Auer deference precedent targeted by business groups may be overturned by SCOTUS

U.S. Supreme Court

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The U.S. Supreme Court on Monday agreed to consider whether to overrule two cases requiring courts to defer to an agency’s reasonable interpretation of its own ambiguous regulation.

The concept is known as Auer deference, named after one of the cases that the court is being urged to overturn, Auer v. Robbins (1997). The other case is Bowles v. Seminole Rock & Sand Co. (1945). Both Supreme Court cases involve agency interpretations of their own regulations.

The precedent has been targeted by business groups and conservatives who want to weaken federal regulators, the National Law Journal reports. The doctrine is targeted based on the theory that it gives agencies too much power, according to SCOTUSblog coverage.

The court’s decision to accept the new case could signal that the court will eventually review Chevron deference, according to the National Law Journal. The Chevron doctrine holds that federal courts should defer to reasonable federal agency views when Congress passes ambiguous laws.

The petitioner in the new case is James Kisor, a Marine veteran seeking disability benefits for his post-traumatic stress disorder. The Department of Veterans Affairs agrees that Kisor has PTSD, but it refuses to grant retroactive benefits based on its interpretation of the term relevant in agency regulations on late appeals of denied claims.

The U.S. Court of Appeals for the Federal Circuit had ruled in the VA’s favor.

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The cert petition says the Supreme Court has “has substantially chipped away” at Auer by “continuously narrowing its scope,” leading to “widespread confusion” in the lower courts. The petition argues that the court shouldn’t hesitate to abandon Auer deference because it is a judicially created tool that “does not rest on any constitutional or legislative footing.”

The U.S. Chamber of Commerce filed an amicus brief arguing that Auer deference “harms the business community by encouraging agencies to adopt vague regulations that they can later interpret however they see fit. This practice upsets the expectations of regulated parties without the notice provided through formal rule-making.”

The case is Kisor v. Wilkie.


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Author: Edward Lott

Edward Lott, Ph.D., M.B.A. is President and Managing Partner of Allentown-based ForLawFirmsOnly Marketing, Inc., a local search and digital marketing agency that offers clients lead generation, local seo and Google Maps Domination. Ed has been a digital entrepreneur since 1994, having discovered very early the opportunities the Internet offered. After having spent over two decades helping attorneys grow their practice, Ed joined the staff of ForLawFirmsOnly Marketing as President and Managing Partner, where he is expanding the agency’s cutting-edge services to the legal market. A true marketing futurist, Ed's vast experience working directly with attorneys has given him a unique perspective on law firm marketing not found in many other digital marketing agencies. Ed has reshaped the offerings of ForLawFirmsOnly to focus on growing law firms through a holistic approach to digital marketing evident in the reformulated lead generation processes now in place. Want to learn more about ForLawFirmsOnly Marketing, their lead generation programs, or just talk to Ed about his visions for helping law firms grow? Call him at 855-943-8736.

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