Supreme Court To Reconsider ‘Auer' Deference

Seyfarth Synopsis: The U.S. Supreme Court agreed this week to reconsider a key precedent of administrative law that tells judges to defer to an agency's interpretation of its own ambiguous regulation, taking up a challenge to the so-called "Auer" or "Seminole Rock" deference. The Auer deference has been criticized by conservative justices on the court. Kisor v. Sectretary of Veterans Affairs, No. 18-15 (US Dec. 10, 2018).

The specific question being considered is whether the Court should overrule Auer and Seminole Rock. In context, the specific question being considered is: what deference, if any, should courts give to an agency interpretation of its own regulation that has not gone through Administrative Procedure Act (APA) notice and comment rulemaking?

Historically, courts have struggled with the extent of deference to give an agency's interpretations of its own regulations. Under the APA § 553(b)(A), agency interpretive rules and general statements of policy are exempt from notice and comment rulemaking because interpretative rules are non-substantive, and the APA only requires substantive interpretations, having the force of law, to go through notice and comment rulemaking. However, the "Auer doctrine," from Auer v. Robbins, 519 U.S. 452, 117 S.Ct. 905 (1997), accords substantial deference to an Agency's allegedly non-substantive interpretation of its own regulations, even if presented in an unofficial manner such as in an amicus brief.

We have blogged frequently on Auer deference and its impact on case law, precedent, and regulatory and agency authority — and ultimately on business and employers. These cases run the scope of topical law and issues. See for instance Ninth Circuit Issues En Banc Decision Upholding DOL's 20% Tip Credit Rule; Ball is Now in DOL's Court, Supreme Court to Rule on Case Addressing Bathroom Access Based on Gender Identity, Fourth Circuit Holds that "Sex" Under Title IX Incorporates Gender Identity, Texas District Court Enjoins Federal Gender Identity Protection Of Students, Judicial Deference to Informal Agency Interpretations: Could this be the Beginning of the End for Auer?, and Eighth Circuit Rejects OSHA's Attempt to Expand the Scope of its Machine Guarding Standard.

In in Perez v. Mortgage Bankers Association (MBA), 575 U.S. ____, 135 S.Ct. 1199 (2015), Supreme Court Justices Scalia and Thomas expressed their discontent with agency deference under the "Auer doctrine."

In his analysis, Justice Scalia cited...