the gallant dead in a manner commensurate with the dignity of their sacrifice (apparently without regard to whether or not the remains are available for burial), the Court cannot find that VA's attempt to reconcile its current policy with conflicting policies is a reasonable accommodation that Congress would have sanctioned. Cf. Chevron, 467 U.S. at 845. As a result, the Court holds that § 38.631(c) is arbitrary and capricious, and the Court affords no deference to VA's policy decision underlying its promulgation of § 38.631(c). See Encino Motorcars, 579 U.S. at 222; Chevron, 467 U.S. at 844-45; Motor Vehicle Mfrs. Ass'n, 463 U.S. at 43. Accordingly, the Court will invalidate § 38.631(c) (2021).”
This decision is an excellent example of a Chevron analysis of a gap-filling regulation. It is also an interesting case of an individual (Mr. Bareford) who selflessly wanted to recognize and honor a veteran in the face of a VA that would rather spend tens of thousands of dollars defending a bad decision rather than doing the right thing.
Judge Falvey dissented stating he would defer to the VA’s interpretation as “the Secretary's explanation shows that he made a reasonable choice after weighing the relevant considerations. Yet the Court rejects the Secretary's reasonable distinction between the applicant classes for burial headstones and memorial markers.”
Decision by Chief Judge Bartley and joined by Pietsch. Dissent by Judge Falvey.
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