No. 18-15

In the Supreme Court of the United States
JAMES L. KISOR,
Petitioner,
v.
ROBERT L. WILKIE,
Secretary of Veterans Affairs,
Respondent.
On Writ of Certiorari to the United States
Court of Appeals for the Federal Circuit
BRIEF FOR PETITIONER
KENNETH M. CARPENTER
Carpenter Chartered
1525 SW Topeka Blvd.,
Suite D
Topeka, KS 66601
(785) 357-5251

EUGENE R. FIDELL
Yale Law School
Supreme Court Clinic
127 Wall Street
New Haven, CT 06511
(203) 432-4992

PAUL W. HUGHES
Counsel of Record

MICHAEL B. KIMBERLY
ANDREW J. PINCUS
CHARLES A. ROTHFELD
E. BRANTLEY WEBB
ANDREW A. LYONS-BERG
Mayer Brown LLP
1999 K Street, NW
Washington, DC 20006
(202) 263-3000
phughes@mayerbrown.com

RACHEL R. SIEGEL
Mayer Brown LLP
1221 Ave. of the Americas
New York, NY 10020
(212) 506-2500

Counsel for Petitioner

 i
QUESTION PRESENTED
Whether the Court should overrule Auer v. Robbins, 519 U.S. 452 (1997), and Bowles v. Seminole
Rock & Sand Co., 325 U.S. 410 (1945).

 ii
TABLE OF CONTENTS
Question Presented ..................................................... i
Table of Authorities....................................................iv
Opinions Below ............................................................1
Jurisdiction ..................................................................1
Regulation Involved ....................................................1
Introduction .................................................................3
Statement ....................................................................6
A. Legal background. ............................................6
1. Seminole Rock and Auer. ............................6
2. The Veterans Affairs regulations. ............ 10
B. Factual background. ....................................... 13
C. Proceedings below........................................... 15
Summary of Argument.............................................. 21
Argument ................................................................... 25
I. Seminole Rock and Auer are wrong..................... 25
A. Auer deference is inconsistent with the
APA. ................................................................ 26
1. Auer deference circumvents the
APA’s safeguards governing agency
rulemaking. ............................................... 26
2. Auer exceeds the scope of any
congressional delegation of
lawmaking authority................................. 33
B. Auer injects intolerable unpredictability
into agency action. .......................................... 36
1. Auer invites vague regulations, which
limit the public’s ability to conform
conduct to law. ........................................... 37
2. Auer deference is especially suspect
when the agency is self-interested. .......... 40

 iii
3. There is no policy-based justification
for Auer deference. .................................... 41
C. Auer deference is inconsistent with
separation-of-powers principles. .................... 43
D. Chevron deference confirms the flaws of
Auer deference. ............................................... 45
II. Stare decisis does not require the Court to
retain Seminole Rock and Auer. .......................... 47
A. Special justifications warrant overruling
Seminole Rock and Auer. ................................ 47
B. Stare decisis applies with less force to
judicially-created interpretive principles. ..... 48
C. Private reliance interests favor overruling
Seminole Rock and Auer. ................................ 51
D. The administrative state has evolved
substantially since 1945. ................................ 53
III.Section 3.156(c) entitles petitioner to
retroactive benefits. ............................................. 55
Conclusion ................................................................. 61

 iv
TABLE OF AUTHORITIES
Page(s)
Cases
Alleyne v. United States,
570 U.S. 99 (2013) ................................................ 49
Appalachian Power Co., v. EPA,
208 F.3d 1015 (D.C. Cir. 2000) ............................ 54
Auer v. Robbins,
519 U.S. 452 (1997) ...................................... passim
Boone v. Lightner,
319 U.S. 561 (1943) .............................................. 60
Bowles v. Seminole Rock & Sand Co.,
325 U.S. 410 (1945 ............................................. 3, 6
Bruesewitz v. Wyeth LLC,
562 U.S. 223 (2011) .............................................. 42
Chase Bank USA, N.A. v. McCoy,
562 U.S. 195 (2011) ................................................ 9
Chevron, U.S.A., Inc. v. Natural Res.
Def. Council, Inc.,
467 U.S. 837 (1984) ...................................... passim
Chickaloon-Moose Creek Native Ass’n,
Inc. v. Norton,
360 F.3d 972 (9th Cir. 2004) ................................ 40
Christopher v. SmithKline Beecham Corp.,
567 U.S. 142 (2012) ........................................ 10, 37
Chrysler Corp. v. Brown,
441 U.S. 281 (1979) .................................. 28, 29, 33
City of Arlington v. FCC,
569 U.S. 290 (2013) ...................................... passim

 v
Cases—continued
Coeur Alaska, Inc. v. Southeast Alaska
Conservation Council,
557 U.S. 261 (2009) .............................. 9, 29, 32, 51
Crawford v. Washington,
541 U.S. 36 (2004) ................................................ 48
Decker v. Northwest Envtl. Def. Ctr.,
568 U.S. 597 (2013) ...................................... passim
Ehlert v. United States,
402 U.S. 99 (1971) .................................................. 8
Encino Motorcars, LLC v. Navarro,
136 S. Ct. 2117 (2016) ........................ 29, 30, 33, 35
FCC v. Fox Television Stations, Inc.,
556 U.S. 502 (2009) .............................................. 30
Free Enterprise Fund v. Public Co. Accounting
Oversight Bd.,
561 U.S. 477 (2010) .............................................. 54
Garco Constr., Inc. v. Speer,
138 S. Ct. 1052 (2018) .................................... 29, 52
Geier v. American Honda Motor Co.,
529 U.S. 861 (2000) ................................................ 9
Gloucester Cty. Sch. Bd. v. G.G. ex rel. Grimm,
137 S. Ct. 1239 (2017 ........................................... 39
Gonzales v. Oregon,
546 U.S. 243 (2006) .......................................... 9, 10
G.G. ex rel. Grimm v. Gloucester Cty. Sch. Bd.,
822 F.3d 709 (4th Cir. 2016) ................................ 39
Henderson v. Shinseki,
562 U.S. 428 (2011) .............................................. 60
Hodge v. West,
155 F.3d 1356 (Fed. Cir. 1998) ............................ 60

 vi
Cases—continued
INS v. Chadha,
462 U.S. 919 (1983) ........................................ 45, 53
INS v. Stanisic,
395 U.S. 62 (1969) .................................................. 8
Johnson v. Robison,
415 U.S. 361 (1974) .............................................. 60
Kennedy v. Plan Adm’r for DuPont Sav.
& Inv. Plan,
555 U.S. 285 (2009) .................................... 9, 30, 31
Lawrence v. Texas,
539 U.S. 558 (2003) ........................................ 51, 53
Long Island Care at Home, Ltd. v. Coke,
551 U.S. 158 (2007) .............................. 9, 30, 31, 51
Lyng v. Payne,
476 U.S. 926 (1986) ................................................ 8
Martin v. Occupational Safety & Health
Review Comm’n,
499 U.S. 144 (1991) .................................... 4, 34, 41
Mastrobuono v. Shearson Lehman Hutton, Inc.,
514 U.S. 52 (1995) ................................................ 60
Metropolitan Wash. Airports Auth. v. Citizens
for Abatement of Aircraft Noise, Inc.,
501 U.S. 252 (1991) .............................................. 45
Motor Vehicle Mfrs. Ass’n of U.S., Inc. v. State
Farm Mut. Auto. Ins. Co.,
463 U.S. 29 (1983) .......................................... 28, 30
National Cable & Telecomms. Ass’n v.
Brand X Internet Servs.,
545 U.S. 967 (2005) .............................................. 33

 vii
Cases—continued
National Family Planning & Reprod. Health
Ass’n, Inc. v. Sullivan,
979 F.2d 227 (D.C. Cir. 1992) .............................. 36
National Fuel Gas Supply Corp. v. FERC,
811 F.2d 1563 (D.C. Cir. 1987) ............................ 40
North Carolina Growers’ Ass’n, Inc. v.
United Farm Workers,
702 F.3d 755 (4th Cir. 2012) .......................... 39, 52
Patterson v. McLean Credit Union,
491 U.S. 164 (1989) ........................................ 47, 48
Payne v. Tennessee,
501 U.S. 808 (1991) ........................................ 47, 49
Pearson v. Callahan,
555 U.S. 223 (2009) ............................ 47, 48, 49, 51
Perez v. Mortgage Bankers Ass’n,
135 S. Ct. 1199 (2015) .................................. passim
PLIVA, Inc. v. Mensing,
564 U.S. 604 (2011) ................................................ 9
Reno v. Bossier Par. Sch. Bd.,
520 U.S. 471 (1997) .............................................. 42
Robertson v. Methow Valley Citizens Council,
490 U.S. 332 (1989) ................................................ 8
Rust v. Sullivan,
500 U.S. 173 (1991) .............................................. 45
Saucier v. Katz,
533 U.S. 194 (2001) .............................................. 49
Shalala v. Guernsey Mem’l Hosp.,
514 U.S. 87 (1995) .......................................... 31, 33
Skidmore v. Swift & Co.,
323 U.S. 134 (1944) .......................................... 7, 43

 viii
Cases—continued
Smiley v. Citibank (S.D.), N.A.,
517 U.S. 735 (1996) .............................................. 29
South Dakota v. Wayfair, Inc.,
138 S. Ct. 2080 (2018) ........................ 47, 51, 52, 53
Southern Goods Corp. v. Bowles,
158 F.2d 587 (4th Cir. 1946) .................................. 7
Stinson v. United States,
508 U.S. 36 (1993) .................................................. 8
Talk Am., Inc. v. Michigan Bell Tel. Co.,
564 U.S. 50 (2011) .............................. 37, 38, 45, 53
Thomas Jefferson Univ. v. Shalala,
512 U.S. 504 (1994) .............................. 8, 37, 41, 43
Thorpe v. Housing Auth. of City of Durham,
393 U.S. 268 (1969) .................................... 7, 29, 51
Udall v. Tallman,
380 U.S. 1 (1965) .................................................... 7
United States v. Gaudin,
515 U.S. 506 (1995) .............................................. 49
United States v. Larionoff,
431 U.S. 864 (1977) ................................................ 8
United States v. Mead Corp.,
533 U.S. 218 (2001) ...................................... passim
United States v. Morton Salt Co.,
338 U.S. 632 (1950) ........................................ 26, 28
United States v. Price,
361 U.S. 304 (1960) .............................................. 42
United States v. Seckinger,
397 U.S. 203 (1970) .............................................. 61
United States v. Swank,
451 U.S. 571 (1981) ................................................ 8

 ix
Cases—continued
Williamson v. Mazda Motor of Am., Inc.,
562 U.S. 323 (2011) ................................................ 9
Wisconsin Cent. Ltd. v. United States,
138 S. Ct. 2067 (2018) .......................................... 58
Zivotofsky ex rel. Zivotofsky v. Clinton,
566 U.S. 189 (2012) .............................................. 55
Statutes, Rules, and Regulations
5 U.S.C.
§ 553 ............................................................... 28, 36
§ 553(b)(A) ............................................................ 31
§ 553(c).................................................................. 28
§ 706 ..................................................................... 27
§ 706(2)(A) ............................................................ 29
28 U.S.C. § 1254(1) ...................................................... 1
38 U.S.C.
§ 501(a)(1) ....................................................... 10, 35
§ 1110.................................................................... 10
§ 1131.................................................................... 10
§ 5103A ..................................................... 11, 12, 59
§ 7292.................................................................... 27
38 C.F.R.
§ 3.4 ...................................................................... 11
§ 3.156(a) ...................................................... passim
§ 3.156(c)....................................................... passim
§ 3.156(c)(1) .................................................. passim
§ 3.156(c)(1)(i) ................................................. 19, 57
§ 3.159(c)............................................................... 12
§ 3.304(f) ......................................................... 11, 57

 x
Statutes, Rules, and Regulations—continued
Fed. R. Evid. 401 ....................................................... 57
Pub. L. No. 77-421, 56 Stat. 23 (1942)...................... 53
Pub. L. No. 106-475, 114 Stat. 2096 (2000) .............. 59
Other Authorities
1 William Blackstone, Commentaries....................... 44
2 The Records of the Federal Convention of
1787 (Max Farrand ed. 1966) .............................. 44
70 Fed. Reg. 35,388 ....................................... 36, 37, 57
71 Fed. Reg. 52,455 ............................................. 59, 60
Abbe R. Gluck, The States As Laboratories of
Statutory Interpretation: Methodological
Consensus and the New Modified
Textualism, 119 Yale L.J. 1750 (2010) ................ 50
Agencies, Office of the Fed. Register ........................ 54
Antonin Scalia & Bryan A. Garner, Reading
Law: The Interpretation of Legal Texts (2012) .... 58
Christopher J. Walker, Inside Agency
Statutory Interpretation, 67 Stan. L. Rev.
999 (2015) ............................................................. 38
Connor N. Raso & William N. Eskridge, Jr.,
Chevron as a Canon, Not a Precedent: An
Empirical Study of What Motivates
Justices in Agency Deference Cases, 110
Colum. L. Rev. 1727 (2010) ........................... 49, 50
Diagnostic and Statistical Manual of Mental
Disorders (5th ed. 2013) ....................................... 11
Federal Register & CFR Publications Statistics, Office of the Fed. Register
(May 2016), perma.cc/C7DG-JPRH ..................... 54

