Amicus Curiae Brief — Kisor v. Wilkie, 139 S. Ct. 657 (2018) (No. 18-15)

JAMES L. KISOR,

Petitioner,

PETER O’ROURKE, ACTING

SECRETARY OF VETERANS AFFAIRS,

Respondent.

eo

On Petition For A Writ Of Certiorari

To The United States Court Of Appeals

For The Federal Circuit

IN SUPPORT OF PETTTIONER

—

BRADEN BOUCEK KIMBERLY S. HERMANN

BEACON CENTER Counsel of Record

OF TENNESSEE SOUTHEASTERN LEGAL

P.O. Box 198646 FOUNDATION

Nashville, TN 37219 2255 Sewell Mill Rd., Ste. 320

Marietta, GA 30062

(770) 977-2131

khermann@

southeasternlegal.org

I for Amici Curi

July 27, 2018

i

QUESTION PRESENTED

Whether Bowles v. Seminole Rock & Sand Co. , 325

U.S. 410 (1945), and Auer v. Robbins, 519 U.S. 452

(1997), should be overruled.

ss

TABLE OF CONTENTS

Page

QUESTION PRESENTED..........................:00000ee00 i

TABLE OF CONTENTS ...................cccecceeeeeeeeeeees ii

TABLE OF AUTHORITIES ........................00..00.04- iii

INTEREST OF AMICI CURIAE ...................000.. 1

SUMMARY OF ARGUMENT .........00.00................. 2

FT cbtideeciintgtnncinnintiasenctnsnriccvenentananeneneees 4

I. Seminole Rock/Auer deference provides fed-

eral agencies with a vehicle to adjudicate

their own ambiguous regulations ............... 4

Il. This Court should reconsider the Seminole

Rock/Auer-sanctioned practice of ceding ju- |

dicial power to administrative agencies...... 6

A. Seminole Rock/Auer deference is in-

consistent with separation of powers

I cancrencedevccenzensmnsccnsmiueccerensovecees 6

B. Seminole Rock/Auer deference deprives

Congress and the People the benefits of

the APA’s notice-and-comment proce-

C. Members of this Court have expressed

doubts about Seminole Rock/Auer def-

an

TABLE OF AUTHORITIES

Page

CASES

Alden v. Maine, 527 U.S. 706 (1999)...............2..ccccceee00 3

Auer v. Robbins, 519 U.S. 452 (1997).................. passim

Bowles v. Seminole Rock & Sand Co., 325 U.S.

atid inietisthcicitniniacacisandienenintetinnaniiaiiaiennan passim

Chevron U.SA., Inc. v. Nat. Res. Def. Council,

Ee Ce I victniticcieitiasdncsmneinemnerniess 12

Christopher v. SmithKline Beecham Corp., 132

Be ae SE I Giri crrctictncrindtdiiceninirmaaibiiamintdanenntnabesn 15

Chrysler Corp. v. Brown, 441 U.S. 281 (1979)............ 12

City of Arlington, Tex. v. FCC, 133 S. Ct. 1863

I idenninnsiciitdnsccnnniaaensneinaipseniiniiinaiaiuijitmiininins: 2, 3,5

Decker v. Nw. Envtl. Def. Ctr., 133 S. Ct. 1326

a eee oe 3, 9, 14

FCC uv. Fox Television Stations, 556 U.S. 502

Siar cinhieasithceedanaedenieiiataipihcilintabtapnlenettinaianitlgniataitrtianuinntend 8

