Case: 16-1929 Document: 94 Page: 1 Filed: 04/30/2021
United States Court of Appeals
for the Federal Circuit
______________________
JAMES L. KISOR,
Claimant-Appellant
v.
DENIS MCDONOUGH, SECRETARY OF
VETERANS AFFAIRS,
Respondent-Appellee
______________________
2016-1929
______________________
Appeal from the United States Court of Appeals for
Veterans Claims in No. 14-2811, Senior Judge Alan G.
Lance, Sr.
______________________
ON PETITION FOR REHEARING EN BANC
______________________
PAUL WHITFIELD HUGHES, McDermott, Will & Emery
LLP, Washington, DC, filed a petition for rehearing en
banc for claimant-appellant. Also represented by KENNETH
M. CARPENTER, Law Offices of Carpenter Chartered, To-
peka, KS.
IGOR HELMAN, Commercial Litigation Branch, Civil Di-
vision, United States Department of Justice, Washington,
DC, filed a response to the petition for respondent-appellee.
Also represented by JEFFREY B. CLARK, MARTIN F. HOCKEY,
JR., ROBERT EDWARD KIRSCHMAN, JR.; Y. KEN LEE,
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2 KISOR v. MCDONOUGH
SAMANTHA ANN SYVERSON, Office of General Counsel,
United States Department of Veterans Affairs, Washing-
ton, DC.
ROMAN MARTINEZ, Latham & Watkins LLP, for amici
curiae American Veterans, National Organization of Vet-
erans’ Advocates, Inc., Paralyzed Veterans of America, Vet-
erans of Foreign Wars of the United States, Vietnam
Veterans of America. Also represented by GREGORY B. IN
DEN BERKEN.
______________________
Before PROST, Chief Judge, NEWMAN, LOURIE, DYK,
MOORE, O’MALLEY, REYNA, WALLACH, TARANTO, CHEN,
HUGHES, and STOLL, Circuit Judges.
PROST, Chief Judge, with whom LOURIE, WALLACH,
TARANTO, and CHEN, Circuit Judges, join, and with whom
HUGHES, Circuit Judge, joins as to Parts I.B–C and II,
concurs in the denial of the petition for rehearing en banc.
HUGHES, Circuit Judge, with whom WALLACH, Circuit
Judge, joins, concurs in the denial of the petition for
rehearing en banc.
DYK, Circuit Judge, concurs in the denial of the petition
for rehearing en banc.
O’MALLEY, Circuit Judge, with whom NEWMAN, MOORE,
and REYNA, Circuit Judges, join, dissents from the denial
of the petition for rehearing en banc.
REYNA, Circuit Judge, with whom NEWMAN, MOORE, and
O’MALLEY, Circuit Judges, join, dissents from the denial
of the petition for rehearing en banc.
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KISOR v. MCDONOUGH 3
PER CURIAM.
ORDER
James L. Kisor filed a petition for rehearing en banc.
A response to the petition was invited by the court and filed
by the Secretary of Veterans Affairs. American Veterans,
National Organization of Veterans’ Advocates, Inc., Para-
lyzed Veterans of America, Veterans of Foreign Wars of the
United States, and Vietnam Veterans of America re-
quested leave to file a brief as amici curiae, which the court
granted. The petition for rehearing, response, and amicus
brief were first referred to the panel that heard the appeal,
which granted the petition in part as indicated in the ac-
companying order. Thereafter, the petition was referred to
the circuit judges who are in regular active service. The
court conducted a poll on request, and the poll failed.
Upon consideration thereof,
IT IS ORDERED THAT:
The petition for rehearing en banc is denied.
FOR THE COURT
April 30, 2021 /s/ Peter R. Marksteiner
Date Peter R. Marksteiner
Clerk of Court
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United States Court of Appeals
for the Federal Circuit
______________________
JAMES L. KISOR,
Claimant-Appellant
v.
DENIS MCDONOUGH, SECRETARY OF
VETERANS AFFAIRS,
Respondent-Appellee
______________________
2016-1929
______________________
Appeal from the United States Court of Appeals for
Veterans Claims in No. 14-2811, Senior Judge Alan G.
Lance, Sr.
______________________
PROST, Chief Judge, with whom LOURIE, WALLACH,
TARANTO, and CHEN, Circuit Judges, join, and with whom
HUGHES, Circuit Judge, joins as to Parts I.B–C and II,
concurring in the denial of the petition for rehearing en
banc.
I concur with the court’s decision to deny rehearing en
banc. I write separately in response to my dissenting col-
leagues regarding the proper role of the pro-veteran canon,
which instructs that “interpretive doubt” is to be resolved
in the veteran’s favor. Brown v. Gardner, 513 U.S. 115, 118
(1994). In what follows, I (I) delineate my view of the
proper place for this canon in the order-of-operations of tex-
tual interpretation, (II) respond to my dissenting
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2 KISOR v. MCDONOUGH
colleagues’ treatment of this canon, and (III) discuss the
unresolved tension between this canon and the Supreme
Court’s Chevron and Auer doctrines.
DISCUSSION
I. THE PROPER ROLE OF THE PRO-VETERAN CANON
In my view, the Majority is right: “Interpretive doubt”
is a precondition for applying the pro-veteran canon, and
that precondition “is not satisfied where a sole reasonable
meaning is identified through the use of ordinary textual
analysis tools.” Maj. at 16. 1 Put another way, courts must
first seek the “best reading” of the statute based on “the
words themselves,” “the context of the whole statute,” and
“any other applicable semantic canons, which at the end of
the day are simply a fancy way of referring to the general
rules by which we understand the English language.”
Brett M. Kavanaugh, Fixing Statutory Interpretation,
129 Harv. L. Rev. 2118, 2144–45 (2016) (reviewing Robert
A. Katzmann, Judging Statutes (2014)). As explained in
detail below, in view of (A) the Supreme Court’s insistence
on the primacy of text, (B) the pro-veteran canon’s histori-
cal usage and the other canons most like it, and (C) Con-
gress’s consistently active role in veterans law, I am
persuaded that the pro-veteran canon should play a role
only when a sustained textual analysis—including any ap-
plicable descriptive canons—yields competing plausible in-
terpretations, none of which is fairly described as the best.
A. THE PRIMACY OF TEXT
In order to place the pro-veteran canon in the Supreme
Court’s interpretive methodology, it is necessary to first set
1 I refer to the Majority’s panel opinion as “Maj.” I
refer to Judge Reyna’s dissent from the panel’s opinion as
“Panel Dissent.” I refer to Judge O’Malley’s dissent from
the denial of rehearing en banc as “O’Malley Dissent.”
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KISOR v. MCDONOUGH 3
the stage by outlining the hierarchy of interpretive tools
the Court applies. 2 At the top of this hierarchy is the text.
In the Court’s words, “canons of construction are no more
than rules of thumb,” and the text is the “one, cardinal
canon” a court must turn to “before all others.” Conn. Nat’l
Bank v. Germain, 503 U.S. 249, 253 (1992). And “[w]hen
the words of a statute are unambiguous, . . . this first canon
is also the last: ‘judicial inquiry is complete.’” Id. at 254
(quoting Rubin v. United States, 449 U.S. 424, 430 (1981));
accord Katzmann, supra, at 29 (“When statutes are unam-
biguous, . . . the inquiry for a court generally ends with an
examination of the words of the statute.”). Of course, this
2 Although the interpretive method described in this
opinion is often set forth with reference to statutes, the
same general methodology applies to regulations, as in this
case. See Kisor v. Wilkie, 139 S. Ct. 2400, 2415 (2019) (ex-
plaining that “a court must exhaust all the ‘traditional
tools’ of construction” and observing that Chevron U.S.A.
Inc. v. Natural Resources Defense Council, Inc., 467 U.S.
837, 843 n.9 (1984), adopted the “same approach for ambig-
uous statutes”). That said, if the pro-veteran canon is
based on the theory that it is a proxy for congressional in-
tent, one wonders why it should apply to regulations as
well as statutes, or at least whether it would apply with
equal force. The Supreme Court has not addressed that
question. Regardless, because our court did apply the
canon to a regulation in Hudgens v. McDonald, 823 F.3d
630 (Fed. Cir. 2016), I will assume for purposes of this opin-
ion that it applies to both statutes and regulations. Even
on this assumption, it is important when interpreting a
regulation to consider the specific statutory provisions re-
flecting the pertinent congressional policies, which may in-
clude important limits on benefits. For example, as
relevant here, the statute’s finality policies tightly limit
retroactive alteration of final agency determinations while
making prospective redetermination broadly available.
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4 KISOR v. MCDONOUGH
text-first rule is not an instruction to “construe the mean-
ing of statutory terms in a vacuum.” Tyler v. Cain,
533 U.S. 656, 662 (2001). Rather, our focus on the text re-
quires us to “interpret the words in their context and with
a view to their place in the overall statutory scheme.” Id.
(internal quotation marks omitted).
As we analyze text and context, some canons of inter-
pretation enter the analysis. “Canons are general back-
ground principles that courts have developed over time to
guide statutory interpretation.” Arangure v. Whitaker,
911 F.3d 333, 339 (6th Cir. 2018). They come in several
flavors. Many canons are no more than aids for analyzing
the text and context, “guides to solving the puzzle of textual
meaning.” Antonin Scalia & Bryan A. Garner, Reading
Law 59 (2012). These “descriptive” canons “simply reflect
broader conventions of language use, common in society at
large at the time the statute was enacted.” Caleb Nelson,
What Is Textualism?, 91 Va. L. Rev. 347, 383 (2005). 3 The
series-qualifier canon, for example, “generally reflects the
most natural reading of a sentence.” Facebook, Inc. v.
Duguid, 141 S. Ct. 1163, 1169 (2021); id. at 1169–73 (iden-
tifying best meaning by analyzing text, context, and de-
scriptive canons). Other familiar examples include
expressio unius est exclusio alterius (the expression of one
thing implies the exclusion of others) and noscitur a sociis
(associated words bear on one another’s meaning). See gen-
erally Scalia & Garner, supra, at 107–11, 195–98. Canons
3 My focus when discussing descriptive canons is on
the “strongest species”—i.e., those that “clearly and exclu-
sively serve descriptive, rather than normative, purposes.”
See Arangure, 911 F.3d at 340. These canons, which may
also be termed “linguistic” canons, may be further catego-
rized under other labels, such as “semantic,” “syntactic,” or
“contextual.” See generally Scalia & Garner, supra,
at 69–234.
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KISOR v. MCDONOUGH 5
of this sort “are not ‘rules’ of interpretation in any strict
sense but presumptions about what an intelligently pro-
duced text conveys.” Facebook, 141 S. Ct. at 1174 (Alito, J.,
concurring) (quoting Scalia & Garner, supra, at 51).
Other canons “direct courts to construe any ambiguity
in a particular way in order to further some policy objec-
tive.” Nelson, supra, at 418 n.140 (quoting Stephen F.
Ross, Where Have You Gone, Karl Llewellyn? Should Con-
gress Turn Its Lonely Eyes to You?, 45 Vand. L. Rev. 561,
563 (1992)). Canons of this sort are a type of “normative”
canon. Id. They enter the calculus when judges “need
some way to finish the job and to pick from among the pos-
sible meanings that their primary interpretive tools have
identified.” Id. at 394. Accordingly, many normative can-
ons “express a rule of thumb for choosing between equally
plausible interpretations of ambiguous text”—i.e., when
descriptive tools do not illuminate a best meaning. Amy
Coney Barrett, Substantive Canons and Faithful Agency,
90 B.U. L. Rev. 109, 109 (2010). As explained below, the
pro-veteran canon is of this variety—and therefore should
be considered only if descriptive tools do not yield a best
meaning.
B. THE HISTORY OF THE PRO-VETERAN CANON
With that backdrop in place, I turn to the pro-veteran
canon. The canon’s history is relatively short. It appears
to have originated with a closing remark in the Supreme
Court’s World War II–era Boone v. Lightner opinion.
319 U.S. 561 (1943). 4 Not citing any authority, the Court
concluded by stating that “[t]he Soldiers’ and Sailors’ Civil
Relief Act is always to be liberally construed to protect
4 The rule of lenity, by comparison, “antedates both
state and federal constitutions.” Scalia & Garner, supra,
at 297.
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6 KISOR v. MCDONOUGH
those who have been obliged to drop their own affairs to
take up the burdens of the nation.” Id. at 575.
Since Boone, the Court has applied the canon rarely.
In some cases, the Court has referenced the canon without
expressly applying it in statutory analysis. Ala. Power Co.
v. Davis, 431 U.S. 581, 584 (1977) (analyzing Military Se-
lective Service Act of 1967); Coffy v. Republic Steel Corp.,
447 U.S. 191, 196 (1980) (analyzing Vietnam Era Veterans’
Readjustment Assistance Act of 1974); Shinseki v. Sanders,
556 U.S. 396, 412 (2009) (recognizing Congress’s “solicitude
for the veterans’ cause” but not applying the canon). In
others, the Court has not mentioned the canon at all. See
McKinney v. Missouri-Kansas-Texas R.R. Co., 357 U.S. 265
(1958) (analyzing Universal Military Training and Service
Act); Accardi v. Penn. R.R. Co., 383 U.S. 225 (1966) (ana-
lyzing Selective Training and Service Act of 1940); Foster
v. Dravo Corp., 420 U.S. 92 (1975) (analyzing Military Se-
lective Service Act); Monroe v. Standard Oil Co., 452 U.S.
