The Impending Death of Auer Deference Predicted, Again

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.