JAMES L. KISOR, PETITIONER
v.
ROBERT WILKIE, SECRETARY OF VETERANS AFFAIRS
Argued
March 27, 2019
ON
WRITE OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE FEDERAL CIRCUIT No. 18-15.
Petitioner
James Kisor, a Vietnam War veteran, first sought disability
benefits from the Department of Veterans Affairs (VA) in
1982, alleging that he had developed post-traumatic stress
disorder from his military service. The agency denied his
initial request, but in 2006, Kisor moved to reopen his
claim. The VA this time agreed he was eligible for benefits,
but it granted those benefits only from the date of his
motion to reopen, not (as Kisor had requested) from the date
of his first application. The Board of Veterans'
Appeals-a part of the VA-affirmed that retroactivity
decision, based on its interpretation of an agency rule
governing such claims. The Court of Appeals for Veterans
Claims affirmed.
The
Federal Circuit also affirmed, but it did so by applying a
doctrine called Auer (or sometimes, Seminole
Rock) deference. See Auer v. Bobbins, 519 U.S.
452; Bowles v. Seminole Bock & Sand Co., 325
U.S. 410. Under that doctrine, this Court has long deferred
to an agency's reasonable reading of its own genuinely
ambiguous regulations. The Court of Appeals concluded that
the VA regulation at issue was ambiguous, and it therefore
deferred to the Board's interpretation of the rule. Kisor
now asks the Court to overrule Auer, as well as its
predecessor Seminole Bock, discarding the deference
those decisions give to agencies.
Held:
The
judgment is vacated and remanded.
869
F.3d 1360, vacated and remanded.
JUSTICE Kagan delivered the opinion of the Court with respect
to Parts I, II-B, III-B, and IV, holding that Auer and
Seminole Bock are not overruled. Pp. 11-19, 25-29.
(a)
This Court's deference doctrine is rooted in a
presumption that Congress intended for courts to defer to
agencies when they interpret their own ambiguous rules. The
Court adopts that presumption for a set of reasons related to
the comparative attributes of courts and agencies in
answering interpretive questions. But when the reasons for
the presumption do not hold up, or when countervailing
reasons outweigh them, courts should not give deference to an
agency's reading. The Court has thus cabined
Auer's scope in varied and critical ways.
First
and foremost, a court should not afford Auer
deference unless, after exhausting all the "traditional
tools" of construction, Chevron U.S. A. Inc. v.
Natural Resources Defense Council, Inc., 467 U.S. 837,
843, n. 9, the regulation is genuinely ambiguous. A court
must carefully consider the text, structure, history, and
purpose of a regulation before resorting to deference. If
genuine ambiguity remains, the agency's reading must
still fall "within the bounds of reasonable
interpretation." Arlington v. FCC, 569 U.S.
290, 296.
And
even then, not every reasonable agency reading of a genuinely
ambiguous rule should receive Auer deference.
Rather, a court must also make an independent inquiry into
whether the character and context of the agency
interpretation entitles it to controlling weight. See,
e.g., Christopher v. Smith Kline Beecham Corp., 567
U.S. 142, 155. The inquiry along this dimension does not
reduce to an exhaustive test, but the Court has laid out some
especially important markers for identifying when
Auer deference is and is not appropriate. To begin
with, the regulatory interpretation must be the agency's
authoritative or official position, rather than any more
ad hoc statement not reflecting the agency's
views. Next, the agency's interpretation must in some way
implicate its substantive expertise, as the basis for
deference ebbs when the subject matter of a dispute is
distant from the agency's ordinary duties. Finally, an
agency's reading of a rule must reflect its "fair
and considered judgment." Auer, 519 U.S., at
462. A court should decline to defer, for example, to a
merely "'convenient litigating position, '"
Christopher, 567 U.S., at 155., or to a new
interpretation that creates "unfair surprise" to
regulated parties, Long Island Care at Home, Ltd. v.
Coke, 551 U.S. 158, 170. Pp. 11-19.
(b)
Stare decisis cuts strongly against overruling
Auer. Adherence to precedent is "a foundation
stone of the rule of law," Michigan v. Bay Mills
Indian Community, 572 U.S. 782, 798, and any departure
from the doctrine demands "special justification,"
Halliburton Co. v. Erica P. John Fund, Inc., 573
U.S. 258, 266. That is even more than usually so in the
circumstances here. First, Kisor asks the Court to overrule a
"long line of precedents"-each one reaffirming the
rest and going back 75 years or more. Bay Mills, 572
U.S., at 798. Second, because Auer deference
pervades the whole corpus of administrative law, abandoning
it would cast doubt on many settled constructions of rules.
And third, even if the Court is wrong about Auer,
"Congress remains free to alter what [the Court has]
done." Patterson v. McLean Credit Union, 491
U.S. 164, 172-173. For approaching a century, Congress has
let this deference regime work side-by-side with both the
Administrative Procedure Act (APA) and the many statutes
delegating rulemaking power to agencies. This Court would
thus need a particularly "special justification" to
now reverse Auer.
Kisor
offers nothing of that ilk. Nearly all of his arguments
relate to whether the doctrine is wrong or poorly reasoned.
He does not claim that Auer deference is
"unworkable," a traditional basis for overruling a
case, Patterson, 491 U.S., at 173, or point to
changes in legal rules that make Auer a
"doctrinal dinosaur," Kimble v. Marvel
Entertainment, LLC, 576 U.S.___, ___. Instead, his lone
special justification is that the administrative state has
evolved substantially since this Court decided Seminole
Rock in 1945. It is true that agencies have far-reaching
influence today; that is one reason the Court has taken care
to reinforce the limits of Auer deference. But it is
no answer to the growth of agencies for courts to take over
their expertise-based, policymaking functions. Pp. 25-28.
(c)
Turning to Kisor's own case, a remand is necessary for
two reasons. First, the Federal Circuit jumped the gun in
declaring the VA's regulation ambiguous before bringing
all its interpretive tools to bear on the question. Second,
the Federal Circuit assumed too fast that Auer
deference should apply in the event of genuine ambiguity,
rather than assessing whether the interpretation is of the
sort that Congress would want to receive deference. On
remand, the Court of Appeals must reconsider whether
Auer deference is warranted, bearing in mind the
principles outlined in this opinion. Pp. 28-29.
Justice Kagan, joined by Justice Ginsburg, Justice Breyer,
and JUSTICE SOTOMAYOR, concluded in Parts II-A and III-A:
(a) Auer deference is rooted in a presumption that
Congress would generally want the agency to play the primary
role in resolving regulatory ambiguities. See Martin v.
Occupational Safety and Health Review Comm'n, 499
U.S. 144, 151-153. In part, the presumption arises because
the agency that promulgated a rule is in the "better
position [to] reconstruct" its original meaning.
Id., at 152. In still greater measure, the
presumption stems from an awareness that resolving genuine
regulatory ambiguities often "'entail[s] the
exercise of judgment grounded in policy concerns, '"
an area where agencies have a comparative advantage over
courts. Thomas Jefferson Univ. v. Shalala, 512 U.S.
504, 512. Finally, the presumption reflects the well-known
benefits of uniformity in interpreting ambiguous rules.
Auer deference promotes "resolving interpretive
issues by uniform administrative decision, rather than
piecemeal by litigation," Ford Motor Credit Co. v.
Milhollin, 444 U.S. 555, 568. Pp. 4-11.
