Kisor v. Wilkie

• Court: U.S. Supreme Court
• Citation: Kisor v. Wilkie, 139 S. Ct. 2400, 204 L.Ed.2d 841 (2019)
• Decision Date: 26 June 2019
• Docket Number: No. 18-15,18-15
• Parties: James L. KISOR, Petitioner v. Robert WILKIE, Secretary of Veterans Affairs

139 S.Ct. 2400

204 L.Ed.2d 841

James L. KISOR, Petitioner

v.Robert WILKIE, Secretary of Veterans Affairs

No. 18-15

Supreme Court of the United States.

Argued March 27, 2019

Decided June 26, 2019

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 A. Rothfeld, E. Brantley Webb, Andrew A. Lyons-Berg, Mayer Brown LLP, Washington, DC, Rachel R. Siegel, Mayer Brown LLP, New York, NY, for Petitioner.

Noel J. Francisco, Solicitor General, Joseph H. Hunt, Assistant Attorney General, Jeffrey B. Wall, Deputy Solicitor General, Hashim M. Mooppan, Deputy Assistant Attorney General, Matthew Guarnieri, Assistant to the Solicitor General, Mark B. Stern, Daniel Aguilar, Joshua Revesz, Attorneys, Department of Justice, Washington, D.C., for Respondent.

Justice KAGAN announced the judgment of the Court and delivered the opinion of the Court with respect to Parts I, II–B, III–B, and IV, and an opinion with respect to Parts II–A and III–A, in which Justice GINSBURG, Justice BREYER, and Justice SOTOMAYOR join.

This Court has often deferred to agencies’ reasonable readings of genuinely ambiguous regulations. We call that practice Auer deference, or sometimes Seminole Rock deference, after two cases in which we employed it. See Auer v. Robbins , 519 U.S. 452, 117 S.Ct. 905, 137 L.Ed.2d 79 (1997) ; Bowles v. Seminole Rock & Sand Co. , 325 U.S. 410, 65 S.Ct. 1215, 89 L.Ed. 1700 (1945). The only question presented here is whether we should overrule those decisions, discarding the deference they give to agencies. We answer that question no. Auer deference retains an important role in construing agency regulations. But even as we uphold it, we reinforce its limits. Auer deference is sometimes appropriate and sometimes not. Whether to apply it depends on a range of considerations that we have noted now and again, but compile and further develop today. The deference doctrine we describe is potent in its place, but cabined in its scope. On remand, the Court of Appeals should decide whether it applies to the agency interpretation at issue.

I

We begin by summarizing how petitioner James Kisor’s case made its way to this Court. Truth be told, nothing recounted in this Part has much bearing on the rest of our decision. The question whether to overrule Auer does not turn on any single application, whether right or wrong, of that decision’s deference doctrine. But a recitation of the facts and proceedings below at least shows how the question presented arose.

Kisor is a Vietnam War veteran seeking disability benefits from the Department of Veterans Affairs (VA). He first applied in 1982, alleging that he had developed post-traumatic stress disorder (PTSD) as a result of his participation in a military action called Operation Harvest Moon. The report of the agency’s evaluating psychiatrist noted Kisor’s involvement in that battle, but found that he "d[id] not suffer from PTSD." App. 12, 14. The VA thus denied Kisor benefits. There matters stood until 2006, when Kisor moved to reopen his claim. Based on a new psychiatric report, the VA this time agreed that Kisor suffered from PTSD. But it granted him benefits only from the date of his motion to reopen, rather than (as he requested) from the date of his first application.

The Board of Veterans’ Appeals—a part of the VA, represented in Kisor’s case by a single administrative judge—affirmed that timing decision, based on its interpretation of an agency rule. Under the VA’s regulation, the agency could grant Kisor retroactive benefits if it found there were "relevant official service department records" that it had not considered in its initial denial. See 38 C.F.R. § 3.156(c)(1) (2013). The Board acknowledged that Kisor had come up with two new service records, both confirming his participation in Operation Harvest Moon. But according to the Board, those records were not "relevant" because they did not go to the reason for the denial—that Kisor did not have PTSD. See App. to Pet. for Cert. 43a ("[The] documents were not relevant to the decision in May 1983 because the basis of the denial was that a diagnosis of PTSD was not warranted, not a dispute as to whether or not the Veteran engaged in combat"). The Court of Appeals for Veterans Claims, an independent Article I court that initially reviews the Board’s decisions, affirmed for the same reason.

