Auer Deference

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United States Supreme Court

Case Name: James L. Kisor v. Robert Wilkie

Case No.: 18-15

Focus: Auer Deference

Petitioner James Kisor, 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 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. See Auer v. Robbins, 519 U. S. 452; Bowles v. Seminole Rock & Sand Co., 325 U. S. 410. Under that doctrine, this 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 now asks the Court to overrule Auer, as well as its predecessor Seminole Rock, discarding the deference those decisions give to agencies.

Vacated and remanded

Dissenting:

Concurring: ROBERTS, C. J., filed an opinion concurring in part. GORSUCH, J., filed an opinion concurring in the judgment, in which THOMAS, J., joined, in which KAVANAUGH, J., joined as to Parts I, II, III, IV, and V, and in which ALITO, J., joined as to Parts I, II, and III. KAVANAUGH, J., filed an opinion concurring in the judgment, in which ALITO, J., joined.

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Derek A Hawkins is trademark corporate counsel for Harley-Davidson. Hawkins oversees the prosecution and maintenance of the Harley-Davidson’s international trademark portfolio in emerging markets.