(b) None of Kisor's arguments provide good reason to
reconsider Auer deference. First, he claims that
Auer is inconsistent with the APA's judicial
review provision, which instructs reviewing courts to
"determine the meaning" of an agency action. 5
U.S.C. §706. Even when a court defers to a regulatory
reading, however, it acts consistently with Section 706. That
provision does not specify the standard of review a court
should use in "determin[ing] the meaning" of an
ambiguous rule. This Court thus presumes that Congress would
want courts to do so by reviewing agency interpretations for
reasonableness. That is especially so because Section 706,
when enacted, was understood to restate the present law of
judicial review-which would have included deference under
Seminole Rock. Nor does Auer circumvent the
APA's rulemaking requirements, which require regulations
to go through notice and comment before they can bind third
parties. Even though a court might defer to an agency's
interpretation of a regulation, the agency's
interpretation itself never forms the basis for an
enforcement action. Rather, an agency bringing an enforcement
action must always rely on a rule that went through notice
and comment. And courts, in turn, always retain the final
authority to approve-or not-an agency's reading of that
notice-and-comment rule. See Perez v. Mortgage Bankers
Assn., 575 U.S. 92, ___.
Kisor's policy and constitutional arguments fail just as
roundly. As a policy matter, he contends that Auer
encourages agencies to issue vague and open-ended
regulations, confident that they can later impose whatever
interpretation of those rules they prefer. But no real
evidence backs up that assertion and strong incentives cut in
the opposite direction. Finally, Kisor asserts that
Auer deference violates "separation-of-powers
principles" by vesting both legislative and judicial
functions in one branch. If that objection is to
agencies' usurping the interpretive role of courts,
Auer-when properly understood and applied-does no
such thing. And if the objection is instead to the supposed
commingling of functions within an agency, this Court has
explained that even when agency "activities take
'legislative' and 'judicial' forms,"
they continue to be "exercises of the 'executive
Power, '" and thus raise no constitutional concerns.
Arlington, 569 U.S.___, at 304-305, n. 4. Pp. 19-25.
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.
OPINION
KAGAN,
JUSTICE
This
Court has often deferred to agencies' reasonable readings
of genuinely ambiguous regulations. We call that practice
Auer deference, or sometimes Seminole Rock
deference, after two cases in which we employed it. See
Auer v. Robbins, 519 U.S. 452 (1997); Bowles v.
Seminole Rock & Sand Co., 325 U.S. 410 (1945). The
only question presented here is whether we should overrule
those decisions, discarding the deference they give to
agencies. We answer that question no. Auer deference
retains an important role in construing agency regulations.
But even as we uphold it, we reinforce its limits.
Auer deference is sometimes appropriate and
sometimes not. Whether to apply it depends on a range of
considerations that we have noted now and again, but compile
and further develop today. The deference doctrine we describe
is potent in its place, but cabined in its scope. On remand,
the Court of Appeals should decide whether it applies to the
agency interpretation at issue.
I
We
begin by summarizing how petitioner James Kisor's case
made its way to this Court. Truth be told, nothing recounted
in this Part has much bearing on the rest of our decision.
The question whether to overrule Auer does not turn
on any single application, whether right or wrong, of that
decision's deference doctrine. But a recitation of the
facts and proceedings below at least shows how the question
presented arose.
Kisor
is a Vietnam War veteran seeking disability benefits from the
Department of Veterans Affairs (VA). He first applied in
1982, alleging that he had developed posttraumatic stress
disorder (PTSD) as a result of his participation in a
military action called Operation Harvest Moon. The report of
the agency's evaluating psychiatrist noted Kisor's
involvement in that battle, but found that he "d[id] not
suffer from PTSD." App. 12, 14. The VA thus denied Kisor
benefits. There matters stood until 2006, when Kisor moved to
reopen his claim. Based on a new psychiatric report, the VA
this time agreed that Kisor suffered from PTSD. But it
granted him benefits only from the date of his motion to
reopen, rather than (as he requested) from the date of his
first application.
The
Board of Veterans' Appeals-a part of the VA, represented
in Kisor's case by a single administrative judge-affirmed
that timing decision, based on its interpretation of an
agency rule. Under the VA's regulation, the agency could
grant Kisor retroactive benefits if it found there were
"relevant official service department records" that
it had not considered in its initial denial. See 38 CFR
§3.156(c)(1) (2013). The Board acknowledged that Kisor
had come up with two new service records, both confirming his
participation 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. See App. to Pet. for Cert. 43a ("[The]
documents were not relevant to the decision in May 1983
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, but
it did so based on deference to the Board's
interpretation of the VA rule. See Kisor v. Shulkin,
869 F.3d 1360, 1368 (2017). Kisor had argued to the Federal
Circuit that to count as "relevant," a service
record need not (as the Board thought) "counter[] the
basis of the prior denial"; instead, it could relate to
some other criterion for obtaining disability benefits.
Id., at 1366 (internal quotation marks omitted). The
Federal Circuit found the regulation "ambiguous" as
between the two readings. Id., at 1367. The rule,
said the court, does not specifically address "whether
'relevant' records are those casting doubt on the
agency's prior [rationale or] those relating to the
veteran's claim more broadly." Ibid. So how
to choose between the two views? The court continued:
"Both parties insist that the plain regulatory language
supports their case, and neither party's position strikes
us as unreasonable." Id., at 1368. Because that
was so, the court believed Auer deference
appropriate: The agency's construction of its own
regulation would govern unless "plainly erroneous or
inconsistent with the VA's regulatory framework."
Ibid, (internal quotation marks omitted). Applying
that standard, the court upheld the Board's reading-and
so approved the denial of retroactive benefits.
We then
granted certiorari to decide whether to overrule
Auer and (its predecessor) Seminole Rock.
586 U.S. (2018).
II
Before
addressing that question directly, we spend some time
describing what Auer deference is, and is not, for.
You might view this Part as "just background"
because we have made many of its points in prior decisions.
But even if so, it is background that matters. For our
account of why the doctrine emerged-and also how we have
limited it-goes a long way toward explaining our view that it
is worth preserving.
A
Begin
with a familiar problem in administrative law: For various
reasons, regulations may be genuinely ambiguous. They may not
directly or clearly address every issue; when applied to some
fact patterns, they may prove susceptible to more than one
reasonable reading. Sometimes, this sort of ambiguity arises
from careless drafting-the use of a dangling modifier, an
awkward word, an opaque construction. But often, ambiguity
reflects the well-known limits of expression or knowledge.
The subject matter of a rule "may be so specialized and
varying in nature as to be impossible"-or at any rate,
impracticable-to capture in its every detail. SEC v.
Chenery Corp., 332 U.S. 194, 203 (1947). Or a
"problem[] may arise" that the agency, when
drafting the rule, "could not [have] reasonably
foresee[n]." Id., at 202. Whichever the case,
the result is to create real uncertainties about a
regulation's meaning.
Consider
these examples:
• In a rule issued to implement the Americans with
Disabilities Act (ADA), the Department of Justice requires
theaters and stadiums to provide people with disabilities
"lines of sight comparable to those for members of the
general public." 28 CFR pt. 36, App. A, p. 563 (1996).
Must the Washington Wizards construct wheelchair seating to
offer lines of sight over spectators when they rise to their
feet? Or is it enough that the facility offers comparable
views so long as everyone remains seated? See Paralyzed
Veterans of Am. v. D. C. Arena L. P., 117 F.3d 579,
581-582 (CADC 1997).
• The Transportation Security Administration (TSA)
requires that liquids, gels, and aerosols in carry-on baggage
be packed in containers smaller than 3.4 ounces and carried
in a clear plastic bag. Does a traveler have to pack his jar
of truffle pate in that way? See Laba v. Copeland,
2016 WL 5958241, *1 (WDNC, Oct. 13, 2016).
• The Mine Safety and Health Administration issues a
rule requiring employers to report occupational diseases
within two weeks after they are "diagnosed." 30 CFR
§50.20(a) (1993). Do chest X-ray results that
"scor[e]" above some level of opacity count as a
"diagnosis"? What level, exactly? See American
Min. Congress v. Mine Safety and Health Admin., 995 F.2d
1106, 1107-1108 (CADC 1993).
