Kisor v. Wilkie, Secretary of Veterans Affairs

Under the Auer deference doctrine, courts should defer to a government agency’s interpretation of a regulation only where such regulation is ambiguous; unambiguous regulations must be given the effect of their plain meaning.

Petitioner sought disability benefits for post-traumatic stress disorder from the Department of Veterans Affairs (VA). Petitioner's claim was denied, but reopened his claim with a new psychiatric report. The VA granted disability benefits going forward but would not grant retroactive benefits to the original application date without new “relevant” records. The Court of Appeals for Veterans Claims and Court of Appeals Federal Circuit both affirmed but the later did so based on Auer deference for the Board’s interpretation of its rule. The Supreme Court held the court below did not use all of its interpretive tools prior to determining ambiguity and applying Auer deference. The Court granted certiorari specifically to decide whether to overrule Auer as Petitioner argues and the Court answered “No.” The Court must be convinced that Auer deference is wrong and also overcome stare decisis, which demands “special justification”. Because deference traces back to late nineteenth century, the Court has repeatedly held agency interpretations as the controlling weight when regulation is ambiguous, unless it is plainly erroneous or inconsistent. However, deference can only be used once a court finds the regulation genuinely ambiguous, exhausting all interpretive tools of construction as if there were no agency. Agency interpretation must also reflect “fair and considered judgment” to receive Auer deference. VACATED and REMANDED to reconsider whether Auer deference is warranted, bearing in mind the principles outlined in this opinion.