__ U.S. __, 18-15, Kisor v. Wilkie

Docket Nº:18-15
Citation:__ U.S. __, 139 S.Ct. 2400, 204 L.Ed.2d 841, 27 Fla.L.Weekly Fed. S 1091
Opinion Judge:KAGAN, Justice.
Party Name:James L. KISOR, Petitioner v. Robert WILKIE, Secretary of Veterans Affairs
Attorney:Paul W. Hughes, Washington, DC, for the petitioner. Solicitor General Noel G. Francisco, for the respondent. Kenneth M. Carpenter, Carpenter Chartered, Topeka, KS, Eugene R. Fidell, Yale Law School Supreme Court Clinic, New Haven, CT, Paul W. Hughes, Michael B. Kimberly, Andrew J. Pincus, Charles...
Judge Panel:Justice KAGAN, joined by Justice GINSBURG, Justice BREYER, and Justice SOTOMAYOR, concluded in Parts II-A and III-A: KAGAN, J., announced the judgment of the Court and delivered the opinion of the Court with respect to Parts I, II-B, III-B, and IV, in which ROBERTS, C. J., and GINSBURG, BREYER, a...
Case Date:June 26, 2019
Court:United States Supreme Court

Page __

__ U.S. __

139 S.Ct. 2400, 204 L.Ed.2d 841, 27 Fla.L.Weekly Fed. S 1091

James L. KISOR, Petitioner


Robert WILKIE, Secretary of Veterans Affairs

No. 18-15

United States Supreme Court

June 26, 2019

Argued March 27, 2019


Petitioner James Kisor, a Vietnam War veteran, first sought disability benefits from the Department of Veterans Affairs (VA) in 1982, alleging that he had developed post-traumatic stress disorder from his military service. The agency denied his initial request, but in 2006, Kisor moved to reopen his claim. The VA this time agreed he was eligible for benefits, but it granted those benefits only from the date of his motion to reopen, not (as Kisor had requested) from the date of his first application. The Board of Veterans’ Appeals— a part of the VA— affirmed that retroactivity decision, based on its interpretation of an agency rule governing such claims. The Court of Appeals for Veterans Claims affirmed.

The Federal Circuit also affirmed, but it did so by applying a doctrine called Auer (or sometimes, Seminole Rock ) deference. See Auer v. Robbins, 519 U.S. 452, 117 S.Ct. 905, 137 L.Ed.2d 79; Bowles v. Seminole Rock & Sand Co., 325 U.S. 410, 65 S.Ct. 1215, 89 L.Ed. 1700. Under that doctrine, this Court has long deferred to an agency’s reasonable reading of its own genuinely ambiguous regulations. The Court of Appeals concluded that the VA regulation at issue was ambiguous, and it therefore deferred to the Board’s interpretation of the rule. Kisor now asks the Court to overrule Auer, as well as its predecessor Seminole Rock, discarding the deference those decisions give to agencies.

Held : The judgment is vacated and remanded.

869 F.3d 1360, vacated and remanded.

Justice KAGAN delivered the opinion of the Court with respect to Parts I, II-B, III-B, and IV, holding that Auer and Seminole Rock are not overruled. Pp. 2413 - 2418, 2421 - 2424.

(a) This Court’s deference doctrine is rooted in a presumption that Congress intended for courts to defer to agencies when they interpret their own ambiguous rules. The Court adopts that presumption for a set of reasons related to the comparative attributes of courts and agencies in answering interpretive questions. But when the reasons for the presumption do not hold up, or when countervailing reasons outweigh them, courts should not give deference to an agency’s reading. The Court has thus cabined Auer’s scope in varied and critical ways.

First and foremost, a court should not afford Auer deference unless, after exhausting all the "traditional tools" of construction, Chevron U.S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 843, n. 9, 104 S.Ct. 2778, 81 L.Ed.2d 694, the regulation is genuinely ambiguous. A court must carefully consider the text, structure, history, and purpose of a regulation before resorting to deference. If genuine ambiguity remains, the agency’s reading must still fall "within the bounds of reasonable interpretation." Arlington v. FCC, 569 U.S. 290, 296, 133 S.Ct. 1863, 185 L.Ed.2d 941.

And even then, not every reasonable agency reading of a genuinely ambiguous rule should receive Auer deference. Rather, a court must also make an independent inquiry into whether the character and context of the agency interpretation entitles it to controlling weight. See, e.g., Christopher v. SmithKline Beecham Corp., 567 U.S. 142, 155, 132 S.Ct. 2156, 183 L.Ed.2d 153. The inquiry along this dimension does not reduce to an exhaustive test, but the Court has laid out some especially important markers for identifying when Auer deference is and is not appropriate. To begin with, the regulatory interpretation must be the agency’s authoritative or official position, rather than any more ad

hoc statement not reflecting the agency’s views. Next, the agency’s interpretation must in some way implicate its substantive expertise, as the basis for deference ebbs when the subject matter of a dispute is distant from the agency’s ordinary duties. Finally, an agency’s reading of a rule must reflect its "fair and considered judgment." Auer, 519 U.S. at 462, 117 S.Ct. 905. A court should decline to defer, for example, to a merely " ‘convenient litigating position,’ " Christopher, 567 U.S. at 155, 132 S.Ct. 2156., or to a new interpretation that creates "unfair surprise" to regulated parties, Long Island Care at Home, Ltd. v. Coke, 551 U.S. 158, 170, 127 S.Ct. 2339, 168 L.Ed.2d 54. Pp. 2413 - 2418.

