CAVC–Savage v. Shinseki 1/04/11–Post Hoc Rationalizations

God,  I just love it when the Court tells the VASEC that reinterpreting the rules is not a defense for screwing Vets, nor is coming up with a new excuse after getting caught cheating:

The Secretary is, of course, free to amend his regulations to accord with his desired interpretation, in accordance with proper notice and comment procedures, see 5 U.S.C. § 553, and to the extent the amended regulations do not conflict with the statutory mandate of section 5103A, but he has not done so.  He may not attempt to subvert the plain language of his regulation simply by taking a litigating position that the regulation means something other than what it says.  See Auer v. Robbins, 519 U.S. 452, 462 (1997) (holding that agency positions adopted in response to litigation, or those adopted as a “‘post hoc rationalization’ advanced by an agency seeking to defend past agency action against attack” are not entitled to deference from the Court (quoting Bowen v. Georgetown Univ. Hosp., 488 U.S. 204, 212 (1988))); Martin v. Occupational Safety & Health Review Comm’n, 499 U.S. 144, 156 (1991) (“‘[L]itigating positions’ are not entitled to deference when they are merely appellate counsel’s ‘post hoc rationalizations’ for agency action, advanced for the first time in the reviewing court.” (citing Bowen, 212)).

This seems to be the legacy that Shinseki will leave the VA; not one of a fellow Vet trying to defend his brothers, but rather one who tries at every turn to obfuscate the rules or simply bend them into a new meaning adverse to the Vet. So much for our sighs of relief when he was appointed. This just emphasizes the Good Ol’ Boy club ethos. We get our money (and lots of it) no matter what and if you’re lucky and nice, we may give you peasants some.

It appears Mr. James E. Savage will see another day in court thanks to the Court.

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VA claims blogger
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