Metropolitan Area Ems Authority, Aka Medstar Mobile Healthcare, Valley Ambulance… v. Secretary of Veterans Affairs

United States Court of Appeals
for the Federal Circuit
______________________
METROPOLITAN AREA EMS AUTHORITY, AKA
MEDSTAR MOBILE HEALTHCARE, VALLEY
AMBULANCE AUTHORITY, QUAKER VALLEY
AMBULANCE AUTHORITY, ALTOONA LOGAN
TOWNSHIP MOBILE MEDICAL EMERGENCY
DEPARTMENT AUTHORITY, DBA AMED,
Petitioners
v.
SECRETARY OF VETERANS AFFAIRS,
Respondent
______________________
2024-1104
______________________
Petition for review pursuant to 38 U.S.C. Section 502.
______________________
Decided: December 9, 2024
______________________
BRIAN STIMSON, Arnall Golden Gregory LLP,
Washington, DC, argued for petitioners. Also represented
by SARA LORD.
BORISLAV KUSHNIR, Commercial Litigation Branch,
Civil Division, United States Department of Justice,
Washington, DC, argued for respondent. Also represented
by BRIAN M. BOYNTON, WILLIAM JAMES GRIMALDI, PATRICIA
M. MCCARTHY; ASHLEY CEDARS, BRYAN THOMPSON, Office of
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METROPOLITAN AREA EMS AUTHORITY v.
SECRETARY OF VETERANS AFFAIRS
2
General Counsel, United States Department of Veterans
Affairs, Washington, DC.
______________________
Before LOURIE, STOLL, and STARK, Circuit Judges.
STOLL, Circuit Judge.
Metropolitan Area EMS Authority, a.k.a. MedStar
Mobile Healthcare, Valley Ambulance Authority, Quaker
Valley Ambulance Authority, and Altoona Logan Township
Mobile Medical Emergency Department Authority
(collectively, “Petitioners”) challenge the validity of the
final rule Change in Rates VA Pays for Special Modes of
Transportation, 88 Fed. Reg. 10,032 (Feb. 16, 2023) (“Final
Rule”), promulgated by the Department of Veterans
Affairs. The Final Rule amends 38 C.F.R. § 70.30(a)(4),
changing how the VA pays for noncontract ground and air
ambulance transports for eligible beneficiaries,
purportedly pursuant to the VA’s discretionary authority
under 38 U.S.C. § 111(b)(3)(C). Because the Final Rule
exceeds the statutory authority vested in the VA by
§ 111(b)(3)(C), we grant the petition and set aside the Final
Rule.
BACKGROUND
Congress has enacted an independent statutory regime
for the coverage and payment of veterans’ healthcare
benefits via Title 38 of the United States Code. This
coverage and payment regime includes 38 U.S.C. § 1728
(“Reimbursement of certain medical expenses”) and
38 U.S.C. § 111 (“Payments or allowances for beneficiary
travel”), which in relevant part relate to ambulance
services for VA beneficiaries. Pursuant to § 1728, the
Secretary of the VA reimburses or makes direct payments
for veterans with service-connected conditions for certain
emergency medical expenses. The relevant provisions
include:
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(a) The Secretary shall, under such regulations as
the Secretary prescribes, reimburse veterans
eligible for hospital care or medical services under
this chapter for the customary and usual charges
of emergency treatment (including travel and
incidental expenses under the terms and
conditions set forth in section 111 of this title) for
which such veterans have made payment, from
sources other than the Department, where such
emergency treatment was rendered to such
veterans in need thereof . . . .
(b) In any case where reimbursement would be in
order under subsection (a) of this section, the
Secretary may, in lieu of reimbursing such veteran,
make payment of the reasonable value of
emergency treatment directly . . . .
