The Federal Circuit issued nine opinions and orders this morning:
- The court issued a precedential opinion in a veterans law case, affirming the upholding of a denial of an earlier effecting date for a service-connected disability over a dissent by Judge Newman.
- The court issued two orders and a precedential opinion in another veterans law case on remand from the Supreme Court. The first order granted panel rehearing, the panel withdrew and replaced its original opinion with a new precedential opinion, and the second order denied rehearing en banc. The new panel opinion declined to apply Auer deference to a Department of Veterans Affairs regulation and affirmed a decision of the Veterans Court, which in turn had affirmed a decision by the Board of Veterans’ Appeals denying an earlier effective date for a service-connected disability. Judge Reyna dissented. Notably, the order denying rehearing en banc elicited five separate concurring and dissenting opinions.
- The court issued a related nonprecedential order and precedential opinion in a trade case. The order unsealed the opinion, which affirmed the Court of International Trade’s decision to affirm the Department of Commerce’s antidumping duty order covering carbon and certain alloy steel wire rod from Mexico.
- The court issued two nonprecedential opinions affirming the Court of Federal Claims in two government contract appeals involving the same parties.
- The court issued a Rule 36 summary affirmance in case appealed from the Northern District of California.
Here are the introductions to the opinions, text from the orders, and a link to the Rule 36 judgment.
Flores-Vazquez v. McDonough (Precedential)
Enrique Flores-Vazquez appeals a decision of the Court of Appeals for Veterans Claims (“Veterans Court”) upholding a denial of an earlier effective date for a service-connected disability. We affirm.
Newman, Circuit Judge, dissenting.
This appeal concerns the interpretation of 38 U.S.C. § 7292(d) as implemented by 38 C.F.R. § 3.156(c), and specifically the effective date of disability payments to a veteran when service-connection is established on reconsideration of a previously denied claim. Regulation 38 C.F.R. § 3.156(c) provides that when the veteran’s previously-denied claim is refiled and granted on the basis of new and material evidence received from a military service department, the effective date of compensation is retroactive to the filing date of the original claim.
The Court of Appeals for Veterans Claims (“Veterans Court”) adopted the government’s position that this retroactive provision applies only when the new service department evidence is the sole basis for the finding of service connection. That is not required by the statute and regulation, and is inconsistent with the purpose of these enactments. Preserving the error, the panel majority now rules that the Federal Circuit does not have jurisdiction to review this statutory/regulatory interpretation. From my colleagues’ erroneous rulings, I respectfully dissent.
Kisor v. McDonough (Nonprecedential Order)
James L. Kisor filed a petition for rehearing en banc. A response thereto was invited by the court and was filed by the Secretary of Veterans Affairs. American Veterans, National Organization of Veterans’ Advocates, Inc., Paralyzed Veterans of America, Veterans of Foreign Wars of the United States, and Vietnam Veterans of America requested leave to file a brief as amici curiae which the court granted. Mr. Kisor’s petition was presumed to encompass a petition for panel rehearing and was referred to the panel.
Upon consideration thereof,
It Is Ordered That:
The petition for panel rehearing is granted to the extent that the previous precedential opinion and judgment issued August 12, 2020, are withdrawn and replaced with the modified precedential opinion and judgment accompanying this order.
Kisor v. McDonough (Precedential)
In Kisor v. Shulkin, 869 F.3d 1360 (Fed. Cir. 2017) (“Kisor I”), we affirmed the decision of the United States Court of Appeals for Veterans Claims (“Veterans Court”) in Kisor v. McDonald, No. 14-2811, 2016 WL 337517 (Vet. App. Jan. 27, 2016) (“Veterans Court Decision”). In that decision, the Veterans Court affirmed the April 29, 2014 decision of the Board of Veterans’ Appeals (“Board”) that denied Mr. Kisor an effective date earlier than June 5, 2006, for the grant of service connection for his post-traumatic stress disorder (“PTSD”). Id. at *1.
In its decision, the Board held that Mr. Kisor was not entitled to an earlier effective date under 38 C.F.R. § 3.156(c)(1). J.A. 78–91. That regulation states that the Department of Veterans Affairs (“VA”) will reconsider a claim after a final decision if it receives “relevant official service department 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). The regulation further states that “[a]n award made based all or in part on the records identified by [§ 3.156(c)(1)] is effective on the date entitlement arose or the date VA received the previously decided claim, whichever is later.” Id. § 3.156(c)(3).