Flytenow v. FAA, 137 S. Ct. 618 (2017) ....................... 1

Free Enter. Fund v. Pub. Co. Accounting Over-

sight Bd., 130 S. Ct. 3138 (2010) ....0..........cccccceeeeeenee 2

Garco Construction, Inc. v. Speer, 583 US. ___

Citi itcnchintandubnaincimenmasindenndeaniinnanmmviniesacatqennammenn 1,12

Gutierrez-Brizuela v. Lynch, 834 F.3d 1142 (10th

Re IE chintrarpeinnceceeinebtseiinntsinneecinishnesniinepetnstnampreniiemen 14

iv

TABLE OF AUTHORITIES — Continued

Page

Nat Ass’n of Mfrs. v. Dep’t of Def., 138 S. Ct. 617

iii cincbccetcnttioccntssenpnahisdusssnininidenteaibabeatanneienenternenes 1

Nat! Cable & Telecomms. Ass’n v. Brand X In-

ternet Servs. , 545 U.S. 967 (2005) ...................00000000 2

Perez v. Mortg. Bankers Ass’n, 135 S. Ct. 1199

[aire sinecsnntencecieniidicdimnpeaipacitinteniienddumummatinl passim

Shands Jacksonville Med. Ctr. v. Burwell, 139

F. Supp. 3d 240 (D.D.C. 2015) ...........ccccccccccccerserseees 10

Smiley v. Citibank, 517 U.S. 735 (1996)..................... 12

Sturgeon v. Frost, 136 S. Ct. 1061 (2016)..................... 1

Talk Am., Inc. v. Mich. Bell Tel. Co., 564 U.S. 50

atin sintennctainadininiendisiniaiimuateiiegiatanneinialiebntiietin 3, 6, 7, 14

Thomas Jefferson Univ. v. Shalala, 512 U.S. 504

itt hnsscsitisencinenvinnenniaisinestaniadsamesinittieapidiiipiaidatiisibtiggeiitmnnans 10

United States v. Mead, 533 U.S. 218 (2001)............... 13

United States Army Corps of Eng’rs v. Hawkes

eee 1

Util. Air Regulatory Grp. v. EPA, 134 S. Ct. 2427

etal cchostieetatinanteiieihitainsesiaraptentbamsiathideeinibgitananiauaaiiantsiainpanmnene 1

Wong Yang Sung v. McGrath, 339 U.S. 33 (1950) ......... 8

STATUTES

AMINED, isscckinscsninsnsnanimepanintembncnsediinal passim

II satricericancnrinniadnalaniemasinmaitidaiial 8

Op Te 0 SI rcenesccnannssencsneenecancenenianinsesetuenteetunentannseunein 7

Vv

TABLE OF AUTHORITIES — Continued

RULES

I ae gE

ON RS shia ceca naan Set Ree cea ae De

OTHER AUTHORITIES

Cass R. Sunstein, Nondelegation Canons, 67 U.

COE, Bo, BABU, BR GEG ccccccnscscsecsccesescoscsessesvenscecs

Hearing on “Examining the Federal Regulatory

System to Improve Accountability, Transpar-

ency and Integrity” Before the Senate Comm.

on the Judiciary, 114th Cong. 1 (2015) .............

John F. Manning, Constitutional Structure and

Judicial Deference to Agency I: 7

nterpretations

of Agency Rules, 96 Colum. L. Rev. 612 (1996)..

Karen Kerrigan & Ray Keating, Regulation and

the ‘Fourth Branch of Government’ (2014) ........

NFIB Small Business Legal Center, The Fourth

Branch & Underground Regulations (2015).....

Richard B. Stewart & Cass R. Sunstein, Public

Programs and Private Rights, 95 Harv. L. Rev.

ee

S. Doc. No. 77-3, Final Report of the Attorney

General’s Committee on Administrative Pro-

cedure in Government Agencies (1941).............

The Federalist No. 45 (James Madison) (Clinton

SUITE Glia, Gee Peccntenccenssemeimentetammemaanemminanen

senneus 1

1

INTEREST OF AMICI CURIAE'

Southeastern Legal Foundation (SLF), founded in

1976, is a national nonprofit, public interest law firm

and policy center that advocates constitutional indi-

vidual liberties, limited government, and free enter-

prise in the courts of law and public opinion. In

particular, SLF advocates for the rigorous enforcement

of constitutional limitations on the activities of federal

and state governments. SLF drafts legislative models,

educates the public on key policy issues, and litigates

often before the Supreme Court, including such cases

as Utility Air Regulatory Group v. EPA, 134 S. Ct. 2427

(2014), and National Association of Manufacturers v.

Department of Defense, 138 S. Ct. 617 (2018). SLF also

regularly files amicus curiae briefs with this Court

about issues of agency overreach and deference. See,

e.g., Garco Construction, Inc. v. Speer, 583 US. _ __

(2018); Flytenow v. FAA, 137 S. Ct. 618 (2017); Stur-

geon v. Frost, 136 S. Ct. 1061 (2016); United States

Army Corps of Engineers v. Hawkes Co., 136 S. Ct. 1807

(2016).

