Kisor v. Wilkie

Last updated
Kisor v. Wilkie
Seal of the United States Supreme Court.svg
Supreme Court of the United States
Argued March 27, 2019
Decided June 26, 2019
Full case nameJames L. Kisor v. Robert L. Wilkie
Docket no. 18-15
Citations588 U.S. ( more )
139 S. Ct. 2400; 204 L. Ed. 2d 841
Case history
PriorKisor v. Shulkin, 869 F.3d 1360 (Fed. Cir. 2017); rehearing en banc denied, 880 F.3d 1378 (Fed. Cir. 2018); cert. granted, 202 L. Ed. 2d 491 (2018).
Holding
There is no sufficient cause to overturn Auer or Bowles, but courts must use all interpretive powers it has to affirm if the Auer deference is appropriate.
Court membership
Chief Justice
John Roberts
Associate Justices
Clarence Thomas  · Ruth Bader Ginsburg
Stephen Breyer  · Samuel Alito
Sonia Sotomayor  · Elena Kagan
Neil Gorsuch  · Brett Kavanaugh
Case opinions
MajorityKagan (Parts I, II–B, III–B, and IV), joined by Roberts, Ginsburg, Breyer, Sotomayor
PluralityKagan (Parts II–A and III–A), joined by Ginsburg, Breyer, Sotomayor
ConcurrenceRoberts (in part)
ConcurrenceGorsuch (in judgment), joined by Thomas; Kavanaugh (Parts I, II, III, IV, and V); Alito (Parts I, II, and III)
ConcurrenceKavanaugh (in judgment), joined by Alito

Kisor v. Wilkie, No. 18-15, 588 U.S. ___ (2019), was a US Supreme Court case related to the interpretation by an executive agency of its own ambiguous regulations. The case involved a veteran who had been denied some benefits from the United States Department of Veterans Affairs due to the agency's interpretation of its regulations. The case challenges the "Auer deference" established in the 1997 case Auer v. Robbins , in which the judiciary branch of the government normally defers to an agency's own interpretation of its own regulations in resolving matters of law. Lower courts, including the Federal Appeals Circuit Courts, ruled against the veteran, acknowledging the Auer deference.

Contents

The case sought to have Auer overturned. The Court issued its decision in June 2019 that Kisor lacked sufficient motivation and rationale to overturn Auer on precedent, but did reverse and remand the veteran's case to be reheard with stricter adherence to the principles of whether the Auer deference did apply in the veteran's case. [1] However, the Court did state that there are times where the Auer deference may be inappropriate, and outlined rules for lower courts to use to as a metric.

The 1984 case Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc. [2] introduced what is known as the Chevron deference, a doctrine frequently applied in federal courts. In essence, the Chevron deference is used to defer to an executive agency's interpretation of the "construction of the statute which it administers", as long as Congress has not passed any legislation to address the statute, and the interpretation is a "permissible construction" of the statute. This was further established in Auer v. Robbins in 1997, which stated the Chevron deference would also apply to interpretations of regulations established by the agency, as long as the interpretation is not inconsistent with the regulation. [3] The decision of Auer had been previously mirrored in Bowles v. Seminole Rock & Sand Co., [4] but most of the federal courts have adopted the term Auer deference. [5]

Since the ruling on Auer, many legal commentators, starting with John Manning, later made Dean of Harvard Law School, have expressed concern that this ruling gives executive agencies too much power, able to draw judicial power in a growing administrative state. [6] Some have found agencies more likely to write vague regulations so that they can be interpreted as needed in future legal challenges. [7] [6]

Justice Antonin Scalia, who wrote the majority opinion for Auer, later stated his regret for writing that decision, calling it "one of the worst opinions in the history of this country," and questioned it in a concurring opinion in Talk America v. Michigan Bell Telephone Co. [8] [6] Justice Clarence Thomas had written in his dissenting opinion on the denial of petition for United Student Aid Funds v. Bible (Docket 15–861) that members of the Court, including himself, Chief Justice John Roberts and Justices Samuel Alito, Anthony Kennedy and Antonin Scalia, had "repeatedly called for [Auer's] reconsideration in an appropriate case". [9] Observers also identified that Justice Neil Gorsuch, while he served on the United States Court of Appeals for the Tenth Circuit, authored decisions that called for a re-evaluation of Auer. [10]

