Justices take case bearing on agency deference

By Anne Sherry, J.D. The Supreme Court granted certiorari to decide whether to overrule two decisions directing courts to defer to an agency’s reasonable interpretation of its own regulation. The Auer and Seminole Rock cases are cousins to Chevron, which applies to agency interpretations of a statute. Although the petitioner in the case before the Court challenges an adverse ruling by the Department of Veterans Affairs, the Supreme Court’s ultimate decision could affect federal regulators more broadly, including the SEC and CFTC (Kisor v. Wilkie, December 10, 2018). The Court’s grant of certiorari is limited to the first question presented: “Whether the Court should overrule Auer and Seminole Rock.” The Court will not take up the second question: whether, in the alternative, Auer deference should yield to a substantive canon of construction. The petitioner is a military veteran who in 1982 filed a claim with the VA for disability benefits. The VA…

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