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Five Veterans Groups File Amicus Brief with U.S. Supreme Court in Kisor v. Wilkie

Released 2/1/19 | Tags: Court of Appeals for Veterans Claims, Supreme Court of the United States (SCOTUS), Veteran's Benefits


WASHINGTON - The National Veterans Legal Services Program (NVLSP), in partnership with the Military Order of the Purple Heart, the National Law School Veterans Clinics Consortium (NLSVCC), Protect Our Defenders (POD), and Service Women’s Action Network (SWAN), yesterday filed an amicus brief with the United States Supreme Court in the case of Kisor v. Wilkie.  The brief was filed with the pro bono assistance of Williams & Connolly LLP.

In the “friend of the court” brief filed with the high court, the groups are asking the court to overrule the Auer doctrine which directs courts to defer to an administrative agency’s interpretation of an ambiguous agency regulation unless the interpretation is “plainly erroneous or inconsistent with the regulations.”

The brief states that the Supreme Court’s Auer doctrine incentivizes agencies to purposely promulgate ambiguous regulations so that courts will have to defer to how the agency later interprets its regulations. This is particularly problematic when it comes to regulations pertaining to veterans benefits.

Moreover, the brief notes that courts have long demonstrated a “special solicitude for the veterans’ cause.”  The Auer doctrine creates obstacles that run counter to this “special solicitude” and make it more difficult for veterans to obtain the benefits they have earned.

Case in point: Kisor v. Wilkie.  James Kisor, a Vietnam veteran, is seeking retroactive benefits for his service-connected post-traumatic stress disorder (PTSD).  According to the brief, “in 2007, a medical professional diagnosed Mr. Kisor with PTSD, concluding that he had had PTSD since 1983, the year VA denied Mr. Kisor’s original claim.  But back in 1983—lacking relevant evidence of Mr. Kisor’s combat experiences that it should have had before it—VA denied a diagnosis of PTSD, choosing instead to diagnose Mr. Kisor with a non-compensable personality disorder.”  The brief notes that this misdiagnosis harmed Mr. Kisor in numerous ways and deprived Mr. Kisor of two decades worth of benefits for PTSD.
Mr. Kisor’s right to retroactive benefits is contingent on the definition of “relevant” in a VA regulation. The Board of Veterans Appeals rejected Mr. Kisor’s interpretation of the regulation, interpreting the regulation in VA’s favor rather than his.  The Veterans Court affirmed the Board’s decision, and the Federal Circuit followed suit based on the Auer doctrine. 

The brief is emphatic in its assessment of the Auer doctrine.  “Auer deference deprives veterans of the benefits they deserve.  It encourages courts to defer to VA’s interpretation of its own regulations and thus to construe the regulations against the veteran’s interests. It also encourages VA to promulgate vague regulations and discourages it from fixing the many problems plaguing its existing regulatory regime.  These issues reach far beyond Mr. Kisor himself.  They affect millions of veterans across this Nation.  The Court should overrule Auer.”

The National Veterans Legal Services Program (NVLSP) is an independent, nonprofit veterans service organization that has served active duty military personnel and veterans since 1981. NVLSP strives to ensure that our nation honors its commitment to its 22 million veterans and active duty personnel by ensuring they have the benefits they have earned through their service to our country. NVLSP has represented veterans in lawsuits that compelled enforcement of the law where the VA or other military services denied benefits to veterans in violation of the law.  NVLSP’s success in these lawsuits has resulted in more than $5.2 billion dollars being awarded in disability, death and medical benefits to hundreds of thousands of veterans and their survivors. NVLSP offers training for attorneys and other advocates; connects veterans and active duty personnel with pro bono legal help when seeking disability benefits; publishes the nation’s definitive guide on veteran benefits; and represents and litigates for veterans and their families before the VA, military discharge review agencies and federal courts. For more information go to www.nvlsp.org.


MEDIA CONTACT: Patty Briotta, (202) 621-5698, patty@nvlsp.org

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