Case background

James Kisor is a veteran Marine from the Vietnam War, and had been a participant in Operation Harvest Moon. In 1982, stating that he had developed posttraumatic stress disorder (PTSD) from his service, Kisor sought disability benefits from the United States Department of Veterans Affairs (VA). On review, the VA disagreed he had PTSD and denied him disability benefits. Kisor appealed that decision in 2006, this time with additional documentation that was not available in 1982, including his service record. The VA granted benefits with this information, but with a start date of 2006 rather than 1982. The VA interpreted its own regulations that the new documents presented were not "relevant" to his first request in 1982, despite Kisor stating that the VA affirmed his PTSD from his combat record forms. Both the Court of Appeals for Veterans Claims and the United States Court of Appeals for the Federal Circuit affirmed the VA's decision, [11] affirming that Auer gave the VA the ability to define the meaning of "relevant" in this regulation, and putting the onus on Kisor to demonstrate it was not a valid interpretation. [12] Kisor's petition for the Federal Circuit to rehear the case en banc was denied, with three judges dissenting. [13]

Supreme Court

Kisor filed petition for writ of certiorari to the Supreme Court in April 2018, asking two questions. First, whether Auer, as well as the related case Bowles v. Seminole Rock & Sand Co. (1945) should be overturned, and second, whether the canon of interpretation requiring courts to construe interpretive ambiguity in favor of veterans trumps Auer deference. The Supreme Court granted the petition on the first question only, with oral arguments heard on March 27, 2019. [7] [14] [15] During oral arguments, while the Court recognized the issues with allowing agencies to interpret their own policies without reasonable public input and how Auer contributed towards the administrative state, they also expressed concern that such agencies, and not the judiciary, are typically the only appropriate entities with expert knowledge in the agency's field to make appropriate interpretations, citing the example of a complex chemical requirement established under the United States Food and Drug Administration. Further, the Justices expressed concern with fractured interpretation of an agency's regulations within other agencies should Auer be overruled. [8] Justice Stephen Breyer half-jokingly expressed concern that a poor decision in this case could be the "greatest judicial power grab since Marbury v. Madison ". [15]

The Court issued its decision, its majority decision written by Justice Elena Kagan, on June 26, 2019, reversing and remanding the case back to the Federal Circuit Court. [1] Kagan's ruling specifically did not overrule Auer or Seminole Rock, as Kisor's case lacked the proper motivation for doing so and to overcome stare decisis , though some dissents-in-part from Justices Thomas, Alito, Gorsuch, and Kavanaugh indicated they would have ruled in favor of overturning these.

Justice Elena Kagan, writing for the majority, issued an opinion by herself and the other liberal justices, joined partly by Chief Justice Roberts. [6] Kagan started with reiterating the justification of Auer, namely, the court's belief of implicit Congressional intent. The court infers that the agency can best state the regulation's authorial intent, has the expertise to make what's essentially a policy decision, and can promote uniformity. [6] Justice Kagan further stated that while the decision upholds the Auer deference, "we reinforce its limits." Kagan's opinion stated that the Auer deference is "sometimes appropriate and sometimes not," and states that the Auer deference can only be considered when "a regulation is genuinely ambiguous," the court has exhausted traditional tools of statutory construction, "the agency's construction of its rule must still be reasonable", the rule must be an authoritative statement by agency higher-up officials; it must implicate agency expertise; and it cannot create unfair surprise. [16] [6]

Strikingly, the chief justice joins only the portion of the majority opinion that limited the application of Auer. He did not join the parts of the opinion which stated the justifications or Auer and declined to overrule it. [6]

The Court did unanimously rule on the judgement of the specific matter of Kisor's case with the VA that the Federal Circuit did not use all the tools it had at hand to property analyze the interpretation of the VA's regulations, thus vacating the prior decision and remanding it for review in light of the limitations set forth for the Auer deference. [17]

See also

Related Research Articles

United States federal administrative law encompasses statutes, common law, and directives issued by the Office of Information and Regulatory Affairs in the Executive Office of the President, that together define the extent of powers and responsibilities held by administrative agencies of the United States government. The executive, legislative, and judicial branches of the U.S. federal government cannot always directly perform their constitutional responsibilities. Specialized powers are therefore delegated to an agency, board, or commission. These administrative governmental bodies oversee and monitor activities in complex areas, such as commercial aviation, medical device manufacturing, and securities markets.

National Cable & Telecommunications Association v. Brand X Internet Services, 545 U.S. 967 (2005), was a United States Supreme Court case in which the court held that decisions by the Federal Communications Commission on how to regulate Internet service providers are eligible for Chevron deference. While the case concerned routine regulatory processes at the FCC and applied to interpretations of the Communications Act of 1934 and Telecommunications Act of 1996, the ruling has become an important precedent on the matter of regulating network neutrality in the United States.