The Beacon Center is a nonprofit organization

based in Nashville, Tennessee that advocates for free-

market policy solutions within Tennessee. Property

' Amici curiae notified the parties 10 days before the filing of

this brief of their intent and request to file it. All parties consented

to the filing of this brief in letters. See Sup. Ct. R. 37.2(a). No coun-

sel for a party has authored this brief in whole or in part, and no

person other than amici curiae, their members, and their counsel

has made a monetary contribution to the preparation or submis-

sion of this brief. See Sup. Ct. R. 37.6.

2

rights and constitutional limits on government man-

dates are central to its goals.

This case is of particular interest to amici because

the continued application of Bowles v. Seminole Rock

& Sand Co., 325 U.S. 410 (1945), and Auer v. Robbins,

519 U.S. 452 (1997), gives the executive branch oppor-

tunities to usurp both judicial and legislative powers

that the Constitution does not grant it. Combining that

deference with a federal agency’s power to “consider

. its policy on a continuing basis,” National Cable &

Telecommunications Ass'n v. Brand X Internet Services,

545 U.S. 967, 981 (2005), opens the door to arbitrary

and capricious agency actions that will remain un-

checked. This case presents the Court with an oppor-

tunity to preserve our structure of government and

revisit the highly deferential standard set forth in

Seminole Rock/Auer.

»

¥

SUMMARY OF ARGUMENT

“The administrative state ‘wields vast power and

touches almost every aspect of daily life.’” City of Ar-

lington, Tex. v. FCC, 133 S. Ct. 1863, 1878 (2013) (Rob-

erts, C.J., dissenting) (quoting Free Enter. Fund v. Pub.

Co. Accounting Oversight Bd., 130 S. Ct. 3138 (2010)).

“(Tihe authority administrative agencies now hold

over our economic, social, and political activities|,|”

id., stands in stark contrast to the government of enu-

merated powers the Framers envisioned. Our Found-

ing Fathers sought to create a government structure

3

limited in nature. Addressing concerns that the pro-

posed national government would usurp the People’s

power to govern themselves, James Madison ex-

plained: “The powers delegated by the proposed Con-

stitution to the federal government are few and

defined . . . [and] will be exercised principally on exter-

nal objects, as war, peace, negotiation, and foreign com-

merce....” The Federalist No. 45, at 292 (James

Madison) (Clinton Rossiter ed., 1961). Today's wide-

reaching “‘administrative state with its reams of reg-

ulations would leave [the Founders] rubbing their

eyes.’” City of Arlington, 133 S. Ct. at 1878 (quoting

Alden v. Maine, 527 U.S. 706, 807 (1999) (Souter, J., dis-

senting)). “It would be a bit much to describe the result

as the very definition of tyranny, but the danger posed

by the growing power of the administrative state can-

not be dismissed.” Jd. at 1879 (citation and quotation

omitted).

This case involves one such example of the execu-

tive branch’s overreach and disregard for our carefully

crafted government structure, but there are many

thousands of other examples. The government action

at issue is emblematic of a systemic problem in a gov-

ernment that no longer imposes meaningful checks on

executive action. This case provides an opportunity to

addres doubts raised by several members of this

Court about the continued validity of Seminole Rock/

Auer. See Perez v. Mortg. Bankers Ass’n, 135 S. Ct. 1199

(2015); Decker v. Nw. Envtl. Def. Ctr., 133 S. Ct. 1326

(2013); Talk Am., Inc. v. Mich. Bell Tel. Co., 564 U.S. 50

(2011) (Scalia, J., concurring).

4

Amici maintain that any deference afforded to a

federal agency must be consistent with the Constitu-

tion and the Administrative Procedure Act (APA), 5

U.S.C. §§ 551, et seq. Deference to an agency’s inter-

pretation of its own ambiguous regulation offends the

separation of powers principles embedded in our Con-

stitution because it enables agencies to circumvent

the APA’s notice-and-comment procedures. As applied

here, Seminole Rock/Auer deference gives Veterans Af-

fairs license to issue arbitrary and capricious interpre-

tations of its own regulations that carry the force of

law. Amici therefore join Petitioner in asking this

Court to reconsider Seminole Rock/Auer deference.

