Master Supreme Court narrowed—but did not overrule—Auer deference to agencies’ interpretations of their own regulations. with this comprehensive case brief.
Kisor v. Wilkie is the Supreme Court’s most significant recalibration of Auer (also called Seminole Rock) deference, the doctrine under which courts defer to an agency’s reasonable interpretation of its own genuinely ambiguous regulation. Rather than overruling Auer, the Court preserved it but imposed demanding preconditions before deference applies. In doing so, the Court emphasized that judges must exhaust all traditional tools of interpretation and that only carefully cabined, authoritative, expertise-based, and fair agency interpretations merit deference.
The decision matters well beyond veterans’ benefits. It reshapes the deference landscape at the intersection of agency power and judicial duty, offering a blueprint for “Auer step zero” that narrows when agencies can effectively speak last about their own rules. Kisor thus stands alongside cases like Chevron and Skidmore in defining the tiers of administrative deference, while signaling that the Court is receptive to separation-of-powers concerns without discarding longstanding precedent.
Kisor v. Wilkie, 139 S. Ct. 2400 (U.S. Supreme Court 2019)
James Kisor, a Marine Corps veteran who fought in Vietnam, sought disability benefits for post-traumatic stress disorder (PTSD). In 1982, the Department of Veterans Affairs (VA) denied his claim, concluding that he lacked a PTSD diagnosis linked to service. In 2006, Kisor moved to reopen his claim, and the VA granted benefits prospectively after obtaining new clinical evidence and additional service records that corroborated his combat experience. Kisor then invoked 38 C.F.R. § 3.156(c), which requires the VA to reconsider a claim (and potentially award an earlier effective date) when it receives “relevant official service department records” that existed but were not previously associated with the file. The Board of Veterans’ Appeals denied retroactive reconsideration, reasoning that the newly associated service records were not “relevant” because they did not address the original basis for denial (the lack of a PTSD diagnosis at the time). The Court of Appeals for Veterans Claims affirmed, and the Federal Circuit also affirmed, deferring to the VA’s interpretation of “relevant” under Auer/Seminole Rock deference. The Supreme Court granted certiorari to consider whether to overrule Auer and how, if at all, deference should apply to the VA’s interpretation of § 3.156(c).
Should Auer (Seminole Rock) deference to an agency’s interpretation of its own regulation be overruled, and if not, under what conditions does it apply to the VA’s interpretation of “relevant” in 38 C.F.R. § 3.156(c)?
Auer/Seminole Rock deference remains but is sharply limited. A court may defer to an agency’s interpretation of its own regulation only if: (1) after employing all the traditional tools of construction, the regulation is genuinely ambiguous; (2) the agency’s interpretation is reasonable and within the zone of ambiguity; and (3) several context-specific prerequisites are satisfied—namely, the interpretation must be (a) the agency’s authoritative or official position (not merely a post hoc litigating stance), (b) within the agency’s substantive expertise, and (c) reflect the agency’s fair and considered judgment, without causing unfair surprise to regulated parties or upsetting serious reliance interests. Courts must first do their own hard interpretive work, and even if deference is unwarranted, an agency’s view may still be considered for its persuasive value under Skidmore.
The Court declined to overrule Auer deference, but it confined the doctrine to narrow circumstances and vacated the Federal Circuit’s judgment for improperly deferring to the VA without first exhausting traditional interpretive tools and without applying the stringent prerequisites for deference. The case was remanded for reconsideration under the clarified framework.
Justice Kagan announced the judgment of the Court and delivered an opinion in part, joined by four Justices in relevant parts; Chief Justice Roberts concurred in part, providing a majority to retain Auer while limiting it. The Court grounded its refusal to overrule Auer in stare decisis, noting that regulated parties and courts have relied on the doctrine and that it is embedded in administrative law practices. But the Court rejected the reflexive application of Auer, emphasizing that deference is a last resort, not a first step. First, the Court insisted on a rigorous threshold inquiry: judges must exhaust the “traditional tools” of interpretation—examining text, structure, context, history, and purpose—before finding a regulation genuinely ambiguous. Ambiguity cannot be declared merely because interpretive questions are difficult. Second, even if ambiguity persists, the agency’s interpretation must be reasonable. Third, several prerequisites must be satisfied before deferring: the interpretation must be the agency’s authoritative, considered judgment (e.g., an official policy rather than a convenient litigation position); it must implicate the agency’s technical or substantive expertise; and it must not create unfair surprise by adopting an interpretation inconsistent with prior guidance or by imposing new duties without adequate notice. The Court also stressed that Auer deference concerns interpretations of regulations, not statutes, and should not be used to circumvent procedural safeguards or to expand an agency’s regulatory reach beyond what the rule fairly bears. Applying these principles, the Court concluded that the Federal Circuit erred by deferring too quickly to the VA’s view of “relevant” in § 3.156(c). The court below did not adequately analyze the text and context of “relevant,” including ordinary meaning and the regulation’s remedial purpose, before declaring ambiguity. Nor did it evaluate whether the VA’s interpretation was the kind of authoritative, expertise-based, and fair position that warrants deference. The Court vacated and remanded for the lower court to conduct a full interpretive analysis and apply the tightened Auer framework. Chief Justice Roberts emphasized that Kisor meaningfully narrows Auer and that nothing in the decision addresses Chevron’s future. Justice Gorsuch, joined by several Justices, would have overruled Auer entirely, arguing that it is inconsistent with the APA and separation-of-powers principles, but he concurred in the judgment because the majority’s limits substantially curtail the doctrine.
