Kisor v. Wilkie
| What is deference in the context of the administrative state? Deference, or judicial deference, is a principle of judicial review in which a federal court yields to an agency's interpretation of a statute or regulation. The U.S. Supreme Court has developed several forms of deference in reviewing federal agency actions, including Chevron deference, Skidmore deference, and Auer deference. Learn about state-level responses to deference here. |
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| Kisor v. Wilkie | |
| Term: 2018 | |
| Important Dates | |
| Argument: March 27, 2019 Decided: June 26, 2019 | |
| Outcome | |
| Federal Circuit judgment vacated and remanded | |
| Vote | |
| 9-0 | |
| Majority | |
| Chief Justice John G. Roberts • Clarence Thomas • Ruth Bader Ginsburg • Stephen Breyer • Samuel Alito • Sonia Sotomayor • Elena Kagan • Neil Gorsuch • Brett Kavanaugh | |
Kisor v. Wilkie was a United States Supreme Court case that upheld the idea that courts should defer to an agency's reasonable interpretation of its own ambiguous regulations in limited circumstances.[1] The case explored whether the court should overturn Bowles v. Seminole Rock & Sand Co. (1945) and Auer v. Robbins (1997), both of which figure prominently in the expansion of the administrative state. The court decided to keep those precedents but articulated the narrow range of agency regulatory interpretations that qualify for Auer deference.[1] Justice Neil Gorsuch was critical of the court for not overturning Auer, warning in a concurring opinion joined by Justices Thomas, Alito, and Kavanaugh that it would likely have to address the issue again in the near future.[1]
Why it matters: The case upheld the U.S. Supreme Court precedents that established Auer deference while placing clear limitations on which regulatory interpretations qualify for deference. Auer deference requires courts to accept an agency's interpretation of its own ambiguous regulation. Without that deference requirement, federal courts reviewing agency actions would have more power to scrutinize agency interpretations of regulations. Supporters of Auer deference claim that eliminating the doctrine would allow judges to interfere with agencies.[3] Opponents claim that eliminating or limiting Auer would give judges the primary responsibility for interpreting legal texts, thereby recognizing separation of powers principles.[4]
Timeline
The following timeline details key events in this case:
- June 26, 2019: U.S. Supreme Court decision announced
- March 27, 2019: Oral argument
- December 10, 2018: U.S. Supreme Court agreed to hear case
- June 29, 2018: Petition filed with U.S. Supreme Court
- September 7, 2017: The Federal Circuit Court affirmed the lower court's ruling
Background
| Administrative State |
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| Read more about the administrative state on Ballotpedia. |
The initial case
James Kisor was an active-duty Marine from 1962 to 1966. He filed an initial claim for disability benefits with the U.S. Department of Veterans Affairs (VA) in 1982 citing post-traumatic stress disorder (PTSD). A psychiatric examiner diagnosed Kisor with a personality disorder, not PTSD, and his disability claim was denied in 1983. Kisor failed to perfect his appeal, so the initial rejection from 1983 became final.[5]
In 2006, Kisor requested that the VA reopen his case. He submitted a July 2007 psychiatric evaluation that diagnosed him with PTSD. In September 2007, a VA examiner diagnosed Kisor with PTSD. Following the diagnosis, the regional VA office assigned Kisor a 50 percent disability rating effective June 5, 2006. Kisor challenged both the disability rating and the effective date set by the VA. In 2010, the VA agreed to increase Kisor's disability rating but did not grant him an earlier effective date for his benefits.[5]
Kisor appealed to the Board of Veterans' Appeals (Board), arguing that the effective date for his benefits should be 1983 when he initially filed for disability compensation. The Board rejected Kisor's arguments, saying that he should have finished his appeal in 1983 before the denial became final. Kisor appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Veterans Court), arguing that the VA did not correctly apply provisions of 38 C.F.R. § 3.156(c). The Veterans Court ruled against Kisor, saying that he failed to demonstrate error in the Board's findings concerning the effective date of his disability benefits. Kisor then appealed to the United States Court of Appeals for the Federal Circuit.[5]
Appeal to the Federal Circuit
The Federal Circuit reviewed Kisor's argument that the Veterans Court misinterpreted the regulation found at 38 C.F.R. § 3.156(c). The court affirmed the ruling of the Veterans Court, saying that courts generally defer to an agency’s interpretation of its own regulation “as long as the regulation is ambiguous and the agency’s interpretation is neither plainly erroneous nor inconsistent with the regulation.” The court cited precedent from Bowles v. Seminole Rock & Sand Co. and Christensen v. Harris County in support of its position but relied on Auer v. Robbins, saying, "An agency’s interpretation of its own regulations is controlling unless plainly erroneous or inconsistent with the regulations being interpreted." The regulation read, "[A]t any time after VA issues a decision on a claim, if VA receives or associates with the claims file relevant official service department records that existed and had not been associated with the claims file when VA first decided the claim, VA will reconsider the claim [. . .]" The court found that the term "relevant" in the statute was ambiguous and vague and that the Board's interpretation was neither plainly erroneous nor inconsistent with the regulatory framework of the VA.[5]
You can review the Federal Circuit's opinion here.[5]
U.S. Supreme Court
On December 10, 2018, the Supreme Court of the United States granted a petition for a writ of certiorari in the case.[6] In the petition, Kisor and his lawyers asked the court to consider the following two alternatives:[7]
- Whether to overrule precedents dealing with judicial deference to administrative agency interpretations of their own ambiguous regulations
- Whether to hold that Auer deference can only apply after courts have used all other applicable tools to resolve alleged ambiguities in a regulation.
