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Is Auer Deference on the Way Out?


By: Trevor Matthews, Volume 101 Staff Member

In Bowles v. Seminole Rock & Sand, later reaffirmed in Auer v. Robbins, the Supreme Court announced a deferential standard of review for agency rules which interpret binding notice and comment regulations.[1] The standard, now commonly called Auer deference, instructs courts to defer to agency interpretive rules that construe otherwise ambiguous regulations unless those interpretations are “plainly erroneous or inconsistent with the regulation” itself.[2] Of late, many commentators have opined that the standard of review described in Seminole Rock and Auer is on unstable footing with the Supreme Court.[3] The prevalence of this idea should not really come as a surprise. The Auer standard has recently become somewhat controversial; Justice Scalia suggested Auer might be inconsistent with the Administrative Procedure Act (APA)[4] and Justice Thomas has indicated it raises separation of powers concerns.[5] This post will provide a brief overview of these criticisms of Auer and suggest that despite the fact that a number of members of the Court disfavor the standard, it is unlikely to be overturned.

Uncertainty about the vitality of Auer is largely the result of two recent opinions from the Court. First, in Perez v. Mortgage Bankers Ass’n, 135 S.Ct. 1199, Justice Antonin Scalia filed a concurring opinion where he opined that Auer deference violates the APA.

For despite exempting interpretive rules from notice and comment, the [APA] provides that “the reviewing court shall . . . interpret constitutional and statutory provisions, and determine the meaning or applicability of the terms of an agency action.” § 706 (emphasis added). The Act thus contemplates that courts, not agencies, will authoritatively resolve ambiguities in statutes and regulations. . . .

. . . Heedless of the original design of the APA, we have developed an elaborate law of deference to agencies’ interpretations of statutes and regulations. . . .

. . . By giving . . . interpretive rules [construing agency regulations] Auer deference, we do more than allow the agency to make binding regulations without notice and comment. Because the agency (not Congress) drafts the substantive rules that are the object of those interpretations, giving them deference allows the agency to control the extent of its notice-and-comment-free domain. To expand this domain, the agency need only write substantive rules more broadly and vaguely, leaving plenty of gaps to be filled in later, using interpretive rules unchecked by notice and comment. The APA does not remotely contemplate this regime.[6]

In the same case, Justice Thomas filed a concurring opinion which, relying on similar reasoning, asserted that Auer deference “effects a transfer of the judicial power to an executive agency, [and] it raises constitutional concerns.”[7] The constitutional concerns result from the fact that the high level deference afforded by Auer “undermines [the Court’s] obligation to provide a judicial check on the other branches.”[8] In addition, Justice Alito filed a concurring opinion that spoke approvingly of the concerns raised by Justices Thomas and Scalia and added, “I await a case in which the validity of Seminole Rock may be explored through full briefing and argument.”[9]

Second, just two years before Perez, in Decker v. Nw. Envtl. Def. Ctr., Justice Scalia penned another opinion, in which he criticized Auer.[10] He wrote, “Enough is enough. . . . respondent has asked us, if necessary, to ‘reconsider Auer.’ I believe that it is time to do so.”[11] In response, Justice Roberts indicated his willingness to reconsider Seminole Rock and Auer, given an appropriate case: “[t]he opinion concurring in part and dissenting in part [by Justice Scalia] raises serious questions about the principle set forth in Bowles v. Seminole Rock & Sand Co., and Auer v. Robbins. It may be appropriate to reconsider that principle in an appropriate case. But this is not that case.”[12]

At least three (four prior to the passing of Justice Scalia) currently sitting Justices that have at one time or another either been willing to reconsider—or outright throw out—Auer and Seminole Rock. It has been a year and half since Perez was decided, and one might wonder if the show of numbers in Perez has emboldened the circuits to cite to the opinions in Perez and express doubts about the vitality of Auer and Seminole Rock. There has been, in fact, some small movement. Judges Frank H. Easterbrook of the Seventh Circuit and Jeffrey Sutton of the Sixth Circuit, both of whom enjoy prominent reputations, have indicated in opinions that Auer’s vitality is in doubt.

