Did Kisor Really Change Auer?

A recurring question at two conferences I attended last week was whether and how much the Supreme Court’s decision in Kisor v. Wilkie really changed the Auer doctrine.  As so often in the case in law, the answer is “it depends.”

By way of review, the Supreme Court in Auer v. Robbins reiterated a standard established fifty years prior in Bowles v. Seminole Rock & Sand Co., that courts should give “controlling weight” to an agency’s interpretations of its own regulations so long as those interpretations are not “plainly erroneous or inconsistent with the regulation[s].” After several years of commentators (and a few Supreme Court Justices) suggesting that the Court ought to overturn the Auer doctrine, the Supreme Court granted certiorari specifically to consider that question. A five-Justice majority of the Court declined to overrule the Auer doctrine, but Justice Kagan for the Court set out to “reinforce” limitations on the Auer doctrine by describing five conditions that must be satisfied before a reviewing court should defer to an agency’s interpretation of its own regulations under Auer: (1) the regulation must be “genuinely ambiguous” after a court “exhaust[s] all the ‘traditional tools’ of construction”; (2) the agency’s interpretation of the regulation must be “reasonable”; (3) the interpretation in question “must be the agency’s ‘authoritative’ or ‘official position,'” as opposed to a “more ad hoc statement”; (4) the interpretation “must in some way implicate [the agency’s] substantive expertise”; and (5) the interpretation must reflect the agency’s “‘fair and considered judgment,'” meaning that it is not “a merely ‘convenient litigating position’ or ‘post hoc rationalizatio[n] advanced’ to ‘defend past agency action against attack'” and does not “create[ ] ‘unfair surprise’ to regulated parties” or “disrupt[ ] … expectations.”

Turning back to the original question, certainly, Kisor retained the Auer label, but retaining the label is not necessarily the same as retaining the underlying doctrine. And beyond the label, how one answers the question whether or to what extent Justice Kagan’s five-part test really changed the Auer doctrine depends principally on what you thought the Auer doctrine was prior to Kisor.

If you thought of the Auer doctrine as a very simple and straight-forward rule — that unless the agency’s interpretation of its own regulation is obviously wrong, then a reviewing court should uphold the agency’s interpretation — then Kisor changes the Auer doctrine dramatically by introducing such an extensive array of limitations. In many cases over the history of Auer (and Seminole Rock before it), courts applied that very simple and straight-forward rule. That version of the Auer doctrine is clearly and unequivocally dead and buried after Kisor.

On the other hand, it is not altogether clear that the Auer doctrine ever really was quite that simple and straight-forward, and even if it was, the Auer doctrine started evolving away from that conception a long time ago. At least fifteen years ago, the Fourth Edition of the Administrative Law Treatise recognized that courts deferred less often in penalty cases than in non-penalty cases. Since at least 2006 in Gonzales v. Oregon, the Supreme Court had been pruning and reshaping the Auer doctrine by recognizing exceptions and adding layers to its analysis. Empirically, no one can question that there was a time when courts applied the Auer doctrine very deferentially, when they applied it by name. The studies do not necessarily capture, however, cases in which a reviewing court considered an agency’s interpretation of its regulations without mentioning the Auer doctrine or deference. And since the Supreme Court’s 2012 decision in Christopher v. SmithKline Beecham Corp. — in which Justice Alito for the Court recognized several instances in which courts should not defer under the Auer doctrine, including cases reflecting unfair surprise — the courts’ rate of deference under the Auer doctrine had fallen significantly.

Justice Kagan’s five-part Auer analysis in Kisor is clearer than Justice Alito’s less-structured summary of limitations in Christopher. In that sense, Kisor undoubtedly nudges the Auer doctrine further toward the less deferential end of the scale. But Justice Kagan did not invent her five conditions from nothing. She drew from existing case law regarding the Auer doctrine, including but not limited to Christopher. In short, I would argue that Kisor merely continues the gradual evolution (dare I say the Chevronization) of the Auer doctrine, rather than affecting major change.

kristin hickman

Professor Kristin Hickman is a legal scholar working in the fields of tax administration, administrative law, and statutory interpretation. In addition to the Of Interest blog, Professor Hickman authors the Administrative Law Treatise (with co-author Richard J. Pierce, Jr.) and has published scholarly articles in Columbia Law Review, Virginia Law Review, Cornell Law Review, Duke Law Journal, Georgetown Law Journal, Vanderbilt Law Review, and many other prominent U.S. and international publications. She holds the titles of Distinguished McKnight University Professor and Harlan Albert Rogers Professor of Law at the University of Minnesota Law School.