38 U.S.C. § 1728.
Section 1728(a) incorporates § 111, which gives the
Secretary discretionary authority to pay for certain travel
expenses incurred by eligible beneficiaries for medical
purposes like examination, treatment, or care. The
provisions from § 111 most relevant here include:
(a) Under regulations prescribed by the President
pursuant to the provisions of this section, the
Secretary may pay the actual necessary expense of
travel (including lodging and subsistence), or in
lieu thereof an allowance based upon mileage (at a
rate of 41.5 cents per mile), of any person to or from
a Department facility or other place in connection
with vocational rehabilitation, counseling required
by the Secretary pursuant to chapter 34 or 35 of
this title, or for the purpose of examination,
treatment, or care. Actual necessary expense of
travel includes the reasonable costs of airfare if
travel by air is the only practical way to reach a
Department facility. In addition to the mileage
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allowance authorized by this section, there may be
allowed reimbursement for the actual cost of ferry
fares, and bridge, road, and tunnel tolls.
. . .
(b)(3)(C) In the case of transportation of a person to
or from a Department facility by ambulance, the
Secretary may pay the provider of the
transportation the lesser of the actual charge for
the transportation or the amount determined by
the fee schedule established under section 1834(l)
of the Social Security Act (42 U.S.C. 1395m(l))[1]
unless the Secretary has entered into a contract for
that transportation with the provider.
38 U.S.C. § 111 (emphasis added). The parties do not
dispute that “Department” means the “Department of
Veterans Affairs” or “VA,” and “Department facility” is a
“VA facility” like a “VA Medical Center (VAMC), VA
Outpatient Clinic (OPC), or VA Community Based
Outpatient Clinic (CBOC).” 38 U.S.C. § 101(1); 38 C.F.R.
§ 70.2. The parties agree that the term “other place” is not
defined in any statute or VA regulation but can be facilities
served by ground and air ambulances that are not a
“Department facility,” such as VA-authorized or other
private healthcare facilities.
The Secretary implements § 111 through 38 C.F.R.
Part 70, Subpart A (“Beneficiary Travel and Special Mode
Transportation Under 38 U.S.C. 111”). The current version
of 38 C.F.R. § 70.30(a)(4) has been in effect since 2008.
Pursuant thereto, the VA pays the “actual cost of a special
mode of transportation” for eligible beneficiaries. 38 C.F.R.
1 The amount determined by the fee schedule
established under § 1834(l) of the Social Security Act
(42 U.S.C. § 1395m(l)) is referred to as the Medicare fee
schedule (MFS) amount.
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§ 70.30(a)(4). A “special mode of transportation” is defined
as “an ambulance, ambulette, air ambulance, wheelchair
van, or other mode of transportation specially designed to
transport disabled persons.” 38 C.F.R. § 70.2.
In 2018, the VA Office of Inspector General (OIG)
faulted the VA for failing to realize $11 million in savings
for ambulance services between October 2012 and
December 2015 due to the VA’s failure to exercise its
discretionary authority under § 111(b)(3)(C) to pay “the
lesser of the actual charge for the transportation or the
[Medicare fee schedule (MFS)] amount” for noncontract
ambulance services. J.A. 1235–36 (quoting 38 U.S.C.
§ 111(b)(3)(C)).
The VA sought to implement the OIG’s
recommendation through rulemaking, and the Secretary
published a proposed change to the current version of
38 C.F.R. § 70.30(a)(4) on November 5, 2020. The
Secretary subsequently published the Final Rule, which
reads in relevant part:
a) [Subject to the other provisions of this section
and subject to the deductibles required under
§ 70.31, VA will pay the following for beneficiary
travel by an eligible beneficiary when travel
expenses are actually incurred:]
. . .
(4) VA payments for special modes of
transportation will be made in accordance with
this section, unless VA has entered into a
contract with the vendor in which case the terms
of the contract will govern VA payments. This
section applies notwithstanding 38 CFR 17.55
and 17.56 for purposes of 38 CFR 17.120.
