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Law School Case Brief

Kisor v. Wilkie - 139 S. Ct. 2400 (2019)


The possibility of Auer deference can arise only if a regulation is genuinely ambiguous. And that term means genuinely ambiguous, even after a court has resorted to all the standard tools of interpretation. Still more, not all reasonable agency constructions of those truly ambiguous rules are entitled to deference. Courts presume that Congress intended for courts to defer to agencies when they interpret their own ambiguous rules. But when the reasons for that presumption do not apply, or countervailing reasons outweigh them, courts should not give deference to an agency’s reading, except to the extent it has the power to persuade. Auer deference is just a general rule; it does not apply in all cases. And although the limits of Auer deference are not susceptible to any rigid test, various circumstances have been noted in which such deference is unwarranted. In particular, that will be so when a court concludes that an interpretation does not reflect an agency’s authoritative, expertise-based, fair, or considered judgment. 


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 that 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. Under that doctrine, the United States Supreme 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 petitioned the Court to overrule Auer, as well as its predecessor Seminole Rock, discarding the deference those decisions give to agencies.


Should Auer v. Robbins and Bowles v. Seminole Rock & Sand Co., which directed the federal courts to give deference to an agency’s reasonable reading of its own genuinely ambiguous relations, be overruled?




The United States Supreme Court declined to overrule the decisions outlining Auer deference given the long line of precedents applying that deference, after concluding that the abandonment of such deference would cast doubt on many settled construction of rules, and Congress had not acted to require de novo review of an agency's interpretation of its regulations. Nonetheless, the limits of Auer deference were restated and expanded upon, including that a court was not to afford Auer deference unless the regulation was genuinely ambiguous. The judgment was vacated and remanded where the lower court had not made a conscientious effort to determine whether the VA regulation at issue was ambiguous and had improperly assumed that Auer deference applied if the regulation was genuinely ambiguous.

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