• An FDA regulation gives pharmaceutical companies
exclusive rights to drug products if they contain "no
active moiety that has been approved by FDA in any
other" new drug application. 21 CFR §314.108(a)
(2010). Has a company created a new "active moiety"
by joining a previously approved moiety to lysine through a
non-ester covalent bond? See Actavis Elizabeth LLC v.
FDA, 625 F.3d 760, 762-763 (CADC 2010); Tr. of Oral Arg.
12, 35.[1]
• Or take the facts of Auer itself. An agency
must decide whether police captains are eligible for overtime
under the Fair Labor Standards Act. According to the
agency's regulations, employees cannot receive overtime
if they are paid on a "salary basis." 29 CFR
§541.118(a) (1996). And in deciding whether an employee
is salaried, one question is whether his pay is "subject
to reduction" based on performance. Ibid. A
police department's manual informs its officers that
their pay might be docked if they commit a disciplinary
infraction. Does that fact alone make them "subject
to" pay deductions? Or must the department have a
practice of docking officer pay, so that the possibility of
that happening is more than theoretical? 519 U.S., at
459-462.
In each
case, interpreting the regulation involves a choice between
(or among) more than one reasonable reading. To apply the
rule to some unanticipated or unresolved situation, the court
must make a judgment call. How should it do so?
In
answering that question, we have often thought that a court
should defer to the agency's construction of its own
regulation. For the last 20 or so years, we have referred to
that doctrine as Auer deference, and applied it
often.[2] But the name is something of a misnomer.
Before the doctrine was called Auer deference, it
was called Seminole Rock deference-for the 1945
decision in which we declared that when "the meaning of
[a regulation] is in doubt," the agency's
interpretation "becomes of controlling weight unless it
is plainly erroneous or inconsistent with the
regulation." 325 U.S., at 414.[3] And Seminole Rock
itself was not built on sand. Deference to administrative
agencies traces back to the late nineteenth century, and
perhaps beyond. See United States v. Eaton, 169 U.S.
331, 343 (1898) ("The interpretation given to the
regulations by the department charged with their execution
... is entitled to the greatest weight"); see Brief for
Administrative Law Scholars as Amici Curiae 5, n. 3
(collecting early cases); Brief for AFL-CIO as Amicus
Curiae 8 (same).
We have
explained Auer deference (as we now call it) as
rooted in a presumption about congressional intent-a
presumption that Congress would generally want the agency to
play the primary role in resolving regulatory ambiguities.
See Martin v. Occupational Safety and Health Review
Comm'n, 499 U.S. 144, 151-153 (1991). Congress, we
have pointed out, routinely delegates to agencies the power
to implement statutes by issuing rules. See id., at
151. In doing so, Congress knows (how could it not?) that
regulations will sometimes contain ambiguities. See
supra, at 4. But Congress almost never explicitly
assigns responsibility to deal with that problem, either to
agencies or to courts. Hence the need to presume, one way or
the other, what Congress would want. And as between those two
choices, agencies have gotten the nod. We have adopted the
presumption-though it is always rebuttable-that "the
power authoritatively to interpret its own regulations is a
component of the agency's delegated lawmaking
powers." Martin, 499 U.S., at 151. Or otherwise
said, we have thought that when granting rulemaking power to
agencies, Congress usually intends to give them, too,
considerable latitude to interpret the ambiguous rules they
issue.
In
part, that is because the agency that promulgated a rule is
in the "better position [to] reconstruct" its
original meaning. Id., at 152. Consider that if you
don't know what some text (say, a memo or an e-mail)
means, you would probably want to ask the person who wrote
it. And for the same reasons, we have thought, Congress would
too (though the person is here a collective actor). The
agency that "wrote the regulation" will often have
direct insight into what that rule was intended to mean.
Mullins Coal Co. of Va. v. Director, Office of
Workers' Compensation Programs, 484 U.S. 135, 159
(1987). The drafters will know what it was supposed to
include or exclude or how it was supposed to apply to some
problem. To be sure, this justification has its limits. It
does not work so well, for example, when the agency failed to
anticipate an issue in crafting a rule (e.g., if the
agency never thought about whether and when chest X-rays
would count as a "diagnosis"). See supra,
at 5. Then, the agency will not be uncovering a specific
intention; at most (though this is not nothing), it will be
offering insight into the analogous issues the drafters
considered and the purposes they designed the regulation to
serve. And the defense works yet less well when lots of time
has passed between the rule's issuance and its
interpretation-especially if the interpretation differs from
one that has come before. All that said, the point holds good
for a significant category of "contemporaneous"
readings. Lyng v. Payne, 476 U.S. 926, 939 (1986).
Want to know what a rule means? Ask its author.
In
still greater measure, the presumption that Congress intended
Auer deference stems from the awareness that
resolving genuine regulatory ambiguities often
"entail[s] the exercise of judgment grounded in policy
concerns." Thomas Jefferson Univ. v. Shalala,
512 U.S. 504, 512 (1994) (internal quotation marks omitted).
Return to our TSA example. See supra, at 5. In most
of their applications, terms like "liquids" and
"gels" are clear enough. (Traveler checklist:
Pretzels OK; water not.) But resolving the uncertain
issues-the truffle pates or olive tapenades of the
world-requires getting in the weeds of the rule's policy:
Why does TSA ban liquids and gels in the first instance? What
makes them dangerous? Can a potential hijacker use pate jars
in the same way as soda cans? Or take the less
specialized-seeming ADA example. See supra, at 4-5.
It is easy enough to know what "comparable lines of
sight" means in a movie theater-but more complicated
when, as in sports arenas, spectators sometimes stand up. How
costly is it to insist that the stadium owner take that
sporadic behavior into account, and is the viewing value
received worth the added expense? That cost-benefit
calculation, too, sounds more in policy than in law. Or
finally, take the more technical "moiety" example.
See supra, at 5-6. Or maybe, don't. If you are a
judge, you probably have no idea of what the FDA's rule
means, or whether its policy is implicated when a previously
approved moiety is connected to lysine through a non-ester
covalent bond.
And
Congress, we have thought, knows just that: It is attuned to
the comparative advantages of agencies over courts in making
such policy judgments. Agencies (unlike courts) have
"unique expertise," often of a scientific or
technical nature, relevant to applying a regulation "to
complex or changing circumstances." Martin, 499
U.S., at 151; see Thomas Jefferson, 512 U.S., at
512. Agencies (unlike courts) can conduct factual
investigations, can consult with affected parties, can
consider how their experts have handled similar issues over
the long course of administering a regulatory program. See
Long Island Care at Home, Ltd. v. Coke, 551 U.S.
158, 167-168 (2007). And agencies (again unlike courts) have
political accountability, because they are subject to the
supervision of the President, who in turn answers to the
public. See Free Enterprise Fund v. Public Company
Accounting Oversight Bd., 561 U.S. 477, 499 (2010);
Pauley v. Beth Energy Mines, Inc., 501 U.S. 680, 696
(1991) (discussing as a matter of democratic accountability
the "proper roles of the political and judicial
branches" in filling regulatory gaps). It is because of
those features that Congress, when first enacting a statute,
assigns rulemaking power to an agency and thus authorizes it
to fill out the statutory scheme. And so too, when new issues
demanding new policy calls come up within that scheme,
Congress presumably wants the same agency, rather than any
court, to take the laboring oar.
