The Nickel Report

On June 26, 2019, the Supreme Court issued its decision in Kisor v. Wilkie, 139 S. Ct. 2400 (2019), which presented the question of whether the Court should overrule the Auer doctrine, named after the 1997 Supreme Court case Auer v. Robbins. The Auer doctrine rests on the premise that agencies have more expertise on their own regulations and are therefore in a better position than courts to interpret them. Under the doctrine, courts generally defer to an agency’s reasonable readings of its own “genuinely ambiguous” regulations. In a 5-4 decision, the Court declined to abandon the Auer doctrine on grounds of stare decisis but outlined important limitations on the scope and applicability of that doctrine.

Justice Kagan authored the opinion that, in part, garnered the support of a majority of the Court. In those portions that commanded a majority, the Court held that the “special justification” required to overcome the principle of stare decisis is not present with the Auer doctrine. But in defining what Auer entails, the Court placed important boundaries on the doctrine. An agency’s interpretation of a regulation is not warranted unless: (1) the regulation is genuinely ambiguous; (2) the agency’s reading is reasonable; and (3) the character and context of the agency’s interpretation is of a type that merits deference. Justice Kagan indicated that the first step of this framework requires a rigorous assessment of the regulation’s purported ambiguity, holding that a reviewing court must exhaust all traditional tools of interpretation, including careful consideration of the “text, structure, history, and purpose of a regulation.” According to Justice Kagan, this practice should “resolve many seeming ambiguities out of the box” without the need to consider deference.

Chief Justice Roberts—who cast the deciding vote in the case—wrote a concurring opinion suggesting that, in practice, observing the limits placed on Auer in this decision will generally result in the same outcome as reviewing a rule under the Skidmore standard of review. Justice Kavanaugh, in an opinion concurring in the judgment joined by Justice Alito, expressed a similar view. Both Roberts and Kavanaugh also emphasized that Kisor raises different issues than those involved with deference to agency interpretations of statutes and therefore does not say anything with regard to the Chevron doctrine. Justice Gorsuch wrote an opinion concurring in the judgment, joined in relevant part by Justices Thomas, Kavanaugh and Alito in favor of overruling Auer.

While the long-term impact of the Court’s decision in Kisor remains to be seen, it has already received the attention of several federal district courts reviewing challenges to agency interpretations. In some cases, the courts have deferred to the agency’s interpretation. See, e.g., Am. Turnboat Ass’n v. Ross, 2019 U.S. Dist. LEXIS 127589 (D.D.C. July 31, 2019) (deferring to National Marine Fisheries Service’s “fair interpretation of a genuinely ambiguous regulation”). In others, the courts have refused to defer. See, e.g., Spencer v. Macado’s, Inc., 2019 U.S. Dist. LEXIS 112966 (W.D. Va. July 8, 2019) (refusing to defer to Department of Labor’s interpretation where there were “significant signs” that the interpretation did not reflect the agency’s “fair and considered judgment”). In one case, the district court applied Kisor to an agency’s interpretation of a statute, despite Chief Justice Roberts and Justice Kavanaugh’s admonitions to the contrary. In that case, the district court refused to defer to the FDA’s interpretation of the Food, Drug and Cosmetic Act, 21 U.S.C. § 301 et seq. Braeburn Inc. v. United States FDA, 2019 U.S. Dist. LEXIS 121423 (D.D.C. July 22, 2019).

Kisor has also garnered the attention of the Eleventh Circuit. In one case, the court has requested supplemental briefing addressing the effect of Kisor on an appeal challenging the Department of Health and Human Services’ interpretation of a regulation. Callahan et al. v. U.S. Dep’t of Health & Human Servs., No. 19-11876 (11th Cir.). In addressing Kisor, the plaintiffs have argued the decision bolsters the conclusion that no deference is due because Kisor “cabined Auer’s scope in varied and critical ways.” The plaintiffs assert that only an agency’s “reasonable” and “fair and considered” interpretation of an ambiguous regulation merits deference, and only if it implicates the agency’s “substantive expertise.” Notably, if the Eleventh Circuit were to reach this step of the analysis, the plaintiffs suggest the court should remand to the district court for development of the record on disputed factual issues, such as the considered nature of the agency’s interpretation. For its part, the Department does not believe Kisor alters the district court’s conclusion that its interpretation is entitled to deference.

The Eleventh Circuit has not yet set the case for oral argument, but its decision in this matter could affect how other courts apply the Kisor framework to agency interpretations in the future, including EPA’s interpretations of its own regulations.