Notice & Comment

Auer in the Circuit Courts, by David Feder

Auer matters. It makes the difference between winning and losing on important issues that matter to real people—such as what bathroom a transgender student may use, what costs foreign employees must be reimbursed for, and the proper sentence for a convicted criminal. Consider these recent examples:

1. G. ex rel. Grimm v. Gloucester County School Board, 822 F.3d 709 (4th Cir. 2016), mandate recalled and stay granted by 136 S. Ct. 2442 (U.S. 2016), involved a transgender boy, Gavin Grimm, who seeks to use the boys’ restroom at his high school. The local school board, however, passed a policy that banned him from the boys’ restroom. Mr. Grimm sued, alleging that the policy violated Title IX.

Title IX states that “[n]o person … shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance.” 20 U.S.C. § 1681(a). The Department of Education’s regulations implementing Title IX permit the provision of “separate toilet, locker room, and shower facilities on the basis of sex, but such facilities shall be comparable to such facilities for students of the other sex.” 34 C.F.R. § 106.33. In an opinion letter, the Department determined how this regulation applies to transgender students: “When a school elected to separate or treat students differently on the basis of sex … a school generally must treat transgender students consistent with their gender identity.”

Judge Floyd, writing for the panel, held that although the regulation referred unambiguously to males and females it failed to address how to treat transgender individuals when it comes to single-sex bathrooms. Sex could be determined under the regulation by reference to either genitalia or gender identity. The Department’s resolution of this ambiguity was not unreasonable because, at the time the regulation was adopted in 1975, “sex” was not always understood as binary.

Judge Niemeyer dissented on this point. He would have declined to defer to the Department’s opinion letter because, in his view, Title IX and its implementing regulations were unambiguous. Sex, as generally understood at the time of the regulation’s enactment referred only “to the physiological distinctions between males and females, particularly with respect to their reproductive functions.” Thus, he concluded, “[a]ny new definition of sex that excludes reference to physiological differences” such as that reflected in the majority opinion, “is simply an unsupported reach to rationalize a desired outcome.”

2. United States v. Raupp, 677 F.3d 756 (7th Cir. 2012), concerned the proper calculation of a criminal sentence. After Anthony Raupp pleaded guilty to possessing a firearm despite having a prior felony, the district court added two offense levels under the Sentencing Guidelines because Mr. Raupp had been previously convicted of two or more “crime[s] of violence.” U.S.S.G. § 2k2.1(a)(2).

On appeal, the Seventh Circuit considered whether Mr. Raupp’s prior conviction for conspiracy to commit robbery qualified as a “crime of violence” under the Guidelines. Application Note 1 to the relevant section—§ 4B1.2—explains that an inchoate offense like conspiracy is a “crime of violence” when the underlying crime is one. Judge Easterbrook, writing for the panel, held that the text of § 4B1.2 was ambiguous because it did not explain one way or another whether inchoate offenses are included or excluded. Thus, Application Note 1 was a reasonable interpretation of the ambiguity because it did not conflict with the text. Accordingly, Judge Easterbrook afforded the note Auer deference.

Judge Wood dissented. In her view, Auer deference should not be afforded to Application Note 1 because it interpreted the text unreasonably. “Crime of violence,” she explained” should be interpreted the same as “violent felony” in the Armed Career Criminal Act. And under that Act, conspiracy to commit robbery is not a “violent felony.” Thus, conspiracy to commit robbery was unambiguously not a “crime of violence” for purposes of § 4B1.2 and Auer deference was inappropriate.

3. R. v. Dreyfus, 663 F.3d 1100 (9th Cir. 2011), dissent from denial of rehearing en banc, 697 F.3d 706 (9th Cir. 2012), involved Washington’s Department of Social and Health Services regulation reducing the amount of in-home “personal care services” available under the state’s Medicaid plan by an average of 10% per beneficiary per month. Plaintiffs contended that this reduction violated the Americans with Disabilities Act because it substantially increased the risk they would be institutionalized to receive adequate care.