Finally,
the presumption we use reflects the well-known benefits of
uniformity in interpreting genuinely ambiguous rules. We have
noted Congress's frequent "preference for resolving
interpretive issues by uniform administrative decision,
rather than piecemeal by litigation." Ford Motor
Credit Co. v. Milhollin, 444 U.S. 555, 568 (1980). That
preference may be strongest when the interpretive issue
arises in the context of a "complex and highly technical
regulatory program." Thomas Jefferson, 512
U.S., at 512. After all, judges are most likely to come to
divergent conclusions when they are least likely to know what
they are doing. (Is there anything to be said for courts all
over the country trying to figure out what makes for a new
active moiety?) But the uniformity justification retains some
weight even for more accessible rules, because their language
too may give rise to more than one eminently reasonable
reading. Consider Auer itself. See supra,
at 6. There, four Circuits held that police captains were
"subject to" pay deductions for disciplinary
infractions if a police manual said they were, even if the
department had never docked anyone. Two other Circuits held
that captains were "subject to" pay deductions only
if the department's actual practice made that punishment
a realistic possibility. See Auer, 519 U.S., at 460.
Had the agency issued an interpretation before all those
rulings (rather than, as actually happened, in a brief in
this Court), a deference rule would have averted most of that
conflict and uncertainty. See Christopher v. SmithKline
Beecham Corp., 567 U.S. 142, 158, n. 17 (2012) (noting
for this reason that Auer deference imparts
"predictability to the administrative process"
(internal quotation marks omitted)). Auer deference
thus serves to ensure consistency in federal regulatory law,
for everyone who needs to know what it requires.
B
But all
that said, Auer deference is not the answer to every
question of interpreting an agency's rules. Far from it.
As we explain in this section, the possibility of deference
can arise only if a regulation is genuinely ambiguous. And
when we use that term, we mean it-genuinely ambiguous, even
after a court has resorted to all the standard tools of
interpretation. Still more, not all reasonable agency
constructions of those truly ambiguous rules are entitled to
deference. As just explained, we presume that Congress
intended for courts to defer to agencies when they interpret
their own ambiguous rules. See supra, at 7-11. But
when the reasons for that presumption do not apply, or
countervailing reasons outweigh them, courts should not give
deference to an agency's reading, except to the extent it
has the "power to persuade." Christopher,
567 U.S., at 159 (quoting Skidmore v. Swift &
Co., 323 U.S. 134, 140 (1944)). We have thus cautioned
that Auer deference is just a "general
rule"; it "does not apply in all cases."
Christopher, 567 U.S., at 155. And although the
limits of Auer deference are not susceptible to any
rigid test, we have noted various circumstances in which such
deference is "unwarranted." Ibid. In
particular, that will be so when a court concludes that an
interpretation does not reflect an agency's
authoritative, expertise-based, "fair[, or] considered
judgment." Ibid, (quoting Auer, 519
U.S., at 462); cf. United States v. Mead Corp., 533
U.S. 218, 229-231 (2001) (adopting a similar approach to
Chevron deference).
We take
the opportunity to restate, and somewhat expand on, those
principles here to clear up some mixed messages we have sent.
At times, this Court has applied Auer deference
without significant analysis of the underlying regulation.
See, e.g., United States v. Larionoff, 431 U.S. 864,
872 (1977) (stating that the Court "need not tarry"
over the regulation's language given Seminole
Rock). At other times, the Court has given Auer
deference without careful attention to the nature and context
of the interpretation. See, e.g., Thorpe v. Housing
Authority of Durham, 393 U.S. 268, 276, and nn. 22-23
(1969) (deferring to an agency's view as expressed in
letters to third parties). And in a vacuum, our most classic
formulation of the test-whether an agency's construction
is "plainly erroneous or inconsistent with the
regulation," Seminole Rock, 325 U.S.,
at 414-may suggest a caricature of the doctrine, in which
deference is "reflexive." Pereira v.
Sessions, 585 U.S.___, ___ (2018) (Kennedy, J.,
concurring) (slip op., at 2). So we cannot deny that Kisor
has a bit of grist for his claim that Auer
"bestows on agencies expansive, unreviewable"
authority. Brief for Petitioner 25. But in fact Auer
does no such thing: It gives agencies their due, while also
allowing-indeed, obligating-courts to perform their reviewing
and restraining functions. So before we turn to Kisor's
specific grievances, we think it worth reinforcing some of
the limits inherent in the Auer
doctrine.[4]
First
and foremost, a court should not afford Auer
deference unless the regulation is genuinely ambiguous. See
Christensen v. Harris County, 529 U.S. 576, 588
(2000); Seminole Rock, 325 U.S., at 414 (deferring
only "if the meaning of the words used is in
doubt"). If uncertainty does not exist, there is no
plausible reason for deference. The regulation then just
means what it means-and the court must give it effect, as the
court would any law. Otherwise said, the core theory of
Auer deference is that sometimes the law runs out,
and policy-laden choice is what is left over. See
supra, at 9-10. But if the law gives an answer-if
there is only one reasonable construction of a
regulation-then a court has no business deferring to any
other reading, no matter how much the agency insists it would
make more sense. Deference in that circumstance would
"permit the agency, under the guise of interpreting a
regulation, to create de facto a new
regulation." See Christensen, 529 U.S., at 588.
Auer does not, and indeed could not, go that far.
And
before concluding that a rule is genuinely ambiguous, a court
must exhaust all the "traditional tools" of
construction. Chevron U.S. A. Inc. v. Natural Resources
Defense Council, Inc., 467 U.S. 837, 843, n. 9 (1984)
(adopting the same approach for ambiguous statutes). For
again, only when that legal toolkit is empty and the
interpretive question still has no single right answer can a
judge conclude that it is "more [one] of policy than of
law." Pauley, 501 U.S., at 696. That means a
court cannot wave the ambiguity flag just because it found
the regulation impenetrable on first read. Agency regulations
can sometimes make the eyes glaze over. But hard interpretive
conundrums, even relating to complex rules, can often be
solved. See id., at 707 (Scalia, J., dissenting) (A
regulation is not ambiguous merely because "discerning
the only possible interpretation requires a taxing
inquiry"). To make that effort, a court must
"carefully consider[]" the text, structure,
history, and purpose of a regulation, in all the ways it
would if it had no agency to fall back on. Ibid.
Doing so will resolve many seeming ambiguities out of the
box, without resort to Auer deference.
If
genuine ambiguity remains, moreover, the agency's reading
must still be "reasonable." Thomas
Jefferson, 512 U.S., at 515. In other words, it must
come within the zone of ambiguity the court has identified
after employing all its interpretive tools. (Note that
serious application of those tools therefore has use even
when a regulation turns out to be truly ambiguous. The text,
structure, history, and so forth at least establish the outer
bounds of permissible interpretation.) Some courts have
thought (perhaps because of Seminole Rock's
"plainly erroneous" formulation) that at this stage
of the analysis, agency constructions of rules receive
greater deference than agency constructions of statutes. See,
e.g., Ohio Dept. of Medicaid v. Price, 864 F.3d 469,
477 (CA6 2017). But that is not so. Under Auer, as
under Chevron, the agency's reading must fall
"within the bounds of reasonable interpretation."
Arlington v. FCC, 569 U.S. 290, 296 (2013). And let
there be no mistake: That is a requirement an agency can
fail.
