Veterans Affairs Agency Deference: Kisor v. Wilkie and Auer Interpretation

In the landmark 2019 decision Kisor v. Wilkie, the Supreme Court fundamentally reshaped the boundaries of agency authority, specifically addressing the degree to which the Department of Veterans Affairs (VA) can interpret its own federal regulations. This program provides a critical analysis of "Auer Deference"-the principle derived from Auer v. Robbins that directs courts to defer to an agency's interpretation of its own ambiguous rules.

While the Supreme Court ultimately chose not to overrule Auer, the Kisor decision significantly narrowed its scope and clarified the specific criteria required for such deference to apply. This course will explore the current state of regulatory interpretation at the VA, examining the circumstances where the agency's authority is limited and where it remains robust. Through a series of hypothetical fact patterns, participants will learn how to identify regulatory ambiguity and determine when an interpretation is entitled to judicial deference in a post-Kisor landscape.

Learning Objectives:

1. Explain the foundational principles of "Auer Deference" and its historical impact on the interpretation of VA regulations

2. Analyze the Supreme Court's holding in Kisor v. Wilkie and how it modified the framework for judicial review of agency actions

3. Identify the specific situations in which Auer deference does and does not apply based on the clarity or ambiguity of the regulation in question

4. Evaluate hypothetical fact patterns to determine if the VA has exceeded its interpretive authority under the refined Kisor standards

5. Advise veteran clients on how these shifting standards of agency deference may impact the adjudication of their claims and appeals