The court limited Kisor's appeal to the first question and agreed to review only whether to overrule its Bowles v. Seminole Rock & Sand Co. and Auer v. Robbins precedents.[6][8] The court had rejected previous requests to reconsider those cases as late as March 2018.[9][10][2]
Before oral argument, United States Solicitor General Noel J. Francisco outlined the federal government's position in a brief filed on February 25, 2019.[11] The U.S. Department of Justice (DOJ) defended the federal agency’s action at the heart of the case, but the solicitor general’s brief cited a variety of “substantial concerns” with Auer deference and argued for “significant limits on its application.”[11]
The DOJ brief asserted, in part, that the doctrine “is not well grounded historically; [the U.S. Supreme Court] has not articulated a consistent rationale for it; and it is … difficult to justify on the basis of implicit congressional intent.”[11] The brief also stated that a reviewing court should defer to the agency's interpretation “only if the interpretation was issued with fair notice to regulated parties; is not inconsistent with the agency's prior views; rests on the agency's expertise; and represents the agency's considered view, as distinct from the views of mere field officials or other low-level employees.”[11]
Questions at oral argument
Justice Stephen Breyer said during oral argument that overturning Auer deference “sounds like the greatest judicial power grab since Marbury v. Madison.”[12] He argued that, without Auer, judges could make decisions best left to experts in executive agencies.[12] Justice Neil Gorsuch argued that federal law requires independent judges to decide all questions of law.[12] Gorsuch said access to independent judges seemed to him “a significant promise, especially to the least and most vulnerable among us, like the immigrant, like the veteran” facing an agency in court.[12]
Justice Brett Kavanaugh asked during oral argument whether having agencies use notice-and-comment rulemaking instead of relying on guidance documents would reduce regulatory ambiguity and resolve the fight over Auer.[12] Justice Gorsuch argued that one of the benefits of agencies going through the public process of issuing a rule would be that the "people [would] know prospectively what rules govern them and not be sideswiped later by a bureaucracy."[12]
Question presented
The petitioner, James Kisor, presented the following question to the court:[2]
Question presented:
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Oral argument
The U.S. Supreme Court heard oral argument in the case on March 27, 2019.
Audio
- Audio of oral argument:[13]
Transcript
- Transcript of the oral argument:[12]
Outcome
The decision of the U.S. Supreme court to vacate and remand the lower court's decision was unanimous, but the justices disagreed about the future of judicial deference in general.[1] The court instructed the Federal Circuit to redo the case and decide whether Auer deference was appropriate under the criteria laid out in Kisor.[1]
Justice Kagan delivered the opinion of the court and Justices Roberts, Gorsuch, and Kavanaugh wrote separate concurring opinions.
Opinions
Opinion of the court
The opinion of the court was split into four sections, but only parts of the full opinion received majority support.[1] Chief Justice Roberts joined the majority sections, but only Justices Kagan, Ginsburg, Breyer, and Sotomayor supported the others.[1]
Justice Kagan delivered the opinion of the court, which upheld Auer deference and put forth the limited circumstances in which courts should defer to reasonable agency interpretations of ambiguous regulations.[1]
Kagan articulated the following limitations on Auer deference:[1]
- Courts should only give Auer deference to an agency after establishing that the regulation in question is actually ambiguous. Courts must first consider the text, structure, history, and purpose of a regulation before deferring to a reasonable agency view.
- A court must determine whether the reasonable agency interpretation of a regulation is an authoritative or official position of the agency before giving Auer deference.
- Courts should only give Auer deference to agency interpretations based on the expertise of that agency. For questions that fall outside the regular duties of an agency, Auer deference is less appropriate.
- The reasonable agency interpretation of an ambiguous regulation must be a “fair and considered judgment” that does not create an unfair surprise for those subject to the regulation in order to qualify for Auer deference. Courts should not defer to agency interpretations that were adopted just to help the agency during a lawsuit.