Still,
we are not done-for not every reasonable agency reading of a
genuinely ambiguous rule should receive Auer
deference. We have recognized in applying Auer that
a court must make an independent inquiry into whether the
character and context of the agency interpretation entitles
it to controlling weight. See Christopher, 567 U.S.,
at 155; see also Mead, 533 U.S., at 229-231, 236-237
(requiring an analogous though not identical inquiry for
Chevron deference). As explained above, we give
Auer deference because we presume, for a set of
reasons relating to the comparative attributes of courts and
agencies, that Congress would have wanted us to. See
supra, at 7-11. But the administrative realm is vast
and varied, and we have understood that such a presumption
cannot always hold. Cf. Mead, 533 U.S., at 236
("tailoring] deference to [the] variety" of
administrative action); Arlington, 569 U.S., at
309-310 (BREYER, J., concurring in part and concurring in
judgment) (noting that "context-specific[] factors"
may show that "Congress would [not] have intended the
agency to resolve [some] ambiguity"). The inquiry on
this dimension does not reduce to any exhaustive test. But we
have laid out some especially important markers for
identifying when Auer deference is and is not
appropriate.
To
begin with, the regulatory interpretation must be one
actually made by the agency. In other words, it must be the
agency's "authoritative" or "official
position," rather than any more ad hoc statement not
reflecting the agency's views. Mead, 533 U.S.,
at 257-259, and n. 6 (Scalia, J., dissenting). That
constraint follows from the logic of Auer
deference-because Congress has delegated rulemaking power,
and all that typically goes with it, to the agency alone. Of
course, the requirement of "authoritative" action
must recognize a reality of bureaucratic life: Not everything
the agency does comes from, or is even in the name of, the
Secretary or his chief advisers. So, for example, we have
deferred to "official staff memoranda" that were
"published in the Federal Register," even though
never approved by the agency head. Ford Motor
Credit, 444 U.S., at 566, n. 9, 567, n. 10 (declining to
"draw a radical distinction between" agency heads
and staff for Auer deference). But there are limits.
The interpretation must at the least emanate from those
actors, using those vehicles, understood to make
authoritative policy in the relevant context. See, e.g.,
Paralyzed Veterans, 117 F.3d, at 587 (refusing to
consider a "speech of a mid-level official" as an
"authoritative departmental position");
N.Y.State Dept. of Social Servs. v. Bowen, 835 F.2d
360, 365-366 (CADC 1987) (rejecting the idea that an
"informal memorandum" recounting a telephone
conversation between employees could count as an
"authoritative pronouncement"); Exelon
Generation Co. v. Local 15, Int'l Brotherhood of Elec.
Workers, AFL-CIO, 676 F.3d 566, 576-578 (CA7 2012)
(declining deference when the agency had itself
"disclaimed the use of regulatory guides as
authoritative"). If the interpretation does not do so, a
court may not defer.
Next,
the agency's interpretation must in some way implicate
its substantive expertise. Administrative knowledge and
experience largely "account [for] the presumption that
Congress delegates interpretive lawmaking power to the
agency." Martin, 499 U.S., at 153. So the basis
for deference ebbs when "[t]he subject matter of the
[dispute is] distan[t] from the agency's ordinary"
duties or "fall[s] within the scope of another
agency's authority." Arlington, 569 U.S.,
at 309 (opinion of BREYER, J.). This Court indicated as much
when it analyzed a "split enforcement" scheme, in
which Congress divided regulatory power between two entities.
Martin, 499 U.S., at 151. To decide
"whose reasonable interpretation" of a
rule controlled, we "presum[ed] Congress intended to
invest interpretive power" in whichever actor was
"best positioned] to develop" expertise about the
given problem. Id., at 149, 153. The same idea holds
good as between agencies and courts. "Generally,
agencies have a nuanced understanding of the regulations they
administer." Brief for Respondent 33. That point is most
obvious when a rule is technical; think back to our
"moiety" or "diagnosis" examples. See
supra, at 5-6. But more prosaic-seeming questions
also commonly implicate policy expertise; consider the TSA
assessing the security risks of pate or a disabilities office
weighing the costs and benefits of an accommodation. See
ibid. Once again, though, there are limits. Some
interpretive issues may fall more naturally into a
judge's bailiwick. Take one requiring the elucidation of
a simple common-law property term, see Jicarilla Apache
Tribe v. FERC, 578 F.2d 289, 292-293 (CA10 1978), or one
concerning the award of an attorney's fee, see West
Va. Highlands Conservancy, Inc. v. Norton, 343 F.3d 239
(CA4 2003). Cf. Adams Fruit Co. v. Barrett, 494 U.S.
638, 649-650 (1990) (declining to award Chevron
deference when an agency interprets a judicial-review
provision). When the agency has no comparative expertise in
resolving a regulatory ambiguity, Congress presumably would
not grant it that authority.[5]
Finally,
an agency's reading of a rule must reflect "fair and
considered judgment" to receive Auer deference.
Christopher, 567 U.S., at 155 (quoting
Auer, 519 U.S., at 462). That means, we have stated,
that a court should decline to defer to a merely
"convenient litigating position" or "post
hoc rationalizatio[n] advanced" to "defend
past agency action against attack."
Christopher, 567 U.S., at 155 (quoting Bowen v.
Georgetown Univ. Hospital, 488 U.S. 204, 213 (1988) and
Auer, 519 U.S., at 462).[6] And a court may not defer to
a new interpretation, whether or not introduced in
litigation, that creates "unfair surprise" to
regulated parties. Long Island Care, 551 U.S., at
170. That disruption of expectations may occur when an agency
substitutes one view of a rule for another. We have therefore
only rarely given Auer deference to an agency
construction "conflict[ing] with a prior" one.
Thomas Jefferson, 512 U.S., at 515. Or the upending
of reliance may happen without such an explicit interpretive
change. This Court, for example, recently refused to defer to
an interpretation that would have imposed retroactive
liability on parties for longstanding conduct that the agency
had never before addressed. See Christopher, 567
U.S., at 155-156. Here too the lack of "fair
warning" outweighed the reasons to apply Auer.
Id., at 156 (internal quotation marks omitted).
*
* *
The
upshot of all this goes something as follows. When it
applies, Auer deference gives an agency significant
leeway to say what its own rules mean. In so doing, the
doctrine enables the agency to fill out the regulatory scheme
Congress has placed under its supervision. But that phrase
"when it applies" is important-because it often
doesn't. As described above, this Court has cabined
Auer's scope in varied and critical ways-and in
exactly that measure, has maintained a strong judicial role
in interpreting rules. What emerges is a deference doctrine
not quite so tame as some might hope, but not nearly so
menacing as they might fear.
III
That
brings us to the lone question presented here- whether we
should abandon the longstanding doctrine just described. In
contending that we should, Kisor raises statutory, policy,
and constitutional claims (in that order). But he faces an
uphill climb. He must first convince us that Auer
deference is wrong. And even then, he must overcome stare
decisis-the special care we take to preserve our
precedents. In the event, Kisor fails at the first step: None
of his arguments provide good reason to doubt Auer
deference. And even if that were not so, Kisor does not offer
the kind of special justification needed to overrule
Auer, and Seminole Rock, and all our many
other decisions deferring to reasonable agency constructions
of ambiguous rules.
A
Kisor
first attacks Auer as inconsistent with the judicial
review provision of the Administrative Procedure Act (APA).
See 5 U.S.C. §706. As Kisor notes, Congress enacted the
APA in 1946-the year after Seminole Rock- to serve
as "the fundamental charter of the administrative
state." Brief for Petitioner 26 (internal quotation
marks omitted). Section 706 of the Act, governing judicial
review of agency action, states (among other things) that
reviewing courts shall "determine the meaning or
applicability of the terms of an agency action"
(including a regulation). According to Kisor, Auer
violates that edict by thwarting "meaningful judicial
review" of agency rules. Brief for Petitioner 29. Courts
under Auer, he asserts (now in the language of
Section 706), "abdicate their office of determining the
meaning" of a regulation. Id., at 27 (internal
quotation marks omitted).
