United States Court of Appeals 

for the Federal Circuit ______________________ 

JAMES L. KISOR,

Claimant-Appellant

v.

DAVID J. SHULKIN, SECRETARY OF VETERANS 

AFFAIRS,

Respondent-Appellee

______________________ 

2016-1929

______________________ 

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 claimantappellant.

 IGOR HELMAN, Commercial Litigation Branch, Civil 

Division, United States Department of Justice, Washington, DC, filed a response to the petition for respondentappellee. Also represented by CHAD A. READLER, ROBERT 

E. KIRSCHMAN, JR., MARTIN F. HOCKEY, JR.; Y. KEN LEE,

SAMANTHA ANN SYVERSON, Office of General Counsel, 
 2 KISOR v. SHULKIN

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. 

O’MALLEY, Circuit Judge, with whom NEWMAN and

MOORE, Circuit Judges, join, dissent from the denial of 

the petition for rehearing en banc. 

PER CURIAM. 

O R D E R

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. 
KISOR v. SHULKIN 3

 FOR THE COURT

 January 31, 2018 /s/ Peter R. Marksteiner 

 Date Peter R. Marksteiner

 Clerk of Court

 

 

∗ Circuit Judge Schall participated only in the decision on the petition for panel rehearing.
United States Court of Appeals 

for the Federal Circuit ______________________ 

JAMES L. KISOR,

Claimant-Appellant

v.

DAVID J. SHULKIN, SECRETARY OF VETERANS 

AFFAIRS,

Respondent-Appellee

______________________ 

2016-1929

______________________ 

Appeal from the United States Court of Appeals for 

Veterans Claims in No. 14-2811, Judge Alan G. Lance, Sr.

______________________ 

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. 
2 KISOR v. SHULKIN

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 doctrines pull in different directions, it is Auer deference that must give way. I 

dissent from the court’s refusal to take the opportunity to 

finally so hold.

Several justices of the Supreme Court recently have

urged their colleagues to “abandon[] Auer and apply[] the 

[Administrative Procedure] Act as written.” Perez v. 

Mortg. Bankers Ass’n, 135 S. Ct. 1199, 1212–13 (2015); 

see, e.g., id. at 1213–25 (Thomas, J., dissenting) (identifying several “serious constitutional questions lurking 

beneath” the doctrine of Auer deference); id. at 1210–11 

(Alito, J., concurring in part and concurring in the judgment) (noting that Justices Scalia and Thomas have 

offered “substantial reasons why the Seminole Rock

doctrine may be incorrect”); see also Decker v. Nw. Envtl. 

Def. Ctr., 568 U.S. 597, 616 (2013) (Roberts, C.J., concurring) (recognizing that “[q]uestions of Seminole Rock and 

Auer deference arise as a matter of course on a regular 

basis” and noting “some interest in reconsidering those 

cases”). Auer “encourag[es] agencies to write ambiguous 

regulations and interpret them later,” which “defeats the 

purpose of delegation,” “undermines the rule of law,” and 
KISOR v. SHULKIN 3

ultimately allows agencies to circumvent the notice-andcomment rulemaking process. Lisa Schultz Bressman, 

Beyond Accountability: Arbitrariness and Legitimacy in 

the Administrative State, 78 N.Y.U. L. REV. 461, 551–52 

(2003); see also Christopher v. SmithKline Beecham Corp., 

567 U.S. 142, 158 (2012) (acknowledging the “risk that 

agencies will promulgate vague and open-ended regulations that they can later interpret as they see fit, thereby 

frustrating the notice and predictability purposes of 

rulemaking” (internal quotation marks omitted)). And, on 

a structural level, by eliminating the separation between 

the entity that creates the law and the one that interprets 

it, Auer deference “leaves in place no independent interpretive check on lawmaking by an administrative agency.” John F. Manning, Constitutional Structure and 

Judicial Deference to Agency Interpretations of Agency 

Rules, 96 COLUM. L. REV. 612, 639 (1996); see also Decker, 

568 U.S. at 621 (Scalia, J., concurring in part and dissenting in part) (“Auer deference . . . contravenes one of the 

great rules of separation of powers: He who writes a law 

must not adjudge its violation.”); Egan v. Del. River Port 

Auth., 851 F.3d 263, 280 (3d Cir. 2017) (Jordan, J., concurring in the judgment) (critiquing the doctrine of Auer

deference for its effect on the separation of powers). 

