Notice & Comment

New Supreme Court Cert Petition to Overrule Auer Deference: Kisor v. O’Rourke

Here at Notice and Comment two years ago, we did an online symposium on the future of Auer (aka Seminole Rock) deference — the doctrine that commands courts to defer to a federal agency’s interpretation of its own regulation unless the agency’s interpretation is “plainly erroneous or inconsistent with the regulation.” In recent years, as I detail here, the attacks on Auer deference have increased.

With Justice Gorsuch’s arrival and Justice Kennedy’s departure, I’d expect the Supreme Court to reconsider the doctrine in the very near future, despite calls from Cass Sunstein and Adrian Vermeule, among many others, to preserve the deference doctrine. Indeed, that opportunity might first present itself in a cert petition filed two weeks ago in Kisor v. O’Rourke. Here are the questions presented:

Auer v. Robbins, 519 U.S. 452 (1997), and Bowles v. Seminole Rock & Sand Co., 325 U.S. 410 (1945), direct courts to defer to an agency’s reasonable interpretation of its own ambiguous regulation. Separately, in Brown v. Gardner, 513 U.S. 115, 118 (1994), the Court held that “interpretive doubt is to be resolved in the veteran’s favor.”

Petitioner, a Marine veteran, seeks disability benefits for his service-related post-traumatic stress disorder (PTSD). While the Department of Veterans Affairs (VA) agrees that petitioner suffers from service-related PTSD, it has refused to award him retroactive benefits. The VA’s decision turns on the meaning of the term “relevant” as used in 38 C.F.R. § 3.156(c)(1).

Below, the Federal Circuit found that petitioner and the VA both offered reasonable constructions of that term. On that basis alone, the court held that the regulation is ambiguous, and – invoking Auer – deferred to the VA’s interpretation of its own ambiguous regulation. The questions presented are:

1. Whether the Court should overrule Auer and Seminole Rock.

2. Alternatively, whether Auer deference should yield to a substantive canon of construction.

The second question is also a fascinating one, as debates about the interaction between substantive canons and administrative law’s deference doctrines abound. You can read the cert petition on the Supreme Court’s website here.


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