at 12–13.23 519 U.S. 452, 461 (1997).24Decker, 81 USLW 4190, slip op. at 14.
The Court cited Supreme Court precedent that deference to an Agency’s interpretation is inappropriate when the interpretation is “‘plainly erroneous or inconsistent with the regulation.’” Auer v. Robbins, 519 U.S. 452, 461 (1997) (quoting Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 359 (1989)). Also, deference is inappropriate “when there is reason to suspect that the Agency’s interpretation ‘does not reflect the agency’s fair and considered judgment on the matter in question.
(CCH) 31,155, at 40,986 (D. Utah 1961)).One wonders whether the 1997 decision of Auer v. Robbins, 519 U.S. 452, may not carry the day. In Auer, the Court held that the Secretary of the United States Department of Labor’s position was worthy of deference even though advanced in litigation and “[t]here is simply no reason to suspect that the interpretation does not reflect the agency’s fair and considered judgment on the matter in question.”
In a splintered 5-4 decision, the U.S. Supreme Court recently declined to overrule its prior precedent in Auer v. Robbins,519 U.S. 452 (1997), in which the Court declared the long-standing doctrine that requires courts interpreting agency rulings and regulations to give substantial deference to an agency’s own interpretation of its pronouncements—otherwise known as Auer deference (sometimes referred to as Seminole Rock deference). Although not overruled, the Court reiterated that Auer deference should be applied relatively narrowly and be reserved for situations in which a court has already exhausted all tools of construction.In his challenge to Auer deference, the petitioner, a military veteran, sought disability benefits for PTSD from the Department of Veterans Affairs (VA) related to his wartime service.
 Bowles v. Seminole Rock & Sand Co., 325 U.S. 410, 414 (1945). This formulation was followed in Auer v. Robbins, 519 U.S. 452, 461 (1997) (which itself quoted the same language in Robertson v. Methow Valley Citizens Council, 490 U. S. 332, 359 (1989)).  See Kisor v. Wilkie, No. 18-15, slip op.
Last month, the Supreme Court in Kisor v. Wilkie, 139 S.Ct. 2400 (2019) upheld what is known in administrative law as Auer deference: the age-old principle that a court should defer to an agency when the agency is interpreting its own ambiguous language in a regulation. SeeAuer v. Robbins, 519 U.S. 452 (1997); see also Bowles v. Seminole Rock & Sand Co., 325 U.S. 410 (1945). Deference to an agency’s regulatory interpretation has long been a challenge to industry and the broader regulated community.
When judicial deference applies, a court will treat an agency’s interpretation of an ambiguous regulatory provision as controlling so long as it is reasonable or at times even just plausible, even if another interpretation is better in the court’s view. The Supreme Court first established the judicial deference doctrine for agency interpretations of their own regulations in the 1945 decision Bowles v. Seminole Rock & Sand Co., 325 U. S. 410 (1945), which was expanded and extended in the 1997 decision Auer v. Robbins, 519 U.S. 452. This doctrine is now known as “Auer deference.”
o Arbitration Agreements, Reinforcing the Force of Delegation Provisions, Littler ASAP (Jan. 14, 2019).3For a more detailed discussion of this decision,seeKaitlyn Burke and Robert Friedman,Supreme Court Confirms Class Arbitration May Not Proceed Unless Expressly Permitted by the Arbitration Agreement,Littler ASAP (Apr. 25, 2019).4For a more detailed discussion of this decision,seeSteve McCown and Andrew Gray,Supreme Court Holds EEOC Charge-Filing Requirement is Not Jurisdictional, Littler ASAP (June 4, 2019).5SeeTara Presnell and Alexandra Hemenway,U.S. Supreme Court Vacates and Remands Ninth Circuit's Decision in Equal Pay Case, Littler ASAP (Feb. 29, 2019).6SeeSocial Security Bd. v. Nierotko, 327 U. S. 358 (1946) andUnited States v. Quality Stores, Inc., 572 U. S. 141 (2014), respectively.7For a more detailed discussion of this decision,seeWilliam Hays Weissman and Dustin Bodaghi,Supreme Court Holds "Compensation" for Lost Time Is Taxable under the RRTA, Littler ASAP (Mar. 5, 2019).8Auer v. Robbins, 519 U.S. 452 (1997).9For his part, Chief Justice Roberts opined that the “the distance between the majority and Justice Gorsuch is not as great as it may initially appear.” Touching on another deference doctrine, Justice Roberts added: Issues surrounding judicial deference to agency interpretations of their own regulations are distinct from those raised in connection with judicial deference to agency interpretations of statutes enacted by Congress.See Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U. S. 837 (1984).
While the Court was unanimous in its determination that the case, involving the US Department of Veterans Affairs’ interpretation of a regulatory term in the disability benefits process, be remanded for further consideration, the Court was not unitary in its rationale. There were enough justices unwilling to expressly topple the precedent established in Auer v. Robbins, 519 U.S. 452 (1997), that the APA review doctrine survived, despite Justice Gorsuch’s passionate plea in his concurrence for its end.The majority opinion, drafted by Justice Kagan, retained the principle of Auer deference based primarily on a presumption that Congress intends that the more “expert” regulatory agency “play the primary role” in resolving ambiguities in its regulations, rather than a court. Kisor, Opinion at 7 (citing Martin v. Occupational Safety and Health Review Comm’n, 499 U.S. 144 (1991)).
The specific question considered was whether the Court should overrule Auer v. Robbins, 519 U.S. 452 (1997) and Bowles v. Seminole Rock & Sand Co., 325 U.S. 410 (1945). In context, the specific question being considered was: what deference, if any, should courts give to an executive agency’s interpretation of its own regulation, an interpretation that has not gone through Administrative Procedure Act (APA) notice and comment rulemaking?We have blogged frequently on Auer deference and its impact on case law, precedent, and regulatory and agency authority — and ultimately on business and employers.