549 (1981) (ignoring the dissent’s mention of the canon);
Conroy v. Aniskoff, 507 U.S. 511 (1993) (ignoring the con-
currence’s mention of the canon). In still others, the Court
has invoked the canon only to further confirm an interpre-
tation that it reached by analyzing text and context. E.g.,
King v. St. Vincent’s Hosp., 502 U.S. 215, 221 n.9 (1991);
Brown, 513 U.S. at 118; see also Henderson ex rel. Hender-
son v. Shinseki, 562 U.S. 428 (2011) (also analyzing struc-
ture of the statutory scheme). Importantly, as the Court
explained in Brown, the canon applies only when there is
“interpretive doubt.” 513 U.S. at 118. 5
5 Accordingly, we have repeatedly emphasized this
precondition. See, e.g., McKnight v. Gober, 131 F.3d 1483,
1485 (Fed. Cir. 1997); Jones v. West, 136 F.3d 1296, 1299
n.2 (Fed. Cir. 1998); Boyer v. West, 210 F.3d 1351, 1355
(Fed. Cir. 2000); Paralyzed Veterans of Am. v. Sec’y of
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KISOR v. MCDONOUGH 7
The Supreme Court has therefore used two formula-
tions of the pro-veteran canon. The Court’s initial formu-
lation provides that provisions are “to be liberally
construed” for the benefit of veterans. Boone, 319 U.S.
at 575. This version resembles the broader notion that re-
medial statutes should be liberally construed. See gener-
ally Scalia & Garner, supra, at 364–66. The more recent
formulation, on the other hand, provides that “interpretive
doubt” is to be resolved in the veteran’s favor. Brown,
513 U.S. at 118. This version closely resembles the rule of
lenity, which instructs that ambiguity in a statute defining
a crime or imposing a penalty should be resolved in the de-
fendant’s favor. See, e.g., Moskal v. United States, 498 U.S.
103, 108 (1990) (“[W]e have always reserved lenity for
those situations in which a reasonable doubt per-
sists . . . .”); see generally Scalia & Garner, supra,
at 296–302. As explained below, the result is the same un-
der either formulation: The pro-veteran canon should be
considered only after descriptive tools fail to yield a best
meaning of the provision.
1. THE BOONE FORMULATION
The canon’s origin as a species of the liberal-construc-
tion principle is one reason why the canon should play no
role until after a full textual analysis yields no best mean-
ing. As an initial matter, the liberal-construction principle
has long been understood to yield to the text (as illumi-
nated by the descriptive canons). As Justice Story once ex-
plained, “this liberality of exposition . . . is clearly
Veterans Affairs, 345 F.3d 1334, 1340 (Fed. Cir. 2003);
Thomas v. Nicholson, 423 F.3d 1279, 1284 n.5 (Fed. Cir.
2005); Nielson v. Shinseki, 607 F.3d 802, 808 (Fed. Cir.
2010); Frederick v. Shinseki, 684 F.3d 1263, 1269 (Fed. Cir.
2012); Spicer v. Shinseki, 752 F.3d 1367, 1371 (Fed. Cir.
2014); Parrott v. Shulkin, 851 F.3d 1242, 1251 (Fed. Cir.
2017).
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8 KISOR v. MCDONOUGH
inadmissible, if it extends beyond the just and ordinary
sense of the terms.” Scalia & Garner, supra, at 364 (quot-
ing 1 Joseph Story, Commentaries on the Constitution of
the United States § 429, 304 (2d ed. 1858)). 6
Any broader view of the liberal-construction principle
is now heavily disfavored. The Supreme Court has called
the principle, when broadly understood to override the fair
meaning of the text, the “last redoubt of losing causes.”
Dir., Off. of Workers’ Comp. Programs, Dep’t of Labor v.
Newport News Shipbuilding & Dry Dock Co., 514 U.S. 122,
135 (1995). And for good reason. Such a view “is premised
on two mistaken ideas: (1) that statutes have a singular
purpose and (2) that Congress wants statutes to extend as
far as possible in service of that purpose.” Keen v. Helson,
930 F.3d 799, 805 (6th Cir. 2019). Contrary to those mis-
taken ideas, the Supreme Court has explained that “[l]eg-
islation is, after all, the art of compromise, the limitations
expressed in statutory terms often the price of passage, and
no statute yet known pursues its stated purpose at all
costs.” Henson v. Santander Consumer USA Inc.,
137 S. Ct. 1718, 1725 (2017) (cleaned up). Indeed, “[e]very
statute proposes, not only to achieve certain ends, but also
to achieve them by particular means—and there is often a
considerable legislative battle over what those means
ought to be.” Newport News, 514 U.S. at 136. As Jus-
tice Sotomayor recently remarked for a unanimous Court:
6 The liberal-construction principle may have begun
long ago as an “antidote” to the rule that statutes in dero-
gation of the common law were to be strictly construed—
reducing it to “nothing more than rejection of ‘strict con-
struction’ and insistence on fair meaning.” Scalia & Gar-
ner, supra, at 365–66. Justice Scalia remarked, however,
that courts have at times used the liberal-construction
principle “to devastating effect.” Antonin Scalia, A Matter
of Interpretation 27–28 (1997).
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KISOR v. MCDONOUGH 9
It is not for us to “take a chainsaw to . . . nuanced problems
when Congress meant to use a scalpel.” Facebook, 141 S.
Ct. at 1171; see also id. at 1172–73 (rejecting “mere[] ges-
tures at Congress’ ‘broad privacy-protection goals’” because
the Court “must interpret what Congress wrote”). Ulti-
mately “the effort, with respect to any statute, should be
neither liberally to expand nor strictly to constrict its
meaning, but rather to get the meaning precisely right.”
Antonin Scalia, Assorted Canards of Contemporary Legal
Analysis, 40 Case W. Res. L. Rev. 581, 582 (1990). At best,
to the extent that there are legitimate uses of the liberal-
construction principle, it “may be invoked, in case of ambi-
guity, to find present rather than absent elements that are
essential to operation of a legislative scheme; but it does
not add features that will achieve the statutory ‘purposes’
more effectively.” Newport News, 514 U.S. at 135–36.
Consistent with this critique, the Supreme Court in
some cases has rejected the liberal-construction principle’s
application altogether. In Norfolk Southern Railway Co. v.
Sorrell, for example, the Court rejected a party’s reliance
on the “remedial purpose” and “history of liberal construc-
tion” of the Federal Employers’ Liability Act (“FELA”).
549 U.S. 158, 171 (2007). Although the Court recognized
that “FELA was indeed enacted to benefit railroad employ-
ees,” the Court explained that “[i]t does not follow, how-
ever, that this remedial purpose requires us to interpret
every uncertainty in the Act in favor of employees.” Id.
(citing Rodriguez v. United States, 480 U.S. 522, 526 (1987)
(per curiam) (“[I]t frustrates rather than effectuates legis-
lative intent simplistically to assume that whatever fur-
thers the statute’s primary objective must be the law.”)).
The Court concluded that “the statute’s remedial purpose
cannot compensate for the lack of a statutory basis.” Id.;
see also Cronin v. United States, 765 F.3d 1331, 1337–38
(Fed. Cir. 2014) (declining to rest on “the need to construe
[a statute] liberally for members of the armed services” be-
cause doing so does not “give sufficient weight to the
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10 KISOR v. MCDONOUGH
natural meaning” of the provision “given its language and
setting” and because “no legislation pursues its purposes at
all costs”).
Similarly, the Court in CTS Corp. v. Waldburger disa-
greed with the Fourth Circuit’s analysis, which relied on
“the proposition that remedial statutes should be inter-
preted in a liberal manner.” 573 U.S. 1, 12 (2014). Specif-
ically, the Court explained that the Fourth Circuit “was in
error when it treated this as a substitute for a conclusion
grounded in the statute’s text and structure.” Id.; see also
Rodriguez, 480 U.S. at 525 (“[M]ost impermissibly, the
Court of Appeals relied on its understanding of the broad
purposes of the [statute] . . . .”). After all, the Court em-
phasized, “no legislation pursues its purposes at all costs.”
CTS Corp., 573 U.S. at 12. To the contrary, “[c]ongres-
sional intent is discerned primarily from the statutory
text.” Id. After dismissing the liberal-construction princi-
ple outright, the Court interpreted the statute by under-
taking a sustained textual analysis. Id. at 12–18. Only
after doing so did the Court consult a normative canon—
that “when the text of a pre-emption clause is susceptible
of more than one plausible reading, courts ordinarily accept
the reading that disfavors pre-emption”—and only for “ad-
ditional support.” Id. at 18–19 (internal quotation marks
omitted).
Christopher v. SmithKline Beecham Corp., on which
Judge O’Malley relies, further proves the point. See O’Mal-
ley Dissent at 20–21 (discussing 567 U.S. 142 (2012)). Af-
ter deciding that it would be improper to defer under Auer
v. Robbins, 519 U.S. 452 (1997), the Court in Christopher
proceeded to “employ traditional tools of interpretation.”
567 U.S. at 161. 7 The Court followed the usual hierarchy.
7 Deferring under Auer there would have produced
“unfair surprise” and deprived the employer of “fair warn-
ing” under the Court’s cases. Christopher, 567 U.S. at 156.
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KISOR v. MCDONOUGH 11
It started with the text. Id. Then it analyzed the context.
Id. at 162 (explaining that “any” can mean “different things
depending upon the setting”). Next, it consulted a descrip-
tive canon: “the rule of ejusdem generis should guide our
interpretation of the catchall phrase, since it follows a list
of specific items.” Id. at 163. Only after that descriptive
analysis did the Court turn to a normative canon—men-
tioning in a footnote a statement in an earlier case that ex-
emptions for employers in the FLSA must be “narrowly
construed against the employers.” Id. at 164 n.21 (quoting
Arnold v. Ben Kanowsky, Inc., 361 U.S. 388, 392 (1960)).
But the Court in Christopher did not even apply that
canon, noting instead that it was “inapposite” because the
Court was “interpreting a general definition that applies
throughout the FLSA.” Id. Although Judge O’Malley ar-
gues that Christopher “did not relegate the remedial pur-
pose of the [FLSA] scheme to an afterthought,” O’Malley
Dissent at 21, in fact Christopher declared the canon inap-
plicable to the case before it. And when the Court, near the
end of its opinion, stated that its interpretation “comports
with the apparent purpose” of the particular FLSA provi-
sion at issue, Christopher, 567 U.S. at 166, it was not ap-
plying a liberal-interpretation canon for remedial laws, but
completing its textualist determination of the “fair read-
ing” of the statute—a determination that “requires an abil-
ity to comprehend the purpose of the text, which is a vital
part of its context.” Scalia & Garner, supra, at 33. Chris-
topher decided the case by analyzing the text in context.
And although Judge O’Malley relies on Christopher to as-
sert that “[v]eterans deserve no less protection than low
wage employees,” O’Malley Dissent at 12, Christopher ac-
tually held in favor of the employers.
Importantly, Boone itself, the progenitor of the pro-vet-
eran canon, followed a similar path—relying on the text to
reject the veteran’s interpretation by applying descriptive
“[c]anons of statutory construction.” 319 U.S. at 565 (rea-
soning that “we should not needlessly render as
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12 KISOR v. MCDONOUGH
meaningless the [statutory] language”). Accordingly, the
origin of the pro-veteran canon as a species of the liberal-
construction principle confirms that it belongs at the end
of a descriptive textual analysis when that analysis does
not yield a best meaning.
2. THE BROWN FORMULATION
The more recent “interpretive doubt” formulation of the
pro-veteran canon, which was articulated in Brown, does
nothing to elevate the canon in the interpretive hierarchy.
To the contrary, as a logical matter, if “interpretive doubt”
is a precondition for applying the canon, as Brown declares,
the existence of interpretive doubt must be determined
without employing the canon. Otherwise, circularity re-
sults.
The Brown formulation strongly resembles the rule of
lenity, moreover, and that rule is considered at the end of
the analysis. In the words of Chief Justice Marshall, a
court should not apply the rule unless the statute remains
ambiguous “[a]fter seiz[ing] every thing from which aid can
be derived.” Moskal, 498 U.S. at 108 (quoting United
States v. Fisher, 2 Cranch 358, 386 (1805)) (alterations in
original and internal quotation marks omitted). Last year
in Shular v. United States, for example, the Court con-
cluded that the statute’s text and context left “no ambiguity
for the rule of lenity to resolve” after a textual analysis.
140 S. Ct. 779, 787 (2020). Speaking for the unanimous
Court, Justice Ginsburg explained that the rule “applies
only when, after consulting traditional canons of statutory
construction, we are left with an ambiguous statute.” Id.
Similarly in Yates v. United States, the Court performed a
textual analysis—featuring the canon against surplusage,
noscitur a sociis, and ejusdem generis—and only after doing
so buttressed its interpretation with a remark that “if our
recourse to traditional tools of statutory construction
leaves any doubt[,] . . . we would invoke the rule [of lenity].”
574 U.S. 528, 543–47 (2015). And again, as Boone did with
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KISOR v. MCDONOUGH 13
the older formulation of the pro-veteran canon, Brown sim-
ilarly treated this more recent “interpretive doubt” formu-
lation as subsidiary to the text and relevant context. In
Brown, the Court declined to apply the canon because the
statute was unambiguous. 513 U.S. at 117–18 (“The most,
then, that the Government could claim . . . is the existence
of an ambiguity . . . (assuming that such a resolution would
be possible after applying the rule that interpretive doubt
is to be resolved in the veteran’s favor). But the Govern-
ment cannot plausibly make even this claim here.” (citation
omitted)).
