On December 10, the U.S. Supreme Court granted a petition for certiorari in Kisor v. Wilkie, a garden-variety case in which the Department of Veterans Affairs denied a reopening of a claim for veterans’ benefits. What makes this case certworthy is that, on review, the U.S. Court of Appeals for the Federal Circuit (CAFC) deferred to the agency’s interpretation of its reopening regulation,[1] citing long-standing Supreme Court precedent that, “As a general rule, we defer to an agency’s interpretation of its own regulation ‘as long as the regulation is ambiguous and the agency’s interpretation is neither plainly erroneous nor inconsistent with the regulation.’”[2] This doctrine is known as either the Seminole Rock or Auer doctrine, based on Bowles v. Seminole Rock & Sand Co.[3] and Auer v. Robbins,[4] respectively.

The CAFC rejected a petition for en banc review of the Kisor decision,[5] but the rejection drew a spirited dissent from three judges who suggested that this application of the Auer doctrine clashed with “the Supreme Court’s repeated reminder that statutes concerning veterans are to be construed liberally in favor of the veteran.”[6] The dissent continued:

Whatever the logic behind continued adherence to the doctrine espoused in Auer—and I see little—there is no logic to its application to regulations promulgated pursuant to statutory schemes that are to be applied liberally for the very benefit of those regulated. When these two doctrines pull in different directions, it is Auer deference that must give way. I dissent from the court’s refusal to take the opportunity to finally so hold.[7] 

The background to this issue is the increasing resistance among several justices of the Supreme Court (especially conservatives) to the granting of judicial deference to legal interpretations by federal agencies.[8] As every student of administrative law knows, the twin deference doctrines known as Chevron deference and Auer deference have been the subject of much judicial and jurisprudential analysis. 

In the Supreme Court’s 1984 decision in Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc.,[9] the Court held that courts reviewing agency interpretations of ambiguous provisions of a statute the agency administers should accept such interpretations if they are reasonable.[10] This decision represented a change from the Court’s previous approach to such questions in the 1944 case of Skidmore v. Swift,[11] which held, somewhat circularly, that agency interpretations of a statute it administers should be accepted by the courts only when they were persuasive—to be determined based upon a series of factors.[12] 

The Auer doctrine provides similarly strong deference to agency interpretations of their own regulations.[13] In some ways, this type of deference makes more sense than Chevron deference because the agencies, having authored the regulations in the first place, are well-positioned to interpret them. But this idea was turned on its head by some scholars, such as current Harvard Law School Dean John Manning,[14] a former law clerk for Justice Scalia, who apparently convinced the Justice that “[d]eferring . . . to an agency’s interpretation of its own rule encourages the agency to enact vague rules which give it the power, in future adjudications, to do what it pleases. This frustrates the notice and predictability purposes of rulemaking, and promotes arbitrary government.”[15]

Shortly thereafter, in Christopher v. SmithKline Beecham Corp.,[16] the Court’s conservative majority refused to apply Auer where it found that to do so would result in “unfair surprise.”[17] But, in a case that same term,[18] in which the Court deferred to an Environmental Protection Agency interpretation of a water pollution regulation, Justice Scalia dissented on the merits and firmly rejected Auer:  “Enough is enough. . . . Auer is not a logical corollary to Chevron but a dangerous permission slip for the arrogation of power.”[19] This time, his dissent attracted the interest of Chief Justice Roberts (joined by Justice Alito), who wrote that Justice Scalia’s opinion “raises serious questions. . . . The issue is a basic one going to the heart of administrative law. . . . I would await a case in which the issue is properly raised and argued.”[20]

Kisor v. Wilkie may be that case. In 2016, it looked like the Supreme Court was going to grapple with Auer to some extent when it granted certiorari in a case involving a disputed interpretation in an Opinion Letter by the Department of Education’s Office of Civil Rights that read its regulation to mean that schools “generally must treat transgender students consistent with their gender identity.”[21] The Fourth Circuit had reversed a denial by a district court of a preliminary injunction sought by a transgender student (with the support of the Department at the time), citing Auer and finding the regulation ambiguous and the interpretation reasonable.[22] The court also found that “[n]one of the Christopher grounds for withholding Auer deference are present in this case.”[23]

The School Board petitioned for certiorari raising three questions: (1) should this Court retain the Auer doctrine despite the objections of multiple Justices who have recently urged that it be reconsidered and overruled?; (2) if Auer is retained, should deference extend to an unpublished agency letter that, among other things, does not carry the force of law and was adopted in the context of the very dispute in which deference is sought?; and (3) with or without deference to the agency, should the Department’s specific interpretation of Title IX and 34 C.F.R. § 106.33 be given effect?[24] The Court granted certiorari but only on questions two and three.[25] However, when the Trump Administration revoked the guidance, the Court vacated and remanded the case.[26]

Now, in Kisor, the petitioners proposed two questions for the Court’s consideration:  (1) whether the Court should overrule Auer and Seminole Rock and (2) alternatively, whether Auer deference should yield to a substantive canon of construction. Significantly the Court only granted certiorari on the first question.[27] This decision to only take up the retention/overruling alternative is in stark contrast to its certiorari grant in 2016 and bodes ill for the continuance of Auer deference. It may be that despite the fact that Auer deference has been whittled away at by cases like Christopher, a majority of the Court may be willing to scrap it, and presumably replace it with the multi-factor Skidmore test.[28] And Chevron deference could be next.[29]

Jeffrey S. Lubbers is a Professor of Practice in Administrative Law at American University, Washington College of Law

[1] Kisor v. Shulkin, 869 F.3d 1360, 1367 (Fed. Cir. 2017).

