The highest court in our land has agreed to add Kisor v. Wilkie to its docket of cases it will review during its session. According to, however, the Supreme Court of the United States (SCOTUS) will limit its review to the first question only that was presented by the petition for certiorari. The question asks the court to reconsider case precedent that directs courts to defer an agency’s reasonable interpretation of its own ambiguous regulation. The cases that establish this precedent include Auer v. Robbins and Bowles v. Seminole Rock & Sand.


Auer Deference


Auer v. Robbins is a SCOTUS case concerning the standard that the Court should apply when reviewing an executive department’s interpretation of regulations that were promulgated under federal legislation.The issue in Auer was whether or not sergeants and lieutenants who were working for the St. Louis Police Department should receive overtime pay. Overtime pay requirements were established by the Fair Labor Standards Act of 1938 and regulations determining whether an employee was covered by this requirement were issued by the U.S. Department of Labor. The Secretary of Labor issued an interpretation of the regulations and the court considered whether or not it should defer to this interpretation.The Court gave deference to the DOL’s interpretation because his interpretation was controlling unless plainly erroneous or inconsistent with the regulation, which it found it was not.


The Case at Hand


Kisor, a Vietnam War veteran, reopened a claim for disability benefits based on newly found evidence supporting a diagnosis of PTSD. While the Department of Veterans Affairs (“VA”) approved Kisor’s 2006claim for benefits, it refused to grant benefits going back to his initial claim in 1983. The VA’s reasoning ws that Kisor failed to provide relevant service records required for reconsideration. The Court of Appeals deferred to the VA’s interpretation of its own regulations finding in favor of the agency.


How much deference agencies should receive is a central issue in administrative law and, not surprisingly, conservatives – both justices and attorneys – have criticized Auer deference. In fact, the late Justice Scalia voiced concern on this very issue in Perez v. Mortgage Bankers Association. Auer deference expands Chevron deference, by giving an agency the highest level of deference. In Chevron, there was a two-step standard a court had to follow when reviewing an agency’s decision; Auer did not adopt this two-step process.


The  Supreme Court is scheduled to hear oral arguments on the Kisor case next year.