What’s more, contrary to Judge O’Malley’s suggestion
that the pro-veteran canon in Brown did not rank below
descriptive canons, O’Malley Dissent at 14–16, the Court
in Brown concluded that the statute was not ambiguous by
applying a descriptive canon: the “presumption that a given
term is used to mean the same thing throughout a statute,”
which is “at its most vigorous when a term is repeated
within a given sentence.” 513 U.S. at 18. Brown came just
three years after St. Vincent’s Hospital similarly held for
the veteran based on a descriptive analysis of the statute.
502 U.S. at 218–22. There, the Court’s reasoning pro-
ceeded in two steps. First, the Court announced that it
would “start with the text.” Id. at 218. Second, it assessed
the “context.” Id. at 221 (“[W]e do nothing more, of course,
than follow the cardinal rule that a statute is to be read as
a whole, since the meaning of statutory language, plain or
not, depends on context.” (citation omitted)). In a footnote,
the Court in St. Vincent’s Hospital surmised that even if a
neighboring subsection of the statute “unsettled the signif-
icance of [the provision’s] drafting,” the Court “would ulti-
mately read the provision in [the veteran’s] favor.” Id. n.9.
Accordingly, just as the Court has “declined to deem a
statute ‘ambiguous’ for purposes of lenity merely because
it was possible to articulate a construction more narrow
than that urged by the Government,” see Moskal, 498 U.S.
at 108, it stands to reason that we should decline to find
Case: 16-1929 Document: 94 Page: 17 Filed: 04/30/2021
14 KISOR v. MCDONOUGH
ambiguity for purposes of the pro-veteran canon merely be-
cause a veteran-friendly construction is possible. The pro-
veteran canon—like the rule of lenity—“comes into opera-
tion at the end of the process of construing what Congress
has expressed, not at the beginning as an overriding con-
sideration.” See Callanan v. United States, 364 U.S. 587,
596 (1961). 8
C. CONGRESS’S ACTIVE ROLE
Congress’s active engagement in this area of law is a
further reason we should constrain ourselves to apply the
pro-veteran canon only after descriptive tools do not yield
8 Judge O’Malley attempts to distinguish the pro-
veteran canon from the rule of lenity by arguing that, while
the rule of lenity is a “judge-made tie breaker[] implement-
ing judicial policy choices,” the pro-veteran canon is a
“rule[] implementing congressional intent.” O’Malley Dis-
sent at 18. First, both canons are judge-made. Second,
conceptualizing and applying a broad notion of “congres-
sional intent” at the “liberal construction” level of general-
ity is also a judicial policy choice. See 3 Sutherland
Statutory Construction § 58:1 (8th ed.) (“In cases of unre-
solvable ambiguity, [courts] additionally may rely on the
presumptions embodied by strict and liberal construction
as tie-breakers of last resort, a ‘thumb on the scale’ that
allows them to fulfill their adjudicatory mandate.” (foot-
note omitted)); id. (“[S]trict and liberal approaches to stat-
utory language are normative, explicitly preferring certain
interpretive results over others.”). Indeed, resolving ambi-
guity with the pro-veteran canon instead of Auer in this
case would have implemented one judicial policy choice
over another. See Kisor v. Shulkin, 880 F.3d 1378, 1379
(Fed. Cir. 2018) (O’Malley, J., dissenting from denial of re-
hearing en banc) (“When these two doctrines pull in differ-
ent directions, it is Auer deference that must give way.”).
Case: 16-1929 Document: 94 Page: 18 Filed: 04/30/2021
KISOR v. MCDONOUGH 15
a best meaning. 9 Even if we accept the theory that the pro-
veteran canon is justified as a proxy for congressional in-
tent, Congress’s undeniably active role in veterans’ bene-
fits law mitigates the concern that we will frustrate
Congress’s efforts by declining to apply at the outset a
highly generalized veteran-friendly policy that is above
and beyond the specific policies expressed in the text.
If the canon’s predicate is Congress’s intent, one thing
that is clear about Congress’s intent in this area is that it
means to make very specific prescriptions, taking account
of competing policies, and to monitor their implementation
and actively adjust its laws as it deems necessary. Con-
gress did not write a highly general law and leave the rest
to the judiciary (or the Secretary). Far from it. There are
few areas in which Congress has been so consistently pro-
active as it is here, in pursuit of its mission to ensure that
our veterans are cared for. Indeed, both the House and the
Senate have committees created exclusively for, and dedi-
cated exclusively to, overseeing veterans’ affairs. Senator
Tester (MT), chairman of the Senate committee, has ex-
pressed that “Congress must hold the Department of Vet-
erans Affairs (VA) accountable in delivering timely,
quality, and robust care and benefits to all veterans.” 10
Similarly, Senator Moran (KS), ranking member of that
committee, has explained that the committee’s “top priority
is to make sure we take care of our veterans who have ded-
icated their lives to serving our country” and has stated his
intention to “work to make certain the U.S. Department of
9 This part of my opinion is directed to underscoring
the proper order of analysis. Contrary to Judge O’Malley’s
assertion, it is not an argument “not to consider the pro-
veteran canon of construction when considering a less than
clear term.” See O’Malley Dissent at 11 n.3.
10 U.S. Senate Committee on Veterans’ Aff.,
https://www.veterans.senate.gov/about/chairman.
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16 KISOR v. MCDONOUGH
Veterans Affairs (VA) implements the Congressional re-
forms laid out in the VA MISSION Act bringing the VA into
the 21st century and providing veterans with the best pos-
sible care and services.” 11 And they have been busy. In-
deed, a quick search reveals that no fewer than 134 pieces
of legislation originating in these two committees have
been signed into law over the last decade (i.e., during the
six most recent Congresses). 12
Indeed, as we have previously pointed out, “Congress
has repeatedly passed legislation on veterans’ benefits, in-
cluding legislation specifically overruling judicial and
agency interpretations of the veterans’ benefits statutes.”
Sears v. Principi, 349 F.3d 1326, 1330 (Fed. Cir. 2003). For
example, Congress enacted the Veterans Claims Assis-
tance Act of 2000 (“VCAA”) to legislatively overturn a 1999
decision of the Court of Appeals for Veterans Claims,
thereby “eliminat[ing] the ‘well-grounded’ claim require-
ment” applied in that decision. Mayfield v. Nicholson,
499 F.3d 1317, 1319 (Fed. Cir. 2007); see also Webster v.
Shinseki, 428 F. App’x 976, 978 (Fed. Cir. 2011) (recogniz-
ing that the “well-grounded claim” rule “has been legisla-
tively overturned”). 13 In other words, Congress has been
11 U.S. Senate Committee on Veterans’ Aff.,
https://www.veterans.senate.gov/about/ranking.
12 https://www.congress.gov/ (legislation search).
13 In the evidentiary context, Congress has expressly
prescribed a scale-tipping rule in favor of veterans.
38 U.S.C. § 5107(b) (“When there is an approximate bal-
ance of positive and negative evidence regarding any issue
material to the determination of a matter, the Secretary
shall give the benefit of the doubt to the claimant.”). And
in other contexts Congress has set forth a rule of statutory
interpretation. See, e.g., 21 U.S.C. § 853(o) (statute involv-
ing criminal forfeitures instructing that “[t]he provisions of
Case: 16-1929 Document: 94 Page: 20 Filed: 04/30/2021
KISOR v. MCDONOUGH 17
proactively working to get veterans’ issues right—includ-
ing by intervening when it believes courts and agencies get
them wrong. This institutionalized system, therefore, sug-
gests a less imperative need for our thumb on a scale that
Congress continuously monitors and calibrates. 14
II. RESPONSES TO THE DISSENTS
I have several points of disagreement with the concep-
tions of the pro-veteran canon advanced by the dissenting
opinions in this case. First, the dissenting opinions disre-
gard the hierarchy of interpretive tools—in particular, the
distinction between descriptive and normative canons.
See, e.g., Panel Dissent at 3 (asserting that “the pro-vet-
eran canon must be weighed alongside the other tradi-
tional tools” (emphasis added)); O’Malley Dissent at 18
(concluding that “the pro-veteran canon should be used
alongside traditional tools” (emphasis added)). For exam-
ple, Judge O’Malley faults the Majority for using “some,
but not all, canons of construction” and asserts that the
Majority did “not pretend to end its analysis with the lan-
guage.” Id. at 19. But both of these concerns are addressed
merely by recognizing that the interpretive tools the Ma-
jority applied were descriptive, rather than normative—
and therefore were just a part of the Majority’s analysis of
the language. When these tools yielded a best meaning,
this section shall be liberally construed to effectuate its re-
medial purposes”). But even in the latter situation, the
Court has explained that such an instruction “only serves
as an aid for resolving an ambiguity; it is not to be used to
beget one.” Reves v. Ernst & Young, 507 U.S. 170, 184
(1993) (cleaned up). Notably, Congress has issued no such
instruction here.
14 For further evidence on this point, see Judge
O’Malley’s detailed history of Congress’s activity in veter-
ans law, O’Malley Dissent at 8–10.
Case: 16-1929 Document: 94 Page: 21 Filed: 04/30/2021
18 KISOR v. MCDONOUGH
there was no need to reach the normative pro-veteran
canon.
Second, placing the pro-veteran canon on par with de-
scriptive canons departs from the Supreme Court’s text-
first rule, which is the basis for applying descriptive canons
before normative canons like the pro-veteran canon. In-
deed, although Judge Reyna acknowledges that the canon
“cannot override plain text” and that “plain text defeats all
other tools of construction,” Panel Dissent at 21 & 22 n.13
(collecting cases), he appears to accept only one textual con-
straint: that the text not “preclude[]” or “expressly exclude”
the veteran’s interpretation. Id. at 22; see also O’Malley
Dissent at 17 (“Where differing plausible, reasonable inter-
pretations of the terms of a regulation are possible, Con-
gress has spoken: it wants veterans’ benefits to be
administered in a ‘pro-claimant’ manner.” (emphasis
added)). So far as I can tell, this approach would permit a
court to adopt a veteran-friendly interpretation so long as
it is not expressly ruled out by the text—and even if it is
less plausible than the textually derived best meaning of a
provision. Because “most statutes are ambiguous to some
degree” (at least, if the analysis stops short of a full evalu-
ation of the context and focuses only on particular words in
isolation), see Muscarello v. United States, 524 U.S. 125,
138 (1998), the approach advocated by my dissenting col-
leagues would displace the more balanced determinations
reflected in the statute as Congress chose to write it.
Third, and for similar reasons, I disagree that we
should consider the pro-veteran canon when determining
“whether interpretative doubt exists.” Panel Dissent at 3.
Presumably, that would mean that even if the text, context,
and descriptive canons yield a best meaning, the pro-vet-
eran canon could inject doubt as to whether that meaning
is best—at which point the doubt would be resolved in the
veteran’s favor. In short, the pro-veteran canon could
trump the best meaning derived from the text. Again, this
Case: 16-1929 Document: 94 Page: 22 Filed: 04/30/2021
KISOR v. MCDONOUGH 19
departs from the Supreme Court’s insistence that the text
comes first.
Fourth, the dissenting opinions would apply the canon
as a liberal-construction principle (resembling the Boone
formulation). E.g., Panel Dissent at 24 (arguing that the
“governing statutes and regulations should always be con-
strued liberally within the bounds of their text”); O’Malley
Dissent at 10 (arguing that Congress “wanted all aspects
of the [Veterans’ Judicial Review Act] to be liberally con-
strued in favor of the veterans”). And if the pro-veteran
canon is simply a liberal-construction principle as my dis-
senting colleagues argue, this is further confirmation
that—for reasons already stated—it is best considered only
after a descriptive textual analysis does not yield a best
meaning. See supra Part I.B.1.
III. TENSION WITH CHEVRON AND AUER
Last, I recognize that the Supreme Court’s Chevron
and Auer frameworks present a difficult and unresolved
challenge—as they in many cases will create tension with
the pro-veteran canon. This tension arises because both
the pro-veteran canon and these deference doctrines are
triggered by ambiguity. For example, if the pro-veteran
canon is used at step one of Chevron to resolve ambiguity
in a veteran’s favor, then step two of Chevron will never be
reached. 15 This raises the question of how to decide what
gets triggered first. Although the Supreme Court has ap-
plied various canons at step one of Chevron—indicating
that some canons are “traditional tools” of interpretation
15 I note, however, that this tension arises only where
the ambiguity at issue is in the textual meaning of a stat-
ute or regulation—not where a regulation simply fills a gap
left by Congress for agency discretion. See Terry v. Prin-
cipi, 340 F.3d 1378, 1383 (Fed. Cir. 2003) (deferring under
Chevron to fill a gap instead of applying the canon).
Case: 16-1929 Document: 94 Page: 23 Filed: 04/30/2021
20 KISOR v. MCDONOUGH
that belong at that step, Arangure, 911 F.3d at 339–40 (col-
lecting cases), the Court did not attempt to address this dif-
ficulty in Brown or any other case involving the pro-
veteran canon (including this one). 16 Consequently, “[i]t is
not clear where the Brown canon fits within the Chevron
framework, or whether it should be part of the Chevron
analysis at all.” Heino v. Shinseki, 683 F.3d 1372, 1379 n.8
(Fed. Cir. 2012).
Whether a canon applies before deferring to an agency
likely depends on the character of the canon, measured
against the rationales underpinning the Chevron and Auer
frameworks. See generally Arangure, 911 F.3d at 339–42.