 xi
Other Authorities—continued
Final Report of Attorney General’s Committee
on Administrative Procedure, U.S. Gov’t
Printing Office (1941) .......................................... 54
Glen Staszewski, The Dumbing Down of
Statutory Interpretation, 95 B.U. L. Rev.
209 (2015) ............................................................. 50
Jack Shulimson & Major Charles M. Johnson,
U.S. Marines in Vietnam: The Landing
and the Buildup, 1965 (2013) .............................. 13
John F. Manning, Constitutional Structure
and Judicial Deference to Agency Interpretations of Agency Rules, 96 Colum. L. Rev.
612 (1996) ..................................................... passim
Matthew C. Stephenson & Miri Pogoriler,
Seminole Rock’s Domain, 79 Geo. Wash. L.
Rev. 1449 (2011) ................................................... 38
Matthew J. Friedman, PTSD History and
Overview, Nat’l Ctr. for PTSD, U.S. Dep’t
of Veterans Affairs ............................................... 58
Montesquieu, Spirit of the Laws bk. XI (O.
Piest ed., T. Nugent trans. 1949) ........................ 44
Nicholas J. Schlosser, In Persistent Battle:
U.S. Marines in Operation Harvest Moon
18 (2017) ............................................................... 13
Peter H. Schuck, Foundations of Administrative Law (2d ed. 2003) .......................................... 26
Randy J. Kozel, Statutory Interpretation,
Administrative Deference, and the Law of
Stare Decisis, Tex. L. Rev. (forthcoming
2019) ..................................................................... 50

 xii
Other Authorities—continued
Restatement (Second) of Contracts § 206
(1981) .................................................................... 61
Robert A. Anthony, The Supreme Court and
the APA: Sometimes They Just Don’t Get
It, 10 Admin. L.J. 1 (1996) ................. 27, 32, 38, 41
S. Comm. on the Judiciary, 79th Cong.
(Comm. Print 1945), reprinted in Administrative Procedure Act: Legislative History,
S. Doc. 248, at 18 (1944 – 1946) .......................... 31
Sydney Foster, Should Courts Give Stare
Decisis Effect to Statutory Interpretation
Methodology?, 96 Geo. L.J. 1863 (2008) .............. 50
The Federalist No. 47 (James Madison) (C.
Rossiter ed., 1961) ................................................ 44
The Federalist No. 81 (Alexander Hamilton)
(J. Cooke ed., 1961) .............................................. 44
Timothy K. Armstrong, Chevron Deference
and Agency Self-Interest, 13 Cornell J.L. &
Pub. Pol’y 203 (2004) ..................................... 40, 41
Webster’s New Twentieth Century Dictionary
(2d ed. 1967) ......................................................... 57

 BRIEF FOR PETITIONER
OPINIONS BELOW
The opinion of the Court of Appeals for the Federal Circuit (Pet. App. 1a-19a) is reported at 869 F.3d
1360. The opinion of the Court of Appeals for Veterans Claims (Pet. App. 20a-25a) is unreported but
available at 2016 WL 337517. The Federal Circuit’s
order denying rehearing en banc and the opinion dissenting from the denial (Pet. App. 44a-54a) are reported at 880 F.3d 1378.
JURISDICTION
The court of appeals entered its judgment on
September 7, 2017. Pet. App. 1a. The Court granted
certiorari on December 10, 2018. The Court’s jurisdiction rests on 28 U.S.C. § 1254(1).
REGULATION INVOLVED
The Department of Veterans Affairs’ New and
Material Evidence regulation, 38 C.F.R. § 3.156, provides:
(a) General. A claimant may reopen a finally
adjudicated claim by submitting new and
material evidence. New evidence means existing evidence not previously submitted to
agency decisionmakers. Material evidence
means existing evidence that, by itself or
when considered with previous evidence of
record, relates to an unestablished fact necessary to substantiate the claim. New and
material evidence can be neither cumulative
nor redundant of the evidence of record at
the time of the last prior final denial of the
claim sought to be reopened, and must raise

 2
a reasonable possibility of substantiating the
claim.
***
(c) Service department records.
(1) Notwithstanding any other section in
this part, at any time after VA issues a decision on a claim, if VA receives or associates with the claims file relevant official
service department records that existed
and had not been associated with the
claims file when VA first decided the
claim, VA will reconsider the claim, notwithstanding paragraph (a) of this section.
Such records include, but are not limited
to:
(i) Service records that are related to a
claimed in-service event, injury, or disease, regardless of whether such records mention the veteran by name, as
long as the other requirements of paragraph (c) of this section are met;
***
(3) An award made based all or in part on
the records identified by paragraph (c)(1)
of this section is effective on the date entitlement arose or the date VA received the
previously decided claim, whichever is later, or such other date as may be authorized by the provisions of this part applicable to the previously decided claim.

 3
INTRODUCTION
In Bowles v. Seminole Rock & Sand Co., the
Court announced, without supporting reasoning,
that “the ultimate criterion” when construing a regulation “is the administrative interpretation, which
becomes of controlling weight unless it is plainly erroneous or inconsistent with the regulation.” 325
U.S. 410, 414 (1945). The Court identified no statute,
no constitutional provision, no precedent, and no underlying logic to support this rule. It was, as Justice
Scalia observed, “ipse dixit.” Decker v. Northwest
Envtl. Def. Ctr., 568 U.S. 597, 617 (2013) (Scalia, J.,
concurring in part and dissenting in part). Yet the
Court has applied the doctrine repeatedly since; in
particular, in Auer v. Robbins, 519 U.S. 452 (1997),
the Court deferred to an agency interpretation first
presented in an agency’s amicus brief.
Seminole Rock-Auer deference (or simply “Auer
deference”) is a rule of judicial decisionmaking. But
the effect of that rule is to vest administrative agencies with expansive lawmaking authority. If a regulation has multiple reasonable readings, an agency
may make a policy judgment about which interpretation it prefers, rather than a judgment about the best
legal interpretation of the regulation. Because of Auer deference, that agency judgment has the force of
law.
Importantly, Auer deference affects the outcome
of a case only when the agency’s proffered interpretation is “not the fairest reading of the regulation.”
Decker, 568 U.S. at 617 (Scalia, J.). It therefore operates to displace the interpretation of the regulation
that would control in the absence of this especially
weighty deference doctrine.

 4
Over the intervening years, three potential justifications for Auer deference have emerged. The first
attempts to identify a legal basis for the doctrine: the
contention that an agency’s “power authoritatively to
interpret its own regulations is a component of the
agency’s delegated lawmaking powers.” Martin v.
Occupational Safety & Health Review Comm’n, 499
U.S. 144, 151 (1991). The other two justifications are
policy-based—assertions that an agency has “special
insight into its intent” and that an agency often “possesses special expertise” regarding the technical details of a regulation. Decker, 568 U.S. at 618 (Scalia,
J.).
These rationales lack merit. Auer deference is
not a component of any lawmaking authority that
Congress delegated to administrative agencies; on
the contrary, it circumvents the limits that Congress
has imposed on agency authority. Nor does Auer deference aid a court in understanding a regulation’s
meaning: not only is interpretation a legal question
that courts are best equipped to resolve, but Auer
deference permits agencies to rest on their current
policy views standing alone. Finally, while agencies
often possess technical knowledge, Congress has
adopted procedures in the APA that specify how
agencies may apply their expertise to create law.
Auer deference thus lacks any substantial legal
or policy justification. But that is not the only reason
why the Court should revisit and reverse the doctrine. Auer deference undermines the notice-andcomment procedures that Congress established in
the APA to ensure public participation in rulemaking. In so doing, it enables an agency to bypass this
Court’s holdings regarding the limited weight given

 5
to interpretive rules. Auer deference also injects intolerable uncertainty into the meaning of regulations. Finally, Auer deference is inconsistent with
basic separation-of-powers principles that underlie
our system of government.
In saying this, we are mindful that stare decisis
is a cornerstone of the law. It requires the Court to
act with caution when overruling precedent. But Auer’s substantial flaws constitute special justifications
that warrant overturning this deference doctrine.
That is especially so because stare decisis applies
with less force here. Because Auer is a judge-made
rule of judicial procedure—and not the interpretation
of a statute or constitutional provision—stare decisis
has limited application. Additionally, the public has
no reliance interests in the doctrine; to the contrary,
Auer deference promotes instability in administrative law. And circumstances have changed materially
since 1945: the Court has never squared Seminole
Rock with the subsequent enactment of the APA, nor
with the evolution of the administrative state.
When all of these factors are weighed in the balance, the conclusion is clear: an agency should be
“free to interpret its own regulations,” but courts
should “decide—with no deference to the agency—
whether that interpretation is correct.” Perez v.
Mortgage Bankers Ass’n, 135 S. Ct. 1199, 1213 (2015)
(Scalia, J., concurring in the judgment).

 6
STATEMENT
A. Legal background.
1. Seminole Rock and Auer.
The doctrine of deference to an agency’s interpretation of its own regulation began with Seminole
Rock. There, the Court addressed “the proper interpretation and application of certain provisions of
Maximum Price Regulation No. 188,” a World War
II-era price control. 325 U.S. at 411-412. The Court
stated, without citation, that “[s]ince this involves an
interpretation of an administrative regulation a
court must necessarily look to the administrative
construction of the regulation if the meaning of the
words used is in doubt.” Id. at 413-414. The Court
further concluded, without explanation, that the “ultimate criterion” for interpreting a regulation is “the
administrative interpretation, which becomes of controlling weight unless it is plainly erroneous or inconsistent with the regulation.” Id. at 414.
Turning to the regulation at issue, the Court began by examining the plain meaning of the text, finding that it supported the government’s position. 325
U.S. at 414-417. The Court then referred to a “bulletin issued” by the agency and an agency report to
Congress, both of which advanced the same construction. Id. at 417. In view of these agency statements,
the Court stated that “[a]ny doubts concerning” the
government’s interpretation “are removed by reference to the administrative construction.” Ibid.
At the time, courts did not universally understand Seminole Rock as a watershed development.
The very next year, in 1946, the Fourth Circuit rejected a broad interpretation of the ruling. It cited

 7
Seminole Rock, together with Skidmore v. Swift &
Co., 323 U.S. 134 (1944), only for the proposition that
agency views are “entitled to respectful consideration
by [the courts] in interpreting [a] regulation.” Southern Goods Corp. v. Bowles, 158 F.2d 587, 590 (4th
Cir. 1946). While citing Seminole Rock, the court of
appeals flatly rejected any binding deference rule: “It
would be absurd to hold that the courts must subordinate their judgment as to the meaning of a statute
or regulation to the mere unsupported opinion of associate counsel in an administrative department.”
Ibid.
Twenty years later, this Court returned to Seminole Rock in Udall v. Tallman, 380 U.S. 1 (1965).
The Court referenced the “great deference” due to
“the interpretation given the statute by the officers
or agency charged with its administration” (id. at
16)—the principle known today as Chevron deference. With no more than a citation to Seminole
Rock—and without elaboration—the Court concluded
that, “[w]hen the construction of an administrative
regulation rather than a statute is in issue, deference
is even more clearly in order.” Ibid. The Court ultimately held that, if an agency’s “interpretation is not
unreasonable,” courts must defer to it. Id. at 18.
In Thorpe v. Housing Authority of City of Durham, 393 U.S. 268 (1969), the Court extended Seminole Rock deference to an agency’s private letters issued during the pendency of litigation. Id. at 276 &
nn.22-23 (describing letters from an agency assistant
secretary and chief counsel). That same year, referencing a regulation that was “not free from ambiguity,” the Court applied Seminole Rock and found “it
dispositive that the agency responsible for promul-

 8
gating and administering the regulation has interpreted it.” INS v. Stanisic, 395 U.S. 62, 72 (1969).
While the Court analyzed the regulatory text in
Seminole Rock and Tallman, this deference principle
soon evolved into one of deference in the first instance, with minimal independent judicial assessment of the regulation itself. In Ehlert v. United
States, 402 U.S. 99 (1971), the Court explained that
it “need not take sides” about the proper construction
of a term; “since the meaning of the language is not
free from doubt,” the Court stated that it must “regard as controlling a reasonable, consistently applied
administrative interpretation.” Id. at 105.
The Court took a similar approach in United
States v. Larionoff, 431 U.S. 864 (1977), where it
held that it “need not tarry * * * over the various
ambiguous terms and complex interrelations of the
regulations.” Id. at 872-873. The Court stated that,
under Seminole Rock, so long as the agency’s “interpretation is not plainly inconsistent with the wording
of the regulations,” it is bound “to accept the Government’s reading of those regulations as correct.”
Ibid.1
The high-water mark for Seminole Rock came in
Auer, which addressed the Department of Labor’s
regulations regarding an employee’s exemption from
overtime pay. 519 U.S. at 455. The Court deferred to
The Court continued to apply Seminole Rock in this manner.
See, e.g., Thomas Jefferson Univ. v. Shalala, 512 U.S. 504, 512
(1994); Stinson v. United States, 508 U.S. 36, 45 (1993); Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 359 (1989);
Lyng v. Payne, 476 U.S. 926, 939 (1986); United States v.
Swank, 451 U.S. 571, 589 (1981).