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(i) Travel by ambulance. VA will pay the
lesser of the actual charge for ambulance
transportation or the [MFS] amount
determined by the fee schedule established
under section 1834(l) of the Social Security
Act (42 U.S.C. 1395m(l)).
(ii) Travel by modes other than ambulance.
(A) VA will pay the lesser of:
(1) The vendor’s actual charge.
(2) The posted rate in the State where
the vendor is domiciled. If the vendor is
domiciled in more than one State, the
lowest posted rate among all involved
States.
(3) The posted rate in the State where
transport occurred. If transport
occurred in more than one State, the
lowest posted rate among all involved
States.
(B) The term “posted rate” refers to the
applicable Medicaid rate for the special
mode transport in the State or States
where the vendor is domiciled or where
transport occurred (“involved States”). In
the absence of a posted rate for an involved
State, VA will pay the lowest among the
available posted rates or the vendor’s
actual charge.
Final Rule, 88 Fed. Reg. at 10,036. The impact of the Final
Rule is that, instead of paying the actual costs of
ambulance services, the VA will now pay the lesser of the
actual charge or the MFS amount for all ambulance
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transports—including those to and from places other than
Department facilities—unless the VA has entered into a
contract with the ambulance vendor.2 The Final Rule was
originally scheduled to take effect in February 2024;
however, the Secretary delayed its implementation until
February 2029. Changes in Rates VA Pays for Special
Modes of Transportation; Delay of Effective Date From
February 16, 2025, Until February 16, 2029, 89 Fed. Reg.
88,888 (Nov. 12, 2024).
Petitioners seek review of the Final Rule. We have
jurisdiction to review challenges to the VA’s rulemaking
pursuant to 38 U.S.C. § 502. See McKinney v. McDonald,
796 F.3d 1377, 1382–83 (Fed. Cir. 2015) (“Under [38 U.S.C.
§ 502], we have jurisdiction to review the VA’s procedural
and substantive rules, any amendments to those rules, and
the process in which those rules are made or amended.”
(internal quotation marks and citation omitted)).
DISCUSSION
“We review petitions under [38 U.S.C.] § 502 in
accordance with the standard set forth in the
Administrative Procedure Act (‘APA’), 5 U.S.C. §§ 701–
706.” Id. at 1383 (citing Nyeholt v. Sec’y of Veterans Affs.,
298 F.3d 1350, 1355 (Fed. Cir. 2002)). Under the APA, “the
reviewing court shall decide all relevant questions of law,
interpret constitutional and statutory provisions, and
determine the meaning or applicability of the terms of an
agency action.” 5 U.S.C. § 706. The reviewing court will
“hold unlawful and set aside agency action” that is
2 If the VA enters into a contract with an ambulance
vendor, then the vendor is not subject to the payment
methodology contemplated in the Final Rule, and the VA
would instead pay the contracted amounts for services
provided.
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“arbitrary, capricious, an abuse of discretion, or otherwise
not in accordance with law.” Id. § 706(2)(A).
Petitioners contend that the Final Rule is “not in
accordance with law” because it exceeds the statutory
authority granted to the VA under § 111(b)(3)(C). The VA
asserts that Petitioners forfeited their challenge to its
statutory authority under § 111(b)(3)(C) because no party
raised this issue in front of the VA during the notice and
comment period of the rulemaking. We turn first to the
VA’s argument on forfeiture before addressing the merits of
Petitioners’ challenge.
