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.


(a) Eligibility for consideration. To be eligible to apply for consideration under Public Law 95-202 and this part, a group must:
(1) Have been similarly situated to the Women's Air Forces Service Pilots of World War II.
(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.
(3) Have rendered that service during a period of armed conflict.
(4) Consist of living persons to whom VA benefits can accrue.
(5) Not have already received benefits from the Federal Government for the service in question.

  • 1
    Do you have an example of a law that says this? Words are seldom interpreted in isolation, and usually must be interpreted in the context of the statute.
    – jimsug
    Commented Jan 28, 2016 at 4:27
  • Presumably what follows is a list of criteria, the penultimate one will probably end with "or" or "and". If so, this is extremely relevant.
    – Dale M
    Commented Jan 28, 2016 at 5:07
  • Nope, it just has a numbered list, but I'l add that to the question..
    – person
    Commented Jan 28, 2016 at 5:16
  • 1
    @acoder You can't pick words out in isolation and find ambiguity. Meaning or ambiguity of words can only be determined after reading the words in context of the entire statutory or regulatory scheme. Even if the words are ambiguous, the agency gets to pick any reasonable interpretation.
    – user3851
    Commented Jan 29, 2016 at 5:16
  • 2
    @acoder Please read Auer v. Robbins. I think it will be very helpful for understanding why the agency gets to make any reasonable interpretation of their own regulation. If the regulation is already doing all the work the agency needs it to do, then it doesn't need to rewrite it
    – user3851
    Commented Jan 29, 2016 at 5:55

3 Answers 3


You are referring to 32 CFR 47.4.

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

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.

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 controlling unless "plainly erroneous or inconsistent with the regulation". (Auer v. Robbins 1997)

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

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.

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".

  • Thanks to everyone for their contributions. If there is anything that can be edited into the question or answer, please do so. Comments are not for extended discussion; this conversation has been moved to chat.
    – jimsug
    Commented Jan 29, 2016 at 10:40

Your interpretation is creating an ambiguity when none exists. Your specific question is about 32 CFR 47.4 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:

  • The purpose of the part. This part has a nice "Purpose" section at 47.1, which says it implements PL 95-202 and

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

    Also, its title is "Active duty service for civilian or contractual groups." Members of the National Guard are not civilians. It would be surprising (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."

  • 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.

  • 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 § 106 (and passed as PL 95-202 § 401(a)) saying

    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]

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

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 civilian 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 § 101(21), "active duty" means, among other things, "full-time duty in the Armed Forces, other than active duty for training."

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 in the military, and not because some special policy means they qualify when they otherwise wouldn't.

  • So how would I challenge the agency interpretation?
    – person
    Commented Jan 29, 2016 at 6:20
  • For this? You can't. Your challenge would be laughed off, because it is incredibly obvious the regulation doesn't (and in fact can't) include the National Guard as a qualified group.
    – cpast
    Commented Jan 29, 2016 at 6:24
  • Then why would they call Military Sealift Command Navy because "rendered service to the Armed Forces of the United States in a capacity considered civilian employment", when other civilians fall under Transportation, yet both are required to have a TWIC card, and DOT IDs. To further delve in some are denied at MEPS, and need to find a back door into the equivalent service by joining MSC to serve, and EEOC would administer the benefits then?
    – person
    Commented Jan 29, 2016 at 6:31
  • Where does anyone say MSC qualified under this part? All I find says they only did in WWII. Regardless, MSC is tied to the Navy because it is part of the Navy. MSC employees are mostly civilian, but they are employed by the US Navy. I'm not sure what this has to do with anything at all.
    – cpast
    Commented Jan 29, 2016 at 6:39
  • If MSC employees were just government mariners they would fall under the DOT, not Navy, but since they're Navy they're not contractors of the Navy, they're employees of the Navy, and get paid by the Navy, not DOT.
    – person
    Commented Jan 29, 2016 at 6:44

Under the doctrine of Chevron 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.

  • Chevron deference is an agency interpreting a statute. Auer deference is an agency interpreting its own regulations.
    – user3851
    Commented Jan 29, 2016 at 4:32
  • Not entirely. The Supreme Court has expanded Chevron to cover interpretations as well. Commented Jan 29, 2016 at 4:53
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    @acoder No, the standard is not 50% chance they're wrong. Courts give great deference to administrative agencies interpreting statutes, and even more to an agency interpreting their own regulation. Unless they are clearly incorrect, their interpretation wins.
    – cpast
    Commented Jan 29, 2016 at 6:09
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    @acoder It doesn't, because it's not even slightly ambiguous. You can't challenge the interpretation here, because their interpretation to require you be a civilian similarly situated to WASPs is both obviously correct and required by the statutory authority (they can't not require it).
    – cpast
    Commented Jan 29, 2016 at 6:16
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    @acoder What doesn't provide requirements? The statute, or the regulation? The statute requires you be like a WASP. The regulation provides a whole lot of requirements.
    – cpast
    Commented Jan 29, 2016 at 6:42

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