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James L. Kisor v. Robert Wilkie, Secretary of Veterans Affairs

Paid petition · United States Court of Appeals for the Federal Circuit, No. 16-1929 · judgment September 7, 2017

Decided · June 26, 2019
Pre-decision estimate: 7% cert probability (95% interval 4%–11%)

Before the decision, about 1.6× the 4.1% base rate. The model weighted this up for a circuit split argued in the petition, a dissent in the court below (flagged in the petition), and a Federal Circuit decision below.

Questions presented

Granted limited to question 1 presented by the petition. Auer v. Robbins, 519 U.S. 452 (1997), and Bowles Seminole Rock & Sand Co., 325 U.S. 410 (1945), direct courts to defer to an agency's reasonable interpretation of its own ambiguous regulation. Separately, in Brown v. Gardner, 513 U.S. 115, 118 (1994), the Court held that "interpretive doubt is to be resolved in the veteran's favor.” Petitioner, a Marine veteran, seeks disability benefits for his service-related posttraumatic stress disorder (PTSD). While the Department of Veterans Affairs (VA) agrees that petitioner suffers from service-related PTSD, it has refused to award him retroactive benefits. The VA's decision turns on the meaning of the term "relevant" as used in 38 C.F.R. § 3.156(c)(l). Below, the Federal Circuit found that petitioner and the VA both offered reasonable constructions of that term. On that basis alone, the court held that the regulation is ambiguous, and-invoking Auer- deferred to the VA's interpretation of its own ambiguous regulation. The questions presented are:

  1. Whether the Court should overrule Auer and Seminole Rock.

  2. Alternatively, whether Auer deference should yield to a substantive canon of construction.

Counsel of record

For petitioner
Paul Whitfield Hughes
McDermott Will & Emery

For respondent
Noel John Francisco
Jones Day

Case

Conference history
Distributed for 1 conference

Amicus briefs
5 cert-stage · 28 merits
(26 supporting pet./neither, 2 respondent)

Argument & decision

Argued March 27, 2019 — Paul W. Hughes · Noel G. Francisco. Audio and transcript

Decided June 26, 2019. Opinion by Kagan.