»

-

ARGUMENT

I. Seminole Rock/Auer deference provides

federal agencies with a vehicle to adjudi-

cate their own ambiguous regulations.

There are now “over 430 departments, agencies,

and sub-agencies in the federal government.” Hearing

on “Examining the Federal Regulatory System to Im-

prove Accountability, Transparency and Integrity” Be-

fore the Senate Comm. on the Judiciary, 114th Cong. 1

(2015) (statement of Senator Grassley) (“Examining

the Federal Regulatory System”). As federal agencies

grow in number, so does the size of the Federal Regis-

ter. For example, the Federal Register grew from 4,369

pages in 1993, to 49,813 pages in 2003, to 81,883 pages

5

in 2012? — an increase of nearly 2,000% in just 19 years.

And from 2013 to 2014, “the federal bureaucracy final-

ized over 7,000 regulations.” Examining the Federal

Regulatory System. When one compares those 7,000

regulations to the 300 statutes enacted by Congress

during those same years, the growing power of the fed-

eral bureaucracy is undeniable. /d.

The number of official regulations tells only part

of the story. As this Court is well aware, federal agen-

cies issue, interpret, and enforce the rules that govern

our lives. “|A]s a practical matter they exercise legisla-

tive power, by promulgating regulations with the force

of law; executive power, by policing compliance with

those regulations; and judicial power, by adjudicat-

ing enforcement actions and imposing sanctions on

those found to have violated their rules.” City of Arling-

ton, 133 S. Ct. at 1877-78 (Roberts, C.J., dissenting).

The authority agencies have accumulated is startl-

ing.

Not only do agencies’ exercises of legislative au-

thority go unchecked,’ their regulatory interpreta-

tions often receive judicial deference under Seminole

* Karen Kerrigan & Ray Keating, Regulation and the ‘Fourth

Branch of Government,’ at 1 (2014), http://centerforregulatory

oly tions.org/wp-con*~*\i/uploads/20 14/04/FourthBranch White

Payer. pdf.

* Courts have rarely used the delegation doctrine to disci-

pline Congress, or by extension, to rein in federal agencies. “Since

1935, the Supreme Court has not struck down an act of Congress

on nondelegation grounds, notwithstanding the existence of a

number of plausible occasions.” Cass R. Sunstein, Nondelegation

Canons, 67 U. Chi. L. Rev. 315, 315 (2000).

6

Rock/Auer. This deference violates the APA because it

allows federal agencies to side-step notice-and-comment

procedures, and ignores the Constitution because it is

inconsistent with separation of powers principles.

These issues grow in importance with every page

added to the Federal Register.

The time has come to abandon Seminole Rock/

Auer deference and this case provides the vehicle to do

so. Several members of this Court have pointed out the

ing the Court revisit it. As Justice Scalia explained, jet-

tisoning Seminole Rock/Auer would leave “(t]he agency

... free to interpret its own regulations with or with-

out notice and comment; but courts will decide — with

no deference to the agency — whether that interpreta-

tion is correct.” Perez, 135 S. Ct. at 1213 (Scalia, J., con-

curring in the judgment) (emphasis added).

Il. This Court should reconsider the Seminole

Rock/Auer-sanctioned practice of ceding

judicial power to administrative agencies.

A. Seminole Rock/Auer deference is incon-

sistent with separation of powers prin-

ciples.

As Justice Scalia noted, Seminole Rock/Auer defer-

ence is “contrary to [the] fundamental principles of

separation of powers.” Talk Am., 564 U.S. at 68 (Scalia,

J., concurring). The Constitution contemplates that

each branch of government will jealously guard its own

prerogatives, thus protecting individual liberty. With

7

Seminole Rock/Auer deference, the judiciary leaves the

field resulting in the removal of an indispensable check

The rise of the administrative state may have

tested the limits of the Constitution’s separation of

powers, but it does not change the judiciary’s duty to

“say what the law is.” See Marbury v. Madison, 5 U.S.