Gonzales v. Oregon, 546 U.S. 243 (2006), was a landmark decision of the US Supreme Court which ruled that the United States Attorney General cannot enforce the federal Controlled Substances Act against physicians who prescribed drugs, in compliance with Oregon state law, to terminally ill patients seeking to end their lives, commonly referred to as assisted suicide. It was the first major case heard by the Roberts Court under the new Chief Justice of the United States.

Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984), was a landmark case in which the United States Supreme Court set forth the legal test for determining whether to grant deference to a government agency's interpretation of a statute which it administers. The decision articulated a doctrine now known as "Chevron deference". The doctrine consists of a two-part test applied by the court, when appropriate, that is highly deferential to government agencies: first, whether Congress has spoken directly to the precise issue at question, and second, "whether the agency's answer is based on a permissible construction of the statute."

<span class="mw-page-title-main">Bump stock</span> Gun stocks that can be used to assist in bump firing

Bump stocks or bump fire stocks are gun stocks that can be used to assist in bump firing. Bump firing is the act of using the recoil of a semi-automatic firearm to fire ammunition cartridges in rapid succession.

Auer v. Robbins, 519 U.S. 452 (1997), is a United States Supreme Court case that concerns the standard that the Court should apply when it reviews an executive department's interpretation of regulations established under federal legislation. The specific issue was whether sergeants and lieutenants in the St. Louis Police Department should be paid for working overtime. The Fair Labor Standards Act of 1938 established the overtime pay requirement, and the US Department of Labor issued regulations to determine if an employee was covered by the overtime requirement.

United States v. Mead Corp., 533 U.S. 218 (2001), is a case decided by the United States Supreme Court that addressed the issue of when Chevron deference should be applied. In an 8–1 majority decision, the Court determined that Chevron deference applies when Congress delegated authority to the agency generally to make rules carrying the force of law.

Skidmore v. Swift & Co., 323 U.S. 134 (1944), is a United States Supreme Court decision holding that an administrative agency's interpretative rules deserve deference according to their persuasiveness. The court adopted a case-by-case test, which considers the rulings, interpretations, and opinions of the administrator. The Supreme Court reversed and remanded the case for further proceedings.

Christensen v. Harris County, 529 U.S. 576 (2000), is a Supreme Court of the United States case holding that a county's policy of requiring employees to schedule time off to avoid accruing time off was not prohibited by the Fair Labor Standards Act.

Mayo Foundation v. United States, 562 U.S. 44 (2011), is a United States Supreme Court case in which the Court upheld a Treasury Department regulation on the grounds that the courts should defer to government agencies in tax cases in absence of an unreasonable decision on the part of the agency.

Entergy Corp. v. Riverkeeper, Inc., 556 U.S. 208 (2009), is a decision by the United States Supreme Court that reviewed the Environmental Protection Agency's (EPA) interpretation of the Clean Water Act regulations with regard to cooling water intakes for power plants. Existing facilities are mandated to use the "Best Technology Available" to "minimize the adverse environmental impact." The issue was whether the agency may use a cost–benefit analysis (CBA) in choosing the Best Available Technology or (BAT) to meet the National Performance Standards (NPS).

King v. Burwell, 576 U.S. 473 (2015), was a 6–3 decision by the Supreme Court of the United States interpreting provisions of the Patient Protection and Affordable Care Act (ACA). The Court's decision upheld, as consistent with the statute, the outlay of premium tax credits to qualifying persons in all states, both those with exchanges established directly by a state, and those otherwise established by the Department of Health and Human Services.

Michigan v. Environmental Protection Agency, 576 U.S. 743 (2015), is a landmark United States Supreme Court case in which the Court analyzed whether the Environmental Protection Agency must consider costs when deciding to regulate, rather than later in the process of issuing the regulation.

Encino Motorcars v. Navarro, 579 U.S. ___ (2016), 584 U.S. ___ (2018), was a Supreme Court of the United States case addressing overtime pay. Specifically at issue is whether automotive service advisors are eligible for overtime pay under the Fair Labor Standards Act.

Knick v. Township of Scott, Pennsylvania, No. 17-647, 588 U.S. ___ (2019), was a case before the Supreme Court of the United States dealing with compensation for private property owners when the use of that property is taken from them by state or local governments, under the Due Process Clause and the Takings Clause of the Fifth Amendment to the United States Constitution. The immediate question asks if private land owners must exhaust all state-offered venues for mediation before seeking action in the federal courts. The case specifically addresses the Court's prior decision from the 1985 case Williamson County Regional Planning Commission v. Hamilton Bank of Johnson City, which had previously established that all state court venues must be exhausted first, but which has since resulted in several split decisions among circuit courts. The Supreme Court ruled in June 2019 to overturn part of Williamson County that required state venue action be taken first, allowing taking-compensation cases to be brought directly to federal court.

