Case No. 18-15 | Fed. Cir.
Preview by Michael Fischer, Online Editor
James Kisor served as an active member of the United States Marine Corps in the Vietnam War from 1962 to 1966. During this time, he saw combat in Operation Harvest Moon, wherein over 500 soldiers from each side died in battle. For his service, Kisor was awarded a Combat Action Ribbon and a Vietnam Service Medal. Unfortunately, his service also left him mentally and emotionally scarred, and he was eventually diagnosed with severe service-connected Post-Traumatic Stress Disorder (“PTSD”). In December 1982, Kisor filed a claim for disability benefits with the Office of Veterans Affairs (“VA”) based on his diagnosis, but a subsequent psychiatric evaluation concluded that he instead suffered from a personality disorder and his claim was denied. This new diagnosis was rendered despite the fact that the VA psychiatrist at the time did not have access to a portion of Kisor’s combat record, but in 2006 Kisor renewed his request, and the VA gained access to such records. The VA subsequently granted his request under 38 C.F.R. § 3.156(a), which allows a petitioner to reopen a benefits petition by submitting “new and material evidence,” but declined to award him retroactive benefits.
Kisor filed a notice of disagreement, arguing that he was entitled to retroactive benefits authorized under 38 C.F.R. §3.156(c). The VA found that the additional service documents relating to Kisor’s combat history did not qualify as “relevant” for the purpose of establishing that he had PTSD as a current disability, as required under the statute. The Court of Appeals for Veterans Claims affirmed the VA’s decision, as did the Federal Circuit. The question before the Court is whether the rule announced in Bowles v. Seminole Rock & Sand Co., 325 U.S. 410 (1945) and affirmed in Auer v. Robbins, 519 U.S. 452 (1997), which declares that an administrative construction of an ambiguous regulation is controlling unless “plainly erroneous or inconsistent with the regulation,” Seminole Rock, 325 U.S. at 414, should be abandoned.
On appeal, Kisor argues that Seminole Rock and Auer were wrongly decided since their core holdings circumvent the checks on agency rulemaking set forth in the Administrative Procedure Act (“APA”). Brief for Petitioner at 26, Kisor v. Wilkie, No. 18-15 (U.S. filed Jan. 24, 2019). Additionally, he contends that Chevron deference, which applies when an agency uses its delegated authority as Congress prescribed, highlights the problems with Auer since Auer is not constrained by the APA. Id. at 45–46. In response, the VA counters that Seminole Rock and Auer “have come to stand for a degree of deference to agencies that . . .raises significant concerns under the APA.” Brief for Respondent at 14, Kisor v. Wilkie, No. 18-15 (U.S. filed Feb. 25, 2019). However, instead of overruling these cases, the VA argues that they should instead be clarified and narrowed by subjecting agency deference to certain prerequisite requirements, including a determination as to whether the interpretation is consistent with prior agency determinations. Id. at 27.
This case represents the first major encounter between the Court’s jurisprudence on agency deference in regulatory interpretation and the recently reconstituted Roberts Court. Justices Gorsuch and Kavanaugh have each expressed deep consternation toward Chevron and its attendant doctrines, and their influence within the conservative majority could have far-reaching implications for the future of the administrative state.