Faces of the American Freedom Initiative’s Administrative Abuse Project: James Kisor

FreedomWorks recently announced the launch of the American Freedom Initiative (AFI), a collaboration headed by former acting U.S. Attorney General Matt Whitaker. This project aims to help relieve injustices committed against Americans under the criminal justice system and the regulatory state. As part of this project, we will shine a spotlight on some of the individuals the AFI has identified under its Administrative Abuse Project who have been the victims of federal regulatory overreach.

When James Kisor came home from serving his country in Vietnam, he never could have guessed that he would spend the next 37 years of his life fighting against the Veteran’s Administration (VA).

Kisor was a Marine during the Vietnam War, and participated in Operation Harvest Moon during which his company was ambushed, suffering heavy losses. In 1982, after the VA finally recognized post-traumatic stress disorder (PTSD) as a disability, Kisor applied for disability benefits for his PTSD. The VA denied his claim.

Over 20 years later, after attitudes around PTSD had shifted significantly, the VA reopened Kisor’s claim at his request. At that time, in 2007, he was diagnosed with PTSD and granted disability benefits. However, the VA refused to backdate Kisor’s claim, denying him eligibility for retroactive disability compensation. In short, although Kisor had clearly been suffering from PTSD since his return from Vietnam, the VA denied him his full benefits because of a flawed interpretation of its own regulations. Both the Board of Veteran Appeals and the Court of Appeals for the Federal Circuit both upheld the VA’s denial of benefits on the grounds of Auer deference.

Since regulations are often necessarily vague, the question of who has the right to interpret the meaning of rules is an important and factitious one. In Kisor’s case, his denial of benefits relied heavily on the VA’s interpretation of a regulation that was completely irrational.

When the Supreme Court has addressed this issue previously in Auer v. Robbins (and others), it has held that the court must defer to an agency’s interpretation of its own regulation on the grounds that the agency has the requisite technical knowledge to best interpret their own regulations. Auer deference — as opposed to Chevron deference, which applies when agencies interpret ambiguities in underlying statute — only applies when agencies interpret ambiguities in their own regulations.

It was on these grounds that the courts affirmed the VA’s denial of Kisor’s benefits. Fortunately, the Mountain States Legal Foundation recognized the flaws of current precedent and appealed the Circuit Court decision to the Supreme Court who agreed to hear the case, Kaiser v. Wilkie, in 2019 — 37 years after Kisor’s initial claim denial.

In a unanimous decision, the Court remanded Kisor’s denial of benefits back to the VA because “the Federal Circuit jumped the gun in declaring the VA’s regulation ambiguous before bringing all its interpretive tools to bear on the question. Second, the Federal Circuit assumed too fast that Auer deference should apply.”

Although refusing to completely overturn Auer, Justice Kagan, who wrote the majority opinion, expressed the sense of the court that Auer deference should be more strictly applied than it has been in the past. Kagan acknowledges that Auer deference should not be applied in all instances, and outlined new standards for lower courts to use when dealing with Auer deference.

Much remains to be done to reform the broken benefits system for our veterans. Now that Kisor’s case has been remanded to the VA, he is likely to receive the benefits that he deserves. But Kisor is only one of many veterans who are constantly fighting for their duly-earned benefit from the VA. Hopefully, Kisor v. Wilke might act as a wakeup call for agencies that abuse citizens through their own regulatory processes as well as a siren warning of the dangers of Auer deference.