Babb v. Wilkie, 589 U.S. ___ (2020), is a case of the United States Supreme Court in which the justices considered the scope of protections for federal employees in the Age Discrimination in Employment Act of 1967. Specifically, the Court ruled that plaintiffs only need to prove that age was a motivating factor in the decision in order to sue. However, establishing but for causation is still necessary in determining the appropriate remedy. If a plaintiff can establish that the age was the determining factor in the employment outcome, they may be entitled to compensatory damages or other relief relating to the result of the employment decision.

Kristin Hickman is an American legal scholar known for her work in the fields of administrative law, tax administration, statutory interpretation, and tax law. She is a Distinguished McKnight University Professor and the Harlan Albert Rogers Professor in Law at the University of Minnesota Law School. Her work is regularly cited by United States Courts, including the United States Supreme Court. She is known for her scholarship on regulatory practice and judicial deference, particularly Chevron deference.

HollyFrontier Cheyenne Refining, LLC v. Renewable Fuels Association, 594 U.S. ___ (2021), was a United States Supreme Court case dealing with exemptions from blending requirements for small refineries set by the Renewable Fuel Standard program. The case dealt with the statutory interpretation of the congressional language for extending the exemption, if this allowed a lapse in the exemption or not. In a 6–3 decision, the Supreme Court ruled that by the majority's interpretation of the law, the congressional law did allow for refineries to seek extensions after their exemption period had lapsed.

West Virginia v. Environmental Protection Agency, 597 U.S. ___ (2022), was a landmark decision of the U.S. Supreme Court relating to the Clean Air Act, and the extent to which the Environmental Protection Agency (EPA) can regulate carbon dioxide emissions related to climate change.

Loper Bright Enterprises v. Raimondo is a pending United States Supreme Court case regarding Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc.. The Court will decide whether or not to overrule Chevron.

References

  1. 1 2 Kisor v. Wilkie,No. 18-15 , 588 U.S. ___(2019).
  2. ↑ Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc. , 467 U.S. 837 (1984).
  3. ↑ Auer v. Robbins , 519 U.S. 452 (1997).
  4. ↑ Bowles v. Seminole Rock & Sand Co., 325 U.S. 410 (1945).
  5. ↑ Leske, Kevin (November 2013). "Between Seminole Rock and a Hard Place: A New Approach to Agency Deference". Connecticut Law Review. 46 (1): 227–285. Retrieved December 13, 2018.
  6. 1 2 3 4 5 6 7 "Symposium: In "Gundy II," Auer survives by a vote of 4.6 to 4.4". SCOTUSblog. 2019-06-27. Retrieved 2020-08-11.
  7. 1 2 French, David (December 11, 2018). "The Boring Supreme Court Case That Could Help Make America Great Again". National Review . Retrieved December 13, 2018.
  8. 1 2 Wolf, Richard (March 27, 2019). "Supreme Court appears wary of taking on federal agencies over regulations". USA Today . Retrieved March 27, 2019.
  9. ↑ Millhiser, Ian (December 12, 2018). "Kavanaugh's Court begins its inevitable power grab with Kisor v. Wilkie". Think Progress . Retrieved December 13, 2018.
  10. ↑ Mauro, Tony (December 10, 2018). "Supreme Court Tees Up Major Challenge to Power of Federal Regulators". National Law Review . Retrieved December 13, 2018.
  11. ↑ Kisor v. Shulkin, 869F.3d1360 (Fed. Cir.2017).
  12. ↑ On Petition for a Writ of Certiorari to the Court of Appeals for the Federal Circuit re Auer v. Robbins (June 2018)
  13. ↑ Kisor v. Shulkin, 880F.3d1378 (Fed. Cir.2018).
  14. ↑ "Court releases March calendar". SCOTUSblog. 2019-01-25. Retrieved 2019-02-28.
  15. 1 2 Liptak, Adam (March 27, 2019). "Limiting Agency Power, a Goal of the Right, Gets Supreme Court Test". The New York Times . Retrieved March 27, 2019.
  16. ↑ Wolf, Richard (June 26, 2019). "Supreme Court won't strip federal agencies of power to interpret regulations, a top priority of conservatives". USA Today . Retrieved June 26, 2019.
  17. ↑ Higgens, Tucker (June 26, 2019). "Supreme Court refuses to overturn 'Auer deference,' precedent that strengthens the power of government regulators". CNBC . Retrieved June 26, 2019.

Further reading

This page is based on this Wikipedia article
Text is available under the CC BY-SA 4.0 license; additional terms may apply.
Images, videos and audio are available under their respective licenses.