This court has no authority to reconsider Auer, of 

course. But, leaving aside the continued vitality of Auer

as a general proposition, granting Auer deference to the 

VA’s interpretation of its own ambiguous regulations flies 

in the face of another line of Supreme Court precedent—

the longstanding “canon that provisions for benefits to 

members of the Armed Services are to be construed in the 

beneficiaries’ favor.” Henderson, 562 U.S. at 441 (internal 

quotation marks omitted); see Gardner, 513 U.S. at 117–

18 (citation omitted) (acknowledging the “rule that interpretive doubt is to be resolved in the veteran’s favor”); see 

also Linda D. Jellum, Heads I Win, Tails You Lose: Reconciling Brown v. Gardner’s Presumption that Interpretive 
4 KISOR v. SHULKIN

Doubt Be Resolved in Veterans’ Favor with Chevron, 61 

AM. U. L. REV. 59, 77 n.141 (2011) (noting that “Gardner’s 

Presumption . . . conflicts with Auer deference”). In a case 

like this one, where the agency’s interpretation of an 

ambiguous regulation and a more veteran-friendly interpretation are in conflict, it is unclear from our precedent 

which interpretation should control. See James D. Ridgway, Toward a Less Adversarial Relationship Between 

Chevron and Gardner, 9 U. MASS. L. REV. 388, 398–401 

(2014) (discussing this court’s avoidance of “the tension 

between the canons of veteran friendliness and agency 

deference”).1 I have long expressed skepticism about the 

applicability of Auer in this context. See, e.g., Johnson v. 

McDonald, 762 F.3d 1362, 1366–68 (Fed. Cir. 2014) 

(O’Malley, J., concurring) (noting “that the validity of 

Auer deference is questionable, both generally and specifically as it relates to veterans’ benefit cases”); Hudgens v. 

McDonald, 823 F.3d 630, 639 n.5 (Fed. Cir. 2016) 

(O’Malley, J.) (“In many cases, the tension between Auer

and Gardner is difficult to resolve, since both seemingly 

direct courts to resolve ambiguities in a VA regulation but 

would, in many cases, counsel contrary outcomes.”). But, 

we keep finding reasons not to address the tension between these doctrines.

 

1 As the response to the petition for rehearing 

notes, we have “rejected the argument that the proveteran canon of construction overrides the deference due 

to the [VA’s] reasonable interpretation of an ambiguous 

statute.” Guerra v. Shinseki, 642 F.3d 1046, 1051 (Fed. 

Cir. 2011) (emphasis added) (citing Sears v. Principi, 349 

F.3d 1326, 1331–32 (Fed. Cir. 2003)). Whatever the 

merits of that conclusion, we have yet to decide how to 

resolve a conflict between the pro-veteran canon and the 

VA’s interpretation of its own ambiguous regulations. 
KISOR v. SHULKIN 5

If only one of these doctrines can prevail in a given 

case, the pro-veteran canon must overcome Auer. “Auer

deference is warranted only when the language of the 

regulation is ambiguous.” Christensen v. Harris County, 

529 U.S. 576, 588 (2000). In interpreting a regulation—

including when deciding whether the regulation is ambiguous—we apply the ordinary “rules of statutory construction.” Roberto v. Dep’t of Navy, 440 F.3d 1341, 1350 (Fed. 

Cir. 2006) (citation omitted); see also United States v. 

Lachman, 387 F.3d 42, 54 (1st Cir. 2004) (“[W]e look to 

agency interpretations only when the statute or regulation remains ambiguous after we have employed the 

traditional tools of construction.”). The “rule that interpretive doubt is to be resolved in the veteran’s favor,” 

Gardner, 513 U.S. at 117–18, is one of those rules of 

statutory construction. A regulation cannot be so ambiguous as to require Auer deference if a pro-veteran interpretation of the regulation is possible.

As the Supreme Court has acknowledged, moreover, 

the “general rule” of Auer deference “does not apply in all 

cases,” such as those where there are “strong reasons for 

withholding the deference that Auer generally requires.” 

Christopher, 567 U.S. at 155. The “rule that interpretive 

doubt is to be resolved in the veteran’s favor,” Gardner, 

513 U.S. at 117–18, provides just such a reason. Deferring to the VA’s interpretation of a statute makes some 

sense because Congress has delegated to the VA the 

authority to “issue[] a reasonable gap-filling or ambiguityresolving regulation.” Sears, 349 F.3d at 1332. But, 

where the VA itself has “promulgate[d] [a] vague and 

open-ended regulation[] that [it] can later interpret as [it] 

see[s] fit”—to the detriment of veterans—no such deference can be warranted. Christopher, 567 U.S. at 158–59. 