For example, there is “broad agreement” that canons which
“clearly and exclusively serve descriptive, rather than nor-
mative, purposes . . . belong in step one” of Chevron—which
“has the same goal: determining the meaning of the stat-
ute.” Id. at 340–41. Normative canons present harder is-
sues. For normative canons triggered by ambiguity, the
answer may depend on whether the ambiguity is of the
type where Congress has delegated its resolution to the
courts or an agency. See Barrett, supra, at 123 (explaining
that the rule of lenity may be justified under the theory
that a court’s “best understanding of Congress’s instruc-
tions is that Congress left the problem to her”).
I do not attempt to resolve this quandary here as to the
pro-veteran canon. Further guidance is necessary to rec-
oncile these competing doctrines. But setting aside the
question of which doctrine gets triggered by an ambiguous
statute first, it’s worth reiterating the rigorous interpretive
16 This difficulty is not limited to the pro-veteran
canon. For example, while the D.C. Circuit has prioritized
the Indian canon over Chevron step two, the Ninth Circuit
has not. Compare Cobell v. Norton, 240 F.3d 1081, 1100–01
(D.C. Cir. 2001), with Rancheria v. Jewell, 776 F.3d 706,
713 (9th Cir. 2015).
Case: 16-1929 Document: 94 Page: 24 Filed: 04/30/2021
KISOR v. MCDONOUGH 21
process that the Court has prescribed before finding ambi-
guity. On this point, the Court did not mince words in its
recent pronouncement about the term “ambiguous”: “when
we use that term, we mean it—genuinely ambiguous, even
after a court has resorted to all the standard tools of inter-
pretation.” Kisor, 139 S. Ct. at 2414. A court must “ex-
haust” these “traditional tools,” finding ambiguity “only
when that legal toolkit is empty and the interpretive ques-
tion still has no single right answer.” Id. at 2415. A court
therefore “cannot wave the ambiguity flag just because it
found the regulation impenetrable on first read.” Id. Ra-
ther, “hard interpretive conundrums, even relating to com-
plex rules, can often be solved.” Id. Indeed, “[i]f a
reviewing court employs all of the traditional tools of con-
struction, the court will almost always reach a conclusion
about the best interpretation of the regulation at issue.”
Id. at 2448 (Kavanaugh, J., concurring in the judgment).
Then there is “no reason or basis to put a thumb on the
scale,” whether in deference to an agency or in a veteran’s
favor. See id.
CONCLUSION
The Supreme Court has said that we are not at liberty
to merely assume that “any result consistent with . . . the
statute’s overarching goal must be the law” as some ver-
sions of a liberal-construction principle assume. Henson,
137 S. Ct. at 1725. We must “presume more modestly in-
stead that the legislature says what it means and means
what it says.” Id. (cleaned up). Undoubtedly the “entire
[veterans-benefits] scheme is imbued with special benefi-
cence from a grateful sovereign.” Bailey v. West, 160 F.3d
1360, 1370 (Fed. Cir. 1998) (Michel, J., concurring); see also
Martin v. O’Rourke, 891 F.3d 1338, 1352 (Fed. Cir. 2018)
(Moore, J., concurring) (“The men and women in these
cases protected this country and the freedoms we hold
dear. . . .”). Our first order of business, however, and often
our last, is to apply the properly understood words Con-
gress chose for that scheme. It’s hard to see how fidelity to
Case: 16-1929 Document: 94 Page: 25 Filed: 04/30/2021
22 KISOR v. MCDONOUGH
those words “rends the overarching fabric of protection wo-
ven by Congress.” Panel Dissent at 3. The words are the
fabric. Consistent with the principles articulated above,
we should consider the pro-veteran canon only if, after ex-
hausting all applicable descriptive tools in search of the
provision’s best meaning, a range of plausible interpreta-
tions remains, none of them fairly described as the best. I
concur in the denial of rehearing en banc.
Case: 16-1929 Document: 94 Page: 26 Filed: 04/30/2021
United States Court of Appeals
for the Federal Circuit
______________________
JAMES L. KISOR,
Claimant-Appellant
v.
DENIS MCDONOUGH, SECRETARY OF
VETERANS AFFAIRS,
Respondent-Appellee
______________________
2016-1929
______________________
Appeal from the United States Court of Appeals for
Veterans Claims in No. 14-2811, Senior Judge Alan G.
Lance, Sr.
______________________
HUGHES, Circuit Judge, with whom WALLACH, Circuit
Judge, joins, concurring in the denial of rehearing en banc.
I concur in the denial of en banc rehearing. I also agree
with much of what Chief Judge Prost has written and spe-
cifically join Part I.B–C and Part II of her opinion concur-
ring in the denial of en banc rehearing. I write separately
to note my further views and, particularly, my agreement
with our court’s current precedent regarding the role of
Chevron and Auer in interpreting veterans’ benefits stat-
utes.
In the years following Chevron, Gardner, and Auer, this
court has on numerous occasions decided appeals from de-
nials of benefits in which the VA’s interpretation of a
Case: 16-1929 Document: 94 Page: 27 Filed: 04/30/2021
2 KISOR v. MCDONOUGH
statutory or regulatory provision has been challenged by a
veteran citing the pro-veteran canon. From these decisions,
we have established a clear framework for interpreting
statutory and regulatory provisions in the veterans’ bene-
fits context where the VA argues that its interpretation is
owed deference. That precedent is correct and does not
warrant rehearing in any aspect.
The first step, as in all cases where Chevron deference
is asserted, is to determine whether Congress has directly
spoken to the precise question at issue. This court has done
so by “first carefully investigat[ing] the matter to deter-
mine whether Congress’s purpose and intent on the ques-
tion at issue is judicially ascertainable . . . by employing
the traditional tools of statutory construction.” Boyer v.
West, 210 F.3d 1351, 1355 (2000) (quoting Delverde, SrL v.
United States, 202 F.3d 1360, 1363 (Fed. Cir. 2000)). These
tools require “examin[ing] the statute’s text, structure, and
legislative history and apply[ing] the relevant canons of in-
terpretation.” Id. If we determine that the statute “plainly
speaks to the issue,” that is the end of the analysis. Id.
at 1352. This court has consistently held that the pro-vet-
eran canon does not apply at this juncture. Id. at 1355 (“A
veteran ‘cannot rely upon the generous spirit that suffuses
the law generally to override the clear meaning of a partic-
ular provision.’”) (quoting Smith v. Brown, 35 F.3d 1516,
1526 (Fed. Cir. 1994)). Instead, we have repeatedly stated
that we must first find a statutory provision ambiguous be-
fore there can be “interpretative doubt” to be resolved in
the veteran’s favor. Nielson v. Shinseki, 607 F.3d 802,
808 n.4 (Fed. Cir. 2010) (collecting cases). But even then,
we have never looked first to the pro-veteran canon to re-
solve questions of ambiguity.
Instead, once we have determined that the statute is
silent on the issue or is genuinely ambiguous, we then de-
termine whether the VA has promulgated a reasonable in-
terpretation that is owed deference, typically (though not
exclusively) in the form of a duly published regulation. We
Case: 16-1929 Document: 94 Page: 28 Filed: 04/30/2021
KISOR v. MCDONOUGH 3
then apply the same methodology as explained above, em-
ploying all the “standard tools of interpretation,” Kisor v.
Wilkie, 139 S.Ct. 2400, 2415 (2019), including “the text,
structure, history, and purpose of a regulation,” id. at 2415,
in determining whether that regulation has a plain mean-
ing or whether it is genuinely ambiguous. See also O’Bryan
v. McDonald, 771 F.3d 1376, 1379 (Fed. Cir. 2014). If the
regulation is plain and a reasonable interpretation of the
ambiguous statute, then the VA is entitled to Chevron def-
erence. Sears v. Principi, 349 F.3d 1326, 1330 (Fed. Cir.
2003); Degmetich v. Brown, 104 F.3d 1328, 1332 (Fed. Cir.
1997).
If we cannot discern the plain meaning of the regula-
tion, we proceed to determine whether the VA’s interpreta-
tion of its regulation is owed deference under Auer. As the
Supreme Court explained in its decision remanding this
case, an agency’s interpretation is owed deference under
Auer only if it is reasonable, implicates the agency’s sub-
stantive expertise, and reflects the agency’s “fair and con-
sidered judgment” rather than merely a “convenient
litigating position or post hoc rationalization.” Kisor,
139 S.Ct. at 2417. If the VA’s interpretation satisfies each
of these prongs, then it is owed deference even over an al-
ternative interpretation that is arguably more generous to
veterans. 1
1 It is not clear—from either our precedent or the Su-
preme Court’s limited discussions of the pro-veteran
canon—whether interpretative doubt is to be resolved in
favor of the specific veteran before the court in a given ap-
peal or in favor of veterans in general. To the extent that
the pro-veteran canon contemplates the interests of the lat-
ter, the agency is in the better position vis-à-vis this court
to determine how to interpret its regulations to favor vet-
erans seeking or receiving benefits as a group.
Case: 16-1929 Document: 94 Page: 29 Filed: 04/30/2021
4 KISOR v. MCDONOUGH
We have previously, and correctly in my view, held that
if the conditions for either Chevron or Auer deference are
met, then the VA is entitled to deference, without resort to
the pro-veteran canon. See, e.g., Smith v. Shinseki,
647 F.3d 1380, 1385 (Fed. Cir. 2011); Smith v. Nicholson,
451 F.3d 1344, 1349–51 (Fed. Cir. 2006); Sears, 349 F.3d
at 1331–32. The Supreme Court’s decision in Kisor does not
require alteration of this precedent, but simply clarifies the
conditions for application of Auer.
If the VA’s interpretation fails to satisfy any of the re-
quirements for deference, then the interpretative doubt in
the statute or regulation has not been resolved by the
agency and the pro-veteran canon requires that we resolve
the ambiguity in favor of the veteran. See Hudgens v.
McDonald, 823 F.3d 630, 639 (Fed. Cir. 2016). To hold that
the pro-veteran canon applies at any earlier step in the
Chevron or Auer analysis is to hold that the VA, alone
among the executive agencies, is not entitled to deference
in interpreting its regulations and the statutes Congress
has charged it with administering. 2 This position would be
anomalous to say the least and has been flatly rejected by
this court. Sears, 349 F.3d at 1331–32; Nat’l Org. of Veter-
ans Advocates, Inc., v. Sec’y of Veterans Affairs, 809 F.3d
1359, 1363 (Fed. Cir. 2016).
2 The late Justice Scalia, in an address to the 12th
CAVC Judicial Conference in 2013, suggested that Chevron
and the pro-veteran canon are incompatible and opined
that this court had correctly rejected the view that Chevron
does not apply to the VA. Chadwick J. Harper, Give Veter-
ans the Benefit of the Doubt: Chevron, Auer, and the Vet-
eran’s Canon, 42 HARV. J.L. & PUB. POL’Y 950 n.128 (citing
Ct. of Appeals for Veterans Claims Bar Assoc., Justice
Scalia Headlines the Twelfth CAVC Judicial Conference,
VETERANS L.J. 1, 1 (Summer 2013)).
Case: 16-1929 Document: 94 Page: 30 Filed: 04/30/2021
KISOR v. MCDONOUGH 5
Of course, most of these issues need not be resolved
here. The panel majority concluded that the regulation at
issue was clear and therefore there was no need to reach
any questions of deference or the pro-veteran canon. I do
not believe that regulation-specific determination war-
rants en banc rehearing and concur in the denial.
Case: 16-1929 Document: 94 Page: 31 Filed: 04/30/2021
United States Court of Appeals
for the Federal Circuit
______________________
JAMES L. KISOR,
Claimant-Appellant
v.
DENIS MCDONOUGH, SECRETARY OF
VETERANS AFFAIRS,
Respondent-Appellee
______________________
2016-1929
______________________
Appeal from the United States Court of Appeals for
Veterans Claims in No. 14-2811, Senior Judge Alan G.
Lance, Sr.
______________________
DYK, Circuit Judge, concurring in the denial of rehearing
en banc.
The role of the veteran’s canon in statutory and regu-
latory interpretation is an important issue. If that issue
were presented in this case, I would generally agree with
Chief Judge Prost’s analysis. But, in my view, that canon
simply is not relevant to the disposition of this case. Reso-
lution of the interpretative issue here does not depend on
the application of the veteran’s canon or other canons of
construction, but on a plain reading of the language of the
regulation.
The regulation states that “if VA receives or associates
with the claims file relevant official service department
Case: 16-1929 Document: 94 Page: 32 Filed: 04/30/2021
2 KISOR v. MCDONOUGH
records that existed and had not been associated with the
claims file when VA first decided the claim, VA will recon-
sider the claim.” 38 C.F.R. § 3.156(c)(1). The question is
what constitutes “relevant” records.
I
Here, there was an original rating decision in 1983
denying benefits for post-traumatic stress disorder on the
basis that the veteran was not diagnosed with PTSD. See
J.A. 22–23. There was a later decision in 2007, concluding
that the veteran did have PTSD and granting benefits
based in part on service department records received by the
VA after the original 1983 decision because these records
verified an in-service stressor (an additional requirement
for a PTSD award). See Majority Op. 6–7; J.A. 30–34; see
also AZ v. Shinseki, 731 F.3d 1303, 1310 (Fed. Cir. 2013)
(listing elements for service connection for a PTSD claim).
An earlier effective date under 38 C.F.R. § 3.156(c)
was denied on the grounds that the newly received service
department records were not relevant. The Board and the
Veterans Court concluded that “relevant” records are
those relevant to the earlier decision’s basis for denying
benefits, and here, the records were not relevant because
they did not pertain to the basis of the 1983 denial of ben-
efits, which was the lack of a PTSD diagnosis rather than
the lack of a stressor. See J.A. 3–4, 90–91.
