Kisor v. Wilkie
139 S. Ct. 2400
| SCOTUS | 2019Background
- James Kisor, a Vietnam veteran, first applied for VA disability benefits (PTSD) in 1982; VA denied. He moved to reopen in 2006, VA granted benefits only from the 2006 motion date, not retroactively to 1982.
- The Board of Veterans’ Appeals (through a single judge) held that newly submitted service records were not “relevant” to the basis of the original denial and therefore did not entitle Kisor to an earlier effective date.
- The Court of Appeals for Veterans Claims affirmed; the Federal Circuit affirmed by applying Auer (Seminole Rock) deference to the Board’s interpretation of the VA regulation.
- Kisor petitioned the Supreme Court asking the Court to overrule Auer v. Robbins and Seminole Rock, arguing Auer is inconsistent with the APA, encourage vagueness/self-delegation, and raises separation-of-powers concerns.
- The Supreme Court declined to overrule Auer/Seminole Rock but significantly narrowed and clarified the doctrine’s scope and remanded Kisor’s case for reconsideration under the clarified standards.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Auer/Seminole Rock deference should be overruled | Kisor: Auer conflicts with the APA’s §706 judicial-review command, undermines meaningful judicial review, encourages vague rulemaking, and violates separation-of-powers | Government: Auer rests on a presumptions of congressional intent and produces useful uniformity; any problems are better addressed by limiting doctrine, not overruling | Auer and Seminole Rock were not overruled; stare decisis and practical considerations weigh against wholesale overruling, but the Court tightened Auer’s limits |
| When Auer deference applies (standard of application) | Kisor: Courts should not defer; courts must independently determine a regulation’s meaning | Government: Deference appropriate where regulation genuinely ambiguous and agency reading reasonable and authoritative | Court: Auer applies only after a court (1) exhausts traditional interpretive tools and finds a genuine ambiguity, (2) finds the agency’s reading reasonable, and (3) independently assesses whether the interpretation merits controlling weight based on character and context (authoritativeness, expertise, fair and considered judgment, reliance concerns) |
| Compatibility of Auer with the APA (notice-and-comment & §706) | Kisor: Auer permits agencies to bind parties via post-hoc interpretations without notice-and-comment, contrary to APA | Government/Majority: Courts retain final authority; interpretive rules do not themselves have the force of law for enforcement; Auer can be applied in a way consistent with the APA | Court: Auer can be squared with the APA if courts rigorously perform independent review before deferring and ensure that interpretive positions do not substitute for notice-and-comment substantive rulemaking |
| Application to Kisor’s VA regulation (specific remand issues) | Kisor: The Board’s narrower reading of “relevant” is unreasonable; he is entitled to retroactivity back to 1982 | VA: Board reading reasonable; Federal Circuit deferred under Auer and affirmed | Court: Vacated and remanded—Federal Circuit erred by declaring the regulation ambiguous without exhausting interpretive tools and by assuming Auer automatically applies; on remand court must reconsider ambiguity and whether Auer is warranted under the new framework |
Key Cases Cited
- Auer v. Robbins, 519 U.S. 452 (court supplies and explains the deference doctrine that was at issue)
- Bowles v. Seminole Rock & Sand Co., 325 U.S. 410 (1945) (origin of the deference principle to agency interpretations)
- Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984) (instructs use of traditional tools of statutory construction and provides analytic background for deference doctrines)
- Skidmore v. Swift & Co., 323 U.S. 134 (1944) (persuasive-weight approach to agency interpretations)
- Christopher v. SmithKline Beecham Corp., 567 U.S. 142 (2012) (limits on Auer where agency position is a convenient litigating position)
- Perez v. Mortgage Bankers Assn., 575 U.S. 92 (2015) (interpretive rules vs substantive rules; interpretive rules do not themselves have force of law for enforcement)