Judge Easterbrook recently asserted in a concurring opinion that “Auer may not be long for this world.”[13] On the other hand, another panel of the Seventh Circuit recently reaffirmed its commitment to Auer deference in Zero Zone, Inc. v. United States Dep’t of Energy, wherein it cited to the majority opinion in Perez and applied Auer.[14] Judge Sutton in turn, made passing reference to Judge Easterbrook’s opinion that “Auer is not long for this world,” but did not go so far as to expressly indicate that he agreed.[15] If Judges Easterbrook and Sutton are suggesting they believe Auer is in disfavor, it is likely that there are more who agree and have either not had the chance to say so, or do not feel the need to speak out. Nonetheless, there have not been, as of yet, any attempts to narrow Auer relying on Perez.[16] Meanwhile, the D.C. Circuit, which had its Paralyzed Veterans[17] standard overturned by Perez, has begun dutifully applying Perez, otherwise without comment.[18]

Whether Auer is in fact not long for this world remains to be seen. However, in my opinion, abandonment of the standard is unlikely. First, with the death of Justice Scalia, the hypothetical vote appears to be 5–3 at best. Everybody who signed the Perez majority opinion remains on the Court. In addition, Chief Justice Roberts, who expressed willingness to reexamine Auer in Decker, also signed the majority opinion in Perez, declining to add his name either to Justice Alito’s opinion calling for a reevaluation of Auer or the opinions of Justices Thomas and Scalia which call for its abandonment.[19] Second, the Court has had at least two opportunities to grant certiorari and reexamine Auer since Perez, and the petitioners were not able to garner enough votes from the current eight-Justice panel.[20] For the Supreme Court to grant certiorari, a minimum of four votes in favor of hearing the case are required.[21] Although the results of votes on whether to grant certiorari are not generally made public, it is certain that no more than three Justices voted in favor of review.[22]

Therefore, even if a President Trump appointee takes the Bench who, hypothetically speaking, disfavors Auer, there would probably not be enough votes to get rid of Auer, absent further ideological change in the body of the Court. Though Justice Thomas has suggested that, “[a]ny reader of this Court’s opinions should think that the doctrine is on its last gasp,”[23] raw numbers and the Court’s unwillingness to grant certiorari suggest that, to borrow a famous misquote of Mark Twain, any “report of [Auer’s] death has been grossly exaggerated.”[24]

