Case Summary

Federal agencies have been growing in power for decades. This case represents a once-in-a-generation opportunity to turn back the tide. The case centers on a Vietnam War veteran, Mr. James L. Kisor, and his 37-year struggle to obtain veterans medical benefits. But what is at stake is much more than one man’s benefits—it is about reining in the out-of-control power of unelected, big-government bureaucrats.

Join the Fight

Since 1977, MSLF has fought to protect private property rights, individual liberties, and economic freedom. MSLF is a nonprofit public interest legal foundation. We represent clients pro bono and receive no government funding. Make your 100% tax deductible contribution today and join the fight.

Donate Now

Status

Court

United States Supreme Court

What’s Next

The Supreme Court will hear oral argument in this case on March 27, 2019.

Case History

Those who believe in limited government have long been alarmed by the growing influence and size of federal agencies. And defenders of the Constitution have been waiting decades for the opportunity to challenge agency authority in front of the Supreme Court of the United States.

Remarkably, our time is now.

MSLF filed an amicus curiae brief in the United States Supreme Court on January 31st in support of our client, retired Army Sergeant Major Jeff S. Howard. Mr. Howard is a decorated combat veteran who served his country for 26 years before retiring and spending the next 12 years volunteering his time as a Veteran Service Officer (VSO). 

The case centers on another veteran, Mr. James L. Kisor, and his 37-year struggle to obtain the veteran’s medical benefits to which he is entitled. As a Veteran Service Officer, Mr. Howard worked with hundreds of similarly disabled veterans and has more than a decade of experience attempting to navigate the murky waters of U.S. Department of Veterans Affairs (VA) regulations. But even he often struggled to overcome the VA’s bureaucracy. 

Here is the backstory: Mr. Kisor honorably served his country with the Marine Corps during the Vietnam War, participating in Operation Harvest Moon, a particularly brutal conflict between the U.S. Armed Forces and the Viet Cong. During the conflict, his company was ambushed, resulting in the deaths of 13 of Mr. Kisor’s fellow soldiers. 

After the war, in 1982, Mr. Kisor filed a claim with the VA for disability benefits connected with PTSD he suffered as a result of his service. Unfortunately, the VA misdiagnosed Mr. Kisor as not suffering from PTSD and denied his claim. In 2006, however, Mr. Kisor requested that the VA reopen his claim, and a doctor officially diagnosed him with PTSD the next year. The VA granted Mr. Kisor’s claim but failed to backdate the claim due to the VA’s interpretation of its own regulations.

On appeal, the Federal Circuit held that, regardless of what the most reasonable interpretation of the regulations may be, the wording itself was ambiguous, and thus the court would defer to the Board of Veterans Appeals’ interpretation.

There is a legal name for this. 

In its ruling, the Federal Circuit engaged in what is known as Auer deference (named after Auer v. Robbins, the 1997 case that created the doctrine). Believe it or not, this doctrine states that courts should defer to federal agency interpretations of their own regulations, regardless of whether that interpretation is correct according to the court’s own legal reasoning. In other words, it gives unelected agency bureaucrats the power to write the rules, and then act as their own judge and jury if anyone disagrees with their actions. 

It’s as if every regulatory agency employee were given a black robe and gavel. The Constitution makes no provision for unelected bureaucrats to wield this kind of power. Mr. Kisor now asks the U.S. Supreme Court to overturn Auer v. Robbins. And this case has implications for thousands of others who have a dispute with any federal agency. It is a matter of taking power out of the hands of agency workers, and reasserting constitutional, limited government.

Mr. Kisor’s case, unfortunately, is not unique. 

Sergeant Major Howard experienced the same frustrating lack of clarity from the VA over the course of twelve years. Mr. Howard was constantly forced to submit and resubmit claims on behalf of the over 400 veterans he aided, and often had to appeal decisions to a higher reviewing agent, where the claim would often be immediately approved. It was like a roll of the dice; and there was zero accountability. The VA’s interpretation of who qualified for benefits varied depending on who was reviewing the file. 

If the argument our attorneys make in MSLF’s brief prevails at the Supreme Court, bureaucrats will no longer be able to wield power like dictatorsThe authority to properly adjudicate the laws of the United States will return to the judiciary, where the Constitution says it belongs.

“It is vital that we not lose sight of the fact that agency deference inflicts significant harm on real people. Most Americans have never heard of Auerdeference, but this decision will impact all of us.” said MSLF’s lead attorney on the case, David McDonald.

This case, while dealing specifically with the VA’s regulations, impacts more than just veterans. 

“We are confident that the Court will recognize the negative impact of granting too much deference to federal agencies—particularly the negative impact on our veterans,” said Cody Wisniewski, another MSLF attorney representing Sergeant Major Howard. 

Case Documents
Explore More

Red Flag Laws

VIDEO: MSLF recently hosted a panel of experts to discuss the gun confiscation orders known as Red Flag Laws that many states are adopting.

We Are All Originalists Now… Sort of

MSLF attorney David McDonald published an op-ed in RealClearPolitics today on the enduring legacy of Justice Scalia. Since the 1980s, constitutional text and history have become ever more central to Supreme Court jurisprudence.

Get the latest updates from MSLF
News Updates