To
begin with, that argument ignores the many ways, discussed
above, that courts exercise independent review over the
meaning of agency rules. See supra, at 13-18. As we
have explained, a court must apply all traditional methods of
interpretation to any rule, and must enforce the plain
meaning those methods uncover. There can be no thought of
deference unless, after performing that thoroughgoing review,
the regulation remains genuinely susceptible to multiple
reasonable meanings and the agency's interpretation lines
up with one of them. And even if that is the case, courts
must on their own determine whether the nature or context of
the agency's construction reverses the usual presumption
of deference. Most notably, a court must consider whether the
interpretation is authoritative, expertise-based, considered,
and fair to regulated parties. All of that figures as
"meaningful judicial review." Brief for Petitioner
29.
And
even when a court defers to a regulatory reading, it acts
consistently with Section 706. That provision does not
specify the standard of review a court should use in
"determining] the meaning" of an ambiguous rule. 5
U.S.C. §706. One possibility, as Kisor says, is to
review the issue de novo. But another is to review
the agency's reading for reasonableness. To see the
point, assume that a regulatory (say, an employment) statute
expressly instructed courts to apply Auer deference
when reviewing an agency's interpretations of its
ambiguous rules. Nothing in that statute would conflict with
Section 706. Instead, the employment law would simply make
clear how a court is to "determine the
meaning" of such a rule-by deferring to an agency's
reasonable reading. Ibid. Of course, that is not the
world we know: Most substantive statutes do not say anything
about Auer deference, one way or the other. But for
all the reasons spelled out above, we have long presumed
(subject always to rebuttal) that the Congress delegating
regulatory authority to an agency intends as well to give
that agency considerable latitude to construe its ambiguous
rules. See supra, at 7-11. And that presumption
operates just like the hypothesized statute above. Because of
it, once again, courts do not violate Section 706 by applying
Auer. To the contrary, they fulfill their duty to
"determine the meaning" of a rule precisely by
deferring to the agency's reasonable reading. See
Sunstein & Vermeule, The Unbearable Rightness of
Auer, 84 U. Chi. L. Rev. 297, 306 (2017) (If
Congress intends "that the meaning of a regulation turns
on the agency's interpretation of its meaning," then
courts comply with Section 706's command to
"'determine the meaning' [of the regulation] by
deferring to that view"); cf. Arlington, 569
U.S., at 317 (ROBERTS, C. J., dissenting) (similarly
addressing why Chevron deference comports with
Section 706). Section 706 and Auer thus go hand in
hand.
That is
especially so given the practice of judicial review at the
time of the APA's enactment. Section 706 was understood
when enacted to "restate[] the present law as to the
scope of judicial review." See Dept. of Justice,
Attorney General's Manual on the Administrative Procedure
Act 108 (1947); see also Vermont Yankee Nuclear Power
Corp. v. Natural Resources Defense Council, Inc., 435
U.S. 519, 546 (1978) (noting that this Court gives some
deference to the Manual "because of the role played by
the Department of Justice in drafting the legislation").
We have thus interpreted the APA not to "significantly
alter the common law of judicial review of agency
action." Heckler v. Chaney, 470 U.S. 821, 832
(1985) (internal quotation marks omitted). That pre-APA
common law included Seminole Rock itself (decided
the year before) along with prior decisions foretelling that
ruling. See supra, at 7. Even assume that the
deference regime laid out in those cases had not yet fully
taken hold. At a minimum, nothing in the law of that era
required all judicial review of agency interpretations to be
de novo. Cf. Manning, Constitutional Structure and
Judicial Deference to Agency Interpretations of Agency Rules,
96 Colum. L. Rev. 612, 635-636 (1996) (arguing that courts
before the APA used "flexible, common law methods to
review administrative action"). And so nothing suggests
that Section 706 imposes that requirement. Or otherwise said:
If Section 706 did not change the law of judicial review (as
we have long recognized), then it did not proscribe a
deferential standard then known and in use.
Kisor
next claims that Auer circumvents the APA's
rulemaking requirements. Section 553, as Kisor notes,
mandates that an agency use notice-and-comment procedures
before issuing legislative rules. See 5 U.S.C.
§§553(b), (c). But the section allows agencies to
issue "interpret[ive]" rules without notice and
comment. See §553(b)(A). A key feature of those rules is
that (unlike legislative rules) they are not supposed to
"have the force and effect of law"-or, otherwise
said, to bind private parties. Perez v. Mortgage Bankers
Assn., 575 U.S. 92, ___(2015) (slip op., at 3) (internal
quotation marks omitted). Instead, interpretive rules are
meant only to "advise the public" of how the agency
understands, and is likely to apply, its binding statutes and
legislative rules. Ibid. But consider, Kisor argues,
what happens when a court gives Auer deference to an
interpretive rule. The result, he asserts, is to make a rule
that has never gone through notice and comment binding on the
public. See Brief for Petitioner 21, 29. Or put another way,
the interpretive rule ends up having the "force and
effect of law" without ever paying the procedural cost.
Mortgage Bankers, 575 U.S., at___(slip op., at 3).
But
this Court rejected the identical argument just a few years
ago, and for good reason. In Mortgage Bankers, we
held that interpretive rules, even when given Auer
deference, do not have the force of law. See 575
U.S., at____, and n. 4 (slip op., at 10, and n. 4). An
interpretive rule itself never forms "the basis for an
enforcement action"-because, as just noted, such a rule
does not impose any "legally binding requirements"
on private parties. National Min. Assn. v. McCarthy,
758 F.3d 243, 251 (CADC 2014). An enforcement action must
instead rely on a legislative rule, which (to be valid) must
go through notice and comment. And in all the ways discussed
above, the meaning of a legislative rule remains in the hands
of courts, even if they sometimes divine that meaning by
looking to the agency's interpretation. See
supra, at 13-18. Courts first decide whether the
rule is clear; if it is not, whether the agency's reading
falls within its zone of ambiguity; and even if the reading
does so, whether it should receive deference. In short,
courts retain the final authority to approve-or not-the
agency's reading of a notice-and-comment rule. See
Mortgage Bankers, 575 U.S.___, at, n. 4 (slip op.,
at 10, n. 4) ("[I]t is the court that ultimately decides
whether a given regulation means what the agency says").
No binding of anyone occurs merely by the agency's
say-so.
And
indeed, a court deciding whether to give Auer
deference must heed the same procedural values as Section 553
reflects. Remember that a court may defer to only an
agency's authoritative and considered judgments. See
supra, at 15-18. No ad hoc statements or
post hoc rationalizations need apply. And recall too
that deference turns on whether an agency's
interpretation creates unfair surprise or upsets reliance
interests. See supra, at 18. So an agency has a
strong incentive to circulate its interpretations early and
widely. In such ways, the doctrine of Auer deference
reinforces, rather than undermines, the ideas of fairness and
informed decisionmaking at the core of the APA.
To
supplement his two APA arguments, Kisor turns to policy,
leaning on a familiar claim about the incentives
Auer creates. According to Kisor, Auer
encourages agencies to issue vague and open-ended
regulations, confident that they can later impose whatever
interpretation of those rules they prefer. See Brief for
Petitioner 37-41. That argument received its fullest
elaboration in a widely respected law review article
pre-dating Auer. See Manning, 96 Colum. L. Rev., at
654-669. More recently, the concern about such
self-delegation has appeared in opinions from this Court,
starting with several from Justice Scalia calling for
Auer's reconsideration. See, e.g.,
Christopher, 567 U.S., at 158 (citing Manning,
supra, at 655-668); Decker v. Northwest
Environmental Defense Center, 568 U.S. 597, 620-621
(2013) (Scalia, J., concurring in part and dissenting in
part) (citing Manning, supra); Talk America, Inc. v.