1

 9
the position the Secretary of Labor set forth “in an
amicus brief filed at the request of the Court.” Id. at
461. It stated that because the regulation at issue,
“the salary-basis test,” “is a creature of the Secretary’s own regulations, his interpretation of it is * * *
controlling unless ‘plainly erroneous or inconsistent
with the regulation.’” Ibid.
Since Auer, the Court has repeatedly deferred to
an agency’s interpretation of a regulation offered in
briefs before this Court. E.g., PLIVA, Inc. v. Mensing,
564 U.S. 604, 613 & n.3 (2011); Chase Bank USA,
N.A. v. McCoy, 562 U.S. 195, 208-210 & n.7 (2011);
Williamson v. Mazda Motor of Am., Inc., 562 U.S.
323, 336 (2011); Geier v. American Honda Motor Co.,
529 U.S. 861, 884 (2000). It has done so even when
the position the agency advances conflicts with its
earlier interpretation of the same regulation. See
Kennedy v. Plan Adm’r for DuPont Sav. & Inv. Plan,
555 U.S. 285, 295-296 & n.7 (2009).
The Court has held that Auer likewise compels
deference to an “internal” agency memorandum that
“appears to have [been] written in response” to the
litigation at issue. Long Island Care at Home, Ltd. v.
Coke, 551 U.S. 158, 171 (2007). See also Coeur Alaska, Inc. v. Southeast Alaska Conservation Council,
557 U.S. 261, 278 (2009).
In recent years, the Court has twice narrowed
the reach of Auer deference.
Deference is inapplicable, the Court held, when
“the underlying regulation does little more than restate the terms of the statute itself.” Gonzales v. Oregon, 546 U.S. 243, 257 (2006). “An agency does not
acquire special authority to interpret its own words
when, instead of using its expertise and experience

 10
to formulate a regulation, it has elected merely to
paraphrase the statutory language.” Ibid.
In addition, when an agency’s “interpretation of
ambiguous regulations” would “impose potentially
massive liability” on a party “for conduct that occurred well before that interpretation was announced,” that is a “strong reason[] for withholding
the deference that Auer generally requires.” Christopher v. SmithKline Beecham Corp., 567 U.S. 142,
155-156 (2012). In so concluding, the Court recognized that Auer deference “creates a risk that agencies will promulgate vague and open-ended regulations that they can later interpret as they see fit.” Id.
at 158.
2. The Veterans Affairs regulations.
The Department of Veterans Affairs (VA) administers a benefits program for veterans who suffer
from disabilities stemming from in-service injuries.
See 38 U.S.C. §§ 1101-1163.
a. The United States will pay compensation benefits to a veteran for “disability resulting from personal injury suffered” by a veteran “in line of duty.”
38 U.S.C. §§ 1110, 1131. Congress has delegated to
the VA “authority to prescribe all rules and regulations which are necessary or appropriate to carry out
the laws administered by the [VA].” Id. § 501(a). This
authority extends specifically to “regulations with
respect to the nature and extent of proof and evidence and the method of taking and furnishing them
in order to establish the right to benefits.” Id.
§ 501(a)(1).
b. Exercising this authority, the VA has employed notice-and-comment procedures to promul-

 11
gate regulations establishing a system for providing
compensation “to a veteran because of serviceconnected disability.” 38 C.F.R. § 3.4. In particular,
VA regulations provide compensation for servicerelated post-traumatic stress disorder, or PTSD. Id. §
3.304(f). Such a claim requires (1) “medical evidence
diagnosing the condition”; (2) “a link, established by
medical evidence, between current symptoms and an
in-service stressor”; and (3) “credible supporting evidence that the claimed in-service stressor occurred.”
Ibid.
The regulation governing the medical diagnosis
element (38 C.F.R. § 3.304(f)) incorporates the Diagnostic and Statistical Manual of Mental Disorders
(DSM), Fifth Edition. Id. § 4.125(a). The DSM, in
turn, states that a clinical diagnosis of PTSD rests on
multiple necessary “criteria.” Diagnostic and Statistical Manual of Mental Disorders 271 (5th ed. 2013)
(DSM-5). The first is “[e]xposure to actual or threatened death, serious injury, or sexual violence” in one
of multiple enumerated ways, including “[d]irectly
experiencing the traumatic event(s)” or “[w]itnessing,
in person, the event(s) as it occurred to others.” Ibid.
Identifying the “traumatic events” (which includes
“exposure to war as a combatant”) is thus necessary
to a medical diagnosis of PTSD. Id. at 274.
c. Recognizing that the vast majority of veterans
file disability claims without the assistance of counsel, Congress has imposed on the VA a duty to assist
claimants. See 38 U.S.C. § 5103A. In particular,
when a veteran asserts “a claim for disability compensation,” the VA is obligated to “locate” certain
government records. Id. § 5103A(c)(1). These include
“relevant records pertaining to the claimant’s active

 12
military, naval, or air service that are held or maintained by a governmental entity,” so long as the
claimant has furnished the VA “information sufficient to locate such records.” Id. § 5103A(c)(1)(A). See
also 38 C.F.R. § 3.159(c) (“VA will make as many requests as are necessary to obtain relevant records
from a Federal department or agency,” including a
veteran’s “military records.”).
d. The VA has promulgated regulations governing the circumstances in which it will revisit a prior
denial of a veteran’s claim for benefits.
First, 38 C.F.R. § 3.156(a) allows a veteran to
“reopen” a denial by “submitting new and material
evidence.” New evidence is defined as “existing evidence not previously submitted to agency decisionmakers.” Ibid. And “[m]aterial evidence” is “existing evidence that, by itself or when considered
with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim.”
Ibid. When a veteran obtains relief pursuant to this
subsection, the benefits awarded are effective as of
the date of the application to reopen. Id. § 3.400(q).
Second, 38 C.F.R. § 3.156(c) allows a veteran to
seek “reconsider[ation]” of a claim by demonstrating
that the VA previously erred by failing to consider official service department records in the possession of
the government. In contrast to Section 3.156(a), this
remedial provision does not require “new and material” evidence.
Under Section 3.156(c), the VA “will reconsider”
a claim “if VA receives or associates with the claims
file relevant official service department records that
existed and had not been associated with the claims
file when VA first decided the claim.” Id. §

 13
3.156(c)(1). The regulation specifies that “relevant official service department records” include “[s]ervice
records that are related to a claimed in-service event,
injury, or disease.” Ibid. If the VA awards benefits
“based all or in part on the records” that had previously existed but were not considered by the VA, the
veteran is entitled to benefits retroactive to the date
of his initial claim. Id. § 3.156(c)(3).
B. Factual background.
Petitioner James Kisor served on active duty in
the Marine Corps from 1962 to 1966, including in the
Vietnam War. Pet. App. 2a. He served with the 2nd
Battalion of the 7th Marine Regiment. J.A. 21.
Petitioner fought in Operation Harvest Moon, a
major battle against the Viet Cong that took place in
December 1965. Pet. App. 3a & n.1. Harvest Moon
was an especially deadly engagement. What was
supposed to be an offensive mission became a rescue
operation almost immediately; over 500 soldiers were
killed in battle, including 56 U.S. Marines. See Nicholas J. Schlosser, In Persistent Battle: U.S. Marines
in Operation Harvest Moon 18, 47 (2017).
On December 18, 1965, petitioner’s company,
H&S Company (J.A. 25), came under “attack[] at Ky
Phu Hamlet by an estimated VC battalion.” J.A. 21.
Viet Cong attacked “with small arms, crew served
weapons, hand grenades, and mortars.” Ibid. Approximately a dozen members of petitioner’s company
died (J.A. 11), and more than one hundred Viet Cong
soldiers were killed (J.A. 21). See also Jack Shulimson & Major Charles M. Johnson, U.S. Marines In
Vietnam: The Landing and the Buildup, 1965 108109 (2013) (recounting the “Fight at Ky Phu,” including casualties sustained to H&S Company).

 14
For petitioner, this event was deeply traumatic:
I personally killed 2 Viet Cong snipers with
my M14 rifle as their heads emerged from
spider traps. This fact has tormented me during the past 41+ years. At the same time * * *
one of my Marine buddies in our 2/7 Communications Platoon * * * was killed when a
Viet Cong bullet ripped into his throat. I will
never forget seeing his dead body. It also had
a strong impact on me when * * * another
Marine in my 2/7 Communications Platoon
* * * was shot in the head at the same time.
J.A. 25.
As a result of his service, petitioner was awarded
a Combat Action Ribbon, an award reserved for those
who participate directly in active combat. J.A. 20. He
also received a Presidential Unit Citation (with one
bronze star), a Navy Unit Commendation, and a Vietnam Service Medal (with two bronze stars). Ibid.
Petitioner’s combat activities have had lasting effects on him personally. Dr. Donald Davies, a psychiatrist who examined petitioner in connection with
his benefits claim, explained that he suffers from repeated “flashbacks,” which affect his everyday life.
J.A. 31, 34. His injuries worsen “around December,
because it reminds him of the Harvest Moon operation, by way of an anniversary reaction.” J.A. 34. Prior to his military service, petitioner “liked to socialize
and do things with other people”; now, however, petitioner “isolate[s] himself,” is “social[ly] withdraw[n],”
and schedules his activities “so as to encounter the
fewest people.” J.A. 32-34.

 15
As the VA determined below, petitioner suffers
from severe PTSD resulting from his service in Vietnam, especially his role in Operation Harvest Moon.
J.A. 52. Petitioner suffers from “symptoms of recurrent explosive anger outbursts, daily intrusive
thoughts, insomnia, chronic irritability, avoidance of
triggers which remind him of Vietnam, suicidal ideation, anhedonia, social withdrawal and avoidance of
people, and difficulty getting along with others and
authority figures.” Ibid. Altogether, the VA concluded that these injuries have caused “serious impairment in social and occupational functioning.” Ibid.
As Dr. Davies reported, petitioner’s inability “to work
in a formal vocational setting for over 20 years” is “a
direct result of his war experiences in Vietnam.” J.A.
39.
C. Proceedings below.
This action arises out of petitioner’s claim for
disability benefits based upon his service-connected
PTSD.
1. On December 3, 1982, petitioner filed a claim
with the VA Regional Office in Portland, Oregon.
Pet. App. 2a, 30a. David Collier, a counselor at the
Portland Veterans Center, submitted a letter describing his observations of petitioner stemming from
“group and individual counseling.” Id. at 2a. Collier
identified “concerns that Mr. Kisor had towards depression, suicidal thoughts, and social withdraw[a]l.”
Id. at 2a-3a. Collier concluded that “[t]his symptomatic pattern has been associated with the diagnosis
of Post-Traumatic Stress Disorder.” Id. at 3a.
A subsequent psychiatric examination, however,
suggested that petitioner suffered from “a personality disorder as opposed to PTSD.” Pet. App. 3a. The

 16
VA psychiatrist, Dr. Robin Henderson, reached this
conclusion even though he admittedly “lost” a “portion of the original dictation” of petitioner’s “PTSD
examination.” J.A. 13. Because of the lost records,
Dr. Henderson could not “recall the specifics of any
symptom review.” Ibid. Instead, Dr. Henderson stated that he “recall[ed] that [he] was not impressed
with the finding of post traumatic stress disorder.”
Ibid.
At the time, “[s]ervice records * * * related to
[the] claimed in-service event” (38 C.F.R.
§ 3.156(c)(1)) that caused petitioner’s PTSD were in
the possession of the government. These records included petitioner’s Department of Defense Form
214,2 as well as his Combat History, Expeditions,
and Awards Record.3 Pet. App. 4a. This material
“document[ed] his participation in Operation Harvest Moon.” Ibid. See also J.A. 18-20. But the VA did
not request these records or associate them with petitioner’s claim file; the VA later acknowledged that
these “service personnel records * * * were not requested by VA until November 2006.” Pet. App. 34a35a. See also J.A. 70.
The VA Regional Office denied petitioner’s claim.
Pet. App. 3a. The agency did not address petitioner’s
service records—because it had not obtained, or even
requested, them. J.A. 15. It concluded that “post
This record is petitioner’s discharge form. See J.A. 18. It confirms that petitioner served in Vietnam, and it identified the
nature of his service. Ibid.
2

This record is the form “NAVMC 118(9)-PD (REV. 11-55).”
J.A. 19. It documents that petitioner “participated in counterinsurgency operations” and “participated in operation ‘Harvest
Moon.’” Ibid.
3

 17
traumatic stress neurosis, claimed by vet” was “not
shown by evidence of record.” Ibid.
2. On June 5, 2006, petitioner asked the VA to
review its prior denial of his claim. Pet. App. 4a. This
time, the VA Regional Office agreed that he has
PTSD stemming from his service, and it therefore reopened petitioner’s claim. Id. at 4a-5a. But it declined to award him retroactive benefits. Ibid.
After petitioner made his June 2006 request, the
VA requested his “[s]ervice personnel records,” which
the VA received sometime after November 2006. Pet.
App. 34a-35a. In September 2007, the VA found that
petitioner suffers from service-connected PTSD and
assigned him a disability rating of 50 percent, with
benefits effective as of June 5, 2006. J.A. 41.4
The VA relied, in part, on petitioner’s “[s]ervice
* * * administrative records.” J.A. 41. The VA regional office concluded that, because his “service administrative records show that [he is] a combat veteran
(Combat Action Ribbon recipient), service connection
for posttraumatic stress disorder has been established as directly related to military service.” J.A. 42.

