Kisor v. Wilkie
Wikipedia · Justia (with opinion) · Docket · oyez.org
Argued on Mar 27, 2019.Decided on Jun 26, 2019.
Petitioner: James L. Kisor.Respondent: Robert L. Wilkie.
Advocates: Paul W. Hughes (for the petitioner)
Noel J. Francisco (for the respondent)
Facts of the case (from oyez.org)
Petitioner James L. Kisor is a veteran of the US Marine Corps who served in the Vietnam War. In 1982, Kisor filed a claim for disability benefits with the Department of Veterans Affairs (VA) asserting that he suffered from post-traumatic stress disorder (PTSD) as a result of his service in Vietnam. Ultimately, the VA denied his claim in May 1983. In June 2006, Kisor sought review of his previously denied claim, and the VA granted him relief under 38 C.F.R. § 3.156(a), which allows a petitioner to “reopen” a denial by “submitting new and material evidence.” In his 2006 petition, Kisor identified materials supporting his claim that existed in 1983 but which were not associated with his file.
Notably, the VA did not grant Kisor relief under Section 3.156(c), which authorizes the agency to “reconsider” a previously denied claim in the event that it “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.” This provision is more favorable to veterans because it provides for a retroactive effective date for any benefits awarded, whereas benefits granted under Section 3.156(a) are effective only on the date the application to reopen was filed.
The VA’s decision (technically made by the Board of Veterans Appeals) relied on the meaning of the term “relevant” as used in 38 C.F.R. § 3.156(c)(1). The VA found that the additional documents (Kisor’s Form 214 and the Combat History document) did not qualify as “relevant” for purposes of this section because it did not “suggest or better yet establish that [petitioner] has PTSD as a current disability.” In the VA’s view, records are not “relevant” when they are not “outcome determinative.”
Court of Appeals for Veterans Claims affirmed the Board’s decision, and the Federal Circuit affirmed as well.

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
Auer v. Robbins, 519 U.S. 452 (1997), and Bowles v. Seminole Rock & Sand Co., 325 U.S. 410 (1945)—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 o