Proceedings

  1. Jul 29 2019
    JUGMENT ISSUED.
  2. Jun 26 2019
    Judgment VACATED and case REMANDED. Kagan, J., announced the judgment of the Court and delivered the opinion of the Court with respect to Parts I, II–B, III–B, and IV, in which Roberts, C. J., and Ginsburg, Breyer, and Sotomayor, JJ., joined, and an opinion with respect to Parts II–A and III–A, in which Ginsburg, Breyer, and Sotomayor, JJ., joined. Roberts, C. J., filed an opinion concurring in part. Gorsuch, J., filed an opinion concurring in the judgment, in which Thomas, J., joined, in which Kavanaugh, J., joined as to Parts I, II, III, IV, and V, and in which Alito, J., joined as to Parts I, II, and III. Kavanaugh, J., filed an opinion concurring in the judgment, in which Alito, J., joined.
  3. Mar 27 2019
    Argued. For petitioner: Paul W. Hughes, Washington, D. C. For respondent: Noel G. Francisco, Solicitor General, Department of Justice, Washington, D. C.
  4. Mar 14 2019
    Reply of petitioner James L. Kisor filed. (Distributed)
  5. Mar 04 2019
    Brief amici curiae of Administrative Law Scholars filed. (Distributed)
  6. Mar 04 2019
    Brief amicus curiae of Senator Sheldon Whitehouse filed. ((Distributed).
  7. Feb 28 2019
    The record received from the U.S.C.A. Federal Circuit is electronic and located on PACER. The record is complete.
  8. Feb 28 2019
    The record received from U.S. Court of Appeals for Veterans Claims are electronic and located on USCAVC web site. Also received are the pleadings from USCAVC which is confidential, (1 Envelope).
  9. Feb 25 2019
    Brief of respondent Robert Wilkie, Secretary of Veterans Affairs filed. (Distributed)
  10. Feb 21 2019
    Record requested from the U.S.C.A. Federal Circuit.
  11. Feb 14 2019
    CIRCULATED
  12. Jan 31 2019
    Brief amici curiae of State and Local Government Associations filed.
  13. Jan 31 2019
    Brief amicus curiae of American Federation of Labor and Congress of Industrial Organizations in support of neither party filed.
  14. Jan 31 2019
    Brief amicus curiae of The Chamber of Commerce of the United States of America filed.
  15. Jan 31 2019
    Brief amici curiae of National Veterans Legal Services Program, et al. filed.
  16. Jan 31 2019
    Brief amicus curiae of Utility Air Regulatory Group filed.
  17. Jan 31 2019
    Brief amicus curiae of Professor Thomas Merrill filed.
  18. Jan 31 2019
    Brief amici curiae of Professors - Dean Ronald A. Cass, Christopher DeMuth, Sr., and James L. Huffman filed.
  19. Jan 31 2019
    Brief amicus curiae of Washington Legal Foundation filed.
  20. Jan 31 2019
    Brief amicus curiae of Center for Workplace Compliance filed.
  21. Jan 31 2019
    Brief amici curiae of National Immigrant Justice Center and American Immigration Lawyers Association filed.
  22. Jan 31 2019
    Brief amici curiae of National Organization of Veterans’ Advocates, Inc., et al. filed.
  23. Jan 31 2019
    Brief amici curiae of National Association of Home Builders, et al. filed.
  24. Jan 31 2019
    Brief amici curiae of Stephen C. Connaker and the Military and Veterans' Law Institute filed.
  25. Jan 31 2019
    Brief amici curiae of States of Utah, et al. filed.
  26. Jan 31 2019
    Brief amicus curiae of Public Citizen, Inc. in support of neither party filed.
  27. Jan 31 2019
    Brief amicus curiae of Center for Constitutional Jurisprudence filed.
  28. Jan 31 2019
    Brief amici curiae of Professors of Administrative Law and Federal Regulation in support of neither party filed. (Corrected version submitted)
  29. Jan 31 2019
    Brief amici curiae of Professors of Administrative Law and Federal Regulation in support of neither party filed (2/14/19). (Distributed)
  30. Jan 31 2019
    Brief amicus curiae of Sergeant Major Jeff S. Howard (Retired) filed.
  31. Jan 31 2019
    Brief amici curiae of The Cato Institute, et al. filed.
  32. Jan 31 2019
    Brief amici curiae of Southeastern Legal Foundation, et al. filed.
  33. Jan 31 2019
    Brief amicus curiae of National Right to Work Legal Defense Foundation, Inc. filed.
  34. Jan 31 2019
    Brief amicus curiae of New Civil Liberties Alliance filed.
  35. Jan 31 2019
    Brief amicus curiae of Jeremy C. Doerre filed.
  36. Jan 31 2019
    Brief amicus curiae of Atlantic Legal Foundation filed.
  37. Jan 30 2019
    Brief amici curiae of Pacific Legal Foundation, et al. filed.
  38. Jan 25 2019
    SET FOR ARGUMENT on Wednesday, March 27, 2019
  39. Jan 24 2019
    Joint appendix filed. (Statement of costs filed)
  40. Jan 24 2019
    Brief of petitioner James L. Kisor filed.
  41. Jan 16 2019
    Blanket Consent filed by Respondent, Robert Wilkie, Secretary of Veterans Affairs
  42. Dec 10 2018
    Petition GRANTED limited to Question 1 presented by the petition.
  43. Nov 20 2018
    DISTRIBUTED for Conference of 12/7/2018.
  44. Nov 19 2018
    Reply of petitioner James L. Kisor filed.
  45. Oct 31 2018
    Brief of respondent Robert Wilkie, Secretary of Veterans Affairs in opposition filed.
  46. Sep 27 2018
    Motion to extend the time to file a response is granted and the time is further extended to and including October 31, 2018.
  47. Sep 26 2018
    Motion to extend the time to file a response from October 1, 2018 to October 31, 2018, submitted to The Clerk.
  48. Aug 20 2018
    Motion to extend the time to file a response is granted and the time is further extended to and including October 1, 2018.
  49. Aug 17 2018
    Motion to extend the time to file a response from August 31, 2018 to October 1, 2018, submitted to The Clerk.
  50. Aug 01 2018
    Brief amicus curiae of The Chamber of Commerce of the United States of America filed.
  51. Aug 01 2018
    Brief amici curiae of National Association of Home Builders, et al. filed.
  52. Aug 01 2018
    Brief amici curiae of The State's of Utah, et al. filed.
  53. Jul 27 2018
    Brief amici curiae of Southeastern Legal Foundation and The Beacon Center of Tennessee filed.
  54. Jul 27 2018
    Brief amicus curiae of Center for Constitutional Jurisprudence filed.
  55. Jul 26 2018
    Motion to extend the time to file a response is granted and the time is extended to and including August 31, 2018.
  56. Jul 25 2018
    Motion to extend the time to file a response from August 1, 2018 to August 31, 2018, submitted to The Clerk.
  57. Jun 29 2018
    Petition for a writ of certiorari filed. (Response due August 1, 2018)
  58. Apr 24 2018
    Application (17A1154) granted by The Chief Justice extending the time to file until June 29, 2018.
  59. Apr 19 2018
    Application (17A1154) to extend the time to file a petition for a writ of certiorari from May 1, 2018 to June 29, 2018, submitted to The Chief Justice.
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