Kisor v. Wilkie
588 U. S. ____ (2019) (2019)
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Rule of Law:
Courts must not reflexively defer to an agency's interpretation of its own regulation. Deference is only appropriate after a court has exhausted all traditional tools of construction and concluded the regulation is genuinely ambiguous, and only if the agency's interpretation is reasonable, authoritative, based on its expertise, and reflects fair and considered judgment.
Facts:
- James Kisor, a Vietnam War veteran, applied for disability benefits from the Department of Veterans Affairs (VA) in 1982, alleging he had post-traumatic stress disorder (PTSD) from his combat experience.
- The VA's evaluating psychiatrist determined Kisor did not suffer from PTSD, and the agency denied his application in 1983.
- In 2006, Kisor submitted new evidence, including a PTSD diagnosis from a private psychiatrist, and moved to reopen his claim.
- The VA granted Kisor's claim and awarded benefits, but made them effective from the date of his 2006 motion, not retroactively to his 1982 application.
- Kisor sought retroactive benefits under a VA regulation allowing them if 'relevant official service department records' that were not previously considered came to light.
- Kisor submitted new service records confirming his participation in a major combat operation, which he argued were 'relevant' under the regulation.
- The VA, through its Board of Veterans' Appeals, interpreted the term 'relevant' to mean records that address the specific reason for the original denial (the lack of a PTSD diagnosis), not records relating to other aspects of the claim like combat service.
- Based on this interpretation, the Board concluded Kisor's new records were not 'relevant' and denied his request for retroactive benefits.
Procedural Posture:
- The Board of Veterans' Appeals, an administrative body within the VA, affirmed the denial of retroactive benefits.
- Kisor, the petitioner, appealed to the U.S. Court of Appeals for Veterans Claims, which affirmed the Board's decision.
- Kisor then appealed to the U.S. Court of Appeals for the Federal Circuit.
- The Federal Circuit found the VA regulation to be ambiguous and, applying Auer deference, upheld the Board's interpretation as reasonable, thereby affirming the denial of retroactive benefits.
- The U.S. Supreme Court granted certiorari to decide whether to overrule Auer and its predecessor, Seminole Rock.
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Issue:
Should the Supreme Court overrule its precedents in Auer v. Robbins and Bowles v. Seminole Rock & Sand Co., which require courts to defer to an agency's reasonable interpretation of its own genuinely ambiguous regulation?
Opinions:
Majority - Justice Kagan
No. The doctrine of Auer deference is not overruled, but its application is significantly cabined and clarified. The doctrine is rooted in a presumption that Congress wants agencies to resolve ambiguities in their own rules due to their expertise and political accountability. However, stare decisis counsels against completely discarding this long-standing precedent. Instead, the Court reinforces the limits on Auer deference to ensure it is not applied reflexively. First, a court must exhaust all traditional tools of statutory construction before finding a regulation genuinely ambiguous. Second, if ambiguity exists, the agency's interpretation must be reasonable and fall within the bounds of that ambiguity. Third, deference is still not automatic; a court must independently assess whether the interpretation is the agency's authoritative and official position, implicates its substantive expertise, and reflects a fair and considered judgment, rather than a convenient litigating position or post-hoc rationalization. Because the Federal Circuit failed to conduct this rigorous analysis, the case is remanded.
Concurring in part - Chief Justice Roberts
No. While agreeing not to overrule Auer, this opinion suggests the practical distance between the majority's new framework and the approach advocated by Justice Gorsuch is minimal. The majority’s extensive list of prerequisites for applying Auer deference means that it will likely apply only in cases where an agency's interpretation is already persuasive on its own terms under the Skidmore standard. The cases where deference is warranted will largely overlap with cases where it is unreasonable for a court not to be persuaded by the agency's view. This decision regarding agency interpretation of its own regulations does not affect the separate doctrine of Chevron deference for agency interpretations of statutes.
Concurring in the judgment - Justice Gorsuch
Yes. Auer deference should be overruled entirely, as it is inconsistent with the Administrative Procedure Act (APA) and the Constitution's separation of powers. The APA § 706 requires courts to 'decide all relevant questions of law,' a duty that Auer forces them to abdicate. The doctrine also allows agencies to circumvent APA notice-and-comment rulemaking procedures by creating binding law through informal interpretation. Constitutionally, Auer violates Article III by transferring the judicial power to interpret law to the Executive Branch. The majority's decision does not truly uphold stare decisis but instead creates a 'zombified,' unworkable version of the doctrine. The proper course is to discard Auer and return to the Skidmore framework, where courts give agency interpretations weight according to their power to persuade.
Analysis:
This decision marks a significant shift in administrative law, curtailing the power of federal agencies. While formally preserving Auer deference, the Court transformed it from a strong, often-automatic rule into a demanding, multi-part test that is much harder for agencies to satisfy. This change empowers courts to engage in more independent review of regulations, reducing the government's built-in advantage in litigation over regulatory meaning. The ruling will likely decrease the frequency of judicial deference and may force agencies to write clearer regulations or use formal notice-and-comment procedures more often to solidify their interpretations.
