Wednesday, June 26, 2019

Case of the Day: Kisor v. Willikie, 588 U.S. ___ (2019)


Plaintiff Vietnam War veteran applied for disability benefits based on PTSD, which the Department of Veterans Affairs rejected. Plaintiff then appealed through the Board of Veterans' Appeals, Court of Appeals for Veterans Claims, and the Federal Circuit, all of which affirmed the board's decision. The Federal Circuit affirmed the board's decision based on deference to the board's interpretation of the DVA rule. The plaintiff then applied to the Supreme Court.

The split court reversed the decision. Four justices (Elena Kagan, Ruth Bader Ginsburg, Steven Breyer, Sonia Sotomayor) found that even if deference to agency interpretation is warranted when the regulation at issue is vague, "not all reasonable agency constructions of those truly ambiguous rules are entitled to deference." The plurality then found the circuit court did not conduct a rigorous analysis as to whether the regulation was truly ambiguous, nor did it analyze whether deference was truly warranted. Concurrence by Justice Neil Gorsuch, joined by Justices Clarence Thomas, Brett Kavanaugh and Samuel Alito, agreed with the judgment, but called for the court to overrule entirely the precedents regarding administrative deference.


A major development in administrative law, and it involves an "Asian" claim! Given the fractured nature of this case, it is not yet clear where we stand on administrative deference. Justice John Roberts filed a separate concurrence, acting as the thin reed that connects the two camps.

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