Coming Supreme Court Decision May Spur Clearer Regulations

Allen Smith, J.D. By Allen Smith, J.D. December 14, 2018
Coming Supreme Court Decision May Spur Clearer Regulations

​The Supreme Court will decide how much deference courts need to give to agency interpretations of ambiguous regulations, it announced Dec. 10. If the high court decides that less deference is merited than courts have afforded in the past, the decision could prompt all federal agencies—including the Equal Employment Opportunity Commission and the Department of Labor—to write more-precise rules and issue less-informal guidance.

[SHRM members-only toolkit: Managing Equal Employment Opportunity]

Disability Benefits Denial Challenged

The case before the court, Kisor v. Wilkie, involves a claim for federal service-related disability benefits by a Vietnam-era Marine diagnosed with post-traumatic stress disorder. During a search operation with his company, he came under attack by sniper fire and mortar rounds. Another major ambush left 13 fellow soldiers dead.

The Department of Veterans Affairs (VA) originally denied his claim in 1983. In 2006, the claimant sought to reopen his case based on service records not previously considered. The VA ruled in his favor based on the new evidence, awarding benefits from 2006. But the department denied benefits from 1983 to 2006.

The claimant sued, arguing that he had presented relevant records to receive such benefits, but the VA maintained he had not. The claimant argued that the term "relevant," an undefined term in the VA regulations, should mean "tending to make a fact probable." But the government maintained that "relevant" records must change the outcome of a decision. The appeals court deferred to the VA's interpretation of the ambiguous term "relevant" in its regulations, relying on the Supreme Court's 1997 decision in Auer v. Robbins.

"Auer deference is the principle that courts must defer to an agency's interpretation of its own ambiguous regulations so long as that interpretation is not plainly erroneous or inconsistent with the regulations," explained Paul DeCamp, an attorney with Epstein Becker Green in Washington, D.C.

What Will Happen If Auer Is Overturned?

John Martin, an attorney with Ogletree Deakins in Washington, D.C., predicted, "It's more likely than not the Supreme Court overturns Auer."

And John Maley, an attorney with Barnes & Thornburg in Indianapolis, said, "The current composition of the court makes it more probable that Auer will not survive."

While defenders of Auer say it provides due deference to subject matter experts within agencies, critics of Auer say it creates an incentive for an agency to "promulgate mush," as the late Justice Antonin Scalia once stated, and then interpret it in its favor later, Martin noted. This leaves the regulated community guessing at regulations' meaning and "subject to ambush enforcement," he said.

Without Auer, agencies wouldn't have an incentive from the high court to issue vague regulations, he added.

Striking down Auer would "inject the rule of reason back into the workplace," said Steve Bernstein, an attorney with Fisher Phillips in Tampa, Fla.

But employers and employees, like the claimant in this case, would be likely to challenge many prior interpretations, Maley predicted.

"In a post-Auer world, HR may find it more challenging to decide whether and when to comply with a subregulatory enforcement position the business sees as particularly burdensome, particularly if it appears that competitors are not necessarily complying," DeCamp said. Subregulatory positions are stated in informal guidance that hasn't gone through the notice-and-comment period from the public.

Without Auer, agencies also might be more likely to be more cautious and measured in their enforcement positions, he added. And they might be more likely to use notice-and-comment rulemaking rather than informal guidance documents to bind employers. "That more-formal process, with the opportunity for significant public input and transparency, might lead to better and more stable policy outcomes," DeCamp noted.



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