The panel agrees that the term “relevant” for the pur-
poses of 38 C.F.R. § 3.156(c)(1) should be interpreted con-
sistently with 38 U.S.C. § 5103A, the statutory basis for the
VA’s duty to assist. See Majority Op. 13; Dissenting Op. 8,
10. Section 5103A provides that “[t]he [VA] shall make rea-
sonable efforts to assist a claimant in obtaining evidence
necessary to substantiate the claimant’s claim for a benefit
under a law administered by the [VA].” 38 U.S.C.
§ 5103A(a)(1) (emphasis added). As the panel majority ap-
pears to admit, “[r]elevant records for the purpose of
§ 5103A are those records that relate to the injury for
Case: 16-1929 Document: 94 Page: 33 Filed: 04/30/2021
KISOR v. MCDONOUGH 3
which the claimant is seeking benefits and have a reason-
able possibility of helping to substantiate the veteran’s
claim.” Golz v. Shinseki, 590 F.3d 1317, 1321 (Fed. Cir.
2010) (emphasis added); see Majority Op. 13. In other
words, relevant records are those that help in “substan-
tiat[ing] the claimant’s claim for a benefit,” 38 U.S.C.
§ 5103A(a)(1), not just those that “undermin[e]” some prior
decision that denied that benefit, see Majority Op. 10.
Short of an explicit statutory definition of “relevant,” it can
hardly be clearer what “relevant” means.
Similarly, the language of 38 C.F.R. § 3.156(c) makes
clear that relevant records are those relevant to the deci-
sion awarding compensation—not the prior decision. The
regulation states that the earlier decision is set aside and
an earlier effective date is granted if “[a]n award” is “made
based all or in part” on “relevant official service depart-
ment records that existed and had not been associated with
the claims file when VA first decided the claim.” 38 C.F.R.
§ 3.156(c)(1), (3).
The language of the regulation does not restrict the
availability of an earlier effective date only to records that
speak to the basis for the prior decision. If the agency in-
tended such a restriction, the regulation could easily state
that “[a]n award made based all or in part on records rele-
vant to the ground of the prior decision” qualifies for an
earlier effective date. Instead, the rule makes relevancy
turn on whether the award was “made based all or in part”
on the records. 38 C.F.R. § 3.156(c)(3). Thus, plain lan-
guage leads to the rather obvious interpretation of the reg-
ulation—that it refers to records relevant to the service
connection claim.
II
There is language in the panel opinion that appears to
reject the correct interpretation of “relevant,” see, e.g., Ma-
jority Op. 12–13, but I read the panel opinion as taking a
more nuanced view of what is relevant. The panel holds
Case: 16-1929 Document: 94 Page: 34 Filed: 04/30/2021
4 KISOR v. MCDONOUGH
that service records are only not relevant if they relate to
“a matter that was not in dispute” (i.e., conceded) in the
earlier VA decision. Majority Op. 15. 1 Here, the panel con-
cluded that the issue to which the records relate (i.e.,
whether there was an in-service stressor) was not in dis-
pute; hence, the records are not relevant. The dissent and
majority appear to differ as to whether the stressor was in
dispute, see id.; Dissenting Op. 16, and it may be that the
majority is incorrect, but that is hardly a ground for en
banc review. Nor does the majority’s view that records
must relate to a disputed issue (based on the plain lan-
guage of 38 C.F.R. § 3.156(c) that the award must be “based
all or in part on” the newly discovered records, see Majority
Op. 12–13), constitute a matter warranting en banc review.
Service department records relevant to a claim for benefits
will continue to provide grounds for reconsideration (and
an earlier effective date) if they relate to a disputed claim
element. The role of the veteran’s canon, not being a per-
tinent issue here, must await another day and another
case.
1 The majority’s opinion states:
We therefore conclude that the Board did not err in
holding that the records cited by Mr. Kisor were not
“relevant” because they did not pertain to the basis
of the 1983 denial, the lack of a diagnosis of PTSD.
The records added nothing to the case because Mr.
Kisor has not shown that they bore, directly or in-
directly, on any matter relating to entitlement to
service connection for PTSD, other than a matter
that was not in dispute: the presence of an in-ser-
vice stressor.
Majority Op. 15.
Case: 16-1929 Document: 94 Page: 35 Filed: 04/30/2021
United States Court of Appeals
for the Federal Circuit
______________________
JAMES L. KISOR,
Claimant-Appellant
v.
DENIS MCDONOUGH, SECRETARY OF
VETERANS AFFAIRS,
Respondent-Appellee
______________________
2016-1929
______________________
Appeal from the United States Court of Appeals for
Veterans Claims in No. 14-2811, Senior Judge Alan G.
Lance, Sr.
______________________
O’MALLEY, Circuit Judge, with whom NEWMAN, MOORE,
and REYNA, Circuit Judges, join, dissenting from the denial
of the petition for rehearing en banc.
This case returned to us after a trip to the Supreme
Court. I am surprised that the panel majority does not be-
lieve the Supreme Court’s opinion compels judgment in Mr.
Kisor’s favor. I am also surprised by the analytical hoops
through which the panel majority has jumped to reinforce
its decision to rule against the veteran. And that the ma-
jority went to such great lengths to do so despite the reme-
dial context in which Mr. Kisor’s claim arose.
Case: 16-1929 Document: 94 Page: 36 Filed: 04/30/2021
2 KISOR v. MCDONOUGH
The procedural history of this case is important to un-
derstanding how we have arrived at this point and why we
need to retreat from it.
The veteran’s case turns on the meaning of the word
relevant in 38 C.F.R. § 3.156(c)(1). If the term is given its
common and well-understood meaning, the veteran likely
is entitled to an additional twenty-six years of benefits. If
the term is given the contorted meaning now dictated by
the majority, he decidedly is not.
The panel majority initially held that the word ‘‘rele-
vant’’ in § 3.156(c)(1) is ambiguous. See Kisor v. Shulkin,
869 F.3d 1360, 1367 (Fed. Cir. 2017) (“Kisor I”). In fact, it
concluded it was insolubly so. The panel said that “[i]n our
view, the regulation is vague as to the scope of the word,
and canons of construction do not reveal its meaning.” Id.
at 1367 (emphasis added). More specifically, it explained
“§ 3.156(c)(1) does not specify whether ‘relevant’ records
are those casting doubt on the agency’s prior rating deci-
sion, those relating to the veteran’s claim more broadly, or
some other standard.” Id. It concluded that “[t]his uncer-
tainty in application suggests that the regulation is ambig-
uous.” Id. The panel then emphasized that the parties’
“varying, alternative definitions” of the term “under-
score[d] § 3.156(c)(1)’s ambiguity” because neither party’s
position was unreasonable. Id. at 1367–68 (“Both parties
insist that the plain regulatory language supports their
case, and neither party’s position strikes us as unreasona-
ble.”).
Reasoning that the Board’s interpretation of the regu-
lation was not “plainly erroneous or inconsistent” with the
VA’s regulatory framework, the panel concluded that the
only way to resolve the parties’ dispute was to rely on the
principle of deference outlined in Auer v. Robbins, 519 U.S.
452 (1997). Id. at 1369. It thus concluded that the judge-
made policy of giving deference to an agency’s interpreta-
tion of its own regulations meant the insoluble interpretive
Case: 16-1929 Document: 94 Page: 37 Filed: 04/30/2021
KISOR V. MCDONOUGH 3
tie with which it was faced went to the VA. The veteran
lost.
Notably, before finding an ambiguity in the regulatory
text and resorting to Auer, the panel did not consider the
pro-veteran canon—the “rule that interpretive doubt is to
be resolved in the veteran’s favor,” Brown v. Gardner, 513
U.S. 115, 117–118 (1994); the “canon that the provisions
for benefits to members of the armed services are to be con-
strued in the beneficiaries’ favor,” Henderson ex rel. Hen-
derson v. Shinseki, 562 U.S. 428, 441 (2011) (quoting King
v. St. Vincent’s Hosp., 502 U.S. 215, 220–221, n.9 (1991)).
Mr. Kisor sought rehearing en banc before our court, which
we denied, over the objection of three of our judges. Kisor
v. Shulkin, 880 F.3d 1378 (Fed. Cir. 2018). Mr. Kisor then
sought certiorari, asking the Supreme Court to overrule
Auer, or at least clarify that resort to Auer is inappropriate
where the pro-veteran canon of construction could resolve
the ambiguity in the veteran’s favor.
The Supreme Court granted cert on the first question.
See Kisor v. Wilkie, 139 S. Ct. 657 (2018) (mem.). While the
Supreme Court refused to do away with Auer, it dramati-
cally circumscribed the circumstances in which a court may
resort to it. Kisor v. Wilkie, 139 S. Ct. 2400, 2414 (2019)
(“Kisor II”). Importantly, the Court explained that, before
a regulation may be deemed “genuinely ambiguous”
enough for Auer deference to come into play, “all the ‘tradi-
tional tools’ of construction” must be employed in assessing
the regulation. Id. at 2415 (emphasis added). It explained
that “only when that legal toolkit is empty and the inter-
pretive question still has no single right answer can a judge
conclude that it is ‘more [one] of policy than of law.’” Id.
(quoting Pauley v. BethEnergy Mines, Inc., 501 U.S. 680,
696 (1991)).
The case was then remanded. It would seem that the
resolution on remand would have been easy. The panel
originally found the regulation insolubly ambiguous
Case: 16-1929 Document: 94 Page: 38 Filed: 04/30/2021
4 KISOR v. MCDONOUGH
without having considered the pro-veteran canon of con-
struction. Applying that canon in this court’s “legal toolkit”
to a circumstance in which there were two reasonable con-
structions of the regulation, and without the option of Auer,
the result should have been that the veteran’s proposed
construction prevailed. The veteran should have won.
Surprisingly, the majority instead concluded that the
regulation is not ambiguous at all. Kisor v. Wilkie, 969
F.3d 1333, 1338 (Fed. Cir. 2020) (“Kisor III”). According to
the majority at that point, “relevant” “ha[d] only one rea-
sonable meaning”—the one proffered by the VA. Id. at
1338–1339 (“[T]he record must speak to a matter in issue,
in other words, a matter in dispute.”). The majority never
mentioned the “uncertainty in application” with which it
had been concerned in Kisor I. It simply concluded that it
no longer thought Mr. Kisor’s proposed definition struck it
as reasonable because it said the service records did not
speak “directly or indirectly” to his non-diagnosis of PTSD.
Id. at 1340. The panel majority conceded that the new rec-
ords contained substantial additional information regard-
ing Mr. Kisor’s combat experiences during Operation
Moon. Id. at 1341. Indeed, it conceded that the records
contained “credible supporting evidence that the claimed
stressor occurred.” Id. (citation omitted). But it still some-
how found the records irrelevant. Id. The majority then
concluded that, because it no longer found the regulation
ambiguous, it did not need to consider the pro-veteran
canon of construction. Id. at 1342. According to the major-
ity, the pro-veteran canon “only applies in the situation
where the statute or regulation at issue is ambiguous.” 1
1 The Concurrence to denial of en banc by Chief
Judge Prost (“Prost Concurrence”) questions whether the
pro-veteran canon should apply during regulatory inter-
pretation. Prost Concurrence at 3 n.2. But nothing about
Case: 16-1929 Document: 94 Page: 39 Filed: 04/30/2021
KISOR V. MCDONOUGH 5
Id. (quoting Paralyzed Veterans of Am. v. Sec’y of Veterans
Affs., 345 F.3d 1334, 1340 (Fed. Cir. 2003)). The veteran
lost again.
Mr. Kisor again petitioned our court to rehear this case
en banc. See Pet. for Reh’g En Banc, Kisor v. McDonough,
No. 16-1929 (Fed. Cir. Sept. 28, 2020), ECF No. 76. In do-
ing so, he had the support of several amici who, alongside
him, contended that the pro-veteran canon of construction
was an important interpretive canon that was to be em-
ployed at step one of the analysis set forth in Chevron,
U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467
U.S. 837 (1984)—that is, to be applied along the way to de-
termining whether a true ambiguity exists within the
meaning of Kisor II. In response, the panel majority pulled
Kisor III back. It has now issued a modified opinion with
a third set of rationales for its ruling against the veteran.
See Majority Modified Op. (“Kisor IV”).
In its modified opinion, the panel majority now asserts
that the pro-veteran canon of construction is not to be con-
sidered unless there is “interpretive doubt” in the panel’s
mind after “use of ordinary textual analysis tools,” which it
says do not include the pro-veteran canon. Id. at 16. And,
the majority states that, using such tools, it finds that
the regulatory context undermines the pro-veteran canon’s
core justification—the special solicitude for those persons
who “have been obliged to drop their own affairs to take up
the burdens of the nation.” Boone v. Lightner, 319 U.S. 561,
575 (1943). And “[i]t is axiomatic that an administrative
agency’s power to promulgate legislative regulations is lim-
ited to the authority delegated by Congress.” Bowen v.
Georgetown Univ. Hosp., 488 U.S. 204, 208 (1988). We
have never differentiated between the interpretive exercise
employed at the statutory level and that employed at the
regulatory level. Neither has the Supreme Court. I see no
reason why we should do so now.
Case: 16-1929 Document: 94 Page: 40 Filed: 04/30/2021
6 KISOR v. MCDONOUGH
“relevant” records means records that are “relevant to the
issue that was dispositive against the veteran in the VA
adjudication of the claim sought to be reconsidered and, in
that way, bear on the outcome of the case.” Id. at 9. The
panel majority concludes once more that Mr. Kisor’s service
records do not satisfy that definition of relevance. The vet-
eran loses again.
