Kisor v Wilkie refinement of Auer
Background: What is Auer Deference?
Auer deference (also known as Seminole Rock deference) is a principle where courts defer to an agency's interpretation of its own ambiguous regulations unless that interpretation is plainly erroneous or inconsistent with the regulation.
Originated from Auer v. Robbins (1997).
The idea is that agencies have expertise and authority in interpreting their own rules.
Kisor v. Wilkie (2019) — The Refinement
Kisor v. Wilkie is a landmark Supreme Court case that revisited and refined the scope of Auer deference.
Facts:
Mr. Kisor, a Vietnam War veteran, sought disability benefits.
The VA interpreted its own regulation in a way that denied him benefits.
Kisor challenged the agency's interpretation, and the case reached the Supreme Court.
The Court’s Holding:
The Court upheld Auer deference but significantly limited when it applies.
It clarified that courts should only defer if:
The regulation is genuinely ambiguous (after exhausting all traditional tools of interpretation).
The agency’s interpretation is reasonable.
The interpretation must be an authoritative or official position (not just a convenient litigating position).
The agency's interpretation must reflect its expertise.
The interpretation must be consistent with the regulation and prior agency policy.
If these conditions are not met, courts should not defer.
This decision was seen as a pushback against overbroad application of Auer deference.
Detailed Explanation of Five Key Cases:
1. Auer v. Robbins (1997)
The origin case.
The Department of Labor interpreted its own regulations on overtime pay.
The Court said courts must defer to an agency’s reasonable interpretation of its own ambiguous regulations.
Established the baseline rule of Auer deference.
2. Bowles v. Seminole Rock & Sand Co. (1945)
Predecessor case to Auer.
The Supreme Court gave deference to the Wage and Hour Division's interpretation of its own regulations.
Often cited interchangeably with Auer (sometimes called "Seminole Rock deference").
3. Christopher v. SmithKline Beecham Corp. (2012)
Clarified the limits of deference to agency interpretations (though this case was about Chevron deference, it influenced Auer).
The Court said deference is inappropriate if the agency’s interpretation is inconsistent with the regulation’s text.
4. Decker v. Northwest Environmental Defense Center (2013)
The Court refused to defer to an agency interpretation because the regulation was unambiguous.
Reinforced the idea that deference only applies when regulations are genuinely ambiguous.
5. Kisor v. Wilkie (2019)
As described, refined Auer by putting procedural and substantive guardrails on its application.
Reasserted that courts must carefully analyze ambiguity before deferring.
Emphasized that agencies’ interpretations must come with authority and consistency.
Summary of Kisor’s Refinement:
Not every agency interpretation qualifies for deference.
The agency’s interpretation must be reasonable and based on genuine ambiguity.
The agency must have expertise and authority.
Courts must exhaust all traditional tools of statutory/regulatory interpretation before deferring.
If these factors fail, courts must interpret the regulation themselves.
Why This Matters?
It limits agencies’ power to interpret their own rules without oversight.
It strengthens judicial review and reduces the risk of agencies overreaching.
It requires agencies to clearly articulate interpretations and remain consistent.
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