(1 Cranch) 137, 177 (1803) (“It is emphatically the

province and duty of the judicial department to say

what the law is.”). The APA therefore instructs all re-

viewing courts to decide “all relevant questions of law

... and determine the meaning or applicability of the

terms of an agency action . . . and set aside agency ac-

tion ... found to be ... arbitrary, capricious, or ...

without observance of procedure required by law. . . .”

5 U.S.C. § 706.

Even so, Seminole Rock/Auer deference creates

separation of powers issues by giving federal agencies,

meaning of ambiguous regulations. See Seminole Rock,

325 U.S. at 414; Auer, 519 U.S. at 461-62. It is “contrary

to fundamental principles of separation of powers to

permit the person who promulgates a law to interpret

it as well.” Talk Am., 564 U.S. at 68 (Scalia, J., concur-

ring). Thus, Seminole Rock/Auer deference directly con-

role of interpretation to a federal agency that itself has

8

B. Seminole Rock/Auer deference deprives

Congress and the People the benefits of

the APA’s notice-and-comment proce-

dures.

Congress recognized the hazard that agencies

pose to the democratic process and liberty. For over 20

years, “a succession of bills offering various remedies

appeared in Congress,” Wong Yang Sung v. McGrath,

339 U.S. 33, 38 (1950), leading to the APA. The law was

then, and is today, “a ‘working compromise, in which

broad delegations of discretion were tolerated as long

as they were checked by extensive procedural safe-

guards.’” FCC v. Fox Television Stations, 556 U.S. 502,

537 (2009) (Kennedy, J., concurring in part and concur-

ring in the judgment) (quoting Richard B. Stewart &

Cass R. Sunstein, Public Programs and Private Rights,

95 Harv. L. Rev. 1193, 1248 (1982)).

The APA’s chief procedural safeguard, Section

553, requires administrative agencies to provide “no-

tice of proposed rule making” and “give interested per-

sons an opportunity to participate in the rule making

through submission of written data, views, or argu-

ments with or without opportunity for oral presenta-

tion.” 5 U.S.C. §§ 553(b)(c). Congress understood that

if agencies were going to wield legislative power, their

procedures must “givle] adequate opportunity to all

persons affected to present their views, the facts within

their knowledge, and the dangers and benefits of alter-

native courses.” S. Doc. No. 77-8, Final Report of the

Attorney General’s Committee on Administrative Pro-

cedure in Government Agencies, at 102 (1941). Public

9

notice-and-comment is “essential in order to permit ad-

ministrative agencies to inform themselves and to af-

ford adequate safeguards to private interests.” Jd. at

103.

In notice-and-comment procedures, Congress

sought to hold agency heads accountable to both Con-

gress and the public. Congress also sought to foster

predictability and stability in the administrative arena

and to establish a baseline against which the courts

could measure future agency action. Seminole Rock/

Auer deference effectively exempts agencies from the

APA’s notice-and-comment requirements. This exemp-

tion undermines Congress’ objectives and leaves agen-

cies free to promulgate ambiguous regulations and

later interpret them, all the while knowing that their

interpretation will never be subject to judicial review.

See Decker, 133 S. Ct. at 1341 (Scalia, J., dissenting in

relevant part) (internal quotation marks omitted)

(“Then the power to prescribe is augmented by the

power to interpret; and the incentive is to speak

vaguely and broadly, so as to retain a flexibility that

will enable clarification with retroactive effect.”). It

leaves them free “to control the extent of [their] notice-

and-comment-free domain.” Perez, 135 S. Ct. at 1212

(Scalia, J., concurring in the judgment). And it provides

them the opportunity “[t]o expand this domain, . . . [by]

writ[ing] substantive rules more broadly and vaguely,

leaving plenty of gaps to be filled in later, using inter-

pretive rules unchecked by notice and comment.” Jd.

Rather than help secure consent of the governed,

Seminole Rock/Auer deference relieves an agency of

10

the burden of the “imprecision that it has produced.”

John F. Manning, Constitutional Structure and Judi-

cial Deference to Agency Interpretations of Agency

Rules, 96 Colum. L. Rev. 612, 617 (1996). The burden

instead falls on the regulated community. Because of

Seminole Rock/Auer, there is no incentive for “an

agency [to] give clear notice of its policies either to

those who participate in the rulemaking process pre-

scribed by the APA or to the regulated public.” Id.; see

Thomas Jefferson Univ. v. Shalala, 512 U.S. 504, 524-

25 (1994) (Thomas, J., dissenting) (noting that Auer

deference undermines the objective of providing regu-

lations that are “clear and definite so that affected par-

ties will have adequate notice concerning the agency’s

understanding of the law”).

