995 F.3d 1347
Fed. Cir.2021Background
- James Kisor challenged the VA’s denial of an earlier effective date for PTSD benefits; original rating (1983) denied PTSD for lack of diagnosis, later award (2007) granted based in part on service records received after the 1983 decision.
- Central regulatory text: 38 C.F.R. § 3.156(c)(1) (reconsideration and earlier effective date where VA receives or associates "relevant official service department records" that existed but were not associated when VA first decided the claim).
- The panel initially found § 3.156(c)(1) ambiguous, applied Auer deference to the VA, and ruled for the agency; the Supreme Court granted certiorari on Auer, clarified/limited Auer in Kisor v. Wilkie, and remanded for reconsideration under the Court’s guidance.
- On remand the panel again ruled for the VA, concluding the regulation had a single reasonable meaning (records must bear on the dispositive ground of the prior denial) and thus the pro‑veteran canon did not apply; Kisor sought rehearing en banc.
- The Federal Circuit denied rehearing en banc; Chief Judge Prost (concurring) explained the court’s text‑first hierarchy and held the pro‑veteran canon applies only after exhaustive textual/descriptive‑canon analysis leaves multiple equally plausible meanings; several judges dissented, arguing the pro‑veteran canon should play an earlier, more influential role given the remedial veterans context.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Proper role/timing of the pro‑veteran canon | Kisor: interpretive doubt should be resolved for the veteran and the canon is an ordinary interpretive tool to be used when construing veterans’ remedial laws. | VA: the canon is a tie‑breaker only after exhaustive textual analysis shows genuine ambiguity; it cannot override a textually superior reading. | Concurrence (Prost): pro‑veteran canon is a normative tie‑breaker and applies only after text, context, and descriptive canons fail to produce a best meaning; en banc denied. |
| Interaction of pro‑veteran canon with Chevron/Auer deference | Kisor: the canon can and should be applied at step‑one to resolve ambiguity in veterans’ favor before deferring to agency under Chevron/Auer. | VA: Chevron/Auer deference governs when statute/regulation is ambiguous; pro‑veteran canon cannot short‑circuit deference doctrine. | Court: left unresolved doctrinal tension; concurrence emphasizes exhaustively using traditional tools first (per Kisor v. Wilkie) before any deference or canon applies. |
| Meaning of "relevant" in 38 C.F.R. § 3.156(c)(1) | Kisor: "relevant" should be read broadly to include records that bear on the veteran’s claim (e.g., records establishing in‑service stressors), which could affect diagnosis and the earlier denial. | VA: "relevant" means records that bear on the dispositive ground of the prior denial (i.e., address the precise issue that made the earlier decision adverse). | Panel majority: regulation not ambiguous; adopted VA’s narrower reading (records must relate to the issue dispositive against the veteran); pro‑veteran canon not applied. |
| Whether Auer deference applies to VA interpretation here | Kisor: even if regulation ambiguous, pro‑veteran canon should resolve doubt for veteran rather than deferring to the agency. | VA: if regulation is ambiguous, a reasonable VA interpretation of its own regulation merits Auer (subject to Kisor v. Wilkie limits). | Outcome: en banc denial leaves panel judgment intact; Supreme Court’s Kisor limits Auer but did not eliminate it; here the court avoided Auer by finding the regulation unambiguous. |
Key Cases Cited
- Brown v. Gardner, 513 U.S. 115 (1994) (pro‑veteran canon: resolve interpretive doubt in veteran’s favor)
- Kisor v. Wilkie, 139 S. Ct. 2400 (2019) (limits Auer deference; courts must exhaust traditional tools of interpretation before deferring)
- Auer v. Robbins, 519 U.S. 452 (1997) (deference to an agency’s interpretation of its own regulation)
- Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984) (framework for judicial deference to reasonable agency statutory interpretations)
- Conn. Nat’l Bank v. Germain, 503 U.S. 249 (1992) (text is the cardinal canon; begin and often end with statutory text)
- Christopher v. SmithKline Beecham Corp., 567 U.S. 142 (2012) (use descriptive canons first; remedial purpose considered but text and context control)
- Boone v. Lightner, 319 U.S. 561 (1943) (early articulation of liberal‑construction principle for servicemembers)
- King v. St. Vincent’s Hosp., 502 U.S. 215 (1991) (interpret remedial veterans provisions in light of context and congressional solicitude)