Kisor preserves Auer deference in name while transforming it in practice. It establishes a demanding multi-step analysis that will often preclude deference: courts must interpret regulations to the hilt, and only genuinely ambiguous provisions, coupled with reasonable, authoritative, expertise-based, and fair agency interpretations, qualify. For litigators, Kisor elevates the importance of detailed textual and contextual arguments and of building records showing whether an agency’s position is authoritative and longstanding. For agencies, it incentivizes transparent, consistent, and formal interpretive processes and cautions against ad hoc litigating positions. For students of administrative law, Kisor is essential for understanding modern deference doctrine, the judiciary’s interpretive role, and the Court’s incremental approach to recalibrating separation-of-powers constraints.
Kisor turns Auer from a default presumption of deference into a narrow, last-resort doctrine. Courts must first exhaust all traditional tools of construction; only if the regulation remains genuinely ambiguous may they consider deferring. Even then, deference is allowed only if the agency’s interpretation is reasonable, authoritative (an official position), grounded in the agency’s expertise, and reflects fair and considered judgment without unfair surprise. Many cases that once received automatic Auer deference will now be resolved by ordinary judicial interpretation or, at most, Skidmore’s persuasive-weight framework.
Auer applies to an agency’s interpretation of its own regulations; Chevron applies to an agency’s interpretation of a statute the agency administers. After Kisor, Auer is more tightly cabined: courts must undertake rigorous analysis and check for authoritative, expertise-based, and fair interpretations. Chevron has its own two-step test, but Kisor underscores that Auer is not Chevron-by-analogy and should not be applied reflexively. Chief Justice Roberts highlighted that Kisor says nothing about Chevron’s future, so the doctrines remain distinct.
An interpretation is authoritative when it reflects the agency’s official, considered position—typically found in formal guidance, adjudications, notice-and-comment materials, or pronouncements by officials with policymaking authority. Pure litigating positions or post hoc rationalizations do not qualify. Consistency and transparency matter: if the agency has long advanced the view or explains a reasoned change, authority is more likely; if the view is novel or opportunistic, deference is less likely.
Unfair surprise occurs when an agency’s interpretation imposes new obligations or liabilities without adequate notice, especially if it conflicts with prior guidance or settled practice. Kisor directs courts to withhold Auer deference if the interpretation would upset reliance interests or blindsides regulated parties. Agencies can mitigate this risk by using transparent, prospective processes—such as rulemaking or well-publicized guidance—to announce interpretive positions.
Challengers should argue that the regulation is not genuinely ambiguous after a full textual, structural, historical, and purpose-based analysis; that the agency’s reading is unreasonable; or that deference prerequisites fail (no authoritative source, outside expertise, or unfair surprise). Agencies and supporters should build records showing official adoption, technical basis, consistency, and fair notice. Both sides should brief Skidmore as a fallback, addressing the interpretation’s power to persuade if deference is denied.
Yes and no. Kisor arose from a VA regulation about reconsidering claims based on newly associated service records. The Court remanded because the lower court had too readily deferred to the VA’s reading of ‘relevant.’ On remand and in future VA cases, courts must apply Kisor’s stricter framework to determine whether the VA’s interpretive position warrants deference. More broadly, Kisor influences all agency contexts, not just veterans’ benefits.
Kisor v. Wilkie represents a pivotal shift in administrative deference: the Supreme Court retained Auer in principle but narrowed it substantially in practice. By insisting that courts first perform rigorous interpretive analysis and by conditioning deference on authority, expertise, and fairness, Kisor re-centers the judiciary in regulatory interpretation while preserving space for agency expertise in appropriate circumstances.
For law students, Kisor is essential for mastering the modern deference toolkit and for spotting arguments at the boundary of administrative power and judicial duty. It signals the Court’s willingness to recalibrate, rather than abruptly discard, entrenched doctrines in light of separation-of-powers concerns and rule-of-law values.