Legal regimes are more likely to endure if ag-

grieved parties believe that they had an adequate

opportunity to voice objections and that the disap-

pointing result was the product of a fair fight. Popular

acceptance of agency rules depends on the “legitimacy

that comes with following the APA-mandated proce-

dures for creating binding legal obligations.” Shands

Jacksonville Med. Ctr. v. Burwell, 139 F. Supp. 3d 240,

268 (D.D.C. 2015).

Agency actions that proceed without notice-

and-comment, like they do here, put the regulated com-

munity at risk. If an agency advances an interpreta-

tion of its regulations that requires the regulated

community to take, or refrain from taking, a particular

action, that interpretation becomes de facto — if not de

jure — law on the matter, regardless of the form the

11

interpretation takes. The regulated community must

either conform to the interpretation or risk an enforce-

ment action, administrative or judicial, based on al-

leged non-compliance.‘ As Justice Scalia explained:

Perez, 135 S. Ct. at 1212 (Scalia, J., concurring in the

judgment).

The Veterans Affairs’ interpretation is but one ex-

ample of how federal agencies disregard the APA when

they interpret their own regulations. And the Federal

Circuit’s reliance on Auer allows agencies to continu-

ously change their interpretation of their own regula-

tions with the force of law. This opens the door to the

type of abuse Congress sought to prevent with the

APA. Until this Court demands that the executive

branch abide by the APA, federal agencies will con-

tinue their unconstitutional usurpation of power.

* See generally NFIB Small Business Legal Center, The

Fourth Branch & Underground Regulations (2015), http//www.

nfib.com/pdfs/fourth-branch-underground-regulations-nfib. pdf.

12

C. Members of this Court have expressed

doubts about Seminole Rock/Auer def-

erence.

This case presents the Court with the opportunity

to reconsider the continued application of Seminole

Rock/Auer deference.* This is an isse that various Jus-

tices of this Court have said should be reexamined.

The Court’s 2015 decision in Perez underscores the

need for clarification about what — if any — deference

courts owe to an agency’s interpretation of its own reg-

ulations.

Writing for the majority, Justice Sotomayor ex-

plained that rules issued through the notice-and-

comment process are called “legislative rules” because

they have the “force and effect of law.” Perez, 135 S. Ct.

at 1203-04 (citing Chrysler Corp. v. Brown, 441 US.

281, 302-03 (1979)). The plain implication is that rules

pronounced outside the notice-and-comment process

are entitled to little or no deference.* This line of

* Unlike the Army’s policy decision in Garco Construction,

Inc. v. Speer, 583 U.S. ___ (2018), courts do not afford the Veterans

Affairs’ policy decisions the same “substantial deference” afforded

to true military matters of policy. See id. (Thomas, J., dissental).

* This makes sense because underlying Chevron U.SA.,

Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837 (1984), is the “pre-

sumption that Congress, when it left ambiguity in a statute

meant for implementation by an agency, understood that the am-

biguity would be resolved, first and foremost, by the agency, and

desired the agency ... to possess whatever degree of discretion

the ambiguity allows.” Smiley v. Citibank, 517 US. 735, 740-41

13

analysis necessarily questions the judicial practice of

deferring to rules pronounced through agency letters

or other guidance materials, since they are developed

with no transparency, opportunity for public input, or

even basic assurances that the agency has thoroughly

considered policy implications and alternatives.

Justices Alito, Thomas, and Scalia were more di-

rect — each explicitly argued that it was time to recon-

sider the continued viability of Seminole Rock/Auer.