The D.C. Circuit has reached an analogous conclusion 

in the context of Indian law, where “[t]he governing canon 

of construction requires that ‘statutes are to be construed 

liberally in favor of the Indians, with ambiguous provi-
6 KISOR v. SHULKIN

sions interpreted to their benefit.’” Cobell v. Norton, 240 

F.3d 1081, 1101 (D.C. Cir. 2001) (quoting Montana v. 

Blackfeet Tribe of Indians, 471 U.S. 759, 766 (1985)). The 

Cobell court acknowledged that, under Chevron, U.S.A. 

Inc. v. Nat. Res. Def. Council, 467 U.S. 837 (1984), “ordinarily we defer to an agency’s interpretations of ambiguous statutes entrusted to it for administration.” Cobell, 

240 F.3d at 1101. The court nevertheless found that 

“Chevron deference is not applicable” in the Indian law 

context. Id. It gave the agency’s interpretation “‘careful 

consideration,’ but the normally-applicable deference was 

trumped by the requirement” to construe statutes liberally in favor of Indians. Cobell v. Kempthorne (Cobell II), 

455 F.3d 301, 304 (D.C. Cir. 2006) (quoting Cobell, 240 

F.3d at 1101). The D.C. Circuit has attributed its departure from the norm of Chevron deference to “the special 

strength of this canon.” Albuquerque Indian Rights v. 

Lujan, 930 F.2d 49, 59 (D.C. Cir. 1991) (citing Muscogee 

(Creek) Nation v. Hodel, 851 F.2d 1439, 1445 n.8 (D.C. 

Cir. 1988)).

The veteran-friendly canon of construction, which

originates in the Supreme Court’s World War II–era 

expression of solicitude towards those who “drop their 

own affairs to take up the burdens of the nation,” Boone v. 

Lightner, 319 U.S. 561, 575 (1943), carries comparable 

weight. Indeed, it is difficult to overstate the importance 

of the veteran-friendly approach to veterans’ benefits 

statutes and their accompanying regulations. As we have 

recognized, “the veterans benefit system is designed to 

award ‘entitlements to a special class of citizens, those 

who risked harm to serve and defend their country. This 

entire scheme is imbued with special beneficence from a 

grateful sovereign.’” Barrett v. Principi, 363 F.3d 1316, 

1320 (Fed. Cir. 2014) (quoting Bailey v. West, 160 F.3d 

1360, 1370 (Fed. Cir. 1998) (en banc) (Michel, J., concurring in the result)). That overarching motivation explains 

“the uniquely pro-claimant nature of the veterans com-
KISOR v. SHULKIN 7

pensation system,” Hensley v. West, 212 F.3d 1255, 1262 

(Fed. Cir. 2000), as well as why the Supreme Court has 

“long applied” the pro-veteran canon of interpretation to 

the statutory scheme. Henderson, 562 U.S. at 441. 

Granting Auer deference to VA regulations conflicts 

directly with the moral principles underlying the veterans 

benefit system. 

The VA nevertheless urges us to deny en banc review 

because the petitioner did not raise this argument in his 

appeal. Resp. to Pet. for Rehearing at 11 (citing Pentax 

Corp. v. Robison, 135 F.3d 760, 762 (Fed. Cir. 1998)). The 

central focus of the parties’ arguments was the interpretation of § 3.156(c)(1). It is hard to imagine how a party 

can waive the question of the correct legal standard to 

apply in deciding that question. Cf. Winfield v. Dorethy, 

871 F.3d 555, 560 (7th Cir. 2017) (“[W]aiver does not 

apply to arguments regarding the applicable standard of 

review.”). I also note that, in determining whether the 

regulation is ambiguous, the panel expressly held that 

“canons of construction do not reveal its meaning.” Kisor, 

869 F.3d at 1367. The veteran-friendly canon should have 

fallen within that category.

Because the petition raises a significant question 

about our standard of review, waiver does not preclude us 

from addressing the question en banc. I note, moreover, 

that the absence of counsel at the early stages of veterans’ 

appeals and the fact that, even where counsel appear, 

they often do so pro bono, will help assure that we will 

continue to find process-related excuses to avoid resolving 

this important question. And, as a result, veterans will 

continue to be prejudiced by resort to Auer. This case 

presents an ideal vehicle for us to consider the reach of 

Auer deference when it comes into conflict with the proveteran canon of construction. I respectfully dissent from 

the court’s decision not to take this issue up now.