[2] See Auer v. Robbins, 519 U.S. 452, 461 (1997); Bowles v. Seminole Rock & Sand Co., 325 U.S. 410, 413–14 (1945).

[3] 325 U.S. 410, 413–14 (1945).

[4] 519 U.S. 452, 461 (1997).

[5] 880 F.3d 1378 (mem.) (Fed. Cir. 2018).

[6] Id. at 1379 (O’Malley, J. dissenting). The main case for this proposition is Brown v. Gardner, 513 U.S. 115, 117–18 (1994).

[7] Id. at 1379.

[8] See Christopher J. Walker, Attacking Auer and Chevron: A Literature Review, 16 Geo. J.L. & Pub. Pol’y 103, 105–10 (2018) (cataloguing the attacks on Auer and Chevron).

[9] 467 U.S. 837 (1984).

[10] Id. at 842–43.

[11] 323 U.S. 134 (1944).

[12] Id. at 140 (outlining factors “including the thoroughness evident in its consideration, the validity of its reasoning, its consistency with earlier and later pronouncements, and all those factors which give it power to persuade, if lacking power to control”).

[13]  519 U.S. at 461.

[14] John Manning, Constitutional Structure and Judicial Deference to Agency Interpretations of Agency Rules, 96 Colum. L. Rev. 612 (1996). This article, written before Auer was decided, focused its criticism on Seminole Rock.  It has been prominently cited in several Supreme Court opinions criticizing Auer. But see Ronald M. Levin, Auer and the Incentives Issue,36 Yale J. on Reg.: Notice & Comment (Sept. 19, 2016), http://yalejreg.com/nc/auer-and-the-incentives-issue-by-ronald-m-levin/ (pointing out that “there appears to be no good evidence showing that” an agency has ever acted on its supposed incentive “to write regulations vaguely, so that they will subsequently be able to adopt interpretations of those regulations that have not undergone the rigors of the notice and comment process but will nevertheless receive the benefit of strong judicial deference”); Daniel E. Walters, The Self-Delegation False Alarm: Analyzing Auer Deference’s Effect on Agency Rules, 119 Colum. L. Rev. (forthcoming 2018) (“[U]sing an original and extensive dataset of federal rules from 1982-2016, [m]y analysis reveals that agencies did not measurably increase the vagueness of their writing in response to Auer. If anything, rule writing arguably became more specific over time despite Auer’s increasing prominence.”).

[15] Talk America v. Michigan Bell Tel. Co., 564 U.S. 50, 69 (2011) (Scalia, J., concurring).

[16] 567 U.S. 142 (2012).

[17] Id. at 156.

[18] Decker v. Nw Envtl. Def. Ctr., 568 U.S. 597 (2013).

[19] Id. at 616, 620 (Scalia, J., dissenting).

[20] Id. at 615 (Roberts, C.J., concurring). Moreover, in his concurrence in Perez v. Mortgage Bankers, Justice Thomas opined, “By my best lights, the entire line of precedent beginning with Seminole Rock raises serious constitutional questions and should be reconsidered in an appropriate case.” 135 S. Ct. 1199, 1225 (2015) (Thomas, J., concurring in the judgment).

[21] See G.G. ex rel. Grimm v. Gloucester Cnty. Sch. Bd., 822 F.3d 709, 718 & n.5 (4th Cir. 2016).

[22] Id. at 719–21.

[23] Id. at 723.

[24] G.G. ex rel. Grimm v. Gloucester Cnty. Sch. Bd., 822 F.3d 709 (4th Cir. 2016), petition for cert. filed, 2016 WL 4610979 (U.S. Aug. 29, 2016), (No. 16-273).

[25] Gloucester County Sch. Bd. v. G.G. ex rel. Grimm, 137 S. Ct. 369, 369 (2016).

[26] 137 S. Ct. 1239, 1239 (2017).

[27] See Kisor v. Shulkin, No. 1929 (U.S. Dec. 10, 2018) (order granting certiorari), https://www.supremecourt.gov/docket/docketfiles/html/qp/18-00015qp.pdf.

[28] See also Reflections on Seminole Rock: The Past, Present, and Future of Deference to Agency Regulatory Interpretations,36 Yale J. on Reg.: Notice & Comment (Sept. 12–23, 2016), http://yalejreg.com/nc/reflections-on-seminole-rock-the-past-present-and-future-of-deference-to-agency-regulatory-interpretations/.

[29] See Walker, supra note 9, at 110–20.