The Bell Fails to Toll (SCOTUS Does Not Strike the Auer)

View post titled The Bell Fails to Toll (SCOTUS Does Not Strike the Auer)

Posted on 06/27/2019 at 10:20 AM by David Gonzales

Each year in law schools across the country a handful of brave students accept the challenge to take a course in Administrative Law. For a couple of weeks they will struggle with the rules of a doctrine commonly known as Auer deference. This year several law professors no doubt held their breath as the United States Supreme Court dealt with potentially eliminating the doctrine in a case involving a Vietnam veteran, the Veteran’s Administration (VA), and interpretation of a VA regulation in the recently decided case Kisor v. Wilkie, No. 18-15 (June 26, 2019).

James Kisor is a Vietnam war veteran originally denied benefits upon a finding he did not suffer from PTSD in 1982. Mr. Kisor was eventually granted benefits as of 2006, but was considered ineligible to receive benefits dating back to his initial application. The reasoning was based on a VA interpretation of their own regulation that evidence produced at a later date is not “relevant” unless they go to the reason for the denial of benefits.

Auer deference, occasionally known as Seminole Rock deference, originates in the two cases lending their name to the practice. Auer v. Robbins, 519 U.S. 452 (1997); Bowles v. Seminole Rock & Sand Co., 325 U.S. 410 (1945). A basic explanation for Auer deference is that a court will defer to an individual agency's interpretation of their own regulation if the regulation is ambiguous. While that certainly sounds simple enough the devil is in the details or, perhaps, the initial questions. The most obvious question is usually “is this regulation ambiguous?”

In Kisor, Justice Kagan, writing for the Court, decided not to abandon the doctrine, but instead to set some clear guidelines for lower courts of when Auer deference is, and perhaps more importantly, is not appropriate.

Prior to granting deference to an agency’s interpretation of a regulation a court will need to consider several factors. First, is there a genuine ambiguity after resorting to all the traditional tools of interpretation? If the court can figure out the meaning clearly on its own, there is no need for deference. Justice Kagan goes on to quote former Justice Scalia reminding courts that a regulation does not rise to ambiguous because “discerning the only possible interpretation requires a taxing inquiry.” In other words, courts need to make a genuine effort to interpret the regulation as it stands, even if that will take a lot of time and effort.

Next, if after all the necessary effort is put forth by the court and the ambiguity remains, the agency’s interpretation is still required to be reasonable. In other words, similar to the requirement that an agency’s interpretation of a statute be reasonable, so too must the interpretation of a regulation. The interpretation must be based on the expertise of the agency, in other words areas the agency would be expected to have special expertise.

The court must also make an independent inquiry into whether the “character and context” of the agency interpretation entitles it to controlling weight and whether the interpretation is an agency’s “official” or “authoritative” position. It is insufficient for the interpretation of the regulation to be merely a post hoc rationalization for litigation or create an unfair surprise for those regulated.

While Kisor did not spawn a single dissent, as all concurred in the judgment, there were four justices who would have completely overturned Auer and given no deference to agency interpretation of their own regulations. Justice Gorsuch is clearly hopeful for another opportunity calling the decision “more of a stay of execution than a pardon.” If another opportunity does reach the Supreme Court law professors and administrative practitioners (such as those who practice in the areas of tax, banking, and immigration law) will hold their breath once again.

Until that day, however, Justice Kagan has helped the students taking administrative law this year a great deal by making a clear statement of Auer deference rules.


Questions, Contact us today.

Contact Us


The material, whether written or oral (including videos) that is posted on the various blogs of Dickinson Bradshaw is not intended, nor should it be construed or relied upon, as legal advice. The opinions expressed in the various blog posting are those of the individual author, they may not reflect the opinions of the firm.  Your use of the Dickinson Bradshaw blog postings does NOT create an attorney-client relationship between you and Dickinson, Bradshaw, Fowler & Hagen, P.C. or any of its attorneys.  If specific legal information is needed, please retain and consult with an attorney of your own selection.

There are no comments yet.
Add Comment

* Indicates a required field