139 S. Ct. 2400, 204 L. Ed. 2d 841 (2019)
James Kisor, a Vietnam War veteran, first applied for disability benefits from the Department of Veterans Affairs in 1982, alleging post-traumatic stress disorder arising from his participation in Operation Harvest Moon.1
The VA denied the claim after its evaluating psychiatrist noted Kisor's involvement in the battle but concluded that he did not suffer from PTSD.2 In 2006 Kisor moved to reopen the claim and submitted a new psychiatric report supporting a PTSD diagnosis.3 The VA granted benefits but set the effective date at the 2006 motion rather than the original 1982 application.4
Kisor sought retroactive benefits under a VA regulation that permits an earlier effective date when relevant official service department records not previously considered are later obtained.5 The Board of Veterans' Appeals, an agency tribunal, interpreted the regulation to require that any new records relate to the specific reason for the original denial.6 The Board found two newly submitted service records confirming Kisor's combat participation irrelevant because they did not address the PTSD diagnosis that had been the basis for denial.7 The Court of Appeals for Veterans Claims affirmed the Board's reading.8
The Federal Circuit also affirmed but reached its result by first declaring the regulation ambiguous and then applying Auer deference to the Board's interpretation.9 The court observed that both parties offered reasonable constructions and therefore deferred to the agency.10 The Supreme Court granted certiorari to consider whether to overrule Auer and Seminole Rock deference.11
Whether Auer v. Robbins and Bowles v. Seminole Rock should be overruled?12
Stare decisis cuts strongly against overruling a long line of precedents going back seventy-five years or more when the doctrine pervades administrative law, abandoning it would cast doubt on many settled constructions, and Congress has allowed the regime to operate alongside the APA for nearly a century without alteration.13
No. The Court has applied Auer or Seminole Rock in dozens of cases and lower courts have done so thousands of times, making deference to reasonable agency interpretations of ambiguous rules a pervasive feature of administrative law.14 Kisor offers no special justification such as unworkability or status as a doctrinal dinosaur.15 Although the administrative state has grown, that evolution supplies no answer for courts to assume agencies' expertise-based policymaking functions.16 The facts show that the Board of Veterans' Appeals interpreted the VA regulation governing relevant service records, the Federal Circuit deferred under Auer, and the Supreme Court preserves the doctrine while cabining its scope.17
Auer and Seminole Rock are not overruled.18
Related opinions on this issue
Chief Justice Roberts joined Parts I, II-B, III-B, and IV and agreed that overruling Auer and Seminole Rock is not warranted under stare decisis.19 He observed that the majority's catalog of prerequisites and limitations on Auer deference substantially overlaps with the factors that would make an agency's interpretation persuasive under Skidmore.20 This suggests the practical distance between the majority and Justice Gorsuch is narrower than it first appears.21
Roberts emphasized that issues of deference to agency interpretations of regulations remain distinct from Chevron deference to agency interpretations of statutes.22
Joined by Justice Thomas, Justice Kavanaugh (parts I, Ii, Iii, Iv, And V), Justice Alito (parts I, Ii, And Iii)
Justice Gorsuch concurred in the judgment but argued that Auer should have been overruled outright.23 He contended that Auer creates a systematic judicial bias favoring the most powerful party, the federal government, and rests on an accidental dictum from Seminole Rock that was never reconciled with the APA or the Constitution.24 Gorsuch maintained that the majority's numerous new limitations transform Auer into a zombified doctrine that will force litigants and lower courts through needless hoops while still denying parties an independent judicial determination of regulatory meaning.25
Joined by Justice Alito
Justice Kavanaugh agreed that Auer should be formally retired.26 He noted that rigorous application of the traditional tools of construction, as required by the majority's invocation of Chevron footnote 9, will lead in most cases to the same destination as outright overruling because a court will almost always reach a conclusion about the best interpretation before any deference question arises.27 Kavanaugh stressed that the decision does not address Chevron deference to agency interpretations of statutes.28
Whether the Federal Circuit erred by declaring the VA regulation ambiguous without first exhausting all traditional tools of construction?29
A court must exhaust all traditional tools of construction, including careful consideration of text, structure, history, and purpose, before concluding that a regulation is genuinely ambiguous and therefore eligible for Auer deference.30
Yes. The Federal Circuit jumped the gun when it casually remarked that both parties' positions on the meaning of relevant records were reasonable and then moved directly to deference.31 The court failed to make a conscientious effort to determine, based on indicia such as text, structure, history, and purpose, whether the VA regulation really has more than one reasonable meaning.32 On the facts, the Board of Veterans' Appeals had interpreted the regulation to require that new service records relate to the specific basis of the original denial, yet the Federal Circuit did not seriously engage that position or Kisor's contrary reading before declaring ambiguity.33
The Federal Circuit erred by declaring the regulation ambiguous without first exhausting all traditional tools of construction.34
Whether the Federal Circuit erred by assuming Auer deference should apply without assessing whether the agency's interpretation was the sort that Congress would want to receive deference?
Even when a regulation is genuinely ambiguous, a court must conduct an independent inquiry into whether the character and context of the agency interpretation entitle it to controlling weight, considering whether the interpretation is authoritative, implicates the agency's substantive expertise, and reflects fair and considered judgment rather than a convenient litigating position.35
Yes. The Federal Circuit assumed too quickly that Auer deference should apply once it found ambiguity. It failed to assess whether the interpretation offered by a single non-precedential Board member was the sort of considered, expertise-based, authoritative position that Congress would intend to receive deference.36 The facts show that the Board of Veterans' Appeals issued an individual ruling with no precedential value, and the Federal Circuit did not examine whether that ruling satisfied the markers of authoritative position, substantive expertise, and fair and considered judgment before deferring.37
The Federal Circuit erred by assuming Auer deference should apply without the required independent inquiry.