Michigan Bell Telephone Co., 564 U.S. 50, 69 (2011)
(Scalia, J., concurring) (principally relying on Manning,
supra).
But the
claim has notable weaknesses, empirical and theoretical
alike. First, it does not survive an encounter with
experience. No real evidence-indeed, scarcely an
anecdote-backs up the assertion. As two noted scholars (one
of whom reviewed thousands of rules during four years of
government service) have written: "[W]e are unaware of,
and no one has pointed to, any regulation in American history
that, because of Auer, was designed vaguely."
Sunstein & Vermeule, 84 U. Chi. L. Rev., at 308. And even
the argument's theoretical allure dissipates upon
reflection. For strong (almost surely stronger) incentives
and pressures cut in the opposite direction.
"[R]egulators want their regulations to be effective,
and clarity promotes compliance." Brief for
Administrative Law Scholars as Amici Curiae 18-19.
Too, regulated parties often push for precision from an
agency, so that they know what they can and cannot do. And
ambiguities in rules pose risks to the long-run survival of
agency policy. Vagueness increases the chance of adverse
judicial rulings. And it enables future administrations, with
different views, to reinterpret the rules to their own
liking. Add all of that up and Kisor's ungrounded theory
of incentives contributes nothing to the case against
Auer.
Finally,
Kisor goes big, asserting (though fleetingly) that
Auer deference violates "separation-of-powers
principles." See Brief for Petitioner 43. In his view,
those principles prohibit "vest[ing] in a single branch
the law-making and law-interpreting functions."
Id., at 45. If that objection is to agencies'
usurping the interpretive role of courts, this opinion has
already met it head-on. Properly understood and applied,
Auer does no such thing. In all the ways we have
described, courts retain a firm grip on the interpretive
function. See supra, at 13-18; Mortgage
Bankers, 575 U.S.___, at, n. 4 (slip op., at 10, n. 4).
If Kisor's objection is instead to the supposed
commingling of functions (that is, the legislative and
judicial) within an agency, this Court has answered it often
before. See, e.g., Withrow v. Larkin, 421 U.S. 35,
54 (1975) (permitting such a combination of functions);
FTC v. Cement Institute, 333 U.S. 683, 702 (1948)
(same). That sort of mixing is endemic in agencies, and has
been "since the beginning of the Republic."
Arlington, 569 U.S., at 304-305, n. 4. It does not
violate the separation of powers, we have explained, because
even when agency "activities take 'legislative'
and 'judicial' forms," they continue to be
"exercises of[] the 'executive Power'"-or
otherwise said, ways of executing a statutory plan.
Ibid, (quoting U.S. Const., Art. II, §1, cl.
1). So Kisor's last argument to dispatch Auer
deference fails as roundly as the rest.
B
If all
that were not enough, stare decisis cuts strongly
against Kisor's position. "Overruling precedent is
never a small matter." Kimble v. Marvel
Entertainment, LLC, 576 U.S.____, ____ (2015) (slip op.,
at 7). Adherence to precedent is "a foundation stone of
the rule of law." Michigan v. Bay Mills Indian
Community, 572 U.S. 782, 798 (2014). "[I]t promotes
the evenhanded, predictable, and consistent development of
legal principles, fosters reliance on judicial decisions, and
contributes to the actual and perceived integrity of the
judicial process." Payne v. Tennessee, 501 U.S.
808, 827 (1991). To be sure, stare decisis is
"not an inexorable command." Id., at 828.
But any departure from the doctrine demands "special
justification"- something more than "an argument
that the precedent was wrongly decided." Halliburton
Co. v. Erica P. John Fund, Inc., 573 U.S. 258, 266
(2014).
And
that is even more than usually so in the circumstances here.
First, Kisor asks us to overrule not a single case, but a
"long line of precedents"-each one reaffirming the
rest and going back 75 years or more. Bay Mills, 572
U.S., at 798; see nn. 2, 3, supra. This Court alone
has applied Auer or Seminole Rock in dozens
of cases, and lower courts have done so thousands of times.
Deference to reasonable agency interpretations of ambiguous
rules pervades the whole corpus of administrative law.
Second, because that is so, abandoning Auer
deference would cast doubt on many settled constructions of
rules. As Kisor acknowledged at oral argument, a decision in
his favor would allow relitigation of any decision based on
Auer, forcing courts to "wrestle [with] whether
or not Auer" had actually made a difference.
Tr. of Oral Arg. 30; see id., at 47 (Solicitor
General agreeing that "every single regulation
that's currently on the books whose interpretation has
been established under Seminole Rock now [would
have] to be relitigated anew"). It is the rare
overruling that introduces so much instability into so many
areas of law, all in one blow.
And
third, even if we are wrong about Auer,
"Congress remains free to alter what we have done."
Patterson v. McLean Credit Union, 491 U.S. 164,
172-173 (1989) (stating that when that is so,
"[c]onsiderations of stare decisis have special
force"). In a constitutional case, only we can correct
our error. But that is not so here. Our deference decisions
are "balls tossed into Congress's court, for
acceptance or not as that branch elects."
Kimble, 576 U.S., at___ (slip op., at 8). And so
far, at least, Congress has chosen acceptance. It could amend
the APA or any specific statute to require the sort of de
novo review of regulatory interpretations that Kisor
favors. Instead, for approaching a century, it has let our
deference regime work side-by-side with both the APA and the
many statutes delegating rulemaking power to agencies. It has
done so even after we made clear that our deference decisions
reflect a presumption about congressional intent. See
Martin, 499 U.S., at 151; supra, at 7-8.
And it has done so even after Members of this Court began to
raise questions about the doctrine. See, e.g., Talk
America, 564 U.S., at 67-69 (Scalia, J., concurring).
Given that history-and Congress's continuing ability to
take up Kisor's arguments-we would need a particularly
"special justification" to now reverse
Auer.
Kisor
offers nothing of that ilk. Nearly all his arguments about
abandoning precedent are variants of his merits claims. We
hear again, if in different parts of his briefs, that
Auer deference frustrates "the policies
embodied in the APA" and violates the separation of
powers. Reply Brief 13, and n. 5; Brief for Petitioner 47-48.
More generally, we learn that Seminole Rock was
"wrong on its own terms" and "badly
reasoned." Id., at 47 (internal quotation marks
omitted). Of course, it is good-and important-for our
opinions to be right and well-reasoned. But that is not the
test for overturning precedent. Kisor does not claim that
Auer deference is "unworkable," a
traditional basis for overruling a case. Patterson,
491 U.S., at 173. Nor does he point to changes in legal rules
that make Auer a "doctrinal dinosaur."
Kimble, 576 U.S., at___(slip op., at 11). All he can
muster is that "[t]he administrative state has evolved
substantially since 1945." Brief for Petitioner 53. We
do not doubt the point (although we note that Auer
and other key deference decisions came along after most of
that evolution took place). Still more, we agree with Kisor
that administrative law doctrines must take account of the
far-reaching influence of agencies and the opportunities such
power carries for abuse. That is one reason we have taken
care today to reinforce the limits of Auer
deference, and to emphasize the critical role courts retain
in interpreting rules. But it is no answer to the growth of
agencies for courts to take over their expertise-based,
policymaking functions. Who knows? Maybe in 1945, the FDA was
not thinking about "active moieties." See
supra, at 5-6. But still, today-just as Seminole
Rock and Auer held-it should have leeway to say
what that term means.
