Notice & Comment

Vehicle for Supreme Court to Reconsider Auer Deference Reaches Court

As I noted back in October, the Seventh Circuit decided a case  Bible v. United States Aid Funds, Inc. , which Judge Easterbrook claimed was a suitable vehicle for the Supreme Court to reconsider Auer/Seminole Rock deference — the  doctrine that instructs courts to defer to an agency’s interpretation of its own regulation unless the interpretation is plainly erroneous. As I’ve blogged about before, a number of Justices last Term in Mortgage Bankers indicated a willingness to reconsider Auerdeference.

Last week the United States Aid Fund filed its petition for a writ of certiorari, expressly calling forAuer to be overruled. You can read the full petition here, and here is a snippet from the brief:

This case is an ideal vehicle for this Court to reconsider an exceedingly important, recurring issue that “go[es] to the heart of administrative law”—how much deference, if any, reviewing courts owe administrative agencies’ interpretations of their own regulations. See Decker v. Nw. Envtl. Def. Ctr., 133 S. Ct. 1326, 1339 (2013) (Roberts, C.J., concurring). In Auer v. Robbins, 519 U.S. 452 (1997), this Court—“relying on a case decided before the [Administrative Procedure Act]”—established a default rule requiring courts “to ‘decide’ that the text means what the agency says.” Perez v. Mortgage Bankers Ass’n, 135 S. Ct. 1199, 1211-12 (2015) (Scalia, J., concurring in the judgment) (quoting Bowles v. Seminole Rock & Sand Co., 325 U.S. 410, 410 (1945)). As Judge Easterbrook observed below, however, several Members of this Court have “expressed deep reservations about deferring to the position an agency adopts through means other than rulemaking.” App. 124 (Easterbrook, J., concurring in the denial of rehearing en banc); see Mortgage Bankers, 135 S. Ct. at 1213 (Scalia, J., concurring in the judgment) (“I would therefore restore the balance originally struck by the [Administrative Procedure Act] with respect to an agency’s interpretation of its own regulations * * * by abandoning Auer and applying the Act as written.”); id. at 1225 (Thomas, J., concurring in the judgment) (“[T]he entire line of precedent beginning with Seminole Rock raises serious constitutional questions and should be reconsidered.”); id. at 1210-11 (Alito, J., concurring in  part and concurring in the judgment) (noting that “the opinions of Justice Scalia and Justice Thomas offer substantial reasons why the Seminole Rock doctrine may be incorrect” and “await[ing] a case in which the validity of Seminole Rock may be explored through full briefing and argument”).

Although Judge Easterbrook believed that “whether Auer supports the Secretary’s current position” in this case “is a substantial and potentially important question, * * * an antecedent issue is whether Auer is sound.” App. 124. In Judge Easterbrook’s view, it would not have been a good use of the Seventh Circuit’s limited “resources to have all nine judges consider how Auer applies * * * when Auer may not be long for this world.”Id. at 125. The validity of Auer, of course, is a question only this Court can answer. And this case is an ideal vehicle for doing so, as “this is one of those situations in which the precise nature of deference (if any) to an agency’s views may well control the outcome.” Ibid. The issue is unquestionably important and frequently recurring. See Decker, 133 S. Ct. at 1339 (Roberts, C.J., concurring) (“Questions of Seminole Rock and Auerdeference arise as a matter of course on a regular basis.”). Auer deference not only raises substantial constitutional questions, but also implicates serious practical concerns. The Court should grant the petition to reconsider (and overrule) Auer.

With Justices Alito, Scalia, and Thomas on the record for wanting to reconsider Auer and the Chief Justice similarly expressing concern about the growth of the administrative state in City of Arlington v. FCC and elsewhere, the chances of the Court granting review to reconsider Auer seem particularly high. It will be interesting to see whether this case ends up being the vehicle for such reconsideration.

Update: I should mention that counsel for the petitioner here —  Allyson Ho and John Sullivan of Morgan, Lewis & Bockius LLP — is the same as counsel for Mortgage Bankers in the case last Term that overturned the D.C. Circuit’s Paralyzed Veterans doctrine and in which Justices Alito, Scalia, and Thomas wrote separately to express interest in reconsidering Auer deference.


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