I
The VA contends that this court should extend the
“foundational principle” that “‘courts should not topple over
administrative decisions unless the administrative body
not only has erred but has erred against objection made at
the time appropriate under its practice’” to review of an
agency’s rulemaking process. Resp. Br. 17 (quoting United
States v. L.A. Tucker Truck Lines, Inc., 344 U.S. 33, 37
(1952)). Specifically, the VA urges this court to adopt the
D.C. Circuit’s rule that a party will forfeit an argument
that was not raised to an agency during the notice and
comment period of rulemaking. Id. at 18 (“[T]he Court of
Appeals for the District of Columbia Circuit has long held
that ‘a party will normally forfeit an opportunity to
challenge an agency rulemaking on a ground that was not
first presented to the agency for its initial consideration’
during the comment period.” (quoting Advocs. for Highway
& Auto Safety v. Fed. Motor Carrier Safety Admin.,
429 F.3d 1136, 1150 (D.C. Cir. 2005)). The VA argues that
the D.C. Circuit has applied this forfeiture rule even to
“arguments that an agency lacked statutory authority to
promulgate the rule in question,” relying on Koretoff
v. Vilsack, 707 F.3d 394, 397–99 (D.C. Cir. 2013). Resp.
Br. 19. It is undisputed that no party raised the issue of
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the VA’s statutory authority under § 111(b)(3)(C) during the
notice and comment period.
Petitioners note that this court has not adopted the
D.C. Circuit’s rule, that the D.C. Circuit’s rule has
underpinnings in Chevron, U.S.A., Inc. v. Natural
Resources Defense Council, Inc., 467 U.S. 837 (1984), which
was recently overruled by the Supreme Court in Loper
Bright Enterprises v. Raimondo, 144 S. Ct. 2244 (2024),
and that this court has previously held that a party is not
required to exhaust administrative remedies where its
contentions involve the resolution of a statutory issue that
“does not require the development of a factual record, the
application of agency expertise, or the exercise of
administrative discretion.” Beard v. Gen. Servs. Admin.,
801 F.2d 1318, 1321 (Fed. Cir. 1986).
In overturning Chevron, the Supreme Court in Loper
Bright held that Chevron’s step-two requirement that a
reviewing court defer to an agency’s reasonable statutory
interpretation could not be squared with the reviewing
court’s duty under the APA:
The APA . . . codifies for agency cases the
unremarkable, yet elemental proposition reflected
by judicial practice dating back to Marbury: that
courts decide legal questions by applying their own
judgment. It specifies that courts, not agencies,
will decide “all relevant questions of law” arising
on review of agency action, § 706 (emphasis
added)—even those involving ambiguous laws—
and set aside any such action inconsistent with the
law as they interpret it. And it prescribes no
deferential standard for courts to employ in
answering those legal questions.
Loper Bright, 144 S. Ct. at 2261. The Supreme Court
explained that “[c]ourts must exercise their independent
judgment in deciding whether an agency has acted within
its statutory authority, as the APA requires.” Id. at 2273.
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We need not resolve these issues about Beard and the
scope of the D.C. Circuit’s forfeiture rule in light of Loper
Bright, however, because even if we were to adopt the D.C.
Circuit’s forfeiture rule, we would also adopt the D.C.
Circuit’s exceptions to that rule. These exceptions include
the “key assumption” doctrine: “Under the ‘key
assumption’ doctrine, an agency has the ‘duty to examine
key assumptions as part of its affirmative burden of
promulgating and explaining a non-arbitrary, non-
capricious rule.’” Am. Fuel & Petrochemical Mfrs. v. EPA,
937 F.3d 559, 589 (D.C. Cir. 2019) (quoting Okla. Dep’t of
Env’t Quality v. EPA, 740 F.3d 185, 192 (D.C. Cir. 2014)).
This includes “aspects of a rule that are foundational to its
existence, such as assumptions regarding the agency’s
statutory authority.” Id. (citing Nat. Res. Def. Council
v. EPA, 755 F.3d 1010, 1023 (D.C. Cir. 2014)). We conclude
that the D.C. Circuit’s “key assumption” doctrine would
apply to this case, as the VA had a duty to examine whether
it in fact had the authority to promulgate the rule under
the statutory section the VA explicitly relied on as the basis
for the rulemaking. See Final Rule, 88 Fed. Reg. at 10,033
(“VA proposed amending its beneficiary travel regulations
to implement the discretionary authority in 38 U.S.C.