Judge Reyna’s dissent from Kisor IV explains in detail
why, on this record—where the examiner originally found
the absence of PTSD in part due to skepticism about what
Mr. Kisor claimed about his in-service stressors—evidence
of in combat and other substantial in-service stressors
must certainly be relevant to his PTSD diagnosis. See Ki-
sor IV Dissent Modified Op. at 15–20. PTSD is a differen-
tial diagnosis after all, that turns, in large measure, on the
nature and existence of identified stressors. The majority’s
effort to render in-service records of those stressors irrele-
vant because the denial of Mr. Kisor’s claim for benefits
was premised on the absence of a diagnosis of PTSD and
not on the absence of an in-service connection to his alleged
disability is mental gymnastics. Where skepticism that
stressors existed resulted in a non-diagnosis of PTSD, de-
tailed records cataloging such stressors must certainly be
“relevant” to that non-diagnosis, under any construction of
that term. I defer to Judge Reyna’s thoughtful discussion
of that factual point in his panel dissent.
I write separately to address (1) the panel majority’s
dismissive treatment of the pro-veteran canon of construc-
tion and (2) emphasize that the panel’s tortured definition
of “relevant” in § 3.156(c)(1) is out of step with all common
understandings of that term and is unsupported by any
meaningful text-based interpretive analysis. I believe the
veteran should win this time.
I.
The pro-veteran canon of construction is not meant to
be an afterthought. It is a tool in the interpretive toolkit
Case: 16-1929 Document: 94 Page: 41 Filed: 04/30/2021
KISOR V. MCDONOUGH 7
that aids in gleaning congressional intent where the plain
text of the statute or regulation does not clearly answer the
question at hand. 2 The pro-veteran canon has occupied a
place in Supreme Court jurisprudence for almost eighty
years. See, e.g., Boone v. Lightner, 319 U.S. 561, 575 (1943)
(“The Soldiers’ and Sailors’ Civil Relief Act is always to be
liberally construed to protect those who have been obliged
to drop their own affairs to take up the burdens of the na-
tion.”); see also Fishgold v. Sullivan Drydock & Repair
Corp., 328 U.S. 275, 285 (1946) (“Our problem is to con-
strue the separate provisions of the [Selective Service] Act
as parts of an organic whole and give each as liberal a con-
struction for the benefit of the veteran as a harmonious in-
terplay of the separate provisions permits.”).
It is against this common law backdrop that Congress
passed the Veterans Judicial Review Act (“VJRA”). Veter-
ans Judicial Review Act, Pub. L. No. 100–687, § 301, 102
Stat. 4105, 4113–22 (1988) (codified as renumbered at 38
U.S.C. §§ 7251–92); see King v. St. Vincent’s Hosp., 502 U.S.
215, 221 n.9 (1991) (stating expressly that the Supreme
Court presumes that Congress legislates with an under-
standing of the pro-veteran “interpretive principle[]”) (cit-
ing McNary v. Haitian Refugee Ctr., Inc., 498 U.S. 479, 496
(1991) (“It is presumable that Congress legislates with
knowledge of our basic rules of statutory construc-
tion. . . .”)); see also Lofton v. West, 198 F.3d 846, 850 (Fed.
Cir. 1999) (“Congress legislates against a common law
background . . . .”); Astoria Fed. Sav. & Loan Ass’n v. Soli-
mino, 501 U.S. 104, 108 (1991) (“[W]here a common-law
principle is well established . . . the courts may take it as
given that Congress has legislated with an expectation that
2 “We’re all textualists now.” Harvard Law School,
The Antonin Scalia Lecture Series: A Dialogue with Justice
Elena Kagan on the Reading of Statutes, YOUTUBE (Nov.
25, 2015) https://www.youtube.com/watch?v=dpEtszFT0Tg.
Case: 16-1929 Document: 94 Page: 42 Filed: 04/30/2021
8 KISOR v. MCDONOUGH
the principle will apply except ‘when a statutory purpose to
the contrary is evident.’”) (citing Isbrandtsen Co. v. John-
son, 343 U.S. 779, 783 (1952)).
Congress created the Veterans Administration (the
agency that preceded the VA) in 1930, see Act of July 3,
1930, Pub. L. No. 71-536, ch. 863, § 1, 46 Stat. 1016, and
initially prohibited judicial review of the agency’s decisions
concerning veterans’ benefits, see Act of Mar. 20, 1933, ch.
3, § 5, 48 Stat. 9 (codified as amended at 38 U.S.C. § 211(a)
(1988)) (repealed 1988). The VA decisions concerning vet-
erans’ benefits existed in a state of “splendid isolation”
from judicial review. Brown, 513 U.S. at 122 (citing H.R.
Rep. No. 100–963, at 10 (1988), reprinted in 1988
U.S.C.C.A.N. 5782, 5791). Congress changed that in the
VJRA, however, expanding the scope of judicial review con-
cerning veterans’ benefits in two key aspects. Veterans Ju-
dicial Review Act, § 301. First, for veterans challenging
their benefit awards, the VJRA established three levels of
appeal: (1) the Court of Veterans Appeals (an Article I
court the VJRA created), which has “exclusive jurisdiction
to review decisions of the Board of Veterans’ Appeals,” 38
U.S.C. § 7252(a); (2) our court, which has “exclusive juris-
diction to review and decide any challenge to the validity of
any statute or regulation or any interpretation thereof”
(such as the regulation at issue in this case, 38
C.F.R. § 3.156(c)(1)), 38 U.S.C. § 7292(c); and (3) the Su-
preme Court, 38 U.S.C. § 7292(c). Second, for veterans dis-
satisfied with VA regulations and rules concerning
veterans’ benefits, the VJRA allows for direct challenges to
our court. See 38 U.S.C. § 502. Congress created this two-
step opportunity for review “for the purpose of ensuring
that veterans were treated fairly by the government and to
see that all veterans entitled to benefits received
them . . . .” Barrett v. Nicholson, 466 F.3d 1038, 1044 (Fed.
Cir. 2006).
Congress also codified the VA Secretary’s duty to as-
sist. Veterans’ Judicial Review Act, Pub. L. No. 100–687
Case: 16-1929 Document: 94 Page: 43 Filed: 04/30/2021
KISOR V. MCDONOUGH 9
§ 103, 102 Stat. 4106 (1988) (codified at 38 U.S.C. § 3007(a)
(1988)) (“The Administrator shall assist such a claimant in
developing the facts pertinent to the claim.”). Prior to the
VJRA’s passage, Congress imposed no such statutory duty,
and the Secretary’s obligation to assist veterans make out
their benefit claims only existed to the extent granted by
regulation. See, e.g., 38 C.F.R. §§ 3.102, 3.103 (1988). The
codification of the Secretary’s “duty to assist” removed the
VA’s ability to revise its regulations to strip veterans of this
right or to receive Auer deference for any narrow interpre-
tation of that right. These beneficent changes to provide
greater remedial treatment to veterans in acknowledge-
ment of their service to this country were just the begin-
ning.
The VJRA is replete with provisions designed to make
it easier for veterans to obtain benefits and to challenge
denial of such benefits. The development of this veteran-
friendly scheme and its remedial nature was the very rai-
son d’être for passage of the VJRA. As we noted in Hodge
v. West, “even in creating judicial review in the veterans
context, Congress intended to preserve the historic, pro-
claimant system.” 155 F.3d 1356, 1363 (Fed. Cir. 1998).
There, we cited the VJRA’s legislative history discussing
Congress’s desire for the veterans’ benefits system to re-
main “pro-claimant”:
Each year, the Veterans’ Administration (VA) pro-
cesses approximately 5 million claims. In most
cases, claimants submit their own applications
without assistance. If a claimant desires advice or
other help, VA provides specially-trained personnel
to answer inquiries and assist in the submission of
the claim. VA’s medical facilities often serve as an
important referral source, and the major veterans
service organizations also furnish claims assis-
tance by trained specialists at no charge.
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10 KISOR v. MCDONOUGH
Congress has designed and fully intends to main-
tain a beneficial non-adversarial system of veterans
benefits. This is particularly true of service-con-
nected disability compensation where the element
of cause and effect has been totally by-passed in fa-
vor of a simple temporal relationship between the
incurrence of the disability and the period of active
duty.
I[m]plicit in such a beneficial system has been an
evolution of a completely ex-parte system of adjudi-
cation in which Congress expects VA to fully and
sympathetically develop the veteran's claim to its
optimum before deciding it on the merits. Even
then, VA is expected to resolve all issues by giving
the claimant the benefit of any reasonable doubt. In
such a beneficial structure there is no room for such
adversarial concepts as cross examination, best evi-
dence rule, hearsay evidence exclusion, or strict ad-
herence to burden of proof.
H.R. Rep. No. 100–963, at 13 (1988), reprinted in 1988
U.S.C.C.A.N. 5782, 5794–95 (emphasis added).
We need not guess the congressional intent behind the
VJRA; Congress told us by legislating against the backdrop
of the pro-veteran canon of construction, crafting a detailed
remedial statutory scheme, and expressly affirming its be-
neficent purpose in the Act’s legislative history. It wanted
all aspects of the Act to be liberally construed in favor of
the veterans.
Congress asked the VA to effectuate this intent by
promulgating regulations designed to do so. The text of
38 U.S.C. § 501 provides the VA Secretary with the “au-
thority to prescribe all . . . regulations with respect to the
nature and extent of proof and evidence and the method of
taking and furnishing them in order to establish the right
to benefits under such laws. . . .” 38 U.S.C. § 501(a)(1). Un-
der this rulemaking authority, the VA Secretary
Case: 16-1929 Document: 94 Page: 45 Filed: 04/30/2021
KISOR V. MCDONOUGH 11
promulgated 38 C.F.R. § 3.156, which generally allows a
veteran to reopen a previously denied claim when “new and
material evidence” surfaces. See 38 C.F.R. § 3.156(a). Sec-
tion (c) of this regulation, at issue here, states an exception
to this general rule by requiring the VA to reconsider a vet-
eran’s previously denied claim when “relevant official ser-
vice department records that existed and had not been
associated with the claims file when VA first decided the
claim” come to light, regardless of whether they are “new
and material.” 38 C.F.R. § 3.156(c)(1) (noting that this sec-
tion applies “notwithstanding paragraph (a)”). Thus, we
are not only dealing with a remedial statute, we are dealing
with a regulation designed to help right administrative
wrongs. Our court has recognized that “courts are to con-
strue remedial statutes liberally to effectuate their pur-
poses.” Smith v. Brown, 35 F.3d 1516, 1525–26 (Fed. Cir.
1994) (citing King v. St. Vincent’s Hosp., 502 U.S. 215, 221
n.9 (1991) and Coffy v. Republic Steel Corp., 447 U.S. 191,
196 (1980)), superseded on other grounds by 38 U.S.C.
§ 7111. That includes remedial regulations. 3
The Supreme Court has commanded as much in multi-
ple contexts. See, e.g., Socony-Vacuum Oil Co. v. Smith,
3 The Prost Concurrence argues that the very fact
that Congress has worked hard over the years to protect
veterans is reason not to consider the pro-veteran canon of
construction when considering a less than clear term in a
statute or regulation. Prost Concurrence at 14. That can-
not be right. Congress cannot anticipate every linguistic
debate over the terms of a statute, and certainly cannot an-
ticipate debates regarding the meaning of not-yet drafted
regulations. It is because Congress drafts veterans legisla-
tion against the backdrop of the pro-veteran canon that
Congress does not need to be clairvoyant in order to see
that its intent to benefit veterans can be effectuated when
parties have legitimate debates regarding terms employed.
Case: 16-1929 Document: 94 Page: 46 Filed: 04/30/2021
12 KISOR v. MCDONOUGH
305 U.S. 424, 431 (1939) (“[R]emedial legislation for the
benefit and protection of seamen has been liberally con-
strued to attain that end.”); McDonald v. Thompson, 305
U.S. 263, 266 (1938) (“[T]he [Motor Carrier] Act is remedial
and to be construed liberally. . . .”); see also United States
v. Merriam, 263 U.S. 179, 188 (1923) (“If the words are
doubtful, the doubt must be resolved against the govern-
ment and in favor of the taxpayer.”) (citing Gould v. Gould,
245 U.S. 151, 153 (1917)); see also Bowers v. New York &
Albany Lighterage Co., 273 U.S. 346, 350 (1927) (“The pro-
vision is a part of a taxing statute; and such laws are to be
interpreted liberally in favor of the taxpayers.”); see also
United Dominion Indus., Inc. v. United States, 532 U.S.
822, 839 (2001) (Thomas, J., concurring) (“At a bare mini-
mum, in cases such as this one, in which the complex stat-
utory and regulatory scheme lends itself to any number of
interpretations, we should be inclined to rely on the tradi-
tional canon that construes revenue-raising laws against
their drafter.”); see also Christopher v. SmithKline Bee-
cham Corp., 567 U.S. 142, 163, 166 (2012) (interpreting
regulations implementing the Fair Labor Standards Act
(“FLSA”) against the backdrop of the congressional intent
behind FLSA—i.e., to protect low wage employees).