In July 2007, Dr. Donald Davies wrote an extensive report
diagnosing petitioner with PTSD. See J.A. 29-40. He concluded
that the symptoms identified by both Mr. Collier and Dr. Henderson were consistent with PTSD, and thus it is “clear that the
claimant was evincing symptoms of P.T.S.D. back in the
1980’s.” J.A. 38. Dr. Davies explained that, “at best, Dr. Robin
Henderson simply misunderstood the impact of the claimant’s
war trauma upon him, and this may have something to do with
having lost a significant part of the original P.T.S.D. examination.” Ibid.
4

 18
Petitioner filed a notice of disagreement, arguing
that he is entitled to retroactive benefits and that he
is more than 50 percent disabled. J.A. 45-49.
In March 2009, a decision review officer at the
VA regional office determined that petitioner’s proper disability rating was 70 percent. J.A. 50-55. The
review officer “granted a 100 percent rating on an extraschedular basis” (Pet. App. 5a), concluding that
“[e]ntitlement to individual unemployability is
granted because [petitioner] is unable to secure or
follow a substantially gainful occupation as a result
of service-connected disabilities.” J.A. 54. The VA
again based its decision on a range of evidence, including petitioner’s “DD Form 214,” as well as “records from Navy Personnel Command indicating veteran was awarded a Combat Action Ribbon.” J.A. 51.
The VA, however, declined to adjust the effective
date of the benefits eligibility determination. Pet.
App. 5a-6a. It reasoned that “[a]t the time of the
[original] decision the veteran did not have a clinical
diagnosis of post traumatic stress disorder.” J.A. 70.
The VA did not address whether 38 C.F.R.
§ 3.156(c)—which provides retroactive benefits if the
VA later bases an award on records that the VA earlier failed to consider—applies to petitioner.
3. In a non-precedential decision by a single Veterans Law Judge, the Board of Veterans’ Appeals affirmed the regional office’s denial of retroactive benefits. Pet. App. 26a-43a.
The Board recognized that the VA did not request petitioner’s service records during its initial
adjudication of his claim. Pet. App. 34a-35a. It thus
acknowledged petitioner’s argument regarding the
“failure[]” of the VA to obtain “service personnel rec-

 19
ords noting his participation in Operation Harvest
Moon.” Id. at 38a. The Board nonetheless held that
this failure was not a basis for petitioner to obtain
retroactive relief pursuant to 38 C.F.R. § 3.156(c).
Pet. App. 39a-43a.
The Board admitted that the “service personnel
records * * * fall under the purview” of the specific
language of Section 3.156(c)(1)(i). Pet. App. 42a. But
the Board denied petitioner retroactive benefits under Section 3.156(c) by holding that the term “relevant” includes a causation requirement. In the
Board’s view, “relevant” evidence is limited to material that “would suggest or better yet establish” the
element of the claim that was found missing in the
prior adjudication—here, “that the Veteran has
PTSD as a current disability.” Ibid. Because the
Board did not believe that these records would have
been “outcome determinative” of petitioner’s original
claim for benefits, the Board concluded that they are
not “relevant.” Id. at 42a-43a.
4. The Court of Appeals for Veterans Claims affirmed in another non-precedential decision issued
by a single judge. Pet. App. 20a-25a. It restated the
Board’s conclusion that petitioner’s “documents were
not outcome determinative” and that they therefore
did not qualify as “relevant” within the meaning of
the regulation. Id. at 24a.
5. The Federal Circuit affirmed. Pet. App. 1a19a. It acknowledged that “the heart of this appeal”
is petitioner’s “challenge to the VA’s interpretation of
the term ‘relevant.’” Id. at 14a-15a. Citing both Seminole Rock and Auer, the court explained that it “defer[s] to an agency’s interpretation of its own regulation as long as the regulation is ambiguous and the

 20
agency’s interpretation is neither plainly erroneous
nor inconsistent with the regulation.” Id. at 15a
(quotation omitted).
The government argued that the Board was correct in holding that documents qualify as “relevant”
only if they relate to the cause of the prior denial.
Pet. App. 13a-14a. Petitioner, by contrast, argued
that the regulation contains no such causation requirement and that a record is “relevant” if it tends a
prove an element of a veteran’s claim. Id. at 12a-13a.
The court of appeals “conclude[d] that the term
‘relevant’ in [Section] 3.156(c)(1) is ambiguous” because “[b]oth parties insist that the plain regulatory
language supports their case,” and because “neither
party’s position” was “unreasonable.” Pet. App. 17a;
see also ibid. (“[A] regulation is ambiguous on its
face when competing definitions for a disputed term
seem reasonable.”) (quotation omitted).
The court found it “[s]ignificant[]” that “[Section]
3.156(c)(1) does not specify whether ‘relevant’ records
are those casting doubt on the agency’s prior rating
decision, those relating to the veteran’s claim more
broadly, or some other standard.” Pet. App. 15a.
“This uncertainty in application suggests that the
regulation is ambiguous.” Ibid.
Ultimately, the court of appeals concluded that
the VA’s “interpretation does not strike [the Court]
as either plainly erroneous or inconsistent with the
VA’s regulatory framework.” Pet. App. 17a. The court
thus deferred to the VA’s interpretation of its own
regulation. Id. at 17a-19a.
6. The court of appeals denied rehearing en banc
(Pet. App. 44a-46a) over a three-judge dissent (id. at

 21
47a-54a). The dissent noted the repeated calls to reconsider Auer deference by Members of this Court,
circuit court judges, and academics. Id. at 48a-49a.
Bound by Auer (id. at 49a), the dissenting judges
would have held Auer inapplicable where, as here,
the canon that a statute should be interpreted in favor of veterans’ interests exists to resolve ambiguity
in VA regulations. Id. at 50a-51a.
SUMMARY OF ARGUMENT
I. From its inception, the doctrine of deference to
an agency’s interpretation of its own regulation has
lacked legal or policy justification. The genesis of the
doctrine—Seminole Rock—contained no reasoning,
and the proffered post hoc rationales do not support
it. For three principal reasons, Auer deference is unjustified.
A. Auer is incompatible with the Administrative
Procedure Act. When Congress delegates lawmaking
authority to an agency, it does so on the understanding and with the command that the agency comply
with the strictures of the APA. The APA, in turn,
imposes safeguards on agencies’ exercise of their lawmaking authority. In particular, notice-and-comment
rulemaking requires notice, public participation, and
agency accountability. Auer deference subverts this
arrangement by allowing an agency to engage in subregulatory “interpretation” that binds the regulated
public and the courts, but without any of the APA’s
procedural safeguards.
Auer is especially problematic because it gives
agencies far wider latitude to issue binding rules of
law than does the Court’s deference doctrine under
Chevron, U.S.A., Inc. v. Natural Resources Defense
Council, Inc., 467 U.S. 837 (1984). When Congress

 22
delegates authority to issue binding regulations
through notice-and-comment rulemaking, deference
to the agency’s interpretation of a statute is dependent on its adherence to that procedure. If an agency
interprets a statute through some other means (such
as interpretive guidance), Chevron deference does
not apply. Auer deference, however, is not subject to
a similar limitation: Agency interpretations of ambiguous regulations appearing in documents as informal as opinion letters and appellate briefs receive
binding Auer deference.
B. Auer is a judge-made rule that destabilizes
administrative law. The doctrine controls outcomes
in only those cases where an agency adopts a reading
of a regulation that, while reasonable, is not the best
interpretation. Yet, when a private individual seeks
to conform his or her conduct to law, all he or she can
do is make a judgment about the regulation’s best
meaning. In this way, Auer is a permission slip for
unpredictable and irregular agency action.
Auer deference is especially suspect in circumstances, like those here, where the agency has an
economic interest in the outcome of the interpretive
question. Deference to executive agencies rests on
the premise that agencies act with impartiality when
adopting rules that have the force of law. But when
an agency changes the rules of the road in the context of deciding monetary claims brought against the
government, those same presumptions do not obtain.
Two policy-based justifications have been offered
in defense of Auer. One is the contention that an
agency has insight into its original intent underlying
a regulation. The other is that the agency has sub-

 23
stantive policy expertise. Neither argument withstands scrutiny.
As to the first, the interpretation of a regulation
is a strictly legal exercise, requiring analysis of the
regulation’s text and any other relevant material.
Agencies have no greater capacity than courts to perform this task. What is more, Auer deference does
not depend on the agency making a legal judgment;
to the contrary, it gives the agency’s interpretation
the force of law even if policy considerations motivated the result. Thus, even if agencies had special capacity to identify the intent underlying a regulation
(they do not), that still would not justify Auer deference.
As to the second policy justification, while agencies often possess technical expertise, Congress has
articulated the ways in which agencies may bring
their specialized experience to bear when making
law. As it did here, Congress usually requires noticeand-comment rulemaking. Auer circumvents that
congressional judgment.
C. Auer is also incompatible with separation-ofpower principles. In the U.S. system of government,
the one who makes the law must not also interpret
it. But Auer deference renders an agency simultaneously a law’s maker and its expositor. Overruling
Auer is therefore necessary to restore the appropriate balance between the Executive and the Judiciary.
D. Chevron deference rests on agency compliance with the APA. Auer deference, by contrast, bestows the force of law on agency actions unconstrained by the APA’s requirements. Chevron deference is therefore consistent with—and, indeed, sup-

 24
ports—the conclusion that Auer and Seminole Rock
were wrongly decided.
II. This is a rare circumstance in which overruling precedent is warranted. When examined on the
merits, it is clear that both Seminole Rock and Auer
are egregiously wrong. And, importantly, there are
multiple additional reasons why stare decisis applies
with appreciably less force here than it does elsewhere.
A. Seminole Rock was wrong when it was decided, and there are special justifications for overruling
that decision and its progeny. This deference doctrine was not just badly reasoned—it had no reasoning at all. Auer has also proven harmful in practice.
B. Seminole Rock and Auer are not interpretations of a statute or the Constitution. Rather, they
create a standard of judicial decisionmaking. Stare
decisis does not hold the same weight with respect to
such court-made rules of judicial procedure.
C. Additionally, stare decisis has reduced effect
because there are no private reliance interests resting on Auer’s continued vitality. To the contrary, Auer undermines regulatory predictability and invites
legal instability. That is so because Auer allows an
agency to change the meaning of its regulations (including reversal of pre-existing positions) in the
midst of a lawsuit, regardless whether the new interpretation is the best one. Stare decisis—a doctrine
designed to protect stability in the law—should not
shield this erroneous doctrine from review.
D. Stare decisis also has less strength because
circumstances have changed greatly since the Court
introduced the doctrine in Seminole Rock. Congress

 25
enacted the APA the year after Seminole Rock. While
the Court has applied the doctrine repeatedly since,
it has never squared Seminole Rock with the text
and structure of the APA. The size and nature of
administrative agencies have also grown and evolved
since 1945. These changes provide legal and practical
reasons warranting a reexamination of Auer deference.
III. Petitioner offers the best construction of
Section 3.156(c). If the Court overrules Auer deference, it may wish to leave this question to the court
of appeals in the first instance. Alternatively, if the
Court chooses to reach the issue, petitioner should
prevail in view of the regulation’s plain meaning.
ARGUMENT
I.

Seminole Rock and Auer are wrong.

Auer deference is a judicially-created rule of legal
interpretation that instructs courts to defer to an
agency’s reasonable interpretation of its own ambiguous regulation. That doctrine bestows on agencies
expansive, unreviewable lawmaking authority: When
there is more than one reasonable interpretation of a
regulation, Auer authorizes an agency to pick the interpretation it favors as a policy matter—and gives
that choice the force and effect of law. “To regulated
parties, the new interpretation might as well be a
new regulation.” Perez, 135 S. Ct. at 1221 (Thomas,
J., concurring in the judgment).
Seminole Rock announced this doctrine without
supplying any justification—and none exists. This
deference doctrine is not just wrong as a legal matter, but it has also proven extremely harmful in practice. Auer deference causes agencies to circumvent

 26
the critical requirements of the APA; it injects intolerable unpredictability into the legal system; and it
is incompatible with the basic principle that the one
who makes the law should not also interpret it.
A. Auer deference is inconsistent with the
APA.
In 1946, the year after the Court decided Seminole Rock, Congress enacted the APA, “the fundamental charter of the administrative state.” Peter H.
Schuck, Foundations of Administrative Law 53 (2d
ed. 2003). The APA’s “safeguards * * * against arbitrary official encroachment on private rights” serve
“as a check upon administrators whose zeal might
otherwise have carried them to excesses not contemplated in legislation creating their offices.” United
States v. Morton Salt Co., 338 U.S. 632, 644 (1950).
Whatever could have been said about Seminole Rock
prior to 1946, the deference doctrine should not have
survived the APA’s enactment.
1. Auer deference circumvents the APA’s
safeguards governing agency rulemaking.
Auer deference is inconsistent with the text,
structure, and purpose of the APA. There is no indication whatever that, in enacting a statute to carefully impose procedural checks on agency rulemaking, Congress nonetheless intended for agencies
to wield substantial lawmaking authority via subregulatory action—that is, agency action that lacks
the formality of notice-and-comment rulemaking.
Indeed, in United States v. Mead Corp., 533 U.S.
218, 226-227 (2001), the Court held that agency actions lacking requisite formality, including interpretive rules, do not warrant deference. Auer cannot be

 27
reconciled with the rationale endorsed by the Court
in Mead.
a. The Court has never assessed whether Auer
deference can be squared with the text of the APA’s
judicial review provision—or the similar provisions
of other statutes, modeled after the APA, that govern
judicial review of various agency actions.
Section 706 of the APA provides that “the reviewing court”—not the agency—“shall * * * determine
the meaning or applicability of the terms of an agency action.” 5 U.S.C. § 706. An “agency action,” in
turn, “includes the whole or a part of an agency
rule.” Id. § 551(13). Section 706 similarly allocates to
Article III courts the responsibility to “decide all relevant questions of law.” Id. § 706.
Section 706 thus “contemplates that courts, not
agencies, will authoritatively resolve ambiguities in
* * * regulations.” Perez, 135 S. Ct. at 1211 (Scalia,
J.). Given the statutory command, “it is wrong for
the courts to abdicate their office of determining the
meaning of the agency regulation.” Robert A. Anthony, The Supreme Court and the APA: Sometimes
They Just Don’t Get It, 10 Admin. L.J. 1, 9 (1996).
The statute authorizing the Federal Circuit’s review of decisions from the Court of Veterans Claims,
38 U.S.C. § 7292, contains similar language. Section
7292(d)(1) directs that “the Federal Circuit shall decide all relevant questions of law.” The proper meaning of 38 C.F.R. § 3.156(c)—the dispositive question
below—is plainly a “relevant question of law.” Congress has allocated such determinations to an Article
III court, not to the VA.

