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Supreme Court to hear veteran’s case challenging VA’s power to interpret its own rules

Zachary Stolz

December 13, 2018

Updated: November 20, 2023

supreme court

The Supreme Court receives requests to hear nearly 8,000 cases every year. And each year, they choose roughly 80 of those cases to adjudicate. That’s a 1 percent acceptance rate. As of December 10, 2018, the Supreme Court will take on two cases related to veterans’ benefits in 2019.

In addition to Gray v. Wilkie, the Supreme Court justices will review Kisor v. Wilkie. If the Court rules in favor of the veteran in Kisor, the decision could potentially overturn another Supreme Court ruling — Auer v. Robbins (and Bowles v. Seminole Rock and Co.) – that gives federal agencies, like the Department of Veterans Affairs (VA), the power to interpret their own regulations.

In this post, we’ll discuss what overturning Auer v. Robbins could mean for veterans and veterans advocates. But before we dive into the potential implications of a favorable ruling in Kisor v. Wilkie, it’s important to understand a few details about the legal process at the United States Supreme Court.

Certoriari, granted

As the highest court in the nation, the Supreme Court only takes cases of national importance, cases that could change federal law, or cases that reveal a law as unconstitutional. So, the first hurdle in the Supreme Court process is getting past that 1 percent acceptance rate to a hearing.

Typically, attorneys who want the Supreme Court to hear their case submit a petition for a writ of certoriari. A writ of certoriari – often abbreviated to cert. – is a higher court’s official order of a lower court to transfer the case in question to the higher court for review. At the Supreme Court, attorneys petitioning for cert. must make an argument that convinces at least four out of the nine Supreme Court Justices that their case is important enough to review. So, we would say in the case of Kisor v. Wilkie, that the veteran appellant (Kisor), represented by an attorney, was “granted cert.”

This is, for lack of a better phrase, a big deal in the legal world. Before this year, the Supreme Court had only taken four veterans law cases since the advent of judicial review in 1988.

A closer look at Auer and Seminole Rock

Two cases – Bowles v. Seminole Rock & Sand Co. in 1945 and then Auer v. Robbins in 1997 – established what is known in administrative law as Auer/Seminole Rock deference. The doctrine of Auer/Seminole Rock deference holds that if a government agency’s regulations are ambiguous, courts will defer to the agency’s own interpretation of the rule.

Regulations, remember, are the permanent rules an agency comes up with to flesh out a statute – a law passed by Congress. Since they are authorized by statutes, regulations have the effect of law. Particularly important in this case is the fact that regulations are written by the agency they affect.

So, for example, Congress might pass a law to make it easier for a certain group of veterans to get VA disability benefits. After the bill is signed into law, staff at the Department of Veterans Affairs use the broader statutes to come up with the more detailed regulations that determine how the law will be implemented or enforced.

OK, so what does this all really mean? Essentially, the Auer and Seminole Rock rulings told courts (all courts in the country) that if there is an agency regulation that could have more than one meaning – that could be interpreted in more than one way – the court should use the agency’s interpretation over the interpretation of its opposition.

The problem with deferring to VA’s interpretations of VA regulations

In some ways, it makes sense for the agency who wrote the regulation to explain what the regulation means when an issue comes up. But Mr. Kisor, his representatives, as well as many other interested parties believe this deference to an agency interpretation of an agency regulation could be dangerous.

If courts always defer to the agency’s interpretation of its own rule, they argue, then the agency could change its interpretation to suit its own needs whenever the regulation is challenged. This could also encourage an agency to draft ambiguous regulations.  Under Auer/Seminole Rock deference, courts would defer to VA’s or another agency’s interpretation of the regulation even if that interpretation has changed over time and even if the interpretation has never been opened up for public notice or comment.

Some critics of Auer/Seminole Rock deference even claim that such a doctrine undermines the Constitution’s system of checks and balances. If an agency – part of the executive branch–is responsible for interpreting its own regulations, then the courts – as part of the judicial branch– lose the ability to limit, or check, the powers of the agency. In fact, Nicholas Bednar from the Minnesota Law Review writes that, at the Supreme Court, agencies win a whopping 90.9% of cases where the Court invokes Auer/Seminole Rock deference.

Potential conflicts with VA’s benefit of the doubt doctrine

In the case of the Department of Veterans Affairs specifically, there’s another potential conflict with the Auer/Seminole Rock precedent. As one of its foundational principles, VA is supposed to have a pro-claimant, non-adversarial legal process for veterans seeking disability benefits. The so-called Benefit-of-the-Doubt doctrine is codified in VA’s statutes and regulations.

The Benefit-of-the-Doubt doctrine is applied when there is an “approximate balance of positive and negative evidence” in a veteran’s case. In other words, where the evidence is ambiguous, the doubt should be resolved in favor of the veteran.

Here’s where the conflict comes in. Say that in a veteran’s case, a relevant VA regulation is ambiguous — one interpretation would work in the veteran’s favor, another interpretation would mean the veteran was not entitled to benefits. Under the Benefit of the Doubt doctrine, the court should resolve the ambiguity of the interpretation in the veteran’s favor.  Under Auer/Seminole Rock deference, however, the court would have to defer to VA’s interpretation of the regulation, even if their interpretation would be unfavorable for the veteran’s claim.

Looking forward: impact of the Supreme Court’s Kisor decision

If the Kisor v. Wilkie case succeeds in overturning Auer and Seminole Rock, there would be wide-ranging ripple effects not just at VA but across all government agencies. The Supreme Court could potentially limit the legal changes to just VA and leave Auer/Seminole Rock deference intact for other agencies. But even then, Kisor could become a stepping stone for future Supreme Court cases that would apply to the entire executive branch. In the meantime, we’ll just have to wait and see whether at least five of the nine Supreme Court justices will choose to leave agency interpretation of agency rules in place or to overturn this little-known but high-impact case law.

About the Author

Bio photo of Zachary Stolz

Zach is a Partner at Chisholm Chisholm & Kilpatrick. He joined CCK in 2007 and since that time, his law practice has focused on representing disabled veterans before the Court of Appeals for Veterans Claims.

See more about Zachary