In Mr. Kisor’s case, the Board concluded that two service department records, which were received in 2006 and 2007, were not “relevant” under the regulation because they did not pertain to the basis of the 1983 denial of Mr. Kisor’s claim, which was the lack of a diagnosis of PTSD. J.A. 85, 89, 90. Rather, they pertained to whether Mr. Kisor was in combat in “Operation Harvest Moon,” a military operation in Vietnam in 1965. In that regard, when it denied Mr. Kisor’s claim, the VA Regional Office (“RO”) had before it a VA psychiatric examiner’s report that recited Mr. Kisor’s account of his participation in Operation Harvest Moon, see J.A. 19–20, and the RO did not dispute that account. The Board reasoned that the documents would not have changed the “outcome” of the VA’s 1983 decision, which was based on the lack of “a diagnosis of PTSD,” because they bore on a matter relating to entitlement to service connection for PTSD that was not in dispute: the presence of an in-service stressor. Id. at 90–91. The Board thus denied Mr. Kisor an effective date earlier than June 5, 2006, for a grant of service connection for his PTSD. J.A. 91. June 5, 2006 was the date Mr. Kisor submitted a request to reopen his claim, which the VA granted. J.A. 34. Pursuant to 38 U.S.C. § 5110(a) and 38 C.F.R. § 3.400(q)– (r), as in effect in 2014, the effective date of the grant of service connection for Mr. Kisor’s reopened claim was the date he submitted his request to reopen.
In our prior decision, we held that the Board had not erred in construing the term “relevant” as it appears in § 3.156(c)(1). In reaching that holding, we concluded that the term “relevant” was ambiguous and had more than one reasonable meaning. Kisor I, 869 F.3d at 1367–68. We therefore deferred, under Auer v. Robbins, 519 U.S. 452, 461 (1997), to the Board’s interpretation of the term, which we found to be reasonable. Kisor I, 869 F.3d at 1367–69.
The case is now before us again on remand from the Supreme Court. See Kisor v. Wilkie, 139 S. Ct. 2400 (2019) (“Kisor II”). In Kisor II, the Court held that, in Kisor I, we were too quick to extend Auer deference to the Board’s interpretation of “relevant” as it appears in § 3.156(c)(1). The Court therefore vacated our decision and remanded the case to us with the instruction that we decide whether Auer deference “applies to the agency interpretation at issue.” 139 S. Ct. at 2408. The Supreme Court stated that “[f]irst and foremost, a court should not afford Auer deference unless the regulation is genuinely ambiguous.” Id. at 2415. The Court directed us on remand “to determine, based on indicia like text, structure, history, and purpose, whether the regulation really has more than one reasonable meaning.” Id. at 2424.
For the reasons stated below, we now conclude that, in the setting of § 3.156(c)(1), the term “relevant” is not “genuinely ambiguous.” Id. at 2415. Accordingly, Auer deference is not appropriate in this case. In our view, in the context of § 3.156(c)(1), the term “relevant” has only “one reasonable meaning,” the meaning the Board attributed to it. As the Board determined, and as we explain, under the regulation, in order to be “relevant,” a record must speak to a matter in issue, in other words, a matter in dispute. We therefore once again affirm the decision of the Veterans Court that affirmed the decision of the Board denying Mr. Kisor entitlement under § 3.156(c)(1) to an effective date earlier than June 5, 2006, for his PTSD.
Reyna, Circuit Judge, dissenting.
This appeal is on remand from the U.S. Supreme Court.
Three and a half years ago, this panel unanimously held that the plain text of 38 C.F.R. § 3.156(c) was ambiguous as to the scope of the word “relevant.” It was on that basis that, as informed by the Supreme Court, we erroneously applied Auer deference to what we determined was a reasonable interpretation of the regulation by the Department of Veterans Affairs (“VA”). We did not at the time consider a countervailing tool used to resolve ambiguities in veterans’ benefits regulations, the pro-veteran canon.
The Supreme Court vacated our decision because we prematurely relied on an Auer analysis and remanded the case to us to reconsider our initial view of § 3.156(c) using traditional tools of construction.
But on remand, the VA made a hard U-turn and waived Auer altogether. Not to be left behind, the majority has decided to follow the VA and to adopt the agency’s new belief that the very same text we initially declared ambiguous has sprung a lack of “interpretive doubt.” According to the majority, if it lacks interpretive doubt, it is unambiguously correct. Slip Op. 9, 16–17.
I disagree with my colleagues on two principal points.