 28
b. In addition to the judicial review provision of
the APA, Congress imposed several key limitations
on agency action. The requirement of notice-andcomment rulemaking (see 5 U.S.C. § 553) is among
the APA’s chief “safeguards.” Morton Salt, 338 U.S.
at 644. The statute demands that agencies engage in
deliberative lawmaking.
Notice. An agency generally must publish a proposed rule in the Federal Register, giving the public
notice of the rule it proposes to adopt and the reasons it wishes to do so. See 5 U.S.C. § 553(b), (c), (d).
Publication of the agency’s reasoning ensures that
the agency has in fact “examine[d] the relevant data
and articulate[d] a satisfactory explanation for its action,” which necessarily requires providing “a ‘rational connection between the facts found and the
choice made.’” Motor Vehicle Mfrs. Ass’n of U.S., Inc.
v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43
(1983). The APA precludes agencies from making law
behind a curtain.
Public participation. The APA also provides the
public a right to participate in the rulemaking process. Once a proposed rule is published, “the agency
shall give interested persons an opportunity to participate in the rule making through submission of
written data, views, or arguments.” 5 U.S.C. § 553(c).
Critically, the agency must give “consideration of the
relevant matter presented” to it by the public, and
only then may the agency adopt a final rule. Ibid.
With these APA provisions, “Congress made a judgment that notions of fairness and informed administrative decisionmaking require that agency decisions
be made only after affording interested persons notice and an opportunity to comment.” Chrysler Corp.

 29
v. Brown, 441 U.S. 281, 316 (1979). In this way, “the
notice-and-comment procedures of the Administrative Procedure Act [were] designed to assure due deliberation.” Smiley v. Citibank (S.D.), N.A., 517 U.S.
735, 741 (1996).
Judicial review. After an agency adopts a regulation, the APA provides for meaningful judicial review
to preclude irregular agency action. Those adversely
affected by the rule may challenge it on a variety of
grounds, including that the agency failed to follow
the requisite process or that the rule is “arbitrary,
capricious, an abuse of discretion, or otherwise not in
accordance with law.” 5 U.S.C. § 706(2)(A). When, for
example, there is a “lack of reasoned explication for a
regulation,” especially where the regulation is “inconsistent with” prior agency positions, courts properly declare a regulation unlawful. Encino Motorcars,
LLC v. Navarro, 136 S. Ct. 2117, 2127 (2016).
c. Auer deference, by contrast, “allow[s] agencies
to make binding rules unhampered by notice-andcomment procedures.” Perez, 135 S. Ct. at 1212 (Scalia, J.). It enables “the same agency that promulgated
a regulation to ‘change the meaning’ of that regulation ‘at [its] discretion’”—all without the notice, public participation, and agency accountability that the
APA requires. Garco Constr., Inc. v. Speer, 138 S. Ct.
1052, 1052-1053 (2018) (Thomas, J., dissenting from
the denial of certiorari).
Auer deference does not depend on any public
statement of the agency’s views—the Court has previously deferred to an “internal memorandum”
(Coeur Alaska, 557 U.S. at 278), private letters an
agency issued during the pendency of litigation
(Thorpe, 393 U.S. at 276 & nn.22-23), and a memo-

 30
randum “issued only to internal [agency] personnel
and which the [agency] appears to have written in
response to [the] litigation” (Long Island Care, 551
U.S. at 171).
Even if an agency invites comment on an interpretation of its own regulations, it is under no obligation to meaningfully consider—much less respond
to—the data and views supplied by the public. Auer
thus guts the public notice and public participation
requirements that lie at the heart of the APA.
In addition, the substantive standards that govern the validity of the underlying agency action differ
markedly. When an agency revises a regulation that
interprets a statute, an unexplained change in position receives no deference. Encino Motorcars, 136 S.
Ct. at 2127. Rather, an “agency must show that there
are good reasons for the new policy.” FCC v. Fox Television Stations, Inc., 556 U.S. 502, 515 (2009).
There are no similar limitations when the agency
changes its interpretation of an ambiguous regulation. The Court has applied Auer deference even
where the “[g]overnment’s position * * * has fluctuated,” without ever asking whether the government
supplied any (much less a sufficient) rationale to
support that change of position. Kennedy, 555 U.S. at
296 & n.7. Nor does Auer deference consider whether
the agency “examine[d] the relevant data and articulate[d] a satisfactory explanation for its action.” State
Farm, 463 U.S. at 43.
Through the APA, Congress established procedural and substantive safeguards to protect the public from irregular agency lawmaking. But Seminole
Rock and Auer license agencies to circumvent those
safeguards when they interpret their own regula-

 31
tions. That rule is squarely inconsistent with—and
precluded by—the APA.
d. Auer deference is also incompatible with the
Court’s jurisprudence regarding interpretive rules.
The APA authorizes agencies to issue rules using
procedures other than notice-and-comment rulemaking. For example, it explicitly provides for “interpretative rules” (5 U.S.C. § 553(b)(A)), which an agency
may issue “to advise the public of the agency’s construction of the statutes and rules which it administers.” Perez, 135 S. Ct. at 1204 (quoting Shalala v.
Guernsey Mem’l Hosp., 514 U.S. 87, 99 (1995)). Interpretative rules are exempt from the notice-andcomment requirement, “mak[ing] the process of issuing interpretive rules comparatively easier for agencies than issuing legislative rules.” Ibid.
“But that convenience comes at a price: Interpretive rules ‘do not have the force and effect of law and
are not accorded that weight in the adjudicatory process.’” Perez, 135 S. Ct. at 1204 (quoting Guernsey
Mem’l Hosp., 514 U.S. at 99). “[I]nterpretive rules,”
Mead holds, “enjoy no Chevron status as a class.” 533
U.S. at 232. Put another way, an interpretive rule
“may ‘persuade’ a reviewing court, but will not necessarily ‘bind’ a reviewing court.” Long Island Care,
551 U.S. at 172 (citation omitted).5
Congress specifically intended that result. In the Senate Report on the APA, Congress observed “that ‘interpretative’
rules—as merely interpretations of statutory provisions—are
subject to plenary judicial review, whereas ‘substantive’ rules
involve a maximum of administrative discretion.” S. Comm. on
the Judiciary, 79th Cong. (Comm. Print 1945), reprinted in Administrative Procedure Act: Legislative History, S. Doc. 248, at
18 (1944 – 1946).
5

 32
Auer thus creates the anomalous result that
courts must give interpretive rules binding deference
if the underlying law being interpreted is a regulation rather than a statute. For this reason, Auer upends “the import of interpretive rules’ exemption
from notice-and-comment rulemaking.” Perez, 135 S.
Ct. at 1211-1212 (Scalia, J.). “Agencies may now use
[interpretive] rules not just to advise the public, but
also to bind them” because “[i]nterpretive rules that
command [Auer] deference do have the force of law.”
Ibid.6
Coeur Alaska highlights that Auer is incompatible with Mead. The Court held, in Coeur Alaska, that
an agency interpretation was “not subject to sufficiently formal procedures to merit Chevron deference,” but it was nonetheless entitled to Auer deference “because it interprets the agencies’ own regulatory scheme.” Coeur Alaska, 557 U.S. at 283-284. As
a practical matter, it is immaterial whether a court
applies Chevron or Auer deference—if either applies,
the agency’s interpretation is given the force of law.
Auer therefore compels judicial deference to the very
agency actions that Mead holds are ineligible for deference.
In this way, Auer is also inconsistent with this
Court’s longstanding description of the nature and
effect of interpretive rules. In Chrysler Corp., for exAs Professor Robert Anthony put it more than two decades
ago, it is an “anomaly” that “the Court maintains a standard for
reviewing nonlegislative interpretations of regulations that is
separate from and systematically more accepting of the agency’s position than is its standard for reviewing nonlegislative
interpretations of statutes.” Anthony, supra, at 5 n.11 (emphasis
added).
6

 33
ample, the Court explained that “[i]nterpretive rules
are ‘issued by an agency to advise the public of the
agency’s construction of the statutes and rules which
it administers.’” 441 U.S. at 302 n.31 (emphasis added). As to the whole category of interpretive rules—
which necessarily includes an agency’s interpretations of its “substantive rules” (that is, its own regulations)—none “have the force and effect of law.”
Ibid. See also Guernsey Mem’l Hosp., 514 U.S. at 99
(same).
An agency’s interpretation of its own regulation
is, at best, an interpretive rule. Under Chrysler
Corp., such an interpretation does not have the force
of law and therefore deserves no deference. That
should answer the question presented here—
Seminole Rock and Auer, which hold otherwise, are
incorrect.
2. Auer exceeds the scope of any congressional delegation of lawmaking authority.
What is more, Auer deference exceeds the authority that Congress has delegated to agencies for
rulemaking.
The central “premise of Chevron is that when
Congress grants an agency the authority to administer a statute by issuing regulations with the force of
law, it presumes the agency will use that authority
to resolve ambiguities in the statutory scheme.” Encino Motorcars, 136 S. Ct. at 2125. Chevron deference, the Court has said, is a component of that delegated authority. See City of Arlington v. FCC, 569
U.S. 290, 296 (2013); National Cable & Telecomms.
Ass’n v. Brand X Internet Servs., 545 U.S. 967, 980
(2005).

 34
One potential justification for Auer might be to
hitch it to this same delegation of authority; an
agency’s “power authoritatively to interpret its own
regulations is a component of the agency’s delegated
lawmaking powers.” Martin, 499 U.S. at 151. That is,
Auer deference “presumes that * * * a delegation of
rulemaking power implicitly assigns the agency a
concomitant power to say what its own rules mean.”
John F. Manning, Constitutional Structure and Judicial Deference to Agency Interpretations of Agency
Rules, 96 Colum. L. Rev. 612, 654 (1996).
This justification is not tenable, however, because it would depart dramatically from the scope of
authority that Congress may be understood to have
delegated, either expressly or implicitly. An agency
has lawmaking authority only so far as it employs
the procedures that Congress has specified.
As the Court held in Mead, an “administrative
implementation of a particular statutory provision
qualifies for Chevron deference” in those circumstances in which “Congress delegated authority to
the agency generally to make rules carrying the force
of law,” and “the agency interpretation claiming deference was promulgated in the exercise of that authority.” Mead Corp., 533 U.S. at 226-227 (emphasis
added). That is, “for Chevron deference to apply, the
agency must have received congressional authority
to determine the particular matter at issue in the
particular manner adopted.” City of Arlington, 569
U.S. at 306 (emphasis added).
The Court therefore accords an agency interpretation Chevron deference when Congress has made a
delegation, prescribed a means for the agency “to
promulgate binding legal rules,” and the agency is-

 35
sues rules “in the exercise of that authority.” Brand
X, 545 U.S. at 980-981. Conversely, “Chevron deference is not warranted” in circumstances where “the
agency errs by failing to follow the correct procedures” that Congress has authorized. Encino Motorcars, 136 S. Ct. at 2125.
Here, Congress delegated to the Secretary of
Veterans Affairs authority to engage in lawmaking
through notice-and-comment rulemaking. 38 U.S.C.
§ 501(a)(1) (authorizing the VA to adopt “regulations
with respect to the nature and extent of proof and evidence and the method of taking and furnishing them
in order to establish the right to benefits”) (emphasis
added). Congress thus identified “the particular
manner” (City of Arlington, 569 U.S. at 306) in which
the VA may create the governing law. The VA exercised that authority by issuing extensive regulations
governing veterans’ claims via notice-and-comment
rulemaking, including the regulation at issue here.
See 38 C.F.R. §§ 3.1 to 3.2600.
It follows that Congress has not delegated to the
agency authority to adopt rules regarding the procedures for proof in veterans benefits claims except by
means of amending the Code of Federal Regulations
through notice-and-comment rulemaking. Because
Auer deference confers the force of law on VA interpretations issued outside of notice-and-comment
rulemaking, the lawmaking that Auer authorizes exceeds the authority Congress has delegated to the
agency. See Mead, 533 U.S. at 232-233 (“[T]he terms
of the congressional delegation give no indication
that Congress meant to delegate authority to Customs to issue classification rulings with the force of
law.”).

