Last week the justices added one new case to their merits docket for the term – a relatively obscure maritime-law case. Somewhat unexpectedly, they added another new case today that will almost certainly have a much higher profile, at least in the legal world: Kisor v. Wilkie, in which the Supreme Court will consider whether to overrule a line of cases instructing courts to defer to an agency’s interpretation of its own regulation. The court’s ruling could have significant implications for administrative law, and it could also again bring to the forefront the question of when and whether the justices should overrule their prior cases.

Today’s new grant comes in a case brought by James Kisor, a Marine who served in the Vietnam War and sought benefits for post-traumatic stress disorder. In 2006, the Department of Veterans Affairs agreed that Kisor suffers from PTSD, but it refused to give him benefits dating back to 1983, when he had first filed a claim for benefits.

The VA’s denial in Kisor’s case hinged on its interpretation of the term “relevant” in one of its regulations. On appeal, the U.S. Court of Appeals for the Federal Circuit ruled for the VA. The court of appeals acknowledged that the regulation was ambiguous, but it followed the Supreme Court’s cases – Auer v. Robbins and Bowles v. Seminole Rock & Sand Co. – instructing courts to defer to an agency’s interpretation of its own regulation unless the interpretation is plainly wrong or inconsistent with the regulation.

The Auer doctrine has been a target for conservatives and business groups for some time, on the theory that it gives federal agencies too much power. The Supreme Court has previously turned down several requests to overrule Auer and Seminole Rock, including some quite recently, but today the justices granted Kisor’s request to reconsider the doctrine. The case is likely to be argued sometime next year.

After repeatedly considering two cases in which they were asked to weigh in on whether individuals can bring a lawsuit to enforce a provision of the Medicaid Act that allows Medicaid recipients to receive medical care from any provider who is willing and qualified to provide such services, the justices announced that they will not review the cases. Gee v. Planned Parenthood and Andersen v. Planned Parenthood, which were on the list at eight and nine conferences respectively, drew significant attention because they were filed by Planned Parenthood and because of the effect that such lawsuits might have on funding for Planned Parenthood under state Medicaid programs.

The announcement that the Supreme Court would not take up the two cases drew a strong dissent from Justice Clarence Thomas, joined by Justices Samuel Alito and Neil Gorsuch. Thomas began by complaining that the courts of appeals were divided on the question presented in the case – a classic scenario in which the Supreme Court normally steps in to ensure that the same legal principle governs throughout the country. The decision not to do so, Thomas suggested, will have a negative effect not only on the 70 million Americans on Medicaid, but also on the states which could be targeted by lawsuits when they make decisions about Medicaid providers.

Thomas implied that the Supreme Court was sitting out the cases because of Planned Parenthood’s involvement, even though the issue of abortion is not directly implicated. “Some tenuous connection to a politically fraught issue,” Thomas complained, “does not justify abdicating our judicial duty.” “If anything,” he continued, “neutrally applying the law is all the more important when political issues are in the background.” “We are responsible for the confusion among the lower courts,” Thomas concluded, “and it is our job to fix it.”

The justices’ next conference is scheduled for January 4, 2019.

This post was originally published at Howe on the Court.

Posted in Andersen v. Planned Parenthood of Kansas and Mid-Missouri, Kisor v. Wilkie, Gee v. Planned Parenthood of Gulf Coast Inc., Featured, What's Happening Now

Recommended Citation: Amy Howe, One new grant, one dissent from the denial of review, SCOTUSblog (Dec. 10, 2018, 11:23 AM), http://www.scotusblog.com/2018/12/one-new-grant-one-dissent-from-the-denial-of-review/