The US Supreme Court agreed to add Kisor v. Wilkie to its docket on Monday. The court will limit its review to the first question presented by the petition for certiorari, which asks the court to reconsider precedent from Auer v. Robbins and Bowles v. Seminole Rock & Sand that directs courts to defer to an agency’s reasonable interpretation of its own ambiguous regulation.
The case is on appeal from the US Court of Appeals for the Federal Circuit. In 2006, petitioner James Kisor a Vietnam War veteran reopened a claim for disability benefits based on new evidence that supported a diagnosis of PTSD. While the Department of Veterans Affairs (VA) approved his 2006-claim for benefits and agreed with the diagnosis, it declined to grant him retroactive benefits based on his initial 1983-claim. The VA argued that Kisor failed to present “relevant” service records required by VA regulations governing reconsideration of benefits claims. The Court of Appeals for the Federal Circuit deferred to the VA’s interpretation of its own regulation and found in its favor.
How much deference courts should afford agencies is a central question of administrative law. Conservative justices on the court and conservatives more broadly have criticized what has become known as “Auer deference.” The late Justice Scalia voiced his concern in the 2015-case Perez v. Mortgage Bankers Association, stating:
But an agency’s interpretation of its own regulations is another matter. By giving that category of interpretive rules Auer deference, we do more than allow the agency to make binding regulations without notice and comment. Because the agency (not Congress) drafts the substantive rules that are the object of those interpretations, giving them deference allows the agency to control the extent of its notice-and-comment-free domain. To expand this domain, the agency need only write substantive rules more broadly and vaguely, leaving plenty of gaps to be filled in later, using interpretive rules unchecked by notice and comment.
The Supreme Court will hear the case next year and will likely make a ruling in the late spring.