 36
To put the point differently, agency action taken
without notice-and-comment cannot amend a rule
that was promulgated through notice-and-comment
procedures. As the D.C. Circuit explained:
Obviously, [the agency] may for good cause,
change the regulation and even its interpretation of the statute through notice and
comment rulemaking, but it may not constructively rewrite the regulation, which was
expressly based upon a specific interpretation of the statute, through internal memoranda or guidance directives that incorporate
a totally different interpretation and effect a
totally different result.
National Family Planning & Reprod. Health Ass’n,
Inc. v. Sullivan, 979 F.2d 227, 236 (D.C. Cir. 1992).
Once an agency promulgates a regulation, the APA
obligates the agency to return to the notice-and-comment rulemaking process to change the meaning of
that regulation or give it further content. Were it
otherwise, the safeguards contained in Section 553 of
the APA would be meaningless. Seminole Rock and
Auer are inconsistent with that core principle.7
B. Auer injects intolerable unpredictability
into agency action.
Apart from its incompatibility with the text and
structure of the APA, Auer deference should be set
aside because it is fundamentally at war with basic
The VA’s own conduct evinces an awareness of this principle,
as it has previously amended Section 3.156(c) through noticeand-comment rulemaking. See 70 Fed. Reg. 35,388. If the VA
dislikes the results that flow from the best reading of the text
that the VA itself drafted, it may undertake a new rulemaking.
7

 37
principles of predictability and public notice at the
heart of the APA.
When a member of the regulated public attempts
to comply with the terms of a regulation, all he or
she can do is make a judgment about the regulation’s
best interpretation. Under Auer, however, an agency
may later endorse a different interpretation, which
then has the force of law. In fact, Auer deference
makes a difference in the outcome of a case only
where an agency has chosen a reasonable interpretation of a regulation that is “not the fairest reading of
the regulation.” Decker, 568 U.S. at 617 (Scalia J.).
1. Auer invites vague regulations, which
limit the public’s ability to conform conduct to law.
As the Court has recognized, Auer “creates a risk
that agencies will promulgate vague and open-ended
regulations that they can later interpret as they see
fit, thereby ‘frustrat[ing] the notice and predictability
purposes of rulemaking.’” SmithKline Beecham
Corp., 567 U.S. at 158 (quoting Talk Am., Inc. v.
Michigan Bell Tel. Co., 564 U.S. 50, 69 (2011) (Scalia, J., concurring)). In light of Auer, “[i]t is perfectly
understandable * * * for an agency to issue vague
regulations, because to do so maximizes agency power and allows the agency greater latitude to make
law through adjudication rather than through the
more cumbersome rulemaking process.” Thomas Jefferson Univ., 512 U.S. at 525 (Thomas, J., dissenting).
Justice Scalia described the problem in Perez:
Because the agency (not Congress) drafts the
substantive rules that are the object of those

 38
interpretations, giving them deference allows
the agency to control the extent of its noticeand-comment-free domain. To expand this
domain, the agency need only write substantive rules more broadly and vaguely, leaving
plenty of gaps to be filled in later, using interpretive rules unchecked by notice and
comment. The APA does not remotely contemplate this regime.
135 S. Ct. at 1212 (Scalia, J.). Accord Anthony, supra, at 11-12 (Auer deference “generates incentives
to be vague in framing regulations, with the plan of
issuing ‘interpretations’ to create the intended new
law without observance of notice and comment procedures.”); Matthew C. Stephenson & Miri Pogoriler,
Seminole Rock’s Domain, 79 Geo. Wash. L. Rev.
1449, 1461 (2011); Manning, supra, at 656.8
In this way, Auer “frustrates the notice and predictability purposes of rulemaking, and promotes arbitrary government.” Talk Am., Inc., 564 U.S. at 69
(Scalia, J.). See also Manning, supra, at 669 (“SemiThese concerns are not merely theoretical. A recent survey
showed that two in five agency rule-drafters are reported being
influenced by the Auer doctrine when they write regulations.
Christopher J. Walker, Inside Agency Statutory Interpretation,
67 Stan. L. Rev. 999, 1004, 1065-1066 (2015) (reporting results
from study involving 128 participants from seven executive departments and two independent agencies). Specifically, 39 percent of agency respondents indicated that Auer “play[s] a role in
[their] rule drafting decisions.” Id. at 1061, 1073. Without drawing a conclusion, the study’s author suggests that some ruledrafters may “attempt to avoid drafting ambiguous regulations,” whereas others “may be saying they do not have to worry
about being clear and precise, as they can always clarify and
clean up in subsequent guidance.” Id. at 1066-1067.
8

 39
nole Rock deference disserves the due process objectives of giving notice of the law to those who must
comply with it and of constraining those who enforce
it.”).
Moreover, Auer deference, coupled with the capacious regulations it promotes, enable agencies to abruptly change course without engaging in notice-andcomment rulemaking. See, e.g., Gloucester Cty. Sch.
Bd. v. G.G. ex rel. Grimm, 137 S. Ct. 1239 (2017)
(“Judgment vacated, and case remanded to the United States Court of Appeals for the Fourth Circuit for
further consideration in light of the guidance document issued by the Department of Education and
Department of Justice on February 22, 2017.”); G.G.
ex rel. Grimm v. Gloucester Cty. Sch. Bd., 822 F.3d
709, 723 (4th Cir. 2016) (“[T]he Department’s interpretation of its own regulation, [Section] 106.33, as it
relates to restroom access by transgender individuals, is entitled to Auer deference and is to be accorded controlling weight in this case.”).
Such policy shifts often occur when there is a
change in Administrations. While new Administrations certainly may alter past policies, “[t]he Administrative Procedure Act requires that the pivot from
one administration’s priorities to those of the next be
accomplished with at least some fidelity to law and
legal process.” North Carolina Growers’ Ass’n, Inc. v.
United Farm Workers, 702 F.3d 755, 772 (4th Cir.
2012) (Wilkinson, J., concurring). “Otherwise, government becomes a matter of the whim and caprice
of the bureaucracy, and regulated entities will have
no assurance that business planning predicated on
today’s rules will not be arbitrarily upset tomorrow.”
Ibid. Properly construed, “the APA contemplates

 40
what is essentially a hybrid of politics and law—
change yes, but only with a measure of deliberation
and, hopefully, some fair grounding in statutory text
and evidence.” Ibid.
The vague regulations that Auer deference invites are antithetical to the due process principles
embodied in the APA and elsewhere. They disserve
the public interest.
2. Auer deference is especially suspect when
the agency is self-interested.
Auer is particularly troublesome when agencies
resolve regulatory ambiguities in favor of their own
pecuniary self-interest.
Courts have rightly expressed skepticism of deference in circumstances where an “agency itself [is]
an interested party” and the agency offers “selfserving views.” National Fuel Gas Supply Corp. v.
FERC, 811 F.2d 1563, 1571 (D.C. Cir. 1987). See also
Chickaloon-Moose Creek Native Ass’n, Inc. v. Norton,
360 F.3d 972, 980 (9th Cir. 2004) (“[A]s an interested
party to the Deficiency Agreement that stands to
gain or lose depending on the outcome of this litigation, the agency should not be accorded any deference.”).
Indeed, agency deference is rooted in the presumption “that the agency’s interpretation represents an impartial and disinterested exercise of its
interpretative authority.” Timothy K. Armstrong,
Chevron Deference and Agency Self-Interest, 13 Cornell J.L. & Pub. Pol’y 203, 265 (2004). Where that
presumption “is shown to be incorrect,” such as
where the agency’s “interpretation is affected by self-

 41
interest” in the outcome of the case, deference should
not apply. Ibid.
Additionally, “judicial deference in cases of agency self-interest” “effectively makes the agency the
judge in its own cause.” Armstrong, supra, at 268.
This sort of “[j]udicial deference to self-interested
governmental action also carries a particular risk of
undermining public confidence in governmental fairness and impartiality.” Id. at 282. See also Anthony,
supra, at 9-10.
3. There is no policy-based justification for
Auer deference.
Two policy-based explanations for Auer have
emerged over the years. One is that “the agency, as
the drafter of the rule, will have some special insight
into its intent when enacting it.” Decker, 568 U.S. at
618 (Scalia, J.) (citing Martin, 499 U.S. at 150-153).
The other is “that the agency possesses special expertise in administering its ‘complex and highly
technical regulatory program.’” Ibid. (quoting Thomas Jefferson Univ., 512 U.S. at 512). Neither contention supports the weight of Auer.
First, with respect to the argument that an agency has insight into what it actually meant to say in
the regulation, there is no basis to conclude that an
agency is better situated than a court to answer this
question of law. The interpretation of a regulation
turns on the relevant sources available to the public,
principally the regulation’s text and whatever additional materials that the agency made available in
the course of the rulemaking process, including Federal Register publications. There is no basis to conclude that the agency, years or decades after the
promulgation of a regulation, is better equipped to

 42
resolve this legal issue. See Decker, 568 U.S. at 618
(Scalia, J.).9
What is more, even if an agency had special capacity to discern the intended meaning of the regulation itself, Auer deference does not depend on the
agency’s having done so. Auer does not obligate an
agency to articulate what it believes to be the best
reading of a regulation based on text and promulgation context. Rather, under Auer, agencies can and
do make policy decisions regarding their preferred
interpretations. Auer deference is not, therefore, a
tool that helps ascertain the best reading of a regulation.
The second policy rationale for Auer—that an
agency’s policymaking expertise warrants deference
to its views—“misidentifies the relevant inquiry.” Perez, 135 S. Ct. at 1222 (Thomas., J.). “The proper
question faced by courts in interpreting a regulation
is not what the best policy choice might be, but what
the regulation means,” and “[j]udges are at least as
well suited as administrative agencies to * * * interpret the meaning of legal texts.” Id. at 1222-1223.
While an agency may have “significant expertise” regarding the “complex and highly technical regulatory
Indeed, the Court does not give significant weight to postenactment congressional materials regarding the meaning of a
statute. See, e.g., Reno v. Bossier Par. Sch. Bd., 520 U.S. 471,
484-485 (1997) (‘“[T]he views of a subsequent Congress form a
hazardous basis for inferring the intent of an earlier one.’”)
(quoting United States v. Price, 361 U.S. 304, 313 (1960));
Bruesewitz v. Wyeth LLC, 562 U.S. 223, 260 (2011) (Sotomayor,
J., dissenting) ([P]ostenactment legislative history created by a
subsequent Congress is ordinarily a hazardous basis from
which to infer the intent of the enacting Congress.”).
9

 43
program” it administers (Thomas Jefferson Univ.,
512 U.S. at 512), that is a justification for deferring
to the regulations that the agency promulgates
through notice-and-comment rulemaking. It is not a
basis to confer the force of law on an agency’s statements outside the procedures that the APA specifies
for administrative lawmaking. See Decker, 568 U.S.
at 618-619 (Scalia, J.).
Even if these justifications for Auer deference
carried some weight, they merely suggest that courts
should acknowledge the agency’s expertise and historical role. That is the essence of Skidmore deference, which evaluates an agency’s “body of experience and informed judgment.” 323 U.S. at 140. Ultimately, under Skidmore, courts consider the extent
to which an agency’s views have the “power to persuade.” Ibid. These policy contentions do not provide
a rationale for Auer’s heavy weight on the scales.
While courts should take due account of an agency’s
views and knowledge, interpretation of regulations is
ultimately the role of courts—not agencies.
C. Auer deference is inconsistent with separation-of-powers principles.
“Given the reality that agencies engage in ‘lawmaking’ when they exercise rulemaking authority,”
deference to agencies’ interpretations of their own
vague regulations “contradicts the constitutional
premise that lawmaking and law-exposition must be
distinct.” Manning, supra, at 654.
That premise is a foundational one. Montesquieu, whom The Federalist Papers identified as
“[t]he oracle who is always consulted and cited on
this subject” (The Federalist No. 47, at 301 (James
Madison) (C. Rossiter ed., 1961)), explained that

 44
“[w]hen the legislative and executive powers are
united in the same person, or in the same body of
magistrates, there can be no liberty; because apprehensions may arise, lest the same monarch or senate
should enact tyrannical laws, to execute them in a
tyrannical manner.” Montesquieu, Spirit of the Laws
bk. XI, at 151-152 (O. Piest ed., T. Nugent trans.
1949). Similarly, “Blackstone condemned the practice
of resolving doubts about ‘the construction of the
Roman laws’ by ‘stat[ing] the case to the emperor in
writing, and tak[ing] his opinion upon it.’” Decker,
568 U.S. at 620 (Scalia, J.) (quoting 1 William Blackstone, Commentaries *58).
The Framers thus repeatedly reaffirmed that
“the power of making ought to be distinct from that
of expounding, the laws.” 2 The Records of the Federal Convention of 1787, at 75 (Max Farrand ed. 1966)
(Elbridge Gerry). The rationale for this established
maxim was then, and remains today, grounded in
common sense: “The Judges in exercising the function of expositors might be influenced by the part
they had taken, in framing the laws.” Ibid. (Caleb
Strong). See also Manning, supra, at 644 n.159 (collecting additional sources).
For just that reason, “our Constitution did not
mirror the British practice of using the House of
Lords as a court of last resort, due in part to the fear
that he who has ‘agency in passing bad laws’ might
operate in the ‘same spirit’ in their interpretation.”
Decker, 568 U.S. at 620 (Scalia, J.) (quoting The Federalist No. 81, at 543-544 (Alexander Hamilton) (J.
Cooke ed., 1961)). “In short, a core objective of the
constitutional structure was to ensure meaningful
separation of lawmaking from the exposition of a

