united-states common-law civil-law administrative-law
In the US if there&#39;s loophole in a CFR does it go to the challenger?
<p>I was wondering if a loophole in a where a law says "must" and not "must meet all" can be used to get bend the law in your favor.</p>

<p>example:</p>

<blockquote>
  <p>(a) Eligibility for consideration. To be eligible to apply for
  consideration under Public Law 95-202 and this part, a group must:<br>
  (1) Have been similarly situated to the Women's Air Forces Service
  Pilots of World War II.<br> (2) Have rendered service to the United
  States in what was considered civilian employment with the U.S. Armed
  Forces either through formal Civil Service hiring or less formal
  hiring if the engagement was created under the exigencies of war, or
  as the result of a contract with the U.S. Government to provide direct
  support to the U.S. Armed Forces.<br> (3) Have rendered that service
  during a period of armed conflict.<br> (4) Consist of living persons
  to whom VA benefits can accrue.<br> (5) Not have already received
  benefits from the Federal Government for the service in question.</p>
</blockquote>

<p>You are referring to <a href="https://www.law.cornell.edu/cfr/text/32/47.4" rel="nofollow">32 CFR 47.4</a>.</p>

<p>The only reasonable interpretation of that list is that one must meet all of the 5 requirements.</p>

<p>The alternative interpretation would make any group that "[has not] already received benefits from the Federal Government for the service in question" eligible to apply.</p>

<p>Since this is a regulation, the interpretation of the agency that wrote the regulations is given great deference. An agency's interpretation of the regulations it writes itself is <em>controlling</em> unless "plainly erroneous or inconsistent with the regulation". (<em>Auer v. Robbins</em> 1997)</p>

<hr>

<p>Regarding whether there is ambiguity at all, read <em>King v. Burwell</em> for several restatements of the principle that one must read words in context before deciding they are ambiguous:</p>

<blockquote>
  <p>A provision that may seem ambiguous in isolation is often clarified by the remainder of the statutory scheme . . . because only one of the permissible meanings produces a substantive effect that is compatible with
  the rest of the law.</p>
</blockquote>

<p>They refer to the "fundamental canon of statutory construction that the
words of a statute must be read in their context and with a view to
their place in the overall statutory scheme".</p>

<p>Your interpretation is creating an ambiguity when none exists. Your specific question is about <a href="https://www.law.cornell.edu/cfr/text/32/47.4" rel="nofollow">32 CFR 47.4</a> not applying to the National Guard; however, you hone in on a single phrase while ignoring literally everything else about the regulation. So, there are additional things you look at:</p>

<ul>
<li><p>The purpose of the part. This part has a nice "Purpose" section at 47.1, which says it implements PL 95-202 and</p>

<blockquote>
  <p>Directs the Secretary of the Air Force to determine if an established group of <strong>civilian employees or contract workers</strong> provided service to the U.S. Armed Forces in a manner considered active military service for Department of Veterans Affairs (VA) benefits.</p>
</blockquote>

<p>Also, its title is "Active duty service for civilian or contractual groups." Members of the National Guard are not civilians. It would be <em>surprising</em> (to say the least) if they fell under this part, given that the clear purpose is to say "some civilian service to the military is not just a normal civilian job; these people deserve benefits given to people who are formally in the military."</p></li>
<li><p>Surrounding rules. For instance, the definitions in 47.3 require that a group, to be a "civilian or contractual group" within the meaning of the part, be similarly situated to the Women's Air Forces Service Pilots.</p></li>
<li><p>Statutory authority. All parts of the CFR need to be made under authority granted by Congress; the authority for 32 CFR 47 is a federal law codified as a note to 38 USC &sect; 106 (and passed as PL 95-202 &sect; 401(a)) saying </p>

<blockquote>
  <p>the service of any person as a member of the Women’s Air Forces Service Pilots (a group of Federal civilian employees attached to the United States Army Air Force during World War II), or the service of any person in any other similarly situated group the members of which rendered service to the Armed Forces of the United States in a capacity considered civilian employment or contractual service at the time such service was rendered, shall be considered active duty for the purposes of all laws administered by the Secretary of Veterans Affairs [if they meet DoD regulations to qualify for it]</p>
</blockquote>

<p>Administrative agencies are given a great deal of deference when interpreting the statutes they base their regulation on; however, they can't really <em>not</em> require that a group be similarly situated to WASPs, because the statute they're saying groups can qualify under <em>requires</em> that groups be similarly situated to qualify.</p></li>
</ul>

<p>To answer your question about whether the National Guard gets benefits: Members of the National Guard are simultaneously members of the Army or Air Force reserves. This regulation lets certain <em>civilian</em> groups count as active duty, leaving it up to DoD who qualifies. For the military, there's no need to leave it up to DoD who qualifies; Congress is quite capable of simply defining what the military is. Under 38 USC &sect; 101(21), "active duty" means, among other things, "full-time duty in the Armed Forces, other than active duty for training."</p>

<p>When the National Guard is on full-time military duty other than for training, they are on active duty, because that is what that phrase means. When they aren't, they aren't. At no point do they qualify because they are civilians in a similar situation to WASPs (which is the sole purpose of this part, to let those people qualify) due to their National Guard service; they are qualified because they are actually <em>in</em> the military, and not because some special policy means they qualify when they otherwise wouldn't.</p>

<p>Under the doctrine of <em>Chevron</em> Deference, when the law is ambiguous, the agency may interpret it in any way as long as it's reasonable. The courts usually interpret reasonableness as being almost anything.</p>