The opinion also argued that overturning the 75 years of precedent built around Auer deference requires special justification that was not offered in the Kisor case.[1]
The court concluded that the Federal Circuit failed to consider whether the regulation at issue in Kisor had more than one reasonable meaning.[1] According to the opinion, even if the regulation was ambiguous, the Federal Circuit assumed too quickly that the VA's interpretation deserved deference.[1]
Concurring opinions
Justice Kagan
The parts of Kagan's opinion that did not receive majority support argued that courts should defer to agencies when interpretation "involves a choice between (or among) more than one reasonable reading" of a regulation.[1]
According to the opinion, Auer deference is justified by congressional intent.[1] Since Congress does not always say whether agencies or courts should decide what ambiguous regulations mean, the court presumes that Congress intends for agencies to interpret regulations made using delegated power.[1] Beyond interpretation possibly being part of delegated authority, Congress might also prefer that agencies interpret regulations because agencies have more expertise than courts in many cases.[1] Finally, Kagan argues that allowing agencies to interpret ambiguous regulations might lead to more uniform results than the uncertainty that could follow the results of conflicting lawsuits.[1]
Kagan's opinion also rejects the argument that Auer deference violates the Administrative Procedure Act (APA).[1] It also rejects the claim that Auer deference leads agencies to make vague rules they can later interpret to support a future agency policy.[1] This section of the opinion concludes with an argument that Auer deference is consistent with separation of powers principles because agencies exercise only executive power when they perform legislative or judicial activities under a law.[1]
Chief Justice Roberts
Justice Roberts wrote a concurring opinion arguing that the Kisor decision supporting Auer deference does not extend to supporting Chevron deference, which applies to agency interpretations of laws, not regulations.[1]
Justice Gorsuch
Justice Gorsuch wrote a concurring opinion arguing that the majority opinion places so many limitations on Auer deference that the doctrine emerges "maimed and enfeebled—in truth, zombified."[1] He argued that keeping a weaker version of Auer in place might impose unnecessary legal hurdles on litigants and deny people independent judicial decisions.[1]
Justice Kavanaugh
Justice Kavanaugh wrote a concurring opinion agreeing with Justice Gorsuch that Auer deference should be eliminated and with Justice Roberts' that the Kisor decision does not support Chevron deference.[1] Kavanaugh also argued that when judges use the traditional methods of figuring out what legal texts mean they will have few reasons to defer to agencies.[1]
Text of the opinion
Read the full opinion here.
Commentary about the case
Pre-decision commentary
David French, writing in National Review, said that the outcome of Kisor "could strike at the heart of the administrative state." He argued that judicial deference "supercharges the executive branch" and is "a cornerstone of the imperial presidency and the root of much modern presidential authoritarianism."[9] Writing for ThinkProgress, Ian Millhiser, described Kisor as "a case asking the Court to transfer power from the executive branch to the judiciary."[14] The editorial board of The Wall Street Journal described Kisor as "good news for critics of the willy-nilly expansion of the administrative state."[15]
Louisiana Solicitor General Elizabeth Murrill, writing at SCOTUSblog, argued in favor of overruling Seminole Rock and Auer.[4] She said issues significant enough to justify deference are significant enough to require promulgation by an agency.[4] She argued that rules governing the agency rulemaking process give Congress the ability to provide oversight, give regulated parties notice of rule changes with an opportunity to submit comments, and give courts objective procedures to review.[4] Under Auer deference, she argued, "courts abdicate their most fundamental duty to say what the law is and also destabilize the balance of power embodied in the Constitution when they defer to an agency that issues ambiguous rules and then seeks deference to informal practices or guidance."[4]
Law professor Adrian Vermeule argued that overturning Auer could threaten other Supreme Court precedents that form the foundation of American administrative law.[3] He argued that Auer "is closely intertwined with the fundamental default principle that agencies are presumed to have broad discretion to choose their own procedures and policymaking instruments free of judicial interference, except when statutes and binding regulations specify otherwise."[3] The decision in Kisor, according to Vermeule, has the potential to affect more than the question of how courts should approach agency interpretations of their own ambiguous regulations. He claimed that the court could subsequently overturn precedents like Chevron and Chenery II.[3] Chevron established the principle that compels federal courts to defer to a federal agency's interpretation of an ambiguous or unclear statute that Congress delegated to the agency to administer. The U.S. Supreme Court held in Chenery II that administrative agencies have the discretion to choose whether to make policy through rulemaking or adjudication.
