The U.S. Supreme Court will soon decide whether courts should still defer to agency interpretations of their own ambiguous regulations. Under Auer deference, courts uphold agency interpretations of ambiguous regulations unless they are plainly erroneous or inconsistent. Supporters of Auer deference see Kisor v. Wilkie as a threat to the foundation of American administrative law while opponents see the case as an opportunity to restore separation of powers principles.

 

The case is scheduled for oral argument on March 27, 2019.

 

Auer deference refers to federal courts yielding to agency interpretations of ambiguous regulations made by that agency. The practice comes from precedents established by two U.S. Supreme Court decisions: Bowles v. Seminole Rock & Sand Co (1945) and Auer v. Robbins (1997).

 

In Kisor, the court will decide whether to overrule those precedents. The case involves a dispute between James Kisor, a marine veteran, and the U.S. Department of Veterans Affairs (VA) over whether he should receive retroactive disability benefits for PTSD he developed during the Vietnam War. The VA denied Kisor’s initial disability claim in 1983 and granted him benefits in 2006. At issue is the VA’s interpretation of whether certain records were relevant to its decision to grant Kisor benefits with an effective date in 2006 instead of 1983.