by mark savit and erik dullea

What does the law have to do with Humpty Dumpty or the zombie apocalypse? The answer lies in a recent Supreme Court decision that could change the way courts decide what regulations really mean.

The Supreme Court held in Bowles v. Seminole Rock that when a regulation is ambiguous, courts should defer to the government’s interpretation of it, as long as it is reasonable. Fifty-two years later, the court restated and reinforced that in Auer v. Robbins. Judicial deference to an agency’s interpretation of its regulations became known as “Auer deference.”

Auer deference has been a staple of Mine Safety and Health Administration’s (MSHA) legal arguments. MSHA now resembles the character Humpty Dumpty in “Alice in Wonderland.” Author Lewis Carroll described an argument between Alice and Humpty Dumpty about a word that clearly didn’t mean what he said it meant. When Alice questioned it, Humpty said, “When I use a word, it means just what I choose it to mean, neither more nor less.”

Under Auer, MSHA, like Humpty, could claim when it interprets a word in a regulation, the court is required to accept whatever it chose it to mean, unless the court found the meaning “plainly erroneous.”

In June, the Supreme Court issued a 5-4 decision in Kisor v. Wilkie, which all but overturned Auer. Kisor, a Vietnam veteran, applied for VA benefits claiming he had PTSD. The VA denied his claim, stating he didn’t have the proper diagnosis. Kisor reapplied after obtaining the diagnosis, and the VA approved his claim, but calculated benefits from the date of his second application. The VA denied retroactive benefits based on its interpretation of a VA regulation. Kisor challenged the interpretation and asked the court to abandon the Auer deference doctrine.

The majority decision made it clear that courts are not always required to accept an agency’s interpretation of a regulation no matter the circumstances. The court described three limitations of its application:

First, before concluding a regulation was ambiguous, a court must exhaust all tools of statutory interpretation. Rather than simply taking the parties’ word, a court must determine the meaning of the regulation without relying on the agency’s interpretation. For commission proceedings, this requires a close examination of the precise wording of the regulation in the context of its rulemaking history. If a regulation gives an operator two methods of compliance, MSHA can no longer claim it interprets the regulation to mean only one is acceptable.

Second, if, after that examination, a court finds the regulation is ambiguous, they must examine the character and context of the interpretation to determine whether it was of “controlling weight.” To be of “controlling weight,” the agency’s interpretation must be one that is “authoritative” or its “official position.” MSHA may not come up with interpretations for the first time in an enforcement action or in litigation. It must rely on established interpretations.

Finally, courts must examine whether the agency’s interpretation implicated its substantive expertise, rather than being a different reading of the regulation that has no real impact on the regulation’s purpose.

These limitations require courts to exercise their own independent judgement.

What does this have to do with a zombie apocalypse?

In a concurring opinion, Justice Gorsuch characterized the majority’s ruling: “[T]he majority proceed[ed] to impose so many new and nebulous qualifications and limitations on Auer that the chief justice claims to see little practical difference between keeping it on life support in this way or overruling it entirely. So, the doctrine emerges maimed and enfeebled — in truth zombified.”

We do not know whether the lower courts will see Kisor as Justice Gorsuch does. However, there is a growing desire among Supreme Court justices to do away with decisions that have greatly expanded agency power and authority and return it to Congress and the courts. This fall, the Supreme Court may reconsider its Chevron decision and set a new standard for judicial deference to agency interpretations of statutes enacted by Congress. This could be the beginning of a zombie apocalypse that regulators may fear, but the regulated community should not.

Alice addressed this issue with Humpty. “The question is whether you can make words mean so many different things,” she said.

“The question is,” said Humpty, “which is to be master, that’s all.”

The Supreme Court just told us who is to be master — and it’s not MSHA.

Mark Savit is senior counsel and Erik Dullea is a partner at Husch Blackwell. Savit can be reached at
mark.savit@huschblackwell.com and Dullea can be reached at erik.dullea@huschblackwell.com
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