First, I disagree with my colleagues’ new position that the “one reasonable meaning” of the word “relevant” in § 3.156(c) is the position that the VA adopted on remand. Slip Op. 4, 9, 16–17. . . .
Second, I disagree with the new holding developed by my colleagues in this remand and which asserts that “interpretive doubt” must first be established before the proveteran canon can be applied. Slip Op. 16. . . .
Kisor v. McDonough (Precedential 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., Paralyzed Veterans of America, Veterans of Foreign Wars of the United States, and Vietnam Veterans of America requested 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 accompanying 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.
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 colleagues 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 textual interpretation, (II) respond to my dissenting colleagues’ treatment of this canon, and (III) discuss the unresolved tension between this canon and the Supreme Court’s Chevron and Auer doctrines.
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 specifically join Part I.B–C and Part II of her opinion concurring 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 statutes.
Dyk, Circuit Judge, concurring in the denial of rehearing en banc.
The role of the veteran’s canon in statutory and regulatory 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. Resolution 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 records that existed and had not been associated with the claims file when VA first decided the claim, VA will reconsider the claim.” 38 C.F.R. § 3.156(c)(1). The question is what constitutes “relevant” records.
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 believe 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 majority went to such great lengths to do so despite the remedial context in which Mr. Kisor’s claim arose.
* * *
I write separately to address (1) the panel majority’s dismissive treatment of the pro-veteran canon of construction 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.
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 further light on the importance of the pro-veteran canon of interpretation.
Deacero S.A.P.I. de C.V. v. United States (Nonprecedential Order)
Given the unexcused failure of the parties to file a joint response to the court’s April 13, 2021, Order to Show Cause, specifying any proposed redactions,
It Is Ordered That:
The opinion issued under seal on April 13, 2021 is hereby unsealed.
Deacero S.A.P.I. de C.V. v. United States (Precedential)
Appellants, Deacero S.A.P.I. de C.V. and Deacero USA, Inc. (together, “Deacero”), filed suit against Appellee, the United States (“Government”), in the U.S. Court of International Trade (“CIT”), challenging the U.S. Department of Commerce’s (“Commerce”) final results in the 2014–2015 administrative review of the antidumping (“antidumping” or “AD”) duty order covering carbon and certain alloy steel wire rod from Mexico. See Carbon and Certain Alloy Steel Wire Rod from Mexico: Final Results of Antidumping Duty Administrative Review and Final Determination of No Shipments; 2014–2015 (“Final Results”), 82 Fed. Reg. 23,190 (May 22, 2017). Appellee, Nucor Corporation (“Nucor”), participated as a defendant-intervenor. The CIT “sustain[ed] [Commerce’s] determination to apply total facts available with an adverse inference (‘AFA’),” Deacero I, 353 F. Supp. 3d at 1306, but remanded to Commerce twice for “further explanation or reconsideration” of “Commerce’s selection of 40.52 [percent] as the AFA rate,” id.; see Deacero S.A.P.I. de C.V. v. United States (Deacero II), 393 F. Supp. 3d 1280, 1281 (Ct. Int’l Trade 2019) (concluding that “Commerce’s [first] [r]emand [r]esults d[id] not comply with the [CIT’s] remand order in Deacero I and its decision to apply the 40.52 [percent] AFA-rate to Deacero continues to be unsupported by substantial evidence”); J.A. 1644–60 (First Remand Results). After Commerce placed additional information on the record corroborating the 40.52 percent rate, the CIT sustained Commerce’s second remand results. See Deacero S.A.P.I. de C.V. v. United States (Deacero III), 456 F. Supp. 3d 1263, 1265 (Ct. Int’l Trade 2020); J.A. 68–69 (Judgment), 4960–80 (Second Remand Results).
Deacero appeals. We have jurisdiction pursuant to 28 U.S.C. § 1295(a)(5). We affirm.
Pacific Coast Community Services, Inc. v. United States (Nonprecedential)
This is a government contracts appeal. The Court of Federal Claims held that the government was entitled to summary judgment because, despite a showing by Pacific Coast Community Services, Inc. that the government ordered a constructive change, the contractor nevertheless failed to prove that it suffered any damages. We agree with the Court of Federal Claims and affirm.
Pacific Coast Community Services, Inc. v. United States (Nonprecedential)
This is a government contracts appeal. The Court of Federal Claims held that Pacific Coast failed to state a claim for breach of contract stemming from the government’s unilateral deductions from Pacific Coast’s monthly invoices. Because we agree with the Court of Federal Claims that the contract entitled Pacific Coast to payment for work actually performed, we affirm.