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On the morning of March 27, the Supreme Court heard oral argument in Kisor v. Wilkie. The Supreme Court granted certiorari in Kisor to decide whether to overrule Bowles v. Seminole Rock & Sand Co., 325 U.S. 410 (1945), and Auer v. Robbins, 519 U.S. 452 (1997). Seminole Rock and Auer are often cited for the proposition that when an administrative agency promulgates a regulation and the regulation is ambiguous, a reviewing court must give “controlling weight” to the agency’s interpretation of the regulation unless the interpretation is plainly erroneous or is inconsistent with the regulation. A number of the Court’s members have cast doubt on the soundness of the Seminole Rock/Auer deference doctrine in recent years. Many observers believe that the doctrine’s days are numbered.
Importantly, the United States filed a merits brief in Kisor that forcefully criticized Auer/Seminole Rock deference, yet argued that the Court should not overrule Auer and Seminole Rock “in their entirety.” The brief foreshadows what will likely be a memorable oral argument, featuring Paul Hughes of Mayer Brown LLP and Solicitor General Noel Francisco. Hughes represents James Kisor, the Vietnam War veteran who is the petitioner in the case. Kisor is challenging a decision of the Department of Veterans Affairs (VA) that denied Kisor’s request for retroactive disability benefits connected to his wartime service. Francisco will be defending the VA’s decision.
Karen Harned, Andrew Varcoe, and moderator Stephen Vaden will join us on the afternoon of March 27 to discuss that morning’s oral argument in Kisor and its potential implications — including the implications, if any, for the Chevron deference doctrine that applies to agency interpretations of statutory provisions (set forth in Chevron, U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837 (1984)). Harned and Varcoe will have attended the oral argument that morning and will be sharing their observations about it.
Karen Harned, Executive Director, NFIB Small Business Legal Center
Andrew Varcoe, Partner, Boyden Gray & Associates
Moderator: Stephen Vaden, General Counsel, United States Department of Agriculture
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