[§] 111(b)(3)(C) . . . .”). Therefore, no comment was
necessary to preserve Petitioners’ challenge to the VA’s
authority to promulgate the Final Rule under
§ 111(b)(3)(C).
II
We now turn to Petitioners’ merits challenge to the VA’s
statutory authority under § 111(b)(3)(C) and their
arguments as to why the Final Rule exceeds that authority.
“In statutory construction, we begin with the language
of the statute.” Ireland v. United States, 101 F.4th 1338,
1343 (Fed. Cir. 2024) (quoting Kingdomware Techs.
v. United States, 579 U.S. 162, 171 (2016)). In looking at
the text of the statute, “we are not guided by a single
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sentence or member of a sentence, but look to the
provisions of the whole law.” Id. (quoting Dole v. United
Steelworkers of Am., 494 U.S. 26, 35 (1990)). In addition to
the statute’s text, we also employ the traditional tools of
statutory construction, including “the statute’s structure,
canons of statutory construction, and legislative history.”
Id. (quoting Timex V.I., Inc. v. United States, 157 F.3d 879,
882 (Fed. Cir. 1998)).
Here, § 111(a) reads: “[T]he Secretary may pay the
actual necessary expense of travel . . . of any person to or
from a Department facility or other place . . . for the
purpose of examination, treatment, or care.” 38 U.S.C.
§ 111(a) (emphasis added). In contrast, § 111(b)(3)(C)
states only that “[i]n the case of transportation of a person
to or from a Department facility by ambulance, the
Secretary may pay the provider of the transportation the
lesser of the actual charge for the transportation or the
[MFS] amount.” Id. § 111(b)(3)(C) (emphasis added). Thus,
while in § 111(a) Congress authorized the Secretary to “pay
the actual necessary expense” for travel “to or from a
Department facility or other place,” Congress only
authorized the Secretary in § 111(b)(3)(C) to apply the
“lessor of” payment methodology for transports “to or from
a Department facility by ambulance.” Conspicuously
missing from § 111(b)(3)(C) is the “or other place” language
that Congress expressly stated in the earlier subsection.
“We assume Congress means what it says and says
what it means.” Sanho Corp. v. Kaijet Tech. Int’l Ltd., Inc.,
108 F.4th 1376, 1382 (Fed. Cir. 2024) (holding that where
“Congress used two different phrases in two separate
provisions” in 35 U.S.C. § 102—i.e., “disclosures” in an
earlier subsection and “publicly disclosed” in a later
subsection—the court will interpret the “new phrase,”
“publicly disclosed,” to have a different meaning than the
broader phrase “disclosures”). And “[a] statute should be
construed so that effect is given to all its provisions, so that
no part will be inoperative or superfluous, void or
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insignificant.” Id. (quoting Hibbs v. Winn, 542 U.S. 88, 101
(2004)).
As Congress explicitly included “or other place” in
§ 111(a), it could have also added that same language to
§ 111(b)(3)(C). Rather, Congress chose to exclude it, and
instead used narrower language in § 111(b)(3)(C). We
understand this difference to mean Congress in fact
intended two different things—indeed, if Congress meant
for the phrase “to or from a Department facility” to be as
broad as the phrase “to or from a Department facility or
other place,” “it easily could have said so.” Sanho, 108 F.
4th at 1382.
We can only conclude that the omission of the “or other
place” language from § 111(b)(3)(C) was deliberate on the
part of Congress. Consequently, the VA’s rulemaking
extending the “lessor of” methodology to all noncontract
ambulance transports—instead of only noncontract
ambulance transports “to or from a Department facility”—
in the Final Rule exceeds the discretionary authority
granted to the VA by Congress under § 111(b)(3)(C). The
Final Rule is thus “not in accordance with law” and must
be vacated.
