Kisor v. McDonough

• Decision Date: 30 April 2021
• Docket Number: 2016-1929
• Parties: James L. KISOR, Claimant-Appellant v. Denis MCDONOUGH, Secretary of Veterans Affairs, Respondent-Appellee
• Court: U.S. Court of Appeals — Federal Circuit

995 F.3d 1347 (Mem)

James L. KISOR, Claimant-Appellant

v.Denis MCDONOUGH, Secretary of Veterans Affairs, Respondent-Appellee

2016-1929

United States Court of Appeals, Federal Circuit.

Filed April 30, 2021

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, Topeka, KS.

Igor Helman, Commercial Litigation Branch, Civil Division, 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, Samantha Ann Syverson, Office of General Counsel, United States Department of Veterans Affairs, Washington, DC.

Roman Martinez, Latham & Watkins LLP, for amici curiae American Veterans, National Organization of Veterans’ Advocates, Inc., Paralyzed Veterans of America, Veterans 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.

ORDER

Per Curiam.

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, 115 S.Ct. 552, 130 L.Ed.2d 462 (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.

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 1325.¹ 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 historical usage and the other canons most like it, and (C) Congress'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 applicable descriptive canons—yields competing plausible interpretations, 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 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, 112 S.Ct. 1146, 117 L.Ed.2d 391 (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, 112 S.Ct. 1146 (quoting Rubin v. United States , 449 U.S. 424, 430, 101 S.Ct. 698, 66 L.Ed.2d 633 (1981) ); accord Katzmann, supra , at 29 ("When statutes are unambiguous, ... the inquiry for a court generally ends with an examination of the words of the statute."). Of course, this text-first rule is not an instruction to "construe the meaning of statutory terms in a vacuum." Tyler v. Cain , 533 U.S. 656, 662, 121 S.Ct. 2478, 150 L.Ed.2d 632 (2001). Rather, our focus on the text requires 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 interpretation enter the analysis. "Canons are general background 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 , ––– U.S. ––––, 141 S. Ct. 1163, 1169, 209 L.Ed.2d 272 (2021) ; id. at 1169–73 (identifying best meaning by analyzing text, context, and descriptive 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 generally Scalia & Garner, supra , at 107–11, 195–98. Canons of this sort "are not ‘rules’ of interpretation in any strict sense but presumptions about what an intelligently produced 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 objective." Nelson, supra , at 418 n.140 (quoting Stephen F. Ross, Where Have You Gone, Karl Llewellyn? Should Congress 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 possible meanings that their primary interpretive tools have identified." Id. at 394. Accordingly, many normative canons "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, 63 S.Ct. 1223, 87 L.Ed. 1587 (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 those who have been obliged to drop their own affairs to take up the burdens of the nation." Id. at 575, 63 S.Ct. 1223.

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, 97 S.Ct. 2002, 52 L.Ed.2d 595 (1977) (analyzing Military Selective Service Act of 1967); Coffy v. Republic Steel Corp. , 447 U.S. 191, 196, 100 S.Ct. 2100, 65 L.Ed.2d 53 (1980) (analyzing Vietnam Era Veterans’ Readjustment Assistance Act of 1974); Shinseki v. Sanders , 556 U.S. 396, 412, 129 S.Ct. 1696, 173 L.Ed.2d 532 (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, 78 S.Ct. 1222, 2...