(b) Stare decisis cuts strongly against overruling Auer. Adherence to precedent is "a foundation stone of the rule of law," Michigan v. Bay Mills Indian Community, 572 U.S. 782, 798, 134 S.Ct. 2024, 188 L.Ed.2d 1071, and any departure from the doctrine demands "special justification," Halliburton Co. v. Erica P. John Fund, Inc., 573 U.S. 258, 266, 134 S.Ct. 2398, 189 L.Ed.2d 339. That is even more than usually so in the circumstances here. First, Kisor asks the Court to overrule a "long line of precedents"— each one reaffirming the rest and going back 75 years or more. Bay Mills, 572 U.S. at 798, 134 S.Ct. 2024. Second, because Auer deference pervades the whole corpus of administrative law, abandoning it would cast doubt on many settled constructions of rules. And third, even if the Court is wrong about Auer, "Congress remains free to alter what [the Court has] done." Patterson v. McLean Credit Union, 491 U.S. 164, 172-173, 109 S.Ct. 2363, 105 L.Ed.2d 132. For approaching a century, Congress has let this deference regime work side-by-side with both the Administrative Procedure Act (APA) and the many statutes delegating rulemaking power to agencies. This Court would thus need a particularly "special justification" to now reverse Auer.

Kisor offers nothing of that ilk. Nearly all of his arguments relate to whether the doctrine is wrong or poorly reasoned. He does not claim that Auer deference is "unworkable," a traditional basis for overruling a case, Patterson, 491 U.S. at 173, 109 S.Ct. 2363, or point to changes in legal rules that make Auer a "doctrinal dinosaur," Kimble v. Marvel Entertainment, LLC, 576 U.S. __, __, 135 S.Ct. 2401, 2411, 192 L.Ed.2d 463. Instead, his lone special justification is that the administrative state has evolved substantially since this Court decided Seminole Rock in 1945. It is true that agencies have far-reaching influence today; that is one reason the Court has taken care to reinforce the limits of Auer deference. But it is no answer to the growth of agencies for courts to take over their expertise-based, policymaking functions. Pp. 2421 - 2423.

(c) Turning to Kisor’s own case, a remand is necessary for two reasons. First, the Federal Circuit jumped the gun in declaring the VA’s regulation ambiguous before bringing all its interpretive tools to bear on the question. Second, the Federal Circuit assumed too fast that Auer deference should apply in the event of genuine ambiguity, rather than assessing whether the interpretation is of the sort that Congress would want to receive deference. On remand, the Court of Appeals must reconsider whether Auer deference is warranted, bearing in mind the principles outlined in this opinion. Pp. 2423 - 2424.

Justice KAGAN, joined by Justice GINSBURG, Justice BREYER, and Justice SOTOMAYOR, concluded in Parts II-A and III-A:

(a) Auer deference is rooted in a presumption that Congress would generally want the agency to play the primary role in resolving regulatory ambiguities. See Martin v. Occupational Safety and Health Review Comm’n, 499 U.S. 144, 151-153, 111 S.Ct. 1171, 113 L.Ed.2d 117. In part, the presumption arises because the agency that promulgated a rule is in the "better position [to] reconstruct" its original meaning. Id., at 152, 111 S.Ct. 1171. In still greater measure, the presumption stems from an awareness that resolving genuine regulatory ambiguities often " ‘entail[s] the exercise of judgment grounded in policy concerns,’ " an area where agencies have a comparative advantage over courts. Thomas Jefferson Univ. v. Shalala, 512 U.S. 504, 512, 114 S.Ct. 2381, 129 L.Ed.2d 405. Finally, the presumption reflects the well-known benefits of uniformity in interpreting ambiguous rules. Auer deference promotes "resolving interpretive issues by uniform administrative decision, rather than piecemeal by litigation," Ford Motor Credit Co. v. Milhollin, 444 U.S. 555, 568, 100 S.Ct. 790, 63 L.Ed.2d 22. p. 2413.

(b) None of Kisor’s arguments provide good reason to reconsider Auer deference. First, he claims that Auer is inconsistent with the APA’s judicial review provision, which instructs reviewing courts to "determine the meaning" of an agency action. 5 U.S.C. § 706. Even when a court defers to a regulatory reading, however, it acts consistently with Section 706. That provision does not specify the standard of review a court should use in "determin[ing] the meaning" of an ambiguous rule. This Court thus presumes that Congress would want courts to do so by reviewing agency interpretations for reasonableness. That is especially so because Section 706, when enacted, was understood to restate the present law of judicial review— which would have included deference under Seminole Rock . Nor does Auer circumvent the APA’s rulemaking requirements, which require regulations to go through notice and comment before they can bind third parties. Even though a court might defer to an agency’s interpretation of a regulation, the agency’s interpretation itself never forms the basis for an enforcement action. Rather, an agency bringing an enforcement action must always rely on a rule that went through notice and comment. And courts, in turn, always retain the final authority to approve— or not— an agency’s reading of that notice-and-comment rule. See...

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