On June 26, 2019, in Kisor v. Wilkie, the Supreme Court of
the United States declined to overrule its prior decisions in
Auer v. Robbins, 519 U.S. 452 (1997) and Bowles v.
Seminole Rock & Sand Co., 325 U.S. 410 (1945). These cases
introduced the practice of judicial deference to a federal
agency's interpretation of an ambiguous regulation. Many courts
and scholars criticize Auer deference for various reasons
and believed that the Supreme Court's decision in
Kisor would overrule Auer. Instead, the Court
upheld the longstanding precedent, but imposed new
"guidance" on when to apply Auer deference.
Background
The litigation stemmed from a disability benefits case in which
a Vietnam War veteran and the Department of Veterans Affairs (VA)
fought over the meaning of the word "relevant" in a
regulation that allowed the agency to grant retroactive benefits
based on "relevant official service department records"
not considered in an earlier denial of benefits. The
