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Kisor v. Shulkin

United States Court of Appeals, Federal Circuit

January 31, 2018

JAMES L. KISOR, Claimant-Appellant
v.
DAVID J. SHULKIN, SECRETARY OF VETERANS AFFAIRS, Respondent-Appellee

         Appeal from the United States Court of Appeals for Veterans Claims in No. 14-2811, Judge Alan G. Lance, Sr.

         ON 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.

          Igor 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.

          Before Prost, Chief Judge, Newman, Lourie, Schall, [*] Dyk, Moore, O'Malley, Reyna, Wallach, Taranto, Chen, Hughes, and Stoll, Circuit Judges.

          ORDER

          PER CURIAM.

         Appellant 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.

         The 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.

         Upon consideration thereof, It Is Ordered That:

         The petition for panel rehearing is denied.

         The 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 en banc.

         The 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 1368-69.

         The 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 ...


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