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

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0846%3A08

## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 2018

## Text

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0846%3A08. Public record. Not legal advice.