880 F.3d 1378
Fed. Cir.2018Background
- This document is Judge O’Malley’s dissent from the court’s denial of rehearing en banc in a case involving interpretation of 38 C.F.R. § 3.156(c)(1).
- The panel had found the word “relevant” in the VA regulation ambiguous and, finding the ambiguity insoluble by ordinary interpretive tools, applied Auer/Seminole Rock deference to the VA’s interpretation, siding with the VA.
- Judge O’Malley argues the case raises a significant conflict between Auer deference (agency deference to interpretations of its own ambiguous regulations) and the long‑standing pro‑veteran canon requiring doubtful provisions be construed in the veteran’s favor.
- She contends the pro‑veteran canon is a rule of statutory/regulatory construction and therefore should be applied before resorting to Auer; if a veteran‑favorable reading is reasonable, the regulation is not so ambiguous as to trigger Auer.
- The dissent urges en banc review to resolve whether Auer deference must yield when it conflicts with the pro‑veteran canon, noting parallel treatment in other special‑solicitude contexts (e.g., Indian law) where Chevron/Auer deference has been limited.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the VA’s regulation language is ambiguous such that Auer deference applies | Petitioner: the regulation can and should be read in a pro‑veteran way, avoiding ambiguity | VA/Panel: the term “relevant” is ambiguous; Auer permits deference to VA interpretation | Panel: held ambiguous and deferred to VA (applying Auer); dissent: argues pro‑veteran canon should prevent Auer in this context |
| Whether the pro‑veteran canon overrides Auer deference when they conflict | Petitioner: pro‑veteran canon is a rule of construction and should be applied before deferring to agency | Respondent: argued issue not raised on appeal and precedent supports deference to VA interpretations | Court (denial of rehearing en banc): refused to resolve the conflict; dissent: urges en banc review and holds that pro‑veteran canon should prevail over Auer |
| Whether waiver bars raising the standard‑of‑review question on rehearing | Petitioner: standard‑of‑review is essential and cannot be waived; parties litigated interpretation so standard is germane | Respondent: contends petitioner failed to raise the argument below | Dissent: rejects waiver argument as dispositive and urges addressing the conflict en banc |
Key Cases Cited
- Kisor v. Shulkin, 869 F.3d 1360 (Fed. Cir. 2017) (panel decision applying Auer to VA regulation at issue)
- Bowles v. Seminole Rock & Sand Co., 325 U.S. 410 (1945) (original doctrine deferring to agency interpretations of their own regulations)
- Auer v. Robbins, 519 U.S. 452 (1997) (reaffirmed Seminole Rock deference)
- Henderson v. Shinseki, 562 U.S. 428 (2011) (articulates pro‑veteran canon of liberal construction in veterans’ cases)
- Brown v. Gardner, 513 U.S. 115 (1994) (rule that interpretive doubt is resolved for the veteran)
- Christopher v. SmithKline Beecham Corp., 567 U.S. 142 (2012) (recognizes limits on Auer where deference would be inappropriate)
- Decker v. Nw. Envtl. Def. Ctr., 568 U.S. 597 (2013) (discusses questions about Seminole Rock/Auer)
- Cobell v. Norton, 240 F.3d 1081 (D.C. Cir. 2001) (declined Chevron deference where a special‑solicitude canon controlled in Indian law)
- Cobell v. Kempthorne, 455 F.3d 301 (D.C. Cir. 2006) (applied careful consideration but withheld ordinary Chevron deference in Indian‑law context)
- Sears v. Principi, 349 F.3d 1326 (Fed. Cir. 2003) (discusses VA rulemaking and agency gap‑filling authority)
- Guerra v. Shinseki, 642 F.3d 1046 (Fed. Cir. 2011) (court previously rejected argument that pro‑veteran canon overrides deference to VA interpretations)