 45
law’s meaning in particular fact situations.” Manning, supra, at 644. Accord Perez, 135 S. Ct. at 12181219 (Thomas, J.).
The Court’s separation-of-powers cases—which
uniformly deny Congress a role in interpreting or executing its own enactments—confirm the constitutional commitment to the separation of law-making
from law-exposition. In INS v. Chadha, 462 U.S. 919
(1983), for example, the Court struck down the onehouse legislative veto, which had allowed the House
of Representatives to overrule the Attorney General
on matters delegated to the executive branch. See also Metropolitan Wash. Airports Auth. v. Citizens for
Abatement of Aircraft Noise, Inc., 501 U.S. 252, 274
(1991) (Congress “may not ‘invest itself or its Members with either executive power or judicial power.’”).
Because Auer’s practical effect is to vest in a single branch the law-making and law-interpreting
functions, Auer is incompatible with the separationof-powers principles that animate the Constitution.
See Talk Am., Inc., 564 U.S. at 68 (Scalia, J.). To
conclude otherwise “would violate a fundamental
principle of separation of powers—that the power to
write a law and the power to interpret it cannot rest
in the same hands.” Decker, 568 U.S. at 619 (Scalia,
J.). See also Rust v. Sullivan, 500 U.S. 173, 191
(1991) (holding that the Court must “assume [that
Congress] legislates in the light of constitutional limitations”).
D. Chevron deference confirms the flaws of
Auer deference.
The reasons why courts defer to agency actions
in other contexts—most notably Chevron deference—

 46
are independent of Auer deference. In fact, Chevron
deference serves to highlight Auer’s flaws.
Chevron deference rests on congressional delegations of lawmaking authority to the agencies. See
City of Arlington, 569 U.S. at 296; Brand X, 545 U.S.
at 980; Mead, 533 U.S. at 227-230. See also pages 3335, supra. As the Court held in Mead, Chevron deference attaches when an agency exercises its delegated
authority in the manner that Congress prescribed,
which is usually through the APA’s requirement of
notice-and-comment rulemaking. See Mead, 533 U.S.
at 227-230. Agency actions outside the APA’s protections, including agency interpretive rules and other
agency interpretations, are not entitled to such deference. Ibid.
Chevron deference therefore promotes, rather
than skirts, notice-and-comment rulemaking. When
the APA’s procedural safeguards are respected, judicial deference to agency interpretations of ambiguous
statutory text is consistent with the APA’s structure
and purpose. Auer deference, by contrast, is not constrained by the APA’s requirements. See Decker, 568
U.S. at 620 (Scalia, J.) (“Auer is not a logical corollary to Chevron but a dangerous permission slip for
the arrogation of power.”).
Additionally, Chevron deference does not centralize the functions of law-making and law-interpreting
within a single entity. See Manning, supra, at 639
(Under Chevron, “separation remains between the
relevant lawmaker (Congress) and at least one entity
(the agency) with independent authority to interpret
the applicable legal text.”).

 47
Chevron deference is thus consistent with—and,
indeed, supports—the conclusion that Auer and Seminole Rock were wrongly decided.
II. Stare decisis does not require the Court to
retain Seminole Rock and Auer.
Although the Court “approach[es] the reconsideration of [its] decisions with the utmost caution,
stare decisis is not an inexorable command.” South
Dakota v. Wayfair, Inc., 138 S. Ct. 2080, 2096 (2018)
(quoting Pearson v. Callahan, 555 U.S. 223, 233
(2009)). The special justifications necessary to overcome stare decisis are present here—and stare decisis
applies with appreciably less force in this unique
context.
A. Special justifications warrant overruling Seminole Rock and Auer.
What the Court recently said in Wayfair applies
with full force here: while Seminole Rock “was wrong
on its own terms when it was decided,” experience
and practical developments have “made its earlier
error all the more egregious and harmful.” Wayfair,
138 S. Ct. at 2097.
Seminole Rock, the doctrine’s origin, was “badly
reasoned.” Payne v. Tennessee, 501 U.S. 808, 827
(1991). In fact, it lacked reasoning entirely. See
Decker, 568 U.S. at 617 (Scalia, J.) (describing Seminole Rock as resting on “ipse dixit”).
Experience has shown that original error all the
more serious and harmful. Indeed, Auer deference
produces “inherent confusion,” and, after being “tested by experience,” Auer deference has proven detrimental. Patterson v. McLean Credit Union, 491 U.S.
164, 173-174 (1989). Auer creates contradictory

 48
standards for interpretive rules. See pages 31-33, supra. And it injects enormous unpredictability into
the meaning of regulations, authorizing reversals of
agency positions without notice-and-comment rulemaking. See pages 36-43, supra.
Auer deference is also “a direct obstacle to the
realization of important objectives embodied in other
laws.” Patterson, 491 U.S. at 173. In particular, its
application authorizes circumvention of the APA’s
rulemaking requirements. See pages 26-31, supra.
B. Stare decisis applies with less force to
judicially-created interpretive principles.
Stare decisis has “special force” in statutory interpretation because “Congress remains free to alter
what [the Court has] done.” Patterson, 491 U.S. at
172-173. In constitutional cases, stare decisis reflects
the need for stability in construing the Nation’s charter. See Crawford v. Washington, 541 U.S. 36, 75
(2004).
The Auer deference principle falls into neither
category. The Court has never identified a statutory
or constitutional underpinning for the doctrine—as
we have explained, there is none. Although the doctrine affects a very significant transfer of power to
administrative agencies, it is a court-crafted interpretive rule.
In Pearson, the Court explained that “[r]evisiting
precedent is particularly appropriate where” it “consists of a judge-made rule” related to “the operation
of the courts.” 555 U.S. at 233. There, the Court
overturned Saucier v. Katz, 533 U.S. 194 (2001),
which required courts to address the substantive

 49
constitutional issue before resolving a claim of qualified immunity. This rule was, Pearson explained,
“judge made” and “implicate[d] an important matter
involving internal Judicial Branch operations.” 555
U.S. at 233-234. For that reason, “[a]ny change
should come from this Court, not Congress.” Id. at
234.
The Court noted that the standards employed in
determining whether to adhere to stare decisis—such
as whether the original decision was “badly reasoned” or “proved to be ‘unworkable’”—are “appropriate when a constitutional or statutory precedent
is challenged.” Pearson, 555 U.S. at 234. But those
standards “are out of place” for judge-made rules
governing judicial decisionmaking. Ibid.
So too here. Because Auer deference is a similar
procedural, “judge made” rule, stare decisis does not
apply with the same force as in statutory and constitutional cases. See also United States v. Gaudin, 515
U.S. 506, 521 (1995) (The “role” of stare decisis “is
somewhat reduced * * * in the case of a procedural
rule * * *, which does not serve as a guide to lawful
behavior.”); Payne, 501 U.S. at 828 (noting the decreased weight of stare decisis in cases “involving
procedural and evidentiary rules”); Alleyne v. United
States, 570 U.S. 99, 119 (2013) (Sotomayor, J., concurring) (“[W]hen procedural rules are at issue that
do not govern primary conduct and do not implicate
the reliance interests of private parties, the force of
stare decisis is reduced.”).
In fact, it is not clear that stare decisis applies at
all in the context of “deference regimes,” which “are
more like canons of statutory construction.” Connor
N. Raso & William N. Eskridge, Jr., Chevron as a

 50
Canon, Not a Precedent: An Empirical Study of What
Motivates Justices in Agency Deference Cases, 110
Colum. L. Rev. 1727, 1765 (2010). See also Randy J.
Kozel, Statutory Interpretation, Administrative Deference, and the Law of Stare Decisis, Tex. L. Rev.
(forthcoming 2019) (“[I]nterpretive methodologies do
not warrant stare decisis effect.”).
Indeed, there is broad scholarly consensus that
this Court’s precedents make stare decisis considerations inapplicable in the context of interpretive principles.10 Ultimately, it is appropriate to “characteriz[e] deference doctrines as canons of statutory construction, and not binding precedents.” Raso &
Eskridge, supra, at 1817. See also Perez, 135 S. Ct. at
1214 n.1 (Thomas, J.) (questioning application of
stare decisis to Auer deference); Kozel, supra, at 74
(contending that “Auer puts itself beyond the purview of stare decisis”).
10 See, e.g., Glen Staszewski, The Dumbing Down of Statutory
Interpretation, 95 B.U. L. Rev. 209, 218 (2015) (“Notwithstanding widespread support for the doctrine of stare decisis on substantive statutory issues, however, federal courts generally do
not give stare decisis effect to their methodological decisions in
statutory interpretation cases.”); Abbe R. Gluck, The States As
Laboratories of Statutory Interpretation: Methodological Consensus and the New Modified Textualism, 119 Yale L.J. 1750,
1754 (2010) (“Methodological stare decisis—the practice of giving precedential effect to judicial statements about methodology—is generally absent from the jurisprudence of mainstream
federal statutory interpretation.”); Sydney Foster, Should
Courts Give Stare Decisis Effect to Statutory Interpretation
Methodology?, 96 Geo. L.J. 1863, 1875 (2008) (“Although the
Supreme Court has not been explicit about whether it gives
stare decisis effect to doctrines of statutory interpretation, examination of its statutory interpretation jurisprudence makes
clear that it does not.”).

 51
C. Private reliance interests favor overruling Seminole Rock and Auer.
Stare decisis also protects the reliance interests
of private parties. As one example, “when a court is
asked to overrule a precedent recognizing a constitutional liberty interest, individual or societal reliance
on the existence of that liberty cautions with particular strength against reversing course.” Lawrence v.
Texas, 539 U.S. 558, 577 (2003). By contrast, where
there are no “legitimate reliance interest[s]” at stake,
stare decisis has less force. Wayfair, 138 S. Ct. at
2098. See also Pearson, 555 U.S. at 233 (When a doctrine does “not affect the way in which parties order
their affairs,” abandoning past precedent is more appropriate because “a departure would not upset expectations.”).
Private parties are highly unlikely to rely on Auer, because it does not authorize any particular result with respect to any particular rule. Indeed, one
of Auer’s principal effects is to promote legal instability. At its core, Auer deference gives the force of law
to an agency’s interpretation of a regulation adopted
after a dispute begins. See, e.g., Coeur Alaska, 557
U.S. at 278; Long Island Care, 551 U.S. at 171; Auer,
519 U.S. at 461; Thorpe, 393 U.S. at 276 & nn.22-23.
That is so even if the new interpretation departs
from an old one. See Kennedy, 555 U.S. at 296 & n.7.
Worse yet, this deference doctrine affects the
outcome of a dispute only where an agency has chosen an interpretation of a regulation that, although
reasonable, is not the best one. See Decker, 568 U.S.
at 617 (Scalia J.). But, when structuring conduct to
comply with a regulation, all a private party can do

 52
is make a judgment about the regulation’s best
meaning.
The mischief that Auer creates is especially pronounced when there is a change of presidential Administrations. Cf. North Carolina Growers’ Ass’n,
Inc., 702 F.3d at 772 (Wilkinson, J.). Auer enables
one Administration to reverse the course set by its
predecessor, altering binding rules of law based on
nothing more than a brief filed in court, a letter posted on a website, or an internal memorandum sent to
agency staff.
Auer deference thus strips regulations of stability; it “allows agencies to change the meaning of regulations at their discretion and without any advance
notice to the parties.” Perez, 135 S. Ct. at 1221
(Thomas, J.). See also, e.g., Garco Constr., 138 S. Ct.
at 1053 (Thomas, J.) (“While Garco was performing
its obligations under the contract, the base adopted
an interpretation of its access policy that” changed
the terms of the contract, allowing the agency to
“unilaterally modify [the] contract by issuing a new
‘clarification’ with retroactive effect.”) (quotation
omitted).
To the extent administrative agencies’ interests
are even relevant, they cannot assert any “legitimate
reliance interest” in the Auer interpretive approach.
Wayfair, 138 S. Ct. at 2098 (emphasis added). If Auer
is repudiated, agencies will not be foreclosed from
adopting any permissible interpretation of a regulation that they desire—or even to replace the regulatory regime entirely. All they need do is act through
notice-and-comment rulemaking for their actions to
have the force of law.