The VA offers two counterarguments to Petitioners’
statutory interpretation of § 111. First, the VA cites the
second sentence of § 111(a), which reads that the “[a]ctual
necessary expense of travel includes the reasonable costs
of airfare if travel by air is the only practical way to reach
a Department facility.” 38 U.S.C. § 111(a). The VA
contends that the Petitioners’ interpretation of “a
Department facility” cannot be correct because otherwise
the VA would not have statutory authority to pay for travel
by air to non-VA facilities, reducing travel reimbursements
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the VA is now providing. Resp. Br. 26–27.3 Petitioners,
however, contend that the second sentence of § 111(a)’s
reference to “airfare” relates not to air ambulance
transports, but rather to commercial flights.4 Pet. Reply
Br. 11. Petitioners also confirm that, under their
interpretation of § 111(a), the second sentence only
authorizes the VA to pay for commercial airfare to or from
a “Department facility.” Id.; see also Oral Arg. at 9:29–
11:10, 30:01–30:11.
We are not convinced by the VA’s argument. The fact
that our interpretation of the plain language of § 111 would
limit the second sentence of § 111(a) to allow the VA to cover
“airfare” only to or from “a Department facility” does not
3 The VA further supports this argument by noting
that the additional guidance on paying for air travel in
§ 111(b)(4) only mentions “a Department facility,” and, in
fact, nowhere in § 111(b) is the “or other place” language
used. Resp. Br. 26–27. Petitioners, however, also confirm
that § 111(b)’s lack of reference to “other place[s]” accords
with their interpretation of § 111 as a whole. Pet. Reply
Br. 12. For the same reasons we find the VA’s arguments
about the second sentence of § 111(a) unpersuasive, we find
its arguments about § 111(b) unpersuasive.
4 Despite Petitioners raising this argument in their
reply brief before this court, counsel for the VA was
unwilling at oral argument to state one way or the other
what the VA’s position is on whether the second sentence of
§ 111(a) is about commercial flights and thus not relevant
to air ambulance transports. Oral Arg. at 18:10–18:58,
https://oralarguments.cafc.uscourts.gov/default.aspx?fl=24
-1104_07102024.mp3. Counsel for the VA did concede,
however, that the second sentence of § 111(a) is neither
definitional nor “define[s] everything that the phrase
[‘actual necessary expense of travel’] might mean.” Id.
at 16:35–17:23.
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change our reasonable conclusion that “a Department
facility or other place” is a broader phrase with a different
meaning than just “Department facility.” Congress’s choice
of language in the second sentence of § 111(a) suggests its
intent that the VA only pay for airfare to or from a
“Department facility.” The VA fails to show why that
reading would lead to absurd results, and it is easy to see
why Congress may have made such a policy choice. E.g.,
Oral Arg. at 9:30–11:10 (“[A]irfare as opposed to
ambulance transportation is non-emergent. And the VA
would have a compelling reason to limit commercial airfare
to non-VA facilities because VA facilities are going to most
likely provide the same non-emergent care that non-VA
facilities would provide. So, I think actually from a policy
perspective . . . the plain language reading of that sentence
makes rational sense.” (cleaned up)), 30:19–30:53. As such,
nothing in this second sentence leads us to conclude that
our interpretation of § 111 is wrong.
Second, while the VA concedes that “Congress used the
full phrase ‘a Department facility or other place’ in the first
sentence of subsection (a),” the VA argues that Congress
clearly “used the shorthand ‘a Department facility’ in the
second sentence” of § 111(a), thus illustrating that
“Congress had used ‘a Department facility’ as shorthand for
‘a Department facility or other place’ within Section 111.”
