Giuseppe Sandro Mela.
2019-07-01.
Il problema è di non poco conto. Nel caso che una agenzia si sia dotata di un regolamento scritto in modo tale da destare leciti dubbi interpretativi a chi spetta la competenza di chiarire il reale significato? Alla stessa agenzia ovvero al giudice?
«The question in Kisor is 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), decisions holding that courts must defer to an agency’s reasonable interpretation of its own ambiguous regulation»
«This is generally referred to as “Auer deference.”»
«Under Auer and Seminole Rock, responsibility for construing and applying an ambiguous regulation rests with the agency that promulgated it, so long as the agency’s interpretation is reasonable»
«In recent years, a number of Justices, as well as legal scholars, have criticized Auer deference as inconsistent with both the Administrative Procedure Act (APA) and separation of powers principles»
«More broadly, critics of Auer deference contend that allowing agencies to determine the meaning of ambiguous regulations usurps the core responsibility assigned to courts by Article III of the Constitution»
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Supreme Court to Decide if Courts Must Defer to an Agency’s Construction of Ambiguous Regulations
«The U.S. Supreme Court heard oral argument March 27 in what could be one of the most important administrative law cases to come before the Court in many years: Kisor v. Wilkie, No. 18-15. The question in Kisor is 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), decisions holding that courts must defer to an agency’s reasonable interpretation of its own ambiguous regulation. This is generally referred to as “Auer deference.”
Background
Kisor raises questions about the respective responsibilities of courts and administrative agencies. It is fundamental that courts have the responsibility to say what the law is, but in administrative law, agencies have the responsibility to carry out their statutory mandates, including applying their own regulations in a manner that furthers that responsibility. Under Auer and Seminole Rock, responsibility for construing and applying an ambiguous regulation rests with the agency that promulgated it, so long as the agency’s interpretation is reasonable. In recent years, a number of Justices, as well as legal scholars, have criticized Auer deference as inconsistent with both the Administrative Procedure Act (APA) and separation of powers principles. Those critics note that the APA gives agency rules binding effect only if they go through notice-and-comment rulemaking, whereas Auer deference allows agencies to make legally binding interpretive decisions without going through notice-and-comment rulemaking. The critics also contend that section 706 of the APA, which governs judicial review of agency action, gives the reviewing court and not the agency authority to determine the meaning of an agency rule. More broadly, critics of Auer deference contend that allowing agencies to determine the meaning of ambiguous regulations usurps the core responsibility assigned to courts by Article III of the Constitution.
In Kisor, the petitioner (Kisor) adopts these and other related criticisms, and contends that Auer and Seminole Rock should be overruled, which would leave courts to interpret ambiguous agency regulations without deference to the agency’s construction. Notably, respondent Wilkie, the secretary of Veterans Affairs, represented by the solicitor general, acknowledges various problems with Auer deference – both in his brief and at argument. But Wilkie contends only that resort to Auer deference should be narrowed, not eliminated altogether. He argues that overruling Auer and Seminole Rock would call into question hundreds of court decisions that deferred to, and thus adopted, agency interpretations of ambiguous regulations. Wilkie also contends that Auer deference is appropriate in some limited contexts, such as where scientific or other highly specialized technical expertise is necessary to properly apply an agency regulation.»
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Il 26 giugno 2019 la Suprema Corte ha emesso sentenza, con syllabus e certiorari.
«Petitioner James Kisor, a Vietnam War veteran, first sought disability benefits from the Department of Veterans Affairs (VA) in 1982, alleging that he had developed post-traumatic stress disorder from his military service. The agency denied his initial request, but in 2006,Kisor moved to reopen his claim. The VA this time agreed he was eligible for benefits, but it granted those benefits only from the date of his motion to reopen, not (as Kisor had requested) from the date of his first application. The Board of Veterans’ Appeals—a part of the VA—affirmed that retroactivity decision, based on its interpretation of an agency rule governing such claims. The Court of Appeals for Veterans Claims affirmed.
The Federal Circuit also affirmed, but it did so by applying a doctrine called Auer (or sometimes, Seminole Rock) deference. See Auer v. Robbins, 519 U. S. 452; Bowles v. Seminole Rock & Sand Co., 325 U.S. 410. Under that doctrine, this Court has long deferred to an agency’s reasonable reading of its own genuinely ambiguous regulations. The Court of Appeals concluded that the VA regulation at issue was ambiguous, and it therefore deferred to the Board’s interpretation of the rule. Kisor now asks the Court to overrule Auer, as well as its predecessor Seminole Rock, discarding the deference those decisions give to agencies.
Held: The judgment is vacated and remanded.»
«This Court’s deference doctrine is rooted in a presumption that Congress intended for courts to defer to agencies when they interpret their own ambiguous rules. The Court adopts that presumption for a set of reasons related to the comparative attributes of courts and agencies in answering interpretive questions. But when the reasons for the presumption do not hold up, or when countervailing reasons outweigh them, courts should not give deference to an agency’s reading. The Court has thus cabined Auer’s scope in varied and critical ways.»
«First and foremost, a court should not afford Auer deference unless, after exhausting all the “traditional tools” of construction, Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U. S. 837, 843, n. 9, the regulation is genuinely ambiguous. A court must carefully consider the text, structure, history, and purpose of a regulation before resorting to deference. If genuine ambiguity remains, the agency’s reading must still fall “within the bounds of reasonable interpretation.”»
«Stare decisis cuts strongly against overruling Auer»
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