The ADA provides that “no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity.” 42 U.S.C. § 12132; accord 29 U.S.C. § 794(a). The Department of Justice has promulgated regulations implementing the ADA including the “integration mandate,” which provides that “[a] public entity shall administer services, programs, and activities in the most integrated setting appropriate to the needs of qualified individuals with disabilities.” 28 C.F.R. § 35.130(d). Before the district court, Justice filed a “statement of interest” explaining that “[t]he integration mandate prohibits public entities from pursuing policies that place individuals at risk of unnecessary institutionalization.”

Judge Fletcher, writing for the panel, deferred to Justice’s statement of interest under Auer. He believed that the statement of interest in the district court was comparable to an amicus brief because of the agency’s in ensuring a proper interpretation and application of the integration mandate. Justice’s interpretation, moreover, was consistent with its interpretation in another case before the Ninth Circuit. Finally, its interpretation was not only reasonable but better effectuated the ADA’s policy “to provide clear, strong, consistent, enforceable standards addressing discrimination against individuals with disabilities.” 42 U.S.C. § 12101(b)(2).

Nine judges dissented from the denial of rehearing en banc and would not have afforded Auer deference Justice’s statement of interest. Judge Bea, writing for the dissenters, explained that the case for deference was even worse than in Olmstead v. L.C. ex rel. Zimring, 527 U.S. 581, 601 n.12 (1999)—where the Supreme Court declined to afford Auer deference to Justice—because the United States did not even submit an amicus brief to the Ninth Circuit on appeal. And, the dissenters pointed out, a “statement of interest” lacks the rigorous controls that regulations or even a Supreme Court amicus brief have undergone. Finally, Justice’s interpretation was unreasonable because there is no “discrimination” when an agency provides for an even-handed reduction of a voluntarily-provided welfare benefit and when there is no proof such a reduction would lead to anyone’s imminent institutionalization.

4. Perez v. Loren Cook Co., 803 F.3d 935 (8th Cir. 2015) (en banc), involved an industrial accident where a workpiece was ejected from a catastrophic lathe breakdown at Loren Cook Company.  The Secretary of Labor determined that the company violated 29 C.F.R. § 1910.212(a)(1), which requires barrier guards on certain industrial equipment, and imposed a $490,000 fine. Section 1910.212(a)(1) provides: “One or more methods of machine guarding shall be provided to protect the operator and other employees in the machine area from hazardous such as those created by point of operation, ingoing nip points, rotating parts, flying chips and sparks. Examples of guarding methods are—barrier guards, two-hand tripping devices, electronic safety devices, etc.”

Writing for the court, Judge Shepherd held the Secretary’s interpretation of § 1910.212(a)(1) to be unreasonable and not deserving of Auer deference. The section’s language creates two distinct categories of hazards covered: sources or causes of the hazard and by-products from routine operation of the machinery. And, the court explained, a catastrophic failure of a lathe ejecting a workpiece falls into neither of these categories. It wasn’t a source of the hazard because that category is limited to those from a worker’s point of operation—not an ejected workpiece. Likewise, it wasn’t a by-product from the lathe’s routine operation because it differed greatly in nature and quality from the by-products listed, flying chips and sparks. The Secretary’s interpretation, moreover, was unreasonable because it read “rotating parts” hyper-literally and as applying to virtually any situation, no matter how remote or atypical, in which the hazard can be tied to some movement on a machine.

Four judges dissented and would have afforded Auer deference to the Secretary’s interpretation. Judge Melloy, writing for the dissenters, pointed to two textual features that rendered the Secretary’s broader interpretation reasonable. The enumerated hazards were preceded by the phrase “created by,” meaning that the regulation necessarily reached a larger class of hazards than those enumerated. The enumerated hazards were also preceded by the phrase “such as” which demonstrated that the list was illustrative and not exhaustive. Accordingly, the dissenters concluded that the Secretary’s interpretation was a reasonable interpretation of the regulation’s text and they would have afforded it Auer deference.

