Administrative Law—Deference

Kisor v. Wilkie, No. 18-15

Under the Administrative Procedure Act (APA), when an agency promulgates regulations that carry the force of law, the agency generally must follow a notice-and-comment rulemaking procedure.  The Supreme Court has held that when the agency subsequently interprets its regulations, the agency’s resolution of ambiguities is entitled to deference.  That rule—often described as Seminole Rock deference or Auer deference—was the basis for the decision of the Federal Circuit in this case.  The U.S. Department of Veterans Affairs (VA) denied certain benefits to petitioner James L. Kisor by interpreting its own regulations.  The Federal Circuit, finding the interpretation to be reasonable, deferred to the VA.  Mr. Kisor petitioned the U.S. Supreme Court to overrule Seminole Rock and Auer, contending that the Seminole Rock/Auer doctrine circumvents the APA’s limitations on agency rulemaking. Today, the Supreme Court granted review. Mayer Brown LLP represents Mr. Kisor.