Post-decision commentary
Andrew Chung, writing for Reuters, described Kisor as a new constraint on the power of federal agencies, which he called "a key goal of many business and conservative groups."[16] Attorney General of Missouri Eric S. Schmitt (R-Mo.), however, argued that the court "missed a golden opportunity to restore the role of federalism and the separation of powers in federal administrative law."[17] Schmitt was in favor of the fact that Justices Roberts and Kavanaugh argued that Kisor does not prevent the court from reconsidering Chevron deference in a future case.[17]
The U.S. Supreme Court's decision in Kisor was "a major opinion on administrative law," according to Amy Howe at SCOTUSblog.[18] The court upheld Auer deference and outlined the few kinds of regulatory interpretations that qualify for deference, but Justice Gorsuch argued that "the court would almost certainly have to address the issue again soon" because the decision laid out complex rules for when it applies.[18]
Law professor Thomas Merrill wrote that all nine justices seemed to agree that Auer deference should be limited but disagreed about what to call the new standard of judicial deference.[19] Justice Roberts argued in his concurring opinion that the distance between Kagan and Gorsuch's opinions was not that great. Merrill identified the following two differences:[19]
- Gorsuch's focus on persuasion would have replaced Auer with the existing Skidmore deference framework.
- Agencies might not be able to change their interpretations under Gorsuch's approach.
Merrill concluded his analysis predicting that Chevron deference would be replaced in the future but stated that the court seemed more likely to follow its decision in Kisor and exchange Chevron for Skidmore while keeping the Chevron name.[19]
See also
Supreme Court Cases:
- Auer v. Robbins
- Christensen v. Harris County
- Bowles v. Seminole Rock & Sand Co.
- Chevron v. Natural Resources Defense Council
- Securities and Exchange Commission v. Chenery Corporation
External links
- U.S. Supreme Court docket file - Kisor v. Wilkie (petitions, motions, briefs, opinions, and attorneys)
- SCOTUSblog case file for Kisor v. Wilkie
- Search Google News for this topic
Footnotes
- ↑ 1.00 1.01 1.02 1.03 1.04 1.05 1.06 1.07 1.08 1.09 1.10 1.11 1.12 1.13 1.14 1.15 1.16 1.17 1.18 1.19 1.20 1.21 1.22 1.23 1.24 Supreme Court of the United States, "Kisor v. Wilkie," June 26, 2019
- ↑ 2.0 2.1 2.2 SCOTUSblog, "Kisor v. Wilkie," accessed December 10, 2018
- ↑ 3.0 3.1 3.2 3.3 SCOTUSblog, "Symposium: Tampering with the structure of administrative law," accessed March 18, 2019
- ↑ 4.0 4.1 4.2 4.3 4.4 SCOTUSblog, "Symposium: Reverse Seminole Rock and Auer," accessed March 18, 2019
- ↑ 5.0 5.1 5.2 5.3 5.4 United States Court of Appeals for the Federal Circuit, "Kisor v. Shulkin, September 7, 2017
- ↑ 6.0 6.1 Supreme Court of the United States, "James L. Kisor v. Robert Wilkie," accessed December 10, 2018
- ↑ Supreme Court of the United States, "James L. Kisor v. Peter O'Rourke, Petition for a Writ of Certiorari," June 2018
- ↑ Supreme Court of the United States, "Order List: 586 U.S.," accessed December 13, 2018
- ↑ 9.0 9.1 National Review, "The Boring Supreme Court Case That Could Help Make America Great Again," December 11, 2018
- ↑ Reuters, "U.S. top court will not hear challenge to federal agency power," March 19, 2018
- ↑ 11.0 11.1 11.2 11.3 Supreme Court of the United States, "James L. Kisor v. Robert Wilkie, Brief for the Respondent," accessed April 22, 2019
- ↑ 12.0 12.1 12.2 12.3 12.4 12.5 12.6 Supreme Court of the United States, "Kisor v. Wilkie, Transcript of Oral Argument," argued March 27, 2019
- ↑ Supreme Court of the United States, "Kisor v. Wilkie, Audio of Oral Argument," argued March 27, 2019
- ↑ ThinkProgress, "Kavanaugh’s Court begins its inevitable power grab with Kisor v. Wilkie," Ian Millhiser, December 12, 2018
- ↑ The Wall Street Journal, "Auer of Legal Reckoning," December 10, 2018
- ↑ Reuters, "Supreme Court chips away at federal agency power," Andrew Chung, June 26, 2019
- ↑ 17.0 17.1 SCOTUSblog, "Symposium: Kisor v. Wilkie – A swing and a miss," Eric S. Schmitt, June 27, 2019
- ↑ 18.0 18.1 SCOTUSblog, "Opinion analysis: Justices leave agency deference doctrine in place – with limits (Updated)," June 26, 2019
- ↑ 19.0 19.1 19.2 SCOTUSblog, "Symposium: Shadow boxing with the administrative state," Thomas W. Merrill, June 27, 2019