Veterans deserve no less protection than low wage em-
ployees or taxpayers. See, e.g., United States v. Oregon, 366
U.S. 643, 647 (1961) (“The solicitude of Congress for veter-
ans is of long standing.”); Henderson, 562 U.S. at 440 (not-
ing that Congress’s longstanding solicitude for veterans “is
plainly reflected in the VJRA, as well as in subsequent laws
that ‘place a thumb on the scale in the veteran’s favor in
the course of administrative and judicial review of VA de-
cisions.’”) (quoting United States v. Oregon, 366 U.S. at
647); Shinseki v. Sanders, 556 U.S. 396, 412 (2009) (“[W]e
recognize that Congress has expressed special solicitude
for the veterans’ cause. . . . A veteran, after all, has per-
formed an especially important service for the Nation, of-
ten at the risk of his or her own life. And Congress has
Case: 16-1929 Document: 94 Page: 47 Filed: 04/30/2021
KISOR V. MCDONOUGH 13
made clear that the VA is not an ordinary agency. Rather,
the VA has a statutory duty to help the veteran develop his
or her benefits claim.”) (quoting Veterans Claims Assis-
tance Act of 2000, 38 U.S.C. § 5103A). Despite all of this,
and the apparent recognition that deferring consideration
of the pro-veteran canon until after an ambiguity is found
would be inconsistent with the Supreme Court’s directive
in Kisor II to consider all canons of construction before find-
ing an ambiguity, the panel majority charts a new course,
with a familiar end.
II.
The majority has again modified its reasoning concern-
ing the application of the pro-veteran “interpretive princi-
ple[].” King, 502 U.S. at 221 n.9; see Kisor IV Majority
Modified Op. As noted, the Kisor IV majority now reasons
that the pro-veteran canon does not apply unless there is
“interpretive doubt” after the “use of ordinary textual anal-
ysis tools,” which do not include the pro-veteran canon of
construction. Id. at 16. I believe the majority’s conclusion
in Kisor IV is just as problematic as its challenged conclu-
sion in Kisor III, if not more so.
As a threshold matter, I believe the majority’s shift
from relying on “ambiguity” in Kisor III to “interpretive
doubt” in Kisor IV to avoid applying the pro-veteran canon
is a distinction without a difference. There is no discernible
daylight between these terms. See, e.g., Nat’l Org. of Vet-
erans’ Advocs., Inc. v. Sec’y of Veterans Affs., 260 F.3d 1365,
1378 (Fed. Cir. 2001) (“[W]hen a statute is ambiguous, in-
terpretive doubt is to be resolved in the veteran’s favor.”
(internal quotation omitted)); compare Doubt, v., OED
ONLINE, https://www.oed.com/view/Entry/57078 (last vis-
ited Apr. 14, 2021) (defining “doubt” as “[t]o be in doubt or
uncertainty; to be wavering or undecided in opinion or be-
lief”) with Ambiguity, n., OED ONLINE,
https://www.oed.com/view/Entry/6144 (last visited Apr. 14,
2021) (defining “ambiguity” as “originally and chiefly with
Case: 16-1929 Document: 94 Page: 48 Filed: 04/30/2021
14 KISOR v. MCDONOUGH
reference to language: the fact or quality of having different
possible meanings; capacity for being interpreted in more
than one way; (also) lack of specificity or exactness”). The
entire point of statutory construction is to interpret text
and give effect to congressional intent.
The majority cites nothing in support of its contention
that “ordinary textual analysis tools” include only those
narrowly subscribed by the majority. It cites only Brown
v. Gardner for its decision to remove the pro-veteran
canon—and apparently numerous other canons—from the
interpretive toolkit it employs. But Brown does not hold
that the pro-veteran canon is only an after the fact inquiry,
or, as the Prost Concurrence asserts, must be relegated,
like the rule of lenity, to “the end of the analysis.” 4 Prost
Concurrence at 12. Indeed, quite the contrary. The lan-
guage in Brown from which the Kisor IV majority’s “inter-
pretive doubt” language is plucked only refers to what the
government “at most could claim” and appears just before
4 Despite the Supreme Court’s opinion in this very
case implying the opposite, the Concurrence by Judge
Hughes (“Hughes Concurrence”) asserts that Chevron and
Auer deference must still trump the pro-veteran canon.
The Prost Concurrence holds open the same possibility.
That is flatly inconsistent not only with Kisor II, but with
the Supreme Court’s directive that Chevron and Auer do
not even enter the picture until it is clear that the canons
do not supply the answer. Epic Sys. Corp. v. Lewis, 138 S.
Ct. 1612, 1630 (2018) (quoting NLRB v. Alt. Ent., Inc., 858
F.3d 393, 417 (6th Cir. 2017), abrogated by Epic Sys. Corp.,
138 S. Ct. 1612). Quite simply, the “canons trump defer-
ence.” Kenneth A. Bamberger, Normative Canons in the
Review of Administrative Policymaking, 118 Yale L.J. 64,
77 (2008). Given the agency context in which the canon
arises, relegating its consideration until after Chevron and
Auer deference would render it a nullity.
Case: 16-1929 Document: 94 Page: 49 Filed: 04/30/2021
KISOR V. MCDONOUGH 15
the Court concludes that “the Government cannot plausi-
bly make even this claim here.” Brown, 513 U.S., 117–118
(emphasis added). In full, it reads,
The most, then, that the government could claim
on the basis of this term is the existence of an am-
biguity to be resolved in favor of a fault require-
ment (assuming that such a resolution would be
possible after applying the rule that interpretive
doubt is to be resolved in the veteran’s favor . . . .).
Id. (emphasis added). Nowhere does the Court hold what
the panel claims it holds. It does not say that the parts of
a “usual textual analysis”—other than the plain language
of the words used—do anything other than help resolve “in-
terpretive doubt.” And, it does not say that the pro-veteran
canon is anything other than an interpretive canon. All
Brown did was emphasize that the pro-veteran canon of
construction is an additional tool in the “usual” tool kit
when the statute or regulation being interpreted is embed-
ded in a remedial statute whose congressional purpose is
to benefit veterans. 5
5 The Prost Concurrence misreads Brown. It under-
stands Brown to create a new necessary condition for ap-
plying the pro-veteran canon: interpretive doubt. That is,
the pro-veteran “canon applies only when there is ‘inter-
pretive doubt.’” Prost Concurrence at 6 (emphasis added)
(quoting Brown, 513 U.S. at 118). But Brown does not nar-
row the Supreme Court’s liberal interpretation rule. The
Supreme Court made clear “interpretative doubt is to be
resolved in the veteran’s favor.” Brown, 513 U.S. at 117–
118. Put simply, if there is interpretive doubt, then the
veteran gets the benefit of that doubt. That is a sufficient
condition for applying the pro-veteran canon. By mixing
necessary and sufficient conditions, the Prost Concurrence
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16 KISOR v. MCDONOUGH
Importantly, moreover, Brown did not overrule Boone
and its progeny and create a new, more stingy, “Brown for-
mulation” of the pro-veteran canon. Prost Concurrence at
12. Indeed, in Brown, the Court cited to King, see Brown,
513 U.S. at 118 (citing King, 502 U.S. at 220–221, n.9),
which in turn cited to Fishgold, see King, 502 U.S. at 220–
221, n.9 (quoting Fishgold, 328 U.S. at 285), which, in turn,
relied upon Boone, see Fishgold, 328 U.S. at 285 (quoting
Boone, 319 U.S. at 575). And, in Henderson, which post-
dated Brown, the Supreme Court again cited to King. See
Henderson, 562 U.S. at 441 (quoting King, 502 U.S. at 220–
221, n.9). If Brown changed the law, one would think the
Supreme Court would acknowledge that fact rather than
continue to rely on the line of cases relying on Boone.
The panel majority’s latest approach is inconsistent
with multiple Supreme Court cases which discuss the pro-
veteran canon and treat it as one of the many canons of
construction to be collectively employed when interpreting
veterans benefit provisions. See, e.g., Henderson, 562 U.S.
428; King, 502 U.S. 215. It is particularly important to in-
clude the pro-veteran canon in the interpretive mix when,
not only is the entire statutory scheme at issue a beneficent
one, but the particular provision at issue is intended to
remedy administrative wrongs against veterans, as
commits a classic fallacy. See, e.g., Wilson v. Horton’s Tow-
ing, 906 F.3d 773, 782 (9th Cir. 2018) (“Plaintiff’s argument
commits the logical fallacy of mistaking a sufficient factor
for a necessary one.”); Arar v. Ashcroft, 585 F.3d 559, 601
(2d Cir. 2009) (“This appears to reflect a classic logical fal-
lacy, ‘denial of the antecedent,’ which mistakes a necessary
condition for a sufficient one.”); cf. N. Am. Philips Corp. v.
Am. Vending Sales, Inc., 35 F.3d 1576, 1580 (Fed. Cir.
1994) (“To suppose that a state must have a pecuniary in-
terest in a matter . . . is to mistake a necessary for a suffi-
cient condition for the assertion of personal jurisdiction.”).
Case: 16-1929 Document: 94 Page: 51 Filed: 04/30/2021
KISOR V. MCDONOUGH 17
§ 3.156(c)(1) does by relieving veterans of the finality of an
adverse decision when records in the VA’s possession relat-
ing to that decision are located and could upend the denial
of benefits.
Once having started down the road of its interpretive
exercise, the majority in Kisor IV was bound to include the
pro-veteran canon of construction in its analysis and give
effect to it along with other applicable canons of construc-
tion. See, e.g., Kisor II at 2415 (saying all canons get con-
strued at step one). The question here is not so much
whether the word “relevant” (as used in
38 C.F.R. § 3.156(c)) could possibly have a restrictive
meaning (as the Kisor IV majority appears to believe). Ra-
ther, when reviewing an agency’s interpretation of a stat-
ute or regulation (as is the case here), the Supreme Court
has made clear that we are to apply all tools of statutory
construction to glean congressional intent. Where differing
plausible, reasonable interpretations of the terms of a reg-
ulation are possible, Congress has spoken: it wants veter-
ans’ benefits to be administered in a “pro-claimant”
manner. Congress’s explicit pro-veteran desire in the
VJRA, as well as the remedial nature of
38 C.F.R. § 3.156(c), lead me to conclude that the pro-vet-
eran canon should be used alongside traditional tools of
statutory construction in this case. 6 Kisor IV’s failure to
6 This does not mean that the veteran will always
win when the canon is considered. It may well be that
other more appropriate interpretive tools compel a differ-
ent resolution of the question presented. See Lockhart v.
United States, 136 S. Ct. 958, 963 (2016) (applying the rule
of the last antecedent as a statutory canon of construction
to avoid finding a criminal statutory term ambiguous, but
noting that “[o]f course, as with any canon of statutory in-
terpretation, the rule of the last antecedent ‘is not an
Case: 16-1929 Document: 94 Page: 52 Filed: 04/30/2021
18 KISOR v. MCDONOUGH
recognize as much flies in the face of clearly expressed con-
gressional intent.
To be sure, there are certain rules courts may apply
when all efforts to figure out the meaning of a statute or
regulation leave courts to “guess as to what Congress in-
tended.” Abramski v. United States, 573 U.S. 169, 188 n.10
(2014) (discussing rule of lenity) (quoting Maracich v.
Spears, 133 S. Ct. 2191, 2209 (2013)). These are judge-
made tie breakers implementing judicial policy choices,
however. Auer is one such tie breaker, as is the canon of
constitutional avoidance. These do not represent rules im-
plementing congressional intent, however, they are rules
courts fall back on when congressional intent cannot be fer-
reted out. The Prost Concurrence is wrong to equate the
two. 7 Here, as mentioned before, we know Congress’s
absolute and can assuredly be overcome by other indicia of
meaning’”) (citations omitted). In this case, there is no
such interpretive tool compelling the result the panel ma-
jority reaches.
7 The Prost Concurrence is also wrong when it dis-
cusses the difference between “descriptive” and “norma-
tive” canons, characterizes the latter as less important, and
then places the pro-veteran canon in the normative bucket,
citing Arangure v. Whitaker, 911 F.3d 333, 346 (6th Cir.
2018). Putting aside the fact that Arangure never men-
tions the pro-veteran canon, it also never explains whose
“norms” it was discussing—Congress’s policy choices or the
courts’ policy choices. And, Arangure expressly concludes
that the Supreme Court has never created a hierarchy
ranking the importance of canons of construction, has ap-
plied even what some classify as classic policy-based can-
ons at step one of the Chevron analysis, has adopted a
“canons first” approach to Chevron, and that “most canons”
are “traditional tools of statutory construction” that apply
Case: 16-1929 Document: 94 Page: 53 Filed: 04/30/2021
KISOR V. MCDONOUGH 19
intent from multiple indicators—including the text of the
VJRA itself—and that intent provides the backdrop
against which the interpretive inquiry in veterans’ benefit
cases is to occur. See, e.g., Fishgold, 328 U.S. at 285 (“Our
problem is to construe the separate provisions of the [Se-
lective Service] Act as parts of an organic whole and give
each as liberal a construction for the benefit of the veteran
as a harmonious interplay of the separate provisions per-
mits.”); see also King, 502 U.S. at 221 n.9 (“Even if the ex-
press examples [in other portions of the Act] unsettled the
significance of subsection (d)’s drafting, however, we would
ultimately read the provision in King’s favor under the
canon that provisions for benefits to members of the Armed
Services are to be construed in the beneficiaries’ favor.”)
(citing Fishgold, 328 U.S. at 285).