 53
In sum, rather than advancing reliance interests,
Auer deference “frustrates the notice and predictability purposes of rulemaking, and promotes arbitrary
government.” Talk Am., Inc., 564 U.S. at 69 (Scalia,
J.). When, as here, an existing doctrine “itself causes
uncertainty,” that is a strong reason to displace it.
Lawrence, 539 U.S. at 577.
D. The administrative state has evolved
substantially since 1945.
The dramatic change in circumstances since
1945 is an additional reason why stare decisis should
not preclude overruling Seminole Rock and Auer. See
Wayfair, 138 S. Ct. at 2096-2097.
To begin with, Seminole Rock, decided in 1945,
pre-dated the 1946 APA. While this Court has applied and extended Seminole Rock on numerous occasions since the APA’s enactment, the Court has
never squared the deference doctrine with the text
and structure of the APA.11

11 The Seminole Rock era, moreover, featured the legislative veto of agency action. As Justice White observed in 1983, “[t]he
prominence of the legislative veto mechanism in our contemporary political system and its importance to Congress can hardly
be overstated. It has become a central means by which Congress secures the accountability of executive and independent
agencies.” Chadha, 462 U.S. at 967-968 (White, J., dissenting).
At that time, “nearly 200” statutory provisions contained a legislative veto. Ibid. The statute underlying Seminole Rock, the
Emergency Price Control Act, was itself structured to terminate
“upon the date specified in a concurrent resolution by the two
Houses of the Congress.” Pub. L. No. 77-421 § 1(b), 56 Stat. 23,
24 (1942). When the Court decided Seminole Rock, direct congressional supervision of agency action was commonplace. Today, it is constitutionally forbidden.

 54
The size and scope of the administrative state
has also changed substantially since Seminole Rock.
In 1941, the Code of Federal Regulations listed 111
different departments, bureaus, divisions, and independent agencies; today, the Federal Register identifies four times as many: 445.12 The 1945 volume of
the Federal Register contained 15,508 pages; in
2015, it contained more than five times that number:
81,402 pages.13 In 1950, the Code of Federal Regulations spanned 9,745 pages; in 2015, it reached a
mammoth 178,277 pages, nearly 20 times as large.14
And this just scratches the surface: it is not uncommon that “[s]everal words in a regulation may spawn
hundreds of pages of text as the agency offers more
and more detail regarding what its regulations demand of regulated entities.” Appalachian Power Co.,
v. EPA, 208 F.3d 1015, 1019 (D.C. Cir. 2000). See also City of Arlington, 569 U.S. at 313 (Roberts, C.J.,
dissenting).
Administrative agencies today “wield[] vast power and touch[] almost every aspect of daily life.” Free
Enterprise Fund v. Public Co. Accounting Oversight
Bd., 561 U.S. 477, 499 (2010). Conferring on agencies
binding authority to interpret their own regulations
has far broader—and much more troubling—
implications now than it had when Seminole Rock
was decided 74 years ago. These changed circumCompare Final Report of Attorney General’s Committee on
Administrative Procedure, U.S. Gov’t Printing Office, 8 n.1
(1941), with Agencies, Office of the Fed. Register (captured Jan.
18, 2019), perma.cc/5KBT-WG82.
12

Federal Register & CFR Publications Statistics, Office of the
Fed. Register (May 2016), perma.cc/C7DG-JPRH.

13

14

Ibid.

 55
stances further justify reexamining Seminole Rock
and Auer.
III. Section 3.156(c) entitles petitioner to retroactive benefits.
Petitioner presents the best interpretation of
Section 3.156(c). He should therefore prevail on his
claim for benefits retroactive to the date of his initial
application.
Because the court of appeals did not independently evaluate the meaning of Section 3.156(c)
(see Pet. App. 15a-17a), the Court may wish to remand for the court of appeals to do so in the first instance. See Zivotofsky ex rel. Zivotofsky v. Clinton,
566 U.S. 189, 201 (2012).
If the Court reaches the issue, petitioner should
prevail. Section 3.156 creates two mechanisms for
the VA to revisit a past denial of disability benefits:
reopening (38 C.F.R. § 3.156(a), which does not supply retroactive benefits, and reconsideration (id. §
3.156(c)), which does award retroactive benefits. See
generally pages 12-13, supra. Petitioner is entitled to
reconsideration.
The VA “will reconsider the claim” if three conditions are satisfied: first, the VA made an error by
failing to “associate[] with the claims file” a government record that “existed” at the time of the original
adjudication (38 C.F.R. § 3.156(c)(1)); second, the
record is a “relevant official service department record[]” (ibid.); and third, the VA issues an “award
* * * based all or in part on the records” that the VA
previously failed to consider (id. § 3.156(c)(3)).
Petitioner satisfies each of Section 3.156(c)’s criteria. As to the first, petitioner’s service records (in-

 56
cluding his Combat History—Expeditions—Awards
Record (J.A. 19)) existed at the time of the original
adjudication. Pet. App. 34a. The VA, moreover, acknowledges that it did not consider these records because the VA never requested his file. Id. at 34a-35a.
As to the third, in granting petitioner benefits,
the VA relied on the “evidence of record” (J.A. 52),
which included petitioner’s “DD Form 214,” a “copy
of service personnel record,” and a “copy of citation
for heroic participation in Operation Harvest Moon”
(J.A. 51). The government admits that the VA’s
award was based in part on these records. See BIO
16 n.2 (“[P]etitioner’s combat service was ‘verified’
based on the service department records.”).
The only question, therefore, relates to the second element—whether these records are “relevant official service department records.” The VA maintains
that “official service records” qualify as “relevant”
within the meaning of Section 3.156(c) only if they
relate to the specific “basis” on which the original
claim was denied. Pet. App. 43a. The Board of Veterans’ Appeals appears to have understood Section
3.156(c) to require a counterfactual analysis: the VA
must determine whether, if it had considered them,
the records would have been “outcome determinative.” Id. at 42a-43a.
There is no basis in the text for that narrow construction of “relevant.” Instead, records are “relevant” if they support any element of a veteran’s
claim for benefits.
1. The regulation itself identifies that “relevant”
is a broad term. It first states that the VA will reconsider a denied claim if it overlooked “relevant official
service department records,” and then goes on to ex-

 57
plain that “[s]uch records include” “[s]ervice records
that are related to a claimed in-service event.” 38
C.F.R. § 3.156(c)(1)(i). This provision is not conditional: records relating to a veteran’s “claimed inservice event” are per se “relevant” for purposes of
this regulation. The records here fall within this specific description. No further inquiry is necessary or
appropriate.15
2. The ordinary meaning of the term “relevant”
further supports this interpretation. In normal usage, “relevant” means “bearing upon or relating to
the matter in hand.” Webster’s New Twentieth Century Dictionary 1526 (2d ed. 1967). Federal Rule of Evidence 401 holds that “[e]vidence is relevant if: (a) it
has any tendency to make a fact more or less probable than it would be without the evidence; and (b) the
fact is of consequence in determining the action.”
Fed. R. Evid. 401.
To prevail, petitioner must present “credible
supporting evidence that the claimed in-service
stressor occurred.” 38 C.F.R. § 3.304(f). Because petitioner’s service records make this necessary element
more probable, they are “relevant” records.
3. The VA asserts that the records must be relevant to the agency’s original “basis of the denial”—
not to the veteran’s claim generally. Pet. App. 43a.
In promulgating this rule, the VA “intend[ed] that this broad
description of ‘service department records’ will also include unit
records, such as those obtained from the Center for Research of
Unit Records (CRUR) that pertain to military experiences
claimed by a veteran.” 70 Fed. Reg. at 35,388. As the VA explained, “[s]uch evidence may be particularly valuable in connection with claims for benefits for post traumatic stress disorder.” Ibid. That is precisely the circumstance here.
15

 58
But the VA has never identified a textual basis in
the regulation for this limitation. See id. at 40a-43a;
BIO 13-19.16
In fact, the text of the regulation refutes the government’s contention. The reopening provision, Section 3.156(a), requires “material” evidence, which it
defines as evidence that “relates to an unestablished
fact necessary to substantiate the claim.”
Under the VA’s construction, “relevant” would
mean the same thing as the defined term “material.”
But “where the document has used one term in one
place, and a materially different term in another, the
presumption is that the different term denotes a different idea.” Antonin Scalia & Bryan A. Garner,
Reading Law: The Interpretation of Legal Texts 170
(2012). See also Wisconsin Cent. Ltd. v. United
States, 138 S. Ct. 2067, 2071 (2018) (“We usually
‘presume differences in language like this convey differences in meaning.’”).
This basic principle has special force here for two
reasons. First, Section 3.156(c) specifies that it applies “notwithstanding paragraph (a) of this section.”
38 C.F.R. § 3.156(c)(1). If “relevant” means the same
thing as “material,” then a veteran would have to
16 In any event, petitioner’s service records are relevant to the
medical diagnosis of PTSD, one element of which is the demonstrated existence of a stressor. DSM-5, supra, at 271. As the VA
explains, “one cannot make a PTSD diagnosis unless the patient has actually met the ‘stressor criterion,’ which means that
he or she has been exposed to an event that is considered traumatic.” Matthew J. Friedman, PTSD History and Overview,
Nat’l Ctr. for PTSD, U.S. Dep’t of Veterans Affairs, perma.cc/38K9-FQ8N. Proof of a stressor thus does bear directly on
the likelihood that he suffers from PTSD.

 59
satisfy the requirements of Section 3.156(a) to obtain
reconsideration under Section 3.156(c), rendering
this disclaimer meaningless.
Second, Section 3.156(c) previously did contain
the “new and material” standard. In 2006, the VA
amended the regulation to replace it with the broader term “relevant” evidence. See 71 Fed. Reg. 52,455.
In proposing the rule, the VA intentionally “remove[d] the ‘new and material’ requirement.” 70 Fed.
Reg. at 35,388. The agency’s decision to change the
language confirms that the term “relevant” cannot
here mean “material.”
4. A related statute, 38 U.S.C. § 5103A, further
supports this interpretation of “relevant official service department records.” Section 5103A obligates
the VA to “obtain[]” “relevant records pertaining to
the claimant’s active military, naval, or air service
that are held or maintained by a governmental entity”—“if relevant to the claim.” Id. § 5103A(c) (emphasis added). Section 5103A thus uses the term “relevant records” to encompass all records relevant “to
the claim” brought by the veteran. Congress enacted
Section 5103A in 2000 (Pub. L. No. 106-475, 114
Stat. 2096), and, in 2005, the VA proposed the current Section 3.156(c)—containing the term “relevant”—against that statutory backdrop (70 Fed. Reg.
35,388).
5. This construction is also consistent with the
remedial purpose of Section 3.156(c)—to protect veterans against the loss of benefits due to an error by
the VA. Rather than require the veteran to construct,
and prevail upon, a speculative analysis regarding
the impact a VA error had on an initial denial of
benefits, Section 3.156(c) makes the veteran whole

 60
when the VA issues an award based in part on evidence that the VA erroneously failed to consider the
first time.
Two established canons of construction support
this conclusion. The Court has long recognized that
veterans have “been obliged to drop their own affairs
to take up the burdens of the nation” (Boone v.
Lightner, 319 U.S. 561, 575 (1943)), “subjecting
themselves to the mental and physical hazards as
well as the economic and family detriments which
are peculiar to military service” (Johnson v. Robison,
415 U.S. 361, 380 (1974)). In view of their service,
the Court has “long applied ‘the canon that provisions for benefits to members of the Armed Services
are to be construed in the beneficiaries’ favor.”’ Henderson v. Shinseki, 562 U.S. 428, 441 (2011). See also
Hodge v. West, 155 F.3d 1356, 1361-1362 (Fed. Cir.
1998) (applying canon in construing regulations). As
the dissent to the denial of rehearing contended, this
canon should resolve any remaining uncertainty. See
Pet. App. 47a-54a.
In addition, legal instruments are typically construed against the drafter. Cf. Restatement (Second)
of Contracts § 206 (1981). Here, the VA wrote the
regulation at issue. It has the unique capacity to
amend that regulation—something it has done before. See 71 Fed. Reg. 52,455. To the extent any
doubt remains, the Court should construe the regulation to the financial detriment of the VA. Cf. Mastrobuono v. Shearson Lehman Hutton, Inc., 514 U.S. 52,
63 (1995) (“Respondents drafted an ambiguous document, and they cannot now claim the benefit of the
doubt.”); United States v. Seckinger, 397 U.S. 203,
210 (1970) (identifying “the general maxim that a

 61
contract should be construed most strongly against
the drafter”). If the VA wishes for a different interpretation, it may amend the regulation—subject to
the requirements of the Administrative Procedure
Act.
CONCLUSION
The Court should reverse the judgment entered
below.
Respectfully submitted.
KENNETH M. CARPENTER
Carpenter Chartered
1525 SW Topeka Blvd.,
Suite D
Topeka, KS 66601
(785) 357-5251

EUGENE R. FIDELL
Yale Law School
Supreme Court Clinic
127 Wall Street
New Haven, CT 06511
(203) 432-4992

PAUL W. HUGHES
Counsel of Record

MICHAEL B. KIMBERLY
ANDREW J. PINCUS
CHARLES A. ROTHFELD
E. BRANTLEY WEBB
ANDREW A. LYONS-BERG
Mayer Brown LLP
1999 K Street, NW
Washington, DC 20006
(202) 263-3000
phughes@mayerbrown.com

RACHEL R. SIEGEL
Mayer Brown LLP
1221 Ave. of the Americas
New York, NY 10020
(212) 506-2500

Counsel for Petitioner
JANUARY 2019