Kisor v. Wilkie

Justia Summary

Kisor, a Vietnam veteran, unsuccessfully sought VA disability benefits in 1982, alleging that he had developed PTSD from his military service. In 2006, Kisor moved to reopen his claim. The VA then agreed he was eligible for benefits, but granted benefits only from the date of his motion to reopen, not from the date of his first application. The Board of Veterans’ Appeals, Court of Appeals for Veterans Claims, and Federal Circuit affirmed, citing deference to an agency’s reasonable reading of its own ambiguous regulations.


The Supreme Court vacated and remanded, reasoning that when the reasons for the presumption in favor of deference do not hold up, or when countervailing reasons outweigh them, courts should not give deference to an agency’s reading. Confining its 1997 decision, Auer v. Robbins, the plurality stated that a court should not afford deference unless, after exhausting all “traditional tools” of construction, the regulation is genuinely ambiguous. If genuine ambiguity remains, the agency’s reading must fall “within the bounds of reasonable interpretation” and the court must independently determine the character and context of the agency interpretation. The interpretation must be the agency’s authoritative or official position and must implicate its substantive expertise. The basis for deference ebbs when the subject matter of a dispute is distant from the agency’s ordinary duties. The agency’s reading of a rule must reflect its “fair and considered judgment” not a “convenient litigating position,” or an “unfair surprise.” The plurality declined to overrule Auer and a “long line of precedents” finding no “special justification.” In Kisor’s case, the Federal Circuit found the VA’s regulation ambiguous before applying all its interpretive tools and assumed too fast that deference should apply.

X