The Court of Appeals for the Federal Circuit also affirmed, but it did so based on deference to the Board’s interpretation of the VA rule. See Kisor v. Shulkin , 869 F.3d 1360, 1368 (2017). Kisor had argued to the Federal Circuit that to count as "relevant," a service record need not (as the Board thought) "counter[ ] the basis of the prior denial"; instead, it could relate to some other criterion for obtaining disability benefits. Id., at 1366 (internal quotation marks omitted). The Federal Circuit found the regulation "ambiguous" as between the two readings. Id., at 1367. The rule, said the court, does not specifically address "whether ‘relevant’ records are those casting doubt on the agency’s prior [rationale or] those relating to the veteran’s claim more broadly." Ibid. So how to choose between the two views? The court continued: "Both parties insist that the plain regulatory language supports their case, and neither party’s position strikes us as unreasonable." Id. , at 1368. Because that was so, the court believed Auer deference appropriate: The agency’s construction of its own regulation would govern unless "plainly erroneous or inconsistent with the VA’s regulatory framework." Ibid. (internal quotation marks omitted). Applying that standard, the court upheld the Board’s reading—and so approved the denial of retroactive benefits.

We then granted certiorari to decide whether to overrule Auer and (its predecessor) Seminole Rock . 586 U. S. ––––, 139 S.Ct. 657, 202 L.Ed.2d 491 (2018).

II

Before addressing that question directly, we spend some time describing what Auer deference is, and is not, for. You might view this Part as "just background" because we have made many of its points in prior decisions. But even if so, it is background that matters. For our account of why the doctrine emerged—and also how we have limited it—goes a long way toward explaining our view that it is worth preserving.

A

Begin with a familiar problem in administrative law: For various reasons, regulations may be genuinely ambiguous. They may not directly or clearly address every issue; when applied to some fact patterns, they may prove susceptible to more than one reasonable reading. Sometimes, this sort of ambiguity arises from careless drafting—the use of a dangling modifier, an awkward word, an opaque construction. But often, ambiguity reflects the well-known limits of expression or knowledge. The subject matter of a rule "may be so specialized and varying in nature as to be impossible"—or at any rate, impracticable—to capture in its every detail. SEC v. Chenery Corp. , 332 U.S. 194, 203, 67 S.Ct. 1760, 91 L.Ed. 1995 (1947). Or a "problem[ ] may arise" that the agency, when drafting the rule, "could not [have] reasonably foresee[n]." Id., at 202, 67 S.Ct. 1760. Whichever the case, the result is to create real uncertainties about a regulation’s meaning.

Consider these examples:

• In a rule issued to implement the Americans with Disabilities Act (ADA), the Department of Justice requires theaters and stadiums to provide people with disabilities "lines of sight comparable to those for members of the general public." 28 C.F.R. pt. 36, App. A, p. 563 (1996). Must the Washington Wizards construct wheelchair seating to offer lines of sight over spectators when they rise to their feet? Or is it enough that the facility offers comparable views so long as everyone remains seated? See Paralyzed Veterans of Am. v. D. C. Arena L. P. , 117 F.3d 579, 581–582 (CADC 1997).

• The Transportation Security Administration (TSA) requires that liquids, gels, and aerosols in carry-on baggage be packed in containers smaller than 3.4 ounces and carried in a clear plastic bag. Does a traveler have to pack his jar of truffle pâté in that way? See Laba v. Copeland , 2016 WL 5958241, *1 (WDNC, Oct. 13, 2016).

• The Mine Safety and Health Administration issues a rule requiring employers to report occupational diseases within two weeks after they are "diagnosed." 30 C.F.R. § 50.20(a) (1993). Do chest X-ray results that "scor[e]" above some level of opacity count as a "diagnosis"? What level, exactly? See American Min. Congress v. Mine Safety and Health Admin. , 995 F.2d 1106, 1107–1108 (CADC 1993).

• An FDA regulation gives pharmaceutical companies exclusive rights to drug products if they contain "no active moiety that has been approved by FDA in any other" new drug application. 21 C.F.R. § 314.108(a) (2010). Has a company created a new "active moiety" by joining a previously approved moiety to lysine through a non-ester covalent bond? See Actavis Elizabeth LLC v. FDA , 625 F.3d 760, 762–763 (CADC 2010) ; Tr. of Oral Arg. 12, 35.¹

• Or take the facts of Auer itself. An agency must decide whether police captains are eligible for overtime under the Fair Labor Standards Act. According to the agency’s regulations, employees cannot receive overtime if they are paid on a "salary basis." 29 C.F.R. § 541.118(a) (1996). And in deciding whether an employee is salaried, one question is whether his pay is "subject to reduction" based on performance. Ibid. A police department’s manual informs its officers that their pay might be docked if they commit a disciplinary infraction. Does that fact alone make them "subject to" pay deductions? Or must the department have a practice of docking officer pay, so that the possibility of that happening is more than theoretical? 519 U.S. at 459–462, 117

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