Zach: Good afternoon from Chisholm Chisholm
and Kilpatrick.
This is Zach Stolz with my colleague Brad Hennings, we are going to do a quick take
on a major decision in veterans' law and in administrative law, generally.
It was handed down from the United States Supreme Court today.
It's a case called Kisor, K-I-S-O-R v. Wilkie, you will find a link to the decision and some
commentary on it in the coming days and weeks on cck-law.com.
It is a major decision, there are eighty pages of legal writing involved in the decision.
So, we have been digesting it for a large part of our day today and I'm going to just go
ahead and give a disclaimer that we still don't know everything about it.
We won't know everything about it for a long time and how it's going to play out practically.
We're going to get into some reasons for that.
But first, just to get a little overall view of what happened in Mr. Kisor's case then
I will read to you what the court- what the Supreme Court said.
This case originated at the Department of Veterans Affairs and worked its way up to
the Board of Veterans' Appeals then to the CAVC, the Court of Appeals for Veterans Claims
and then to the Court of Appeals for the Federal Circuit then ultimately to the United States
Supreme Court, it has been going on for a very, very long time.
Mr. Kisor is a Vietnam war veteran and I'm going to do what makes for some relatively
bad T.V. but I promise, it'll only take about a minute.
I'm just going to read to you from the decision just a little bit of what happened in the
case starting at the Board of Veterans' Appeals.
"The Board acknowledged that Mr. Kisor had come up with two new service records both
confirming his operation, in Operation Harvest Moon.
But according to the Board those records were not 'relevant' because they did not go to
the reason for the denial that Kisor did not have PTSD".
So, Mr. Kisor- to give a little background, he's claiming service connection for post-traumatic
stress disorder, VA denied that.
One reason they denied that is because they did not put him in the place that he says
he was for this stressful event that triggered his post-traumatic stress.
So, getting back to the decision, the Board said "the documents were not relevant to the
decision in May 1983", that's how long this has been going on, "because the basis of the
denial was that a diagnosis of PTSD was not warranted, not a dispute as to whether or
not the Veteran engaged in combat.
The Court of Appeals for Veterans Claims an independent Article I court that initially
reviews the Board's decisions, affirmed for the same reason.
The Court of Appeals for the Federal Circuit also affirmed", which means they continued
to deny Mr. Kisor's claim, "but it did so based on the deference to the Board's interpretation
of the VA rule".
And the VA rule at issue in this case is 38 CFR section 3.156c and the gist of that is
and I know this is lawyery but the gist of that is that if service records- if relevant-
and that's the key here, if relevant service records come into a file even if the claim
has been previously denied.
If relevant service records come in that should have been associated with a veterans file
at the time of the denial, then the Board or VA is supposed to look back and perhaps
award major retroactive benefits because it was there mistake the service records were
not associated with the file.
So, that's what the fight is over and the fight is over whether or not what Mr. Kisor
and his attorney submitted qualify as relevant service records.
So, there's a whole fight for years and years and years between the Department of Veterans
Affairs and Mr. Kisor over what the word relevant means and another layer on top of this who
gets to decide what relevant means.
And so, the Supreme Court in basically a 9-0 decision said what, Bradley?
Brad: Well, what they said was that the Federal Circuit made a mistake, basically everyone
made a mistake up until they got to the Supreme Court.
And that what they call Auer deference or deference to agency's interpretations of their
own regulations should only be afforded in very narrow, limited circumstances.
And so, that the Courts before the Supreme Court erred, made a mistake when they went
ahead and allowed this agency deference.
Basically, what that means is from the VA's perspective is if something seems ambiguous
in a regulation, unclear let's say.
VA says we are entitled to deference meaning you should listen to our interpretation; you
should listen to what we think and you have to defer to it.
Zach: Right, so, for years since- actually since 1945 since World War II.
There has been a long-standing mechanism by which courts are supposed to defer to an executive
agency's interpretation of a regulation.