  1. Bowles v. Seminole Rock & Sand Co. 325 U.S. 410, 413–414 (1945) (“Since this involves an interpretation of an administrative regulation a court must necessarily look to the administrative construction of the regulation if the meaning of the words used is in doubt. The administrative interpretation, [becomes] of controlling weight unless it is plainly erroneous or inconsistent with the regulation.”); Auer v. Robbins, 519 U.S. 452, 461 (1997) (describing the Seminole Rock standard as a “deferential standard”).
  2. See, e.g., Christensen v. Harris Cty., 529 U.S. 576, 588 (2000) (“Auer deference is warranted only when the language of the regulation is ambiguous.”).
  3. See, e.g., Matthew Mezger, Using Interpretive Methodology to Get Out from Seminole Rock and A Hard Place, 84 Geo. Wash. L. Rev. 1335, 1337 (2016) (“[I]t appears that there is considerable willingness among some members of the Supreme Court to overturn Seminole Rock/Auer.”); Richard J. Pierce, Jr., The Future of Deference, 84 Geo. Wash. L. Rev. 1293, 1307 (2016) (“Two Justices have urged the Court to overrule Auer. Two others have invited a petitioner to bring the Court a case that would provide an appropriate vehicle to allow it to overrule Auer. All of the Justices have shown their lack of support for a strong version of Auer by qualifying the doctrine in significant ways”); Aaron Saiger, Agencies’ Obligation to Interpret the Statute, 69 Vand. L. Rev. 1231, 1284 (2016) (“Three sitting [J]ustices of the Supreme Court, along with the late Justice Scalia, have recently indicated—some of them repeatedly—that they are open to overruling Auer.”).
  4. See Perez v. Mortgage Bankers Ass’n, 135 S.Ct. 1199, 1211 (2015) (Scalia, J., concurring).
  5. See id. at 1219 (Thomas, J., concurring).
  6. Id. at 1212 (Scalia, J., concurring).
  7. Id. at 1219 (Thomas, J., concurring).
  8. Id.
  9. Id. at 1211 (Alito, J., concurring in part and concurring in judgment).
  10. Decker v. Nw. Envtl. Def. Ctr., 133 S. Ct. 1326, 1338 (2013) (Scalia, J., concurring and dissenting in part).
  11. Id. at 1339.
  12. Id. at 1338 (Roberts J., concurring) (citations omitted).
  13. Bible v. United Student Aid Funds, Inc., 807 F.3d 839, 841 (7th Cir. 2015) (Easterbrook, J., concurring in the denial of rehearing en banc) cert. denied 136 S.Ct. 1607 (2016); see also Fridman v. NYCB Mortg. Co., LLC, 780 F.3d 773, 781 (7th Cir. 2015) (Easterbrook, J., concurring) ([T]his court is not the right forum to resolve any dispute about the status of Bowles v. Seminole Rock & Sand Co.”).
  14. Zero Zone, Inc. v. United States Dep’t of Energy, 832 F.3d 654, 690 (7th Cir. 2016).
  15. Edwards v. CSX Transp. Inc., 821 F.3d 758, 761 (6th Cir. 2016) (“Whether Seminole Rock deference is or is not ‘long for this world’ thus makes no difference to this case.”).
  16. As of November 19, 2016, nine circuit court opinions cite to Perez and either Auer or Seminole Rock. Bible v. United Student Aid Funds, Inc., 799 F.3d 633 (7th Cir.), reh’g denied, 807 F.3d 839 (7th Cir. 2015), and cert. denied, 136 S. Ct. 1607 (2016); Edwards v. CSX Transp. Inc., 821 F.3d 758 (6th Cir. 2016); Flytenow, Inc. v. F.A.A., 808 F.3d 882 (D.C. Cir. 2015); Fridman v. NYCB Mortg. Co., LLC, 780 F.3d 773 (7th Cir. 2015), reh’g denied (Apr. 13, 2015); Huerta v. Ducote, 792 F.3d 144 (D.C. Cir. 2015); Knapp v. U.S. Dep’t of Agric., 796 F.3d 445 (5th Cir. 2015); Tilden Mining Co., Inc. v. Sec’y of Labor, 832 F.3d 317 (D.C. Cir. 2016); United States Telecom Ass’n v. Fed. Commc’ns Comm’n, 825 F.3d 674 (D.C. Cir. 2016); Zero Zone, Inc. v. United States Dep’t of Energy, 832 F.3d 654 (7th Cir. 2016). None of these opinions, beyond the comments by Judges Sutton and Easterbrook, indicate shifting treatment of Auer deference.
  17. Paralyzed Veterans of Am. v. D.C. Arena L.P., 117 F.3d 579 (1997).
  18. See, e.g., Tilden Mining Co., Inc. v. Sec’y of Labor, 832 F.3d 317, 321 (D.C. Cir. 2016) (While that petition was pending, the Supreme Court decided Perez v. Mortgage Bankers Association. Mortgage Bankers held that ‘[b]ecause an agency is not required to use notice-and-comment procedures to issue an initial interpretive rule, it is also not required to use those procedures when it amends or repeals that interpretive rule.’”). (Citations omitted).
  19. Perez v. Mortg. Bankers Ass’n, 135 S. Ct. 1199, 1202 (2015) (indicating that Chief Just Roberts joined only the opinion of the Court).
  20. The first opportunity comes from Bible, the same case that led Judge Easterbrook to prognosticate about the impending death of Auer. See United Student Aid Funds, Inc. v. Bible, 136 S. Ct. 1607, (2016) (Thomas, J., dissenting from the denial of review). Thomas, the lone dissenter, said, “Any reader of this Court’s opinions should think that the doctrine is on its last gasp.” Id. at 1608. The second opportunity was the high profile transgender bathroom case, where the Court accepted “limited” review. Gloucester Cty. Sch. Bd. v. G. G. ex rel. Grimm, No. 16-273, 2016 WL 4565643, at *1 (U.S. Oct. 28, 2016). The Court specifically declined certiorari on this question: “Should this Court retain the Auer doctrine despite the objections of multiple Justices who have recently urged that it be reconsidered and overruled?” Petition for Writ of Certiorari at i, Gloucester Cty. Sch. Bd., 2016 WL 4610979 (No. 16-273).
  21. This is called the “rule of four.” Richard L. Revesz, Nonmajority Rules and the Supreme Court, 136 U. Pa. L. Rev. 1067, 1068 (1988) (“Broadly speaking the Court will schedule full briefing and oral argument whenever four Justices agree that a case deserves plenary consideration.”).
  22. Cf. id.. at 1093 (“Justices, however, are under no obligation to make such reasons [for granting or denying certiorari] public.”).
  23. Bible, 136 S.Ct. at 1607.
  24. See Harold H. Kolb, Mark Twain: The Gift of Humor 84 (2015). The statement is adapted from a similar statement that Twain made to a reporter who had come to interview him and determine if rumors that Twain was sick and dying were true. Id. 83–84. Twain reportedly gave a note to the reporter that said “the report of my death was an exaggeration.” Id. at 84.