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Kisor v. Wilkie

ELR Citation: 49 ELR 20113
Nos. 18-15, (U.S., 06/26/2019)

The U.S. Supreme Court upheld the Auer doctrine, deferring to the Department of Veterans Affairs' interpretation of an ambiguous regulation in a lawsuit concerning disability benefits. A veteran challenged the lower court's application of the doctrine, arguing that the APA's judicial review provision directs reviewing courts to determine the meaning of an agency action. But the Court found the provision did not specify the standard of review a court should use in determining the meaning of an ambiguous regulation and thus presumed that Congress, in delegating regulatory authority, intended to give that agency the authority to interpret its own ambiguous regulations. The veteran also argued the doctrine encouraged agencies to issue vague and open-ended regulations because they could later apply any interpretation to them that they preferred. But the Court found there was no real evidence to back up that assertion and that agencies were strongly incentivized against doing so. An agency should be afforded Auer deference only when the regulation is genuinely ambiguous, which is determined after a court has exhausted all "traditional tools" of construction, the regulation is actually interpreted by an agency, and the agency's interpretation of the regulation is reasonable, implicates in some way the agency's substantive expertise, and reflects "fair and considered judgment." Because the Court found the lower court was too quick to apply Auer deference, it vacated the court's judgment and remanded for further proceedings. Kagan, J., delivered the opinion of the Court, in which Roberts, C.J., and Ginsburg, Breyer, and Sotomayor, JJ., joined with respect to Parts I, II-B, III-B, and IV, and in which Ginsburg, Breyer, and Sotomayor, JJ., joined with respect to Parts II-A and III-A. Roberts, C.J., filed a concurring opinion in part. Gorsuch, J., filed a concurring opinion 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 a concurring opinion in the judgment, in which Alito, J., joined.