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Administrative Agency Deference Theme Reemerges with SCOTUS Considering Overturning Auer

The U.S. Supreme Court signaled that it remains concerned with the issue of administrative deference following its grant of certiorari last week to hear Kisor v. O’Rourke specific to the issue of whether the Court should overrule Auer v. Robbins and Bowles v. Seminole Rock & Sand Co. Overruling one or both of these decisions could result in courts giving considerably less deference to agencies’ interpretations of their own regulations.

The ability of regulatory agencies to interpret their own regulations is a fundamental issue in many environmental disputes. Both Auer and Seminole Rock are frequently cited in environmental cases to support agency actions, as these decisions require courts to give agencies near-absolute deference, so long as their decisions are not “plainly erroneous or inconsistent” with other regulations.

In practice, agencies that promulgate vague regulations through notice-and-comment procedures required by the federal Administrative Procedure Act can later expand the ambit of these regulations through informal memoranda or regulatory interpretations. These less formal processes preempt the ability of the public and regulated community to meaningfully participate in the regulatory process.

Administrative deference is an ongoing theme that we have seen arise a number of times in the past few years. Indeed, the legal community had pondered whether the Supreme Court would review administrative deference issues in the Weyerhaeuser Co. v. U.S. Fish & Wildlife Service case involving the dusky gopher frog that was decided a few weeks ago. Although the Supreme Court decided Weyerhauser without reference to issues of administrative deference, the Kisor case is a clear example that this is not going away.

However, Kisor actually arises in a context fairly atypical for administrative deference. The case involves a claim for PTSD-related retroactive disability benefits brought by a former Vietnam-War-era Marine who was denied retroactive disability benefits for PTSD he suffered as a result of his service in Vietnam. Kisor’s eligibility for such benefits hinged on whether the VA received “relevant official service department records” after initially denying his claim for benefits in 1982.

Kisor argued that material he submitted to the VA relating to his service in Vietnam constituted “relevant official service department records” and entitled him to retroactive benefits. The Board of Veterans Appeals (“Board”) disagreed, stating that, in Kisor’s case, “relevant” records were those relating to a diagnosis of PTSD (which was contested at the time of his initial denial). That Kisor served in the military was never in dispute.

The Court of Federal Claims upheld the Board’s interpretation of the meaning of “relevant.” In so holding, the court concluded that the term was ambiguous, and that the Board’s interpretation was entitled to deference under Auer, Seminole Rock, and their progeny, because it was neither “plainly erroneous or inconsistent” with the VA’s regulatory framework.

Kisor illustrates the breadth of power granted to agencies by Auer and Seminole Rock – the agency’s determination of whether “relevant” records were provided was quite possibly outcome-determinative for the involved claims.

The case is expected to be heard by the Court at some point in 2019. We will keep an eye out for further developments on Kisor and similar cases touching on administrative deference.

© 2020 Schiff Hardin LLP


About this Author

Katherine S. Walton, Schiff Hardin, International Environmental Lawyer, Chicago

Katherine S. Walton represents clients in a wide range of environmental matters. Katie has extensive experience litigating disputes arising out of transactions involving contaminated properties. She has also represented parties in toxic tort litigation and in permit appeals. Drawing on her background in journalism, she communicates her clients’ positions precisely and persuasively.

Before joining Schiff Hardin, Katie was a litigation associate at an elite business law boutique and at the Chicago office of a top international law firm.


J. Michael Showalter, Litigator, Schiff Hardin LLP

Mike Showalter is a litigator whose practice is focused on resolving complex disputes. Mr. Showalter's past clients span diverse industries including manufacturing, mining, power generation and transmission, oil and gas, the financial and insurance sectors, and process outsourcing.

Mr. Showalter's practice has focused on distilling complicated technical information into a format where it can be understood by decision makers. He has worked with experts in fields including medicine, economics, history, physical sciences, industrial hygiene, toxicology, environmental engineering and risk assessment.