The Eleventh Auer: The Effect of Kisor v. Wilkie On Rulemaking and Adjudication at the United States Patent and Trademark Office

Courts have long deferred to an agency’s interpretation of an ambiguous rule or statute, in light of the agency’s relevant technical expertise. But some judges prefer that Article III courts review everything; and deferring often involves relying on an agency’s interpretation of a genuinely ambiguous statute—the oft-discussed Chevron deference doctrine. This Article analyzes the more nuanced Auer deference, where a court defers to an agency’s later interpretation of its own ambiguous rule or regulation. Recently, the Supreme Court took and decided Kisor v. Wilkie, which dramatically modified the Auer doctrine.

While Kisor appealed a claim for veteran’s benefits that implicated the courts’ ability to review Department of Veterans Affairs (“VA”) findings, the Court took it up to answer a bigger question: Should Auer be overruled?