Which is to say that is one of the many departments of our federal government, the Department
of Defense, the EPA, the Department of Labor or in this case, the VA writes a regulation they
should be able to tell the court what it means as long as what they are saying is determined
to be "reasonable" and that's been going on for like I say over half a century now.
And there has been a movement afoot to overturn that long standing precedent because the argument
goes that is has given these agencies, all of these agencies and the federal government
in general way too much power because not only do they get to write what the rules are,
they also then get to say what the rules mean cutting out what the courts are supposed to
do which is to interpret the law.
And so, there's been a major fight over that and Mr. Kisor got caught up in the middle of that fight
and the take away from today's decision is while the Court is not going to over rule
that, they will still allow for there to be deference to the agency's interpretation of
their own rules.
Justice Kagan, who wrote the decision really wrote a lot of pages about how the Auer standard
which is the case, A-U-E-R, and this deference is suppose to be really kind of curtailed
and really only done in special circumstances.
And so, one could read the decision, certainly Chief Justice Roberts who concurred in the
decision would say this severely weakens that deference to the agency.
Although it does not overturn the precedent, Justices Gorsuch, Thomas, and Kavanaugh and
Alito would all say that it probably didn't go far enough.
Never the less, Mr. Kisor technically won with all the Justices, all 9 of them said Mr. Kisor
deserved to win.
And what does the win look like here?
Brad: Well so, what the win looks like is that this deference will not be provided-
this Auer deference that we're talking about, is not going to be provided to the VA for
Mr. Kisor's case.
And so, it makes it that much more likely that he could ultimately prevail on his claim
for benefits.
In a bigger picture for VA it means when the VA says you should defer to our interpretation
of the regulations the courts will not immediately go to that deference, they will go through
what they call different Canons of Construction, different tools to analyze regulations before
they ever get to the question of whether deference should be provided.
And so, ultimately it means that VA will not be deferred to in the way it has been for
many years.
Zach: For Mr. Kisor, he's not done yet.
All the Court decided today was that Mr. Kisor's- aside from all of this which has a lot of
interest to a lot of different lawyers not just VA lawyers, although it is very important
to us.
But for anybody who deals with a federal government agency in anyway, this decision is going to
touch them in some respect maybe not drastically honestly but in some respect it will.
But for Mr. Kisor, his battle is far from done with the Department of Veterans Affairs,
this is going to have to go now back to the Federal Circuit.
I don't know for sure what will happen but I imagine there will be more argument and
Mr. Kisor is going to come in and say you know, the regulation says what I say it says
and the VA is still going to probably come in and say it means what we say it says and
they'll fight over that and then it'll probably continue on back to the Veterans Court with
some more instructions.
Ultimately, back to the Board of Veterans' Appeals, poor Mr. Kisor is probably not out
of the woods but major decision for his fellow veterans.
It's a very interesting case, a very, very interesting outcome.
We think probably a good outcome for veterans, time will tell.
But the initial read of it is this is very good for veterans because it does curtail
some of the power that VA has enjoyed for low these past 50 to 60 years.
Even if it's not an earth-shaking development.
It certainly should be able to help some veterans out.
Brad: And as you alluded to earlier one of the big criticisms of this Auer deference,
this deference to the federal bureaucratic agency's is that it's fundamentally undemocratic
because they don't have the same level of responsiveness as let's say the elected branches
of government.
So, I think this is a great opportunity for veterans to no longer have to worry that the
VA is always going to be deferred to when they try to interpret their own ambiguous
regulations which frankly, as anyone who's worked in veterans' benefits knows, these
are complicated and confusing.
Zach: That is CCK's quick hot take on the Kisor case, there will be much more information
to come.
It will be on our website cck-law.com.
We certainly are advocates here, we'll certainly be using Kisor to the best of our abilities
to help our clients out and I'm sure veterans' advocates across the country will be doing
so as well but certainly we here at CCK will be doing so.
And we thank you very much for listening in and watching today.