Kisor
v. Wilkie is now pending before the U.S. Supreme Court. The question presented is:
Whether the court should overrule Auer and Seminole Rock.
Auer
v. Robbins and Bowles
v. Seminole Rock & Sand Co. simply hold that an administrative
agency will get deference in the interpretation of an ambiguous regulation “unless
plainly erroneous or inconsistent with the regulation.” From my count, there are at least five
justices that are ready to overrule Auer and
Seminole Rock.
Kisor filed his opening
brief on the merits last week. Kisor
argues that Auer and Seminole Rock were wrongly decided. Seminole
Rock threw the deference doctrine out into the jurisprudence without
analysis and lay dormant for decades until given life support in 1989 (Robertson
v. Methow Valley Citizens Council) and revived in 1997 (Auer).
Kisor argues that the deference doctrine is inconsistent with the
Administrative Procedures Act; destabilizes administrative law because agencies
can change the application or interpretation of the stable regulation without
notice and comment; violates the separation of powers doctrine; and is not
fairly within the ambit of the Chevron
doctrine, which rests on notice and comment.
Kisor argues that the Court should
not shackle itself to stare decisis. Auer and
Seminole Rock were wrong when
decided; they do not interpret a statute or the Constitution; private parties
do not rely on the continued application of Auer
and Seminole Rock; and circumstances
have changed warranting rejection of stare
decisis.
It is really the third point on
private party reliance on Auer and Seminole Rock that I have slight disagreement. My response is simple, “sometimes.” Sometimes private parties do rely on the
publication of a sub-regulatory promulgation for enforcement of the
regulation. An example would be Social
Security Ruling 00-4p.
That ruling harmonized a split in
the circuits for the proposition that administrative notice required the ALJ to
resolve conflict between the vocational expert and the Dictionary of Occupational Titles as well as the Selected Characteristics of Occupations.
Prior to the ruling, most
circuits required resolution of the conflict; one circuit arguably did not
require resolution; and one circuit clearly allowed the ALJ to accept deviant
VE testimony. SSR 00-4p normalized
the application of the resolution and expanded the regulation to require an
inquiry and inclusion of the SCO in the process. For claimants claiming DOT/SCO error, the
expanded nature of the ruling going beyond the four corners of the regulation
is helpful.
But the ruling gave and took
away. While the administrative notice
regulation lists sources other than the DOT is primary and requiring
resolution, it does not list the Occupational
Outlook Handbook or County Business
Patterns. At least one
circuit court rejects post hoc reliance on conflict with the OOH and CPB as
a basis for reversing the ALJ decision. That
isn’t the only problem with SSR 00-4p.
The ruling misrepresents that maximum-typicality nature of the DOT
listings. The ruling treats the DOT/SCO
as primary to the exclusion of other reliable data. If the Commissioner had published the ruling
through notice and comment, the public could have pointed out the deficiencies
and the Commissioner would have been forced to address those problems and
concerns in the final rule. And that my
friends is why Auer and Seminole Rock need to die. The rulings would continue to bind the ALJ but
would not bind the claimants or the court.
How the Court comes down after the
Solicitor General weighs in next month and hears argument this Spring is the
open question. Mark this observer down
as optimistic that this case will chip away at the overreach of administrative agencies
and the Social Security Administration.