Resp. Br. 24. The VA relies on N.H. Lottery Commission
v. Rosen, 986 F.3d 38 (1st Cir. 2021), for this “shorthand”
argument.5
5 Counsel for the VA clarified at oral argument that
it was not its contention that there is a “shorthand” canon
of statutory construction; instead, its only contention is
that in reading the plain language of a statute in context,
the court may conclude that Congress was employing
shorthand in drafting a particular act, as the First Circuit
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In N.H. Lottery, the same sentence of the Wire Act
referenced, in a first clause, transmissions related to “bets
or wagers on any sporting event or contest,” and then, in a
second, subsequent clause, only transmissions related to
“bets or wagers.” 986 F.3d at 54. The First Circuit
described this text as “what appears to be a clear example
in this very statute of Congress using shorthand to carry
over a phrase from Clause One to Clause Two, which may
suggest a broader pattern of borrowing by shorthand.” Id.
at 57. The First Circuit determined that “Congress’s
consistent syntactic approach anticipated that a term,
which is explicitly qualified in one instance, could be read
as similarly qualified in other instances, at least where
necessary to avoid odd and unlikely results.” Id. at 58.
This led the First Circuit to read the second clause’s
reference to transmissions to also relate to the full phrase
“bets or wagers on any sporting event or contest.” Id.
at 58–59. Attempting to apply that principle here, the VA
contends that “it would have made little sense for Congress
to broadly refer to travel to or from ‘a Department facility
or other place’ within the general grant of authority in
subsection (a), yet narrow that scope within the additional
payment parameters established in subsection (b).” Resp.
Br. 26. We disagree.
N.H. Lottery is readily distinguishable from this case.
N.H. Lottery addressed “the rule of the last antecedent” in
looking at a shortened clause immediately following a
similar longer clause in the same sentence, where the court
held that reading the clauses to mean two different things
would lead to absurd results. 986 F.3d at 56–58. Here,
there is no basis for concluding that Congress used the
phrase “a Department facility” to refer to “a Department
facility or other place.” This case does not address an
so concluded in N.H. Lottery with the Wire Act, 18 U.S.C.
§ 1084. Oral Arg. at 14:27–15:02.
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antecedent problem, and the VA does not contend
otherwise. Moreover, as discussed above, we are not
convinced that reading “a Department facility” to mean
something different than “other place” would lead to
absurd results. The statutory language at issue in this case
is quite different from that in N.H. Lottery. The first,
extended clause in N.H. Lottery was “bets or wagers on any
sporting event or contest,” and the later, shortened clause
was “bets or wagers,” dropping the modifier “on any
sporting event or contest.” In contrast, here the VA asks
that two distinct places—first, “a Department facility” and,
second, an “other facility”—that are separated by “or” be
treated as the same.6 In our view, this is a much larger
grammatical leap than the one in N.H. Lottery. “Canons of
construction ordinarily suggest that terms connected by a
disjunctive be given separate meanings . . . .” Reiter
v. Sonotone Corp., 442 U.S. 330, 339 (1979).
CONCLUSION
Because we conclude that the Final Rule “is not in
accordance with law,” as it exceeds the discretionary
authority Congress granted the VA under 38 U.S.C.
§ 111(b)(3)(C), we need not reach Petitioners’ other
arguments challenging the rule.7 For the foregoing
6 Indeed, the VA concedes “or other place” “refers to
any place that is not a ‘Department facility,’” and the word
“other” should be understood as modifying “place” to be
“distinct from the one already mentioned.” Resp. Br. 23
(quoting Other, WEBSTER’S NEW INTERNATIONAL
DICTIONARY OF THE ENGLISH LANGUAGE (2d ed. 1957))
(emphasis added).
7 Petitioners also sought to stay the Final Rule
pending this appeal. Motion for Stay Pending Judicial
Review, ECF No. 3. Because we have reached a decision on
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METROPOLITAN AREA EMS AUTHORITY v.
SECRETARY OF VETERANS AFFAIRS
17
reasons, we grant the petition and set aside the final
promulgated rule Change in Rates VA Pays for Special
Modes of Transportation, 88 Fed. Reg. 10,032 (Feb. 16,
2023).
GRANTED
COSTS
Costs to Petitioners.
the merits prior to the Final Rule going into effect,
Petitioners’ motion to stay is denied as moot.
Case: 24-1104 Document: 71 Page: 17 Filed: 12/09/2024

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