Justice Alito observed that there is “an understandable

concern about the aggrandizement of the power of ad-

ministrative agencies” that stems, in part, from “this

Court’s cases holding that courts must ordinarily defer

to an agency’s interpretation of its own ambiguous reg-

ulations.” Id. at 1210 (Alito, J., concurring in part and

concurring in the judgment). He continued: “I await a

case in which the validity of Seminole Rock may be ex-

plored through full briefing and argument.” Id. at

1210-11. Similarly, Justice Thomas concluded: “By my

best lights, the entire line of precedent beginning with

Seminole Rock raises serious constitutional questions

and should be reconsidered in an appropriate case.” Jd.

at 1225 (Thomas, J., concurring in the judgment). And

Justice Scalia stated that he would “restore the bal-

ance originally struck by the [Administrative Proce-

dure Act] . . . by abandoning Aver and applying the Act

notice-and-comment process — precisely because in exercising

that authority, the agency is making rules that carry the force of

law. See United States v. Mead, 533 U.S. 218, 230 (2001) (“Con-

gress contemplates administrative action with the effect of law

ee ee

14

as written.” Jd. at 1213 (Scalia, J., concurring in the

judgment). Cf Gutierrez-Brizuela v. Lynch, 834 F.3d

1142, 1149 (10th Cir. 2016) (Gorsuch, J., concurring)

(noting that the Supreme Court’s decisions on agency

deference “permit executive bureaucracies to swallow

huge amounts of core judicial and legislative power

und concentrate federal power in a way that seems

more than a little difficult to square with the Consti-

tution of the framers’ design”).

Even before Perez, Justice Scalia expressed doubts

about the validity of Aver. In his concurring opinion in

Talk America he noted that he had “become increas-

ingly doubtful of [Auer’s) validity|.|” 564 U.S. at 68

(Scalia, J., concurring). As a result, he was “comfort|ed]

to know that [he] would reach the Court’s result even

without Auer.” Id.

In Decker, members of the Court openly acknow!-

edged that, under the right circumstances, it might be

time to reconsider Seminole Rock/Auer. In his concur-

ring opinion, Chief Justice Roberts, joined by Justice

Alito, wrote that Seminole Rock (and, by inference,

Auer) raises an issue that is “a basic one going to the

heart of administrative law. Questions of Seminole

Rock and Auer deference arise as a matter of course on

a regular basis. The bar is now aware that there is

some interest in reconsidering those cases. . . . | would

await a case in which the issue is properly raised and

argued.” 133 S. Ct. at 1339.

Even beyond express calls to reconsider Seminole

Rock/Auer, the limitations to its applicability reveal

15

the Court’s struggles with it. For example, in Christo-

pher v. SmithKline Beecham Corp., 132 S. Ct. 2156

(2012), the Court found application of Auer deference

inappropriate where an agency's interpretation is

“plainly erroneous or inconsistent with the regulation”

or where there are grounds to believe that an interpre-

tation “does not reflect the agency’s fair and considered

judgment of the matter in question.” /d. at 2166 (inter-

nal quotation marks omitted).

The deficiencies and harms of Seminole Rock/Auer

deference are most evident here. As Petitioner ex-

plains, the Federal Circuit accepted the Veterans Af-

fairs’ interpretation because of Auer, not because of

any independent finding or analysis of its own about

the regulation at issue. The Federal Circuit’s recogni-

tion that courts review application of Seminole

Rock/Auer de novo, makes its rubber stamping of the

Board’s interpretation even worse. This case also pre-

sents the classic case of agency aggrandizement of

power and the abuses that result when an agency

knows that all it has to do to get a court to defer to its

desired regulatory interpretation is to promulgate an

ambiguous regulation at the start.

Simply stated, Seminole Rock/Auer deference

allows lower courts to “rubber stamp” potentially de-

fective decisions. Because such blind deference contra-

dicts our Constitution and the APA, amici ask this

Court to reconsider its continued validity.

a

a

16

CONCLUSION

For the reasons stated in the Petition for Certio-

rari and this amici curiae brief, this Court should grant

the petition for writ of certiorari and reverse the judg-

ment of the Federal Court.

Respectfully submitted,

BRADEN BOUCEK KIMBERLY S. HERMANN

BEACON CENTER Counsel of Record

OF TENNESSEE SOUTHEASTERN LEGAL

P.O. Box 198646 FOUNDATION

Nashville, TN 37219 2255 Sewell Rd, Ste. 320

Marietta, GA 30062

(770) 977-2131

khermann@

southeasternlegal org

Counsel for Amici Curiae

July 27, 2018