Stuart M. Gerson, Member of the Firm in the Litigation and Health Care & Life Sciences practices, in the firm’s Washington, DC, and New York offices, was quoted in SHRM, in “Federal Agency Power to Interpret Regulations Remains Mostly Intact,” by Lisa Nagele-Piazza.
Following is an excerpt:
Some attorneys think Auer deference may no longer have teeth. “If Kisor v. Wilkie hasn’t actually sounded the death knell to the agency regulatory deference rule of Auer … it might as well have done so,” said Stuart Gerson, an attorney with Epstein Becker Green in New York and Washington, D.C.
The majority of the high court acknowledged that agencies have considerable subject matter expertise but quickly noted that Auer deference has a number of prerequisites that must be satisfied before its doctrine may be applied, he noted.
So what started as a rule stipulating virtually automatic deference to agency interpretations of ambiguous regulations is now one of a number of interpretive tools and the last to be applied, Gerson said.