In Kisor v. Wilkie, a decision released on June 26, 2019, the Supreme Court upheld Auer deference, used by federal courts when evaluating agency interpretations of their own rules. Although Kisor itself pertains to the denial of retroactive disability claims, the petitioner, Kisor, sought to overturn Auer deference, which would impact federal regulations, including those affecting environmental and occupational safety and health.
The Supreme Court ruled against Kisor and held that the Auer doctrine, which provides federal courts with guidance on cases addressing an agency’s interpretation of its own regulations, is still a valid analysis. Auer and a related doctrine, the Chevron doctrine, both provide federal courts with guidance when cases attack federal regulations. The Auer doctrine applies when courts review an agency’s interpretation of its regulations, while the Chevron doctrine applies when courts review an agency’s interpretation of a statute. Under Auer, agency interpretations can be given deference when agencies provide reasonable interpretations of genuinely ambiguous regulations. In a concurring opinion, Chief Justice Roberts made explicit note that while these doctrines are similar, this case only applies to Auer and not Chevron.
Over the years, the courts have provided additional guidance in determining when agencies should receive Auer deference for their interpretations. In this case, the Court set out specific guidance for when courts may defer to an agency’s interpretation of its own regulations. First, the regulation must be genuinely ambiguous. If, after applying all tools of regulatory construction, the court finds that the regulation is genuinely ambiguous, the court must then determine that the agency’s interpretation is reasonable. If the interpretation is reasonable, there are additional factors to consider. The interpretation must be made by the agency and be the authoritative or official position. The interpretation must also implicate the agency’s substantive expertise. Finally, the interpretation must be a fair and considered judgment.