Welcome: Veterans Retraining Assistance Program and Chevron Statutory Interpretation

 Welcome v. Wilkie, Case Number 18-4601, decided October 29, 2020 discusses whether the VA improperly reduced the veteran’s benefits under the VRAP.

The Veterans Retraining Assistance Program (VRAP) as a temporary program intended to provide older veterans with job retraining f high-demand occupations.  However, Congress terminated VA’s authority to issue payments under the program as of March 31, 2014.  As that date approached, VA decided to issue accelerated, lump-sum benefit payments to veterans who had remaining eligibility and who were still enrolled on a full-time basis—but only in an amount that would carry veterans to the end of their current term or June 30, 2014, whichever came earlier.  Mr. Welcome had 10 months of eligibility remaining, but as a result of the VA’s decision on how to calculate the benefit was only paid for 2 of those remaining months.

The Court’s holding was:

The question in this case is whether VA's decision to limit Mr. Welcome's benefits to the end of his term constituted a reasonable interpretation of the statute. We agree with Mr. Welcome that there was no statutory basis for such action; to the contrary, VRAP assistance was expressly tied to the veteran's program of education, and his payment should have corresponded to the full extent of his eligibility.

 Id. at *1.

While factually a narrow ruling, the Court’s statutory interpretation analysis is helpful.  It focuses on the two-step Chevron analysis. 

The Court explained: 

At step one, we ask whether Congress has directly spoken to the precise question at issue. If the intent of Congress is clear, that is the end of the matter as the Court "must give effect to the unambiguously expressed intent of Congress." Id. at 842–43. If the statutory language is "silent or ambiguous," however, we proceed to step two and ask whether the agency's action is based on a "permissible construction of the statute." Id. at 843. If the agency's interpretation is based on a permissible construction, then the Court defers to it; if it is not, then the action is "arbitrary, capricious, or manifestly contrary to the statute" and thus unlawful.

Id. at *3.  The Court begins and could have concluded with Step One.  It finds

The text of the statute makes clear that VA was required to pay eligible veterans the full extent of their benefits. We noted in Lacey that Congress designed VRAP to be "limited in duration and scope." 32 Vet.App. at 74. Commencing on July 1, 2012, VRAP contained a sunset provision limiting the Secretary's authority to make payments on March 31, 2014. § 211(a), (k), 125 Stat. at 713–15. Specifically, subsection (k) of section 211 read: "TERMINATION OF AUTHORITY— The authority to make payments under this section shall terminate on March 31, 2014." Id. at 715.

 

But while the statute ended the Secretary's ability to make payments, it did not contain any language requiring veterans to use their benefits by a certain date. Instead, the statutory text reveals other "discrete, if implied, limitations." Lacey, 32 Vet.App. at 79. We know, for example, that benefits could only issue to veterans pursuing a program on a "full-time basis." § 211(b), 125 Stat. at 713. We also know that VA could only provide "up to 12 months of retraining assistance." Id. Thus, there is a clear statutory basis for VA limiting a lump sum payment to a veteran who had dropped below full-time status or whose program of education was completed in fewer than 12

months.

 

The statute, however, contains no language directing VA to curtail or otherwise reduce a veteran's benefits, and nothing in the text or structure suggests that Congress intended to cut benefits at the end of a veteran's term or June 30, 2014, whichever came earlier. The law does not tie the veteran's benefits to a current term of enrollment or to any specific date. On the contrary, it expressly tethers benefits to the program of education, such that participants are "entitled to up to 12 months of retraining assistance" "to pursue a program of education . . . for training, on a fulltime basis in a program approved under Chapter 36, offered by a community college or technical school, leading to an associate degree or a certificate in a high demand occupation." Id. On its own terms, the statute contains only these limitations to the 12-month term of benefits.

 Id. at *4.  It then summarized by saying: 

In whole, the statute lacks any indication that Congress intended to allow VA discretion to grant a smaller allotment of benefits based on limitations other than those expressly listed. Instead, we read it as signaling a clear intent from Congress requiring VA to pay eligible veterans the full extent of the benefits provided for under the statute. Thus, once the Secretary chose to administer lump-sum payments to help veterans toward their objectives, he had an obligation to provide benefits in a manner consistent with the statutory criteria, subject only to the express limitations in the statute.

Id. at *6.

As to a step two analysis (the agency give a permissible construction), the Court noted the Secretary’s arguments: that the hard stop of June 30 was justified because Congress requested a report on VRAP's achievement of target objectives by July 1, 2014 and by reference to the Montgomery GI Bill statutory language.

As to the hard stop based on a report to Congress, the Court stated 

Although Congress wanted to know by July how many veterans participated, earned a degree, and gained employment, that request doesn't signal a congressional preference for data over veterans with remaining entitlement. The reporting requirement thus proves a slim reed to support an inference that Congress wanted veterans who were still engaged in an educational program to quit

or otherwise continue alone without assistance…. To discontinue benefits for these veterans before the end of

the education program designed to provide them with the training and credentials to obtain employment in high-demand occupations, simply to provide Congress with a report, runs counter to the objectives of what here is clearly a remedial statute.

Id. at *6-7.

As to the reference to the GI bill, the Court said a narrow GI bill provision allowing for accelerated payments limited to payments for the end of the students term was not instructive.  It found the Secretary here issued a lump sum payment for a fraction of what the veteran was entitled.

This is an interesting decision as it shows the Court still focused on a Chevron analysis, but finding failings in the VA position at steps one and two.  It is interesting and perhaps alarming that the Court did not consider any other statutory arguments such as the pro-veteran canon.

Decision by Judge Toth and joined in by Judges Pietsch and Greenberg.

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