5. Castellanos-Contreras v. Decatur Hotels, LLC, 622 F.3d 393 (5th Cir. 2010) (en banc), involved a hotel company—Decatur Hotels—left devastated by Hurricane Katrina and unable to hire enough American workers to staff its hotel properties. Decatur, through recruitment companies, hired one hundred foreign workers to come to New Orleans on H-2B visas. The workers alleged that they were required to pay their own expenses in moving to the United States and that Decatur did not reimburse them. The workers sued, alleging that Decatur violated the Fair Labor Standards Act because once the moving expenses were deducted from their first week’s salary they were paid less than the minimum wage.

Judge Haynes, writing for the court, explained that during the relevant time period no statute or regulation addressed whether a company must pay for expenses incurred by a foreign worker it hired when he or she moved to the United States. While the Department of Labor had issued a Field Assistance Bulletin addressing the question, it did not do so until 2009—well after the events of the case. And for the majority, that was enough to conclude that Auer deference was not appropriate.

Six judges dissented on this point. Judge Dennis, writing for the dissenters, would have deferred to the Department of Labor’s interpretation because it preexisted the 2009 Bulletin. He began his analysis by explaining that the Fair Labor Standard Act’s text was ambiguous. In relevant part, it provided that the “‘[w]age’ paid to any employee includes the reasonable cost … to the employer of furnishing such employee with board, lodging, or other facilities, if such board, lodging, or other facilities are customarily furnished by such employer to his employees.” 29 U.S.C. § 203(m).

The Department of Labor had issued regulations interpreting this provision, which explained that the minimum wage requirements are not satisfied “where the employee ‘kicks-back’ directly or indirectly to the employer or to another person for the employer’s benefit the whole or part of the wage delivered to the employee.” 29 C.F.R. § 531.35. So, for example, “if it is a requirement of the employer that the employee must provide tools of the trade which will be used in or are specifically required for the performance of the employer’s particular work, there would be a violation of the Act in any workweek when the cost of such tools purchased by the employee cuts into the minimum or overtime wages required to be paid him under the Act.” Id.

And, the dissent explained, for fifty years Labor had interpreted this provision to mean that employers had to pay a foreign worker’s inbound costs. Accordingly, the 2009 Bulletin did not change the law but merely restated the agency’s longstanding view and, accordingly, deserved Auer deference.

In all these cases, Auer was a critical or even dispositive factor in the case’s outcome. Get rid of Auer and some of these cases come out the opposite way. And these are but some of the recent cases in the circuit courts in which Auer played an important role—there are many more. See, e.g., Summit Petroleum Corp. v. U.S. E.P.A., 690 F.3d 733 (6th Cir. 2012); Columbia Gas Transmission, LLC v. 1.01 Acres, More or Less in Penn Township, York County, Pennsylvania, 768 F.3d 300 (3d Cir. 2014); Reizenstein v. Shinseki, 583 F.3d 1331 (Fed. Cir. 2009); Swecker v. Midland Power Co-op, 807 F.3d 883 (8th Cir. 2015); Lezama-Garcia v. Holder, 666 F.3d 518 (9th Cir. 2011).


David Feder earned his J.D. summa cum laude from Harvard Law School in 2014. He previously served as a judicial law clerk to Judge Gorsuch on the U.S. Court of Appeals on the Tenth Circuit. He currently works as an associate at Munger, Tolles & Olson in Los Angeles. He also currently holds an Olin-Searle Fellowship at Harvard Law School and he thanks the Olin-Searle Fellows in Law program for support in writing this post.  This post reflects the views only of the author and not any employer—past or present. Readers may contact the author at


This post is part of an online symposium entitled Reflections on Seminole Rock: The Past, Present, and Future of Deference to Agency Regulatory Interpretations. You can read the entire series here.

Print Friendly, PDF & Email