JAMES L. KISOR, Claimant-Appellant
DAVID J. SHULKIN, SECRETARY OF VETERANS AFFAIRS, Respondent-Appellee
from the United States Court of Appeals for Veterans Claims
in No. 14-2811, Judge Alan G. Lance, Sr.
PETITION FOR PANEL REHEARING AND REHEARING EN BANC
Kenneth M. Carpenter, Law Offices of Carpenter Chartered,
Topeka, KS, filed a combined petition for panel rehearing and
rehearing en banc for claimant-appellant.
Helman, Commercial Litigation Branch, Civil Division, United
States Department of Justice, Washington, DC, filed a
response to the petition for respondent-appellee. Also
represented by Chad A. Readler, Robert E. Kirschman, Jr.,
Martin F. Hockey, Jr.; Y. Ken Lee, Samantha Ann Syverson,
Office of General Counsel, United States Department of
Veterans Affairs, Washington, DC.
Prost, Chief Judge, Newman, Lourie, Schall, [*] Dyk, Moore,
O'Malley, Reyna, Wallach, Taranto, Chen, Hughes, and
Stoll, Circuit Judges.
filed a combined petition for panel rehearing and rehearing
en banc. A response to the petition was invited by the court
and filed by the appellee.
petition for rehearing was referred to the panel that heard
the appeal, and thereafter, the petition and response were
referred to the circuit judges who are in regular active
service. A poll was requested, taken, and failed.
consideration thereof, It Is Ordered That:
petition for panel rehearing is denied.
petition for rehearing en banc is denied. The mandate of the
court will be issued on February 7, 2018.
O'Malley, Circuit Judge, with whom Newman and Moore,
Circuit Judges, join, dissenting from the denial of rehearing
panel in this case held that the word "relevant" in
38 C.F.R. § 3.156(c)(1), a regulation promulgated by the
Department of Veterans Affairs ("VA"), is
ambiguous. Kisor v. Shulkin, 869 F.3d 1360, 1367
(Fed. Cir. 2017). Indeed, after granting that both parties
had offered reasonable interpretations of the regulation, the
panel held that the regulation is not just ambiguous on its
face, but that the apparent ambiguity is insoluble by resort
to standard interpretive principles. Id. at 1367-68.
The panel, thus, turned to Bowles v. Seminole Rock &
Sand Co., 325 U.S. 410 (1945), and Auer v.
Robbins, 519 U.S. 452 (1997), (collectively
"Auer") to resolve the question presented.
It concluded that the VA was entitled to deference for its
interpretation of its own ambiguous regulation and, on that
ground, unsurprisingly found in favor of the VA. 869 F.3d at
panel predicated its decision on Auer deference,
despite the Supreme Court's repeated reminder that
statutes concerning veterans are to be construed liberally in
favor of the veteran. Henderson v. Shinseki, 562
U.S. 428, 441 (2011); Brown v. Gardner, 513 U.S.
115, 117-18 (1994) (citation omitted). Whatever the logic
behind continued adherence to the doctrine espoused in
Auer- and I see little-there is no logic to its
application to regulations promulgated pursuant to statutory
schemes that are to be applied liberally for the very benefit
of those regulated. When these two ...