IV
With
that, we can finally return to Kisor's own case. You may
remember that his retroactive benefits depend on the meaning
of the term "relevant" records in a VA regulation.
See supra, at 2-3. The Board of Veterans'
Appeals, through a single judge's opinion, understood
records to be relevant only if they relate to the basis of
the VA's initial denial of benefits. By contrast, Kisor
argued that records are relevant if they go to any benefits
criterion, even one that was uncontested. The Federal Circuit
upheld the Board's interpretation based on Auer
deference.
Applying
the principles outlined in this opinion, we hold that a redo
is necessary for two reasons. First, the Federal Circuit
jumped the gun in declaring the regulation ambiguous. We have
insisted that a court bring all its interpretive tools to
bear before finding that to be so. See supra, at
13-14. It is not enough to casually remark, as the court did
here, that "[b]oth parties insist that the plain
regulatory language supports their case, and neither
party's position strikes us as unreasonable." 869
F.3d, at 1368; see supra, at 13-14. Rather, the
court must make a conscientious effort to determine, based on
indicia like text, structure, history, and purpose, whether
the regulation really has more than one reasonable meaning.
The Solicitor General argued in this Court that the
Board's reading is the only reasonable one. See Brief for
Respondent 49-50. Perhaps Kisor will make the converse claim
below. Before even considering deference, the court must
seriously think through those positions.
And
second, the Federal Circuit assumed too fast that
Auer deference should apply in the event of genuine
ambiguity. As we have explained, that is not always true. A
court must assess whether the interpretation is of the sort
that Congress would want to receive deference. See
supra, at 15-18. The Solicitor General suggested at
oral argument that the answer in this case might be no. He
explained that all 100 or so members of the VA Board act
individually (rather than in panels) and that their roughly
80, 000 annual decisions have no "precedential
value." Tr. of Oral Arg. 64. He thus questioned whether
a Board member's ruling "reflects the considered
judgment of the agency as a whole." Ibid.; cf.
Mead, 533 U.S., at 233 (declining to give
Chevron deference to rulings "being churned out
at a rate of 10, 000 a year at an agency's 46 scattered
offices"). We do not know what position the Government
will take on that issue below. But the questions the
Solicitor General raised are exactly the kind the court must
consider in deciding whether to award Auer deference
to the Board's interpretation.
We
accordingly vacate the judgment below and remand the case for
further proceedings.
It
is so ordered.
ROBERTS, C. J., concurring in part
Chief
Justice Roberts, concurring in part.
I join
Parts I, II-B, III-B, and IV of the Court's opinion. We
took this case to consider whether to overrule Auer v.
Robbins, 519 U.S. 452 (1997), and Bowles v. Seminole
Rock & Sand Co., 325 U.S. 410 (1945). For the
reasons the Court discusses in Part III-B, I agree that
overruling those precedents is not warranted. I also agree
with the Court's treatment in Part II-B of the bounds of
Auer deference.
I write
separately to suggest that the distance between the majority
and JUSTICE GORSUCH is not as great as it may initially
appear. The majority catalogs the prerequisites for, and
limitations on, Auer deference: The underlying
regulation must be genuinely ambiguous; the agency's
interpretation must be reasonable and must reflect its
authoritative, expertise-based, and fair and considered
judgment; and the agency must take account of reliance
interests and avoid unfair surprise. JUSTICE GORSUCH,
meanwhile, lists the reasons that a court might be persuaded
to adopt an agency's interpretation of its own
regulation: The agency thoroughly considered the problem,
offered a valid rationale, brought its expertise to bear, and
interpreted the regulation in a manner consistent with
earlier and later pronouncements. Accounting for variations
in verbal formulation, those lists have much in common.
That is
not to say that Auer deference is just the same as
the power of persuasion discussed in Skidmore v. Swift
& Co., 323 U.S. 134 (1944); there is a difference
between holding that a court ought to be persuaded by an
agency's interpretation and holding that it should defer
to that interpretation under certain conditions. But it is to
say that the cases in which Auer deference is
warranted largely overlap with the cases in which it would be
unreasonable for a court not to be persuaded by an
agency's interpretation of its own regulation.
One
further point: Issues surrounding judicial deference to
agency interpretations of their own regulations are distinct
from those raised in connection with judicial deference to
agency interpretations of statutes enacted by Congress. See
Chevron U.S. A. Inc. v. Natural Resources Defense
Council, Inc., 467 U.S. 837 (1984). I do not regard the
Court's decision today to touch upon the latter question.
Justice Gorsuch, with whom Justice Thomas joins, with whom
JUSTICE KAVANAUGH joins as to Parts I, II, III, IV, and V,
and with whom JUSTICE ALITO joins as to Parts I, II, and III,
concurring in the judgment.
It
should have been easy for the Court to say goodbye to
Auer v. Robbins.[1] In disputes involving the relationship
between the government and the people, Auer requires
judges to accept an executive agency's interpretation of
its own regulations even when that interpretation doesn't
represent the best and fairest reading. This rule creates a
"systematic judicial bias in favor of the federal
government, the most powerful of parties, and against
everyone else."[2] Nor is Auer's biased rule the
product of some congressional mandate we are powerless to
correct: This Court invented it, almost by accident and
without any meaningful effort to reconcile it with the
Administrative Procedure Act or the Constitution. A legion of
academics, lower court judges, and Members of this Court-even
Auer's author-has called on us to abandon
Auer. Yet today a bare majority flinches, and
Auer lives on.
Still,
today's decision is more a stay of execution than a
pardon. The Court cannot muster even five votes to say that
Auer is lawful or wise. Instead, a majority retains
Auer only because of stare decisis. And
yet, far from standing by that precedent, the majority
proceeds to impose so many new and nebulous qualifications
and limitations on Auer that THE CHIEF JUSTICE
claims to see little practical difference between keeping it
on life support in this way and overruling it entirely. So
the doctrine emerges maimed and enfeebled-in truth,
zombified.
Respectfully,
we owe our colleagues on the lower courts more candid and
useful guidance than this. And judges owe the people who come
before them nothing less than a fair contest, where every
party has an equal chance to persuade the court of its
interpretation of the law's demands. One can hope that
THE CHIEF JUSTICE is right, and that whether we formally
overrule Auer or merely neuter it, the results in
most cases will prove the same. But means, not just ends,
matter, and retaining even this debilitated version of
Auer threatens to force litigants and lower courts
to jump through needless and perplexing new hoops and in the
process deny the people the independent judicial decisions
they deserve. All to what end? So that we may
pretend to abide stare decisis?
Consider
this case. Mr. Kisor is a Marine who lost out on benefits for
post-traumatic stress disorder when the court of appeals
deferred to a regulatory interpretation advanced by the
Department of Veterans Affairs. The court of appeals was
guilty of nothing more than faithfully following
Auer. But the majority today invokes stare
decisis, of all things, to vacate that judgment and tell
the court of appeals to try again using its newly retooled,
multi-factored, and far less determinate version of
Auer. Respectfully, I would stop this business of
making up excuses for judges to abdicate their job of
interpreting the law, and simply allow the court of appeals
to afford Mr. Kisor its best independent judgment of the
law's meaning.
The
Court's failure to be done with Auer, and its
decision to adorn Auer with so many new and
ambiguous limitations, all but guarantees we will have to
pass this way again. When that day comes, I hope this Court
will find the nerve it lacks today and inter Auer at
last. Until then, I hope that our judicial colleagues on
other courts will ...