In Kisor v. Wilkie, the Supreme Court significantly limited but declined to overrule so-called “Auer deference,” which requires courts to defer to an administrative agency’s interpretation of its own ambiguous regulation. The Chamber urged the Court to take this case at the cert. stage and filed a brief at the merits stage urging the Court to overrule Auer.
Auer deference used to be a heavy thumb on the scale in favor of the government in litigation against a business over what an agency’s own regulation means. If the decision in Kisor is followed in the lower courts, then this should mean less leeway in the courts for government regulators vis-à-vis business.
Background: James Kisor, a Vietnam War veteran, sought disability benefits from the Department of Veterans Affairs, but the agency denied his initial request. 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 from the date of his initial application. The Federal Circuit affirmed that retroactivity decision, relying on Auer deference. The court concluded that the VA regulation at issue was ambiguous, and it therefore deferred to the VA’s interpretation of the rule limiting Kisor’s benefits. In his cert petition, Kisor asked the Supreme Court to consider overturning Auer.