This is why the majority’s cf. cite to Connecticut Na-
tional Bank v. Germain, 503 U.S. 249, 253–54 (1992) is par-
ticularly unhelpful to its cause. See Kisor IV Majority
Modified Op. at 16. That case stands for the proposition
that, where a statute is clear on its face, the court is to as-
sume that Congress intended what it clearly said. In other
words, courts must assume that Congress expressed its in-
tention and that no other “tools” are needed to assess con-
gressional intent. True. Here, however, the majority does
not pretend to end its analysis with the language of
§ 3.156(c). It purports to use some, but not all, canons of
construction to imbue a single word in the regulation with
a thirty-nine word definition. 8 That case is also unhelpful
at step one. As the Supreme Court did in King, the pro-
veteran canon is to be considered on the way to determin-
ing whether a genuine ambiguity within the meaning of
Chevron exists. Characterizing the canon as “normative”
does not change that fact.
8 As noted later, the panel majority does not even
stay true to the canons on which it purports to rely.
Case: 16-1929 Document: 94 Page: 54 Filed: 04/30/2021
20 KISOR v. MCDONOUGH
to the panel majority’s cause because it was not decided in
the context of a remedial scheme designed to benefit the
class of claimants of which the appellant was a part.
A return to the Supreme Court’s decision in Christo-
pher is instructive. Christopher involved the FLSA, whose
legislative history indicated that Congress passed it with
the goal, inter alia, of “protect[ing] all covered workers
from substandard wages and oppressive working hours.”
Christopher, 567 U.S. at 147 (citation omitted). Petitioners
argued that their employers violated FLSA by failing to
compensate them for overtime. The Department of Labor
submitted an amicus brief to the Court arguing that the
Department interpreted its own regulations to exclude Pe-
titioners from FLSA’s overtime protections and asked the
Court to defer to that conclusion under Auer. Relevant
here, the Justices reasoned that to give deference to the
Department would do damage to the remedial intent be-
hind FLSA. It considered all tools of statutory interpreta-
tion with that remedial backdrop in mind. Thus, it did not
relegate the remedial purpose of the scheme to an after-
thought. 9
9 The Prost Concurrence claims Christopher held
that the remedial purpose canon was “inapposite because
the Court was interpreting a general definition that applies
throughout the FLSA.” Prost Concurrence at 11 (internal
quotations omitted). But the Prost Concurrence conflates
two interpretive canons. In a footnote, the Court discusses
a rule of narrow construction: “exemptions to the FLSA
must be ‘narrowly construed against the employers seeking
to assert them. . . .’” 567 U.S. at 164 n.21 (quoting Arnold
v. Ben Kanowsky, Inc., 361 U.S. 388, 392 (1960)). Relega-
tion of that narrow construction rule does not undermine
the Court’s lengthy discussion of and reliance on the stat-
ute’s remedial purpose. Id. at 166–67. Most critically,
Case: 16-1929 Document: 94 Page: 55 Filed: 04/30/2021
KISOR V. MCDONOUGH 21
I do not agree with the Prost Concurrence that the pro-
veteran canon is a canon of last resort in the interpretive
process, to be relegated to the end of the analysis. Nor do
I believe Congress legislated with that mindset. After a
tortured walk through the history of the pro-veterans
canon, the Prost Concurrence concludes that whatever its
form (a liberal construction principle or a narrower tie-
goes-to-the-runner principle), it comes only at the end, if at
all. The Prost Concurrence is clear that the pro-veteran
canon applies only after other canons “yield[] competing
plausible interpretations, none of which is fairly described
as the best.” Prost Concurrence at 2. What the Prost Con-
currence never tells us is—by what measure do we decide
if one plausible interpretation is “the best.” Canons of con-
struction “are an unruly team,” often “pulling in opposite
directions.” Sullivan v. Freeman, 944 F.2d 334, 337 (7th
Cir. 1991). Such is not unusual. But when the text yields
competing plausible interpretations, all of the canons
ought to be consulted and weighed in the analysis.
Given the importance of the issue—the scope and ap-
plicability of a canon of construction—and the enormous
impact of today’s determination that the pro-veteran canon
is all but inapplicable to future cases, I dissent from the
court’s refusal to take the issue en banc.
III.
Putting aside the pro-veteran canon and the role it
should play in the inquiry before us, the actual interpretive
exercise in which the panel now engages is flawed on mul-
tiple other levels. As the panel recognized in Kisor I, the
plain language of 38 U.S.C. § 501 provides no clear indica-
tion that Congress intended for a “relevant” record as de-
scribed in 38 C.F.R. § 3.156(c)(1) to “address a dispositive
Christopher applied the remedial construction canon at
Chevron step one.
Case: 16-1929 Document: 94 Page: 56 Filed: 04/30/2021
22 KISOR v. MCDONOUGH
issue and therefore . . . affect the outcome of the proceed-
ing” as the VA Secretary and the Kisor IV majority now
contend. Kisor IV Majority Modified Op. at 9. Nor does the
legislative history behind 38 U.S.C. § 501(a) (or its statu-
tory precursor, 38 U.S.C. § 210(c)), provide such an indica-
tion. See Pub. L. No. 85–857, § 210(c) 72 Stat. 1105, 1114
(1958); see also Pub. L. No. 102–83, § 501(a) 105 Stat. 378,
386 (1991). The majority also fails to apply the canon of
imputed common law meaning, which states that “[w]here
Congress uses terms that have accumulated settled mean-
ing under . . . the common law, a court must infer, unless
the statute otherwise dictates, that Congress means to in-
corporate the established meaning of these terms.” Neder
v. U.S., 527 U.S. 1, 21 (1999) (quoting Nationwide Mut. Ins.
Co. v. Darden, 503 U.S. 318, 322 (1992)). As Judge Reyna
points out in his panel dissent, the majority’s strained def-
inition of relevant in § 3.156(c)(1) is inconsistent with the
way we have defined relevance in multiple other veteran-
related contexts. As he explains, it is inconsistent with how
we have interpreted relevance in the context of
38 U.S.C. § 5103(A). See, e.g., Jones v. Wilkie, 918 F.3d
922, 926 (Fed. Cir. 2019) (holding records need not “prove”
claim to be relevant); McGee v. Peake, 511 F.3d 1352, 1357
(Fed. Cir. 2008) (holding records need not be dispositive of
claim to be relevant); Golz v. Shinseki, 590 F.3d 1317, 1321
(Fed. Cir. 2010) (holding records need only relate to a claim
and have a reasonable possibility of substantiating it).
And, it is inconsistent with what we have said qualifies as
“material” evidence, a directly comparable concept. See Ki-
sor IV Dissent Modified Op. at 11–13. I commend the
reader to those thoughtful discussions.
Beyond these inconsistencies, the definition the Kisor
IV majority now crafts is also inconsistent with both com-
mon and legal usages of the term “relevant.” Rather than
needing to be “relevant to an issue that was dispositive” as
the Kisor IV majority asserts, see Kisor IV Majority Modi-
fied Op. at 9, the plain meaning of “relevant” simply
Case: 16-1929 Document: 94 Page: 57 Filed: 04/30/2021
KISOR V. MCDONOUGH 23
indicates that something is “[b]earing on or connected with
the matter in hand; closely relating to the subject or point
at issue; pertinent to a specified thing,” Relevant, adj.,
OED ONLINE, https://www.oed.com/view/Entry/161893?re-
directedFrom=relevant#eid (last visited Apr. 14, 2021).
The Federal Rules of Evidence similarly provide an expan-
sive definition of legal relevance. See Fed. R. Evid. 401 (de-
fining evidence as relevant if “it has any tendency to make
a fact more or less probable than it would be without the
evidence; and the fact is of consequence in determining the
action”). And, other circuits have recognized as much. See,
e.g., United States v. Guerrero-Cortez, 110 F.3d 647, 652
(8th Cir. 1997) (noting that “[t]he threshold of relevance []
is quite minimal”); United States v. Hamzeh, 986 F.3d
1048, 1052 (7th Cir. 2021) (“Whether evidence is relevant
is a low threshold.”); Bielunas v. F/V Misty Dawn, Inc., 621
F.3d 72, 76 (1st Cir. 2010) (reasoning that “[a] relevancy-
based argument is usually a tough sell” given how broadly
the Federal Rules of Evidence define relevance).
In all of these ways, the Kisor IV majority ignores nor-
mal textual, contextual, and linguistic cues that point to an
appropriate interpretive conclusion: Mr. Kisor is right that
his detailed combat records are relevant to his service-re-
lated claim for benefits. The Kisor IV majority’s definition
of “relevant” is a strained, Federal Circuit-specific defini-
tion that is not only out of step with common and legal us-
ages of the term, but ignores the remedial context in which
it appears.
It is an interpretation, moreover, that none of the con-
curring opinions even pretend to defend. The Prost and
Hughes Concurrences are silent on the issue. 10 And the
Concurrence by Judge Dyk (“Dyk Concurrence”) takes
10 In this way, the Prost Concurrence is simply an in-
teresting discussion of principles of construction unteth-
ered from the facts of this case.
Case: 16-1929 Document: 94 Page: 58 Filed: 04/30/2021
24 KISOR v. MCDONOUGH
direct issue with the majority’s interpretation, seeming to
agree with the dissent’s broader interpretation:
As the panel majority appears to admit, “[r]elevant
records for the purpose of § 5103A are those records
that relate to the injury for which the claimant is
seeking benefits and have a reasonable possibility
of helping to substantiate the veteran’s claim.” Golz
v. Shinseki, 590 F.3d 1317, 1321 (Fed. Cir. 2010)
(emphasis added)
Dyk Concurrence at 2–3 (citing Kisor IV Majority Modified
Op. at 13) (emphasis in original). While the Dyk Concur-
rence says the panel got it wrong, it also says it is not an
important enough error to fix via the en banc process. Id.
at 4. But, not fixing the error leaves intact a precedential
interpretation of an important and oft-resorted to remedial
regulation. It leaves intact a precedential decision effec-
tively nullifying the pro-veteran canon of construction.
And, it means that not only does the veteran lose here, he
loses for reasons that the Dyk Concurrence concedes are
wrong. We should not let any of that happen.
IV.
I must dissent from the denial of en banc once more in
this matter. This is not a case of the panel majority repeat-
edly trying to get it right and finally doing so. It is not
wisdom coming belatedly, but coming nonetheless. It is a
circumstance where the panel majority ignores the reme-
dial context in which it is operating and employs a
strained, incorrect interpretive analysis to justify its ruling
against this veteran. Because we have refused to hear this
case en banc and make clear that the pro-veteran canon
trumps Chevron and Auer, I hope the Supreme Court will
be willing to grant certiorari once more, and that the vet-
eran will finally win.
Case: 16-1929 Document: 94 Page: 59 Filed: 04/30/2021
United States Court of Appeals
for the Federal Circuit
______________________
JAMES L. KISOR,
Claimant-Appellant
v.
DENIS MCDONOUGH, SECRETARY OF
VETERANS AFFAIRS,
Respondent-Appellee
______________________
2016-1929
______________________
Appeal from the United States Court of Appeals for
Veterans Claims in No. 14-2811, Senior Judge Alan G.
Lance, Sr.
______________________
REYNA, Circuit Judge, with whom NEWMAN, MOORE, and
O’MALLEY, Circuit Judges, join, dissenting from the denial
of rehearing en banc.
I dissent from the court’s denial of appellant’s petition
for en banc review. As basis, I rely on my dissent to the
underlying majority opinion, which I adopt and incorporate
in this dissent. I make the following comments to cast fur-
ther light on the importance of the pro-veteran canon of in-
terpretation.
The majority opinion has created a new rule of law and
uses it to reach a decision that will adversely impact thou-
sands of veterans’ claims for service-connected disability
Case: 16-1929 Document: 94 Page: 60 Filed: 04/30/2021
2 KISOR v. MCDONOUGH
benefits. The majority holds that the pro-veteran canon
only applies where “interpretive doubt” remains after all
other tools of statutory construction fail to resolve ambigu-
ities. This means that the pro-veteran canon comes into
play at the bottom of the ninth inning, after three outs have
been made, and as the players head to their respective dug-
outs. But by then, it’s game over.
The veterans disability statutes are remedial, and dis-
ability benefits provisions are benevolent in nature. Dis-
sent Modified Op. at 3. Congress plainly intended that
when an ambiguity arises in the interpretation of a provi-
sion pertaining to the award of disability benefits, resolu-
tion should tilt in favor of the veteran. 1 There is no
distinction between ambiguity and interpretive doubt.
In sum, this case precisely illustrates the error inher-
ent in this court’s new “interpretive doubt” rule. First, the
majority determined that there exists ambiguity in the
meaning of the “relevant records” provision. Next, it con-
sidered arguments favorable to the VA’s interpretation of
“relevant records.” Then, it applied some canons of statu-
tory construction to reach a decision that was not favorable
to veterans. Last, it determined that since it arrived at a
construction, it no longer had “interpretive doubt,” so the
pro-veteran canon did not apply. Dissent Modified Op. at
21 (citing Majority Modified Op. at 16). Here, the majority
utilized every single canon in its armory to find the provi-
sion unambiguous and avoid resorting to the pro-veteran
1 See Henderson v. Shinseki, 562 U.S. 428, 439
(2011) (“The solicitude of Congress for veterans is of long
standing. And that solicitude is plainly reflected in the
VJRA, as well as in subsequent laws that place a thumb on
the scale in the veteran's favor in the course of administra-
tive and judicial review of VA decisions.”) (internal quota-
tion marks and citations omitted).
Case: 16-1929 Document: 94 Page: 61 Filed: 04/30/2021
KISOR V. MCDONOUGH 3
canon. As a result, the pro-veteran canon was left out of
the traditional interpretive toolkit altogether.
For these reasons, and those stated in my dissent to the
majority opinion, I dissent to the denial of appellant’s peti-
tion for en banc review.