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1 1 (July 3, 2019)

handle is hein.crs/govbagg0001 and id is 1 raw text is: Kisor v. Wilkie: Supreme Court Upholds the Auer Doctrine but Clarifies Its Limitations July 3, 2019 On June 26, 2019, the Supreme Court decided Kisor v. Wilkie, declining the petitioner's request to overturn one of the most significant and contentious doctrines in administrative law. That doctrine, commonly called the Auer or Seminole Rock doctrine, generally instructs courts to defer to agencies' reasonable construction of ambiguous regulatory language. While the Court in Kisor declined to dispatch this deferential rule, it emphasized limitations to the doctrine's scope and application that may bear consequences for future courts' review of agency action and, perhaps, the manner in which agencies go about the decision-making process. This Sidebar provides an overview of the Kisor decision. The Supreme Court has established several doctrines to guide judicial review of agency action. Perhaps the most well known is the Chevron doctrine, which generally instructs courts to defer to an agency's reasonable interpretation of an ambiguous statute it administers. Auer deference takes its name from the Supreme Court's 1997 decision in Auer v. Robbins, but has roots in the Court's 1945 decision in Bowles v. Seminole Rock & Sand Co. (and, according to some Members of the Court, may have even earlier antecedents). Subject to limitations, Auer generally instructs courts to defer to an agency's interpretation of ambiguous regulatory language unless it is plainly erroneous or inconsistent with the regulation. While Chevron deference applies to agency interpretations of statutes, and generally then only when those interpretations are in agency statements that have the force of law (e.g., regulations promulgated following notice-and-comment), Auer deference has been applied to a range of non-binding agency memoranda and other materials that construe ambiguous regulatory language. As discussed in an earlier Sidebar, even prior to the Kisor decision, the Supreme Court recognized circumstances when Auer deference was not appropriate. For example, deference is not owed when an agency interprets a regulation that simply restates the terms of the statute being administered. Nor is Auer deference warranted when the agency's interpretation is not a product of its fair and considered judgment. The Kisor case arose after the Department of Veterans Affairs (VA) denied the petitioner's request for retroactive disability compensation benefits because the agency determined that records petitioner submitted were not relevant as required by the governing regulation. On appeal to the U.S. Court of Appeals for the Federal Circuit, the court held that the term relevant was ambiguous and, applying Auer Congressional Research Service https://crsreports.congress.gov LSB10322 CRS Legal Sidebar Prepared for Members and Committees of Congress

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