The Downfall of Auer Deference: Veterans Law at the Federal Circuit in 2014.
81 Pages Posted: 12 Jun 2015
Date Written: June 11, 2015
The 2014 veterans benefits case law of the U.S. Court of Appeals for the Federal Circuit mirrored a growing trend at the U.S. Supreme Court to question the well-established tradition of judicial deference to a federal agency's interpretation of its own regulations. However, the application of Auer deference in the context of veterans benefits law is of particular interest because VA is unique among federal agencies in ways that affect such deference.
Unlike other agencies that administer government benefits, VA has both procedural and substantive duties to assist its beneficiaries in processing their claims. In addition, although the veterans benefits scheme was established by statute, neither the Veterans Court nor the Federal Circuit have addressed the tension and potential conflict between the two major interpretive doctrines that are applied in this area, creating uncertainty as to how the legal rules should be applied. Furthermore, VA has been promulgating regulations since 1930 without concern about judicial review, which was only established in 1988. Finally, the regulations themselves have been subject to ongoing criticism as confusingly written and poorly organized, making deference to their "intended meaning" a source of ongoing disagreement.
On one hand, the complexity of this area of law weighs in favor of greater judicial deference to VA's interpretations under the theory that the agency has the required expertise to draft and administer appropriate regulations. On the other hand, its chronic inability to do so – especially in light of its statutory obligations to the nation's veterans – seem to be a strong argument in favor of less deference. This is an issue ripe for further clarification in the near future.
Keywords: veterans law, federal circuit, VJRA, judicial review, board of veterans' appeals, court of appeals for veterans claims, Auer v. Robbins, deference, Auer deference, Chevron deference, Gardner, Johnson v. Shinseki
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