Legal Seminar, Chicago, IL

Kisor v. Wilkie – Auer Deference Survives

• Issue: Whether a court must defer to an administrative agency’s plausible interpretation of its own ambiguous regulation. • Facts: The Department of Veterans Affairs (VA) denied James Kisor retroactive benefits because he failed to identify the “relevant official service department records” crucial to his claim. The Board of Veterans’ Appeals (Board) interpreted the term “relevant official service department records” to mean records relevant to the VA’s reason for the original denial. Federal Circuit affirmed by applying Auer deference. • Holding: Supreme Court unanimously vacated Federal Circuit’s decision and remanded for reconsideration. Five-justice majority (Roberts, Kagan, Sotomayor, Ginsburg, Breyer) ruled Auer limited, but not overruled; six-part test must be satisfied for deference to be possible.

Kisor’s Six-Part Test

(1) A regulation is genuinely ambiguous after exhausting all traditional tools of interpretation. (2) The agency’s interpretation is reasonable. (3) The interpretation must be the agency’s authoritative or official position, rather than an ad-hoc statement. (4) The agency’s interpretation must in some way implicate its substantive expertise. (5) The agency’s interpretation must reflect its fair and considered judgment, rather than a convenient litigation position. (6) The agency’s interpretation cannot create an unfair surprise to regulated parties.