Kisor v. Wilkie (2018)

Docket: 18-15
Decided: 2018-01-01
Public Good score: 40 / 100
Framers' Intent score: 22 / 100

Summary

Question: Should Auer v. Robbins, 519 U.S. 452 (1997), and Bowles v. Seminole Rock & Sand Co., 325 U.S. 410 (1945), be overruled? Conclusion: <a href="https://www.oyez.org/cases/1996/95-897">Auer v. Robbins, 519 U.S. 452 (1997)</a>, and <a href="https://supreme.justia.com/cases/federal/us/325/410/">Bowles v. Seminole Rock & Sand Co., 325 U.S. 410 (1945)</a>—which direct courts to give deference to an agency’s reasonable reading of its own genuinely ambiguous regulations—are not overruled. Justice Elena Kagan announced the judgment and delivered an opinion in which Justices Ruth Bader Ginsburg, Stephen Breyer, and Sonia Sotomayor joined. Chief Justice Roberts joined in part, forming a majority of the Court for those parts. Justice Kagan, writing for the 5-4 majority, first described the history of the case before it arrived before the Court. Then, writing for a four-justice plurality, she described other examples of ambiguous regulations and explained the history of the doctrine of Auer deference. She explained that Auer deference is “rooted in a presumption that Congress would generally want the agency to play the primary role in resolving regulatory ambiguities” because agencies are best equipped to interpret the often-technical regulations at issue. Writing again for the majority, Kagan continued to outline the requirements that must be met for Auer deference to apply: First, a court should not afford an agency Auer deference unless the regulation is genuinely ambiguous, a determination the court can make only after it has exhausted all the traditional tools of construction. Second, the agency’s reading must be reasonable, under the text, structure, and history of the regulation. Notwithstanding some courts’ interpretation to the contrary, the language “plainly erroneous” from Seminole Rock does not mean that agency constructions of rules are entitled to greater deference than agency constructions of statutes. Third, the regulatory interpretation must be one actually made by the agency; that is, it must be the agency’s authoritative or official position, not merely an ad hoc statement. Fourth, the interpretation must in some way implicate the agency’s substantive expertise, and fifth, it must reflect “fair and considered judgment.” On behalf of the plurality, Kagan went on to address Kisor’s arguments. She explained that Auer is not inconsistent with the judicial review provision of the APA, nor does it circumvent the APA’s rulemaking requirements. Contrary to Kisor’s arguments, Kagan cited empirical evidence to support her position that Auer does not encourage agencies to issue vague and open-ended interpretations of those rules they prefer. Finally, she quickly dispensed of Kisor’s argument that it violates separation-of-powers principles. On behalf of the majority, Kagan wrote that the doctrine of stare decisis cuts strongly against Kisor’s position. There is no “special justification” to reverse Auer, and even if the Court were wrong about its presumption of what Congress would want, Congress can correct it. Applying the principles outlined in the opinion, a redo is necessary for two reasons: The Federal Circuit “jumped the gun” in declaring the regulation ambiguous, and it also “assumed too fast” that Auer deference should apply in the event of genuine ambiguity. Chief Justice Roberts wrote a separate concurrence in part to reiterate Justice Kagan’s assertion that overturning Auer and Seminole Rock was not warranted. He also noted that the cases in which Auer deference is appropriate largely overlap with cases in which it would be unreasonable for a court to be persuaded by an agency's interpretation of its own regulation. He pointed out that the gulf between the majority’s position and Justice Gorsuch’s dissent is not so great as it may initially appear. Justice Neil Gorsuch penned a separate opinion, in which Justices Clarence Thomas and Brett Kavanaugh joined and Justice Samuel Alito joined in part, concurring in the judgment but highly critical of Justice Kagan’s opinion. On behalf of himself and three other justices, Justice Gorsuch wrote a history of Auer deference, describing the decision and resulting doctrine “an accident.” He went on to explain that Auer is inconsistent with the Administrative Procedure Act and the separation of powers principle. On behalf of himself and Justices Thomas and Kavanaugh, Justice Gorsuch responded to Justice Kagan’s public policy considerations and argued that while the majority gave lip service to stare decisis, it effectively changed the test set forth in precedents—which effectively overrules it in all but name. Justice Kavanaugh wrote a separate opinion concurring in the judgment, in which Justice Alito joined. In his opinion, Justice Kavanaugh emphasize

Case Brief

Facts

Veteran William Kisor challenged the Department of Veterans Affairs' (VA) interpretation of a disability regulation requiring 'serious' injury to qualify for benefits. The VA denied his claim based on its reading that the regulation barred benefits for injuries with only 'mild' residual effects. Kisor argued the VA's interpretation was unreasonable and that courts should not grant deference to the agency under Auer and Bowles doctrines.

Procedural History

The Federal Circuit applied Auer deference to the VA's interpretation, affirming the denial of benefits. The Supreme Court granted certiorari to resolve a circuit split over whether Auer v. Robbins and Bowles v. Seminole Rock should be overruled, after the D.C. Circuit had previously rejected the doctrine.

Issue

Whether the Court should overrule Auer v. Robbins and Bowles v. Seminole Rock, which require courts to afford deference to an agency's reasonable interpretation of its own ambiguous regulations.

Holding

The Court declined to overrule Auer and Bowles. The majority held that Auer deference remains valid and that the regulations at issue were not genuinely ambiguous under the Court's established five-factor test.

Rule

Auer deference applies only if: (1) the regulation is genuinely ambiguous after applying traditional tools of construction; (2) the agency's reading is reasonable under the regulation's text, structure, and history; (3) the interpretation is an official agency position; (4) it involves the agency's substantive expertise; and (5) it reflects a 'fair and considered judgment.'

Reasoning

The Court emphasized that overturning Auer would undermine agency expertise and congressional intent in drafting complex regulations. Justice Kagan noted Auer is consistent with the APA and separation of powers, as agencies are best equipped to interpret technical regulations. The Court rejected claims that Auer encourages vague agency interpretations, citing empirical evidence to the contrary. Stare decisis required maintaining the doctrine absent 'special justification,' which was not shown.

Significance

The decision preserves Auer deference as a cornerstone of administrative law, reinforcing agencies' role in interpreting complex regulations. It sets a rigorous five-factor framework for deference, preventing judicial overreach while affirming Congress's intent to delegate regulatory expertise to agencies.

Public Good Analysis

GPT: The decision weakens judicial oversight of agency interpretations, increasing regulatory uncertainty and reducing accountability for vulnerable populations affected by ambiguous agency rules. It undermines public access to consistent justice by allowing agencies to define their own regulatory boundaries without robust judicial review. | Claude: The decision upholds agency expertise in interpreting regulations, potentially leading to more consistent and predictable application of the law. However, it also allows agencies significant leeway, which could be exploited for political purposes or lead to regulatory overreach, diminishing public accountability. The score reflects a moderate benefit as it balances practical administration with potential risks.

Framers' Intent Analysis

GPT: The ruling contravenes Madison's separation of powers principles by granting agencies excessive interpretive authority without clear congressional authorization. It ignores the framers' intent that courts—not executive agencies—should interpret statutory text, as emphasized in Federalist No. 78 on judicial supremacy in constitutional interpretation. | Claude: The decision significantly departs from a strict separation of powers by granting substantial deference to administrative agencies. While the Framers recognized the need for specialized knowledge (Hamilton in Federalist 70 discussed this), *Auer* deference diminishes judicial review – a cornerstone of checks and balances designed to prevent governmental overreach, conflicting with Montesquieu’s theories influencing figures like Madison. The emphasis on agency interpretation arguably encroaches on the legislative function originally vested in Congress.

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