at 12–13.23 519 U.S. 452, 461 (1997).24Decker, 81 USLW 4190, slip op. at 14.
Where FDA fails to do so, its actions have never been more vulnerable to legal challenge.139 S. Ct. 2400 (2019).519 U.S. 452 (1997).Kisor, 139 S. Ct. at 2414.
The Court cited Supreme Court precedent that deference to an Agency’s interpretation is inappropriate when the interpretation is “‘plainly erroneous or inconsistent with the regulation.’” Auer v. Robbins, 519 U.S. 452, 461 (1997) (quoting Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 359 (1989)). Also, deference is inappropriate “when there is reason to suspect that the Agency’s interpretation ‘does not reflect the agency’s fair and considered judgment on the matter in question.’
On consideration of the petition for rehearing, all other members of the Circuit joined their decision and voted to deny rehearing, with Circuit Judges Rovner, Wood, and Williams dissenting. The dissenters note that the court’s decision has been rejected by the 6th Circuit (EEOC v. Romeo Cmty. Sch., 976 F.2d 985, 989-90 (6th Cir. 1992)); 8th Circuit (Brennan v. Maxey’s Yamaha, Inc., 513 F.2d 179, 181-82 (8th Cir. 1975)); 9th Circuit (Lambert v. Ackerley, 180 F.3d 997, 1003-07 (9th Cir. 1999)); 10th Cir. (Marshall v. Parking Co. of Am.-Denver, Inc., 670 F.2d 141, 142-43 (10th Cir. 1982)); 11th Circuit (EEOC v. White and Sons Enters., 881 F.2d 1006, 1011-12 (11th Cir. 1989)); as well as the views of a host of district courts (585 F.3d 310, n. 1 (7th Cir. 2001)) and the view of the United States Department of Labor for some 50 years (citing Goldbert v. Zenger, 43 Lab. Cas. (CCH) 31,155, at 40,986 (D. Utah 1961)).One wonders whether the 1997 decision of Auer v. Robbins, 519 U.S. 452, may not carry the day. In Auer, the Court held that the Secretary of the United States Department of Labor’s position was worthy of deference even though advanced in litigation and “[t]here is simply no reason to suspect that the interpretation does not reflect the agency’s fair and considered judgment on the matter in question.”
Todd Garvey, Cong. Research Serv., R41546, A Brief Overview of Rulemaking and Judicial Review 9 (“A common use of the good cause exception is in the issuance of interim final rules.”)The rule provides temporary relief “for Form ID filers and for issuers subject to reporting obligations pursuant to Regulation Crowdfunding and Regulation A.” Secs. and Exch. Comm’n, Relief for Form ID Filers and Regulation Crowdfunding and Regulation A Issuers Related to Coronavirus Disease 2019 (COVID-19) (2020), https://www.sec.gov/rules/interim/2020/33-10768.pdf.See generallyChevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837 (1984); Auer v. Robbins, 519 U.S. 452 (1997); see also Kisor v. Wilkie, 139 S. Ct. 2400 (2019).Press Release, FDA, FDA on Signing of the COVID-19 Emergency Relief Bill, Including Landmark Over-the-Counter Drug Reform and User Fee Legislation (Mar. 30, 2020), https://www.fda.gov/news-events/press-announcements/fda-signing-covid-19-emergency-relief-bill-including-landmark-over-counter-drug-reform-and-user-fee.
The court found it “plain from the face of the [FERC ] regulations” that the Standard Contract fails to offer QFs the rate options the regulations require. Thus, the court stated that it would not “defer to FERC’s unreasoned conclusion to the contrary…” under Auer v. Robbins, 519 U.S. 452 (1997) (slip op. at 10).
On the last day of the Term the Supreme Court handed down Kisor v. Wilkie, No. 18-15 (June 30, 2019), delimiting the reach of what is called Auer deference but refusing to overturn it. See also Auer v. Robbins, 519 U.S. 452 (1997). Perhaps the most interesting feature of the decision is the opinion written by Chief Justice Roberts stating that “the distance between the Majority and Justice Gorsuch is not as great as it may initially appear.”
In a splintered 5-4 decision, the U.S. Supreme Court recently declined to overrule its prior precedent in Auer v. Robbins,519 U.S. 452 (1997), in which the Court declared the long-standing doctrine that requires courts interpreting agency rulings and regulations to give substantial deference to an agency’s own interpretation of its pronouncements—otherwise known as Auer deference (sometimes referred to as Seminole Rock deference). Although not overruled, the Court reiterated that Auer deference should be applied relatively narrowly and be reserved for situations in which a court has already exhausted all tools of construction.In his challenge to Auer deference, the petitioner, a military veteran, sought disability benefits for PTSD from the Department of Veterans Affairs (VA) related to his wartime service.
 Bowles v. Seminole Rock & Sand Co., 325 U.S. 410, 414 (1945). This formulation was followed in Auer v. Robbins, 519 U.S. 452, 461 (1997) (which itself quoted the same language in Robertson v. Methow Valley Citizens Council, 490 U. S. 332, 359 (1989)).  See Kisor v. Wilkie, No. 18-15, slip op. at 18–19 (U.S. June 26, 2019).
Last month, the Supreme Court in Kisor v. Wilkie, 139 S.Ct. 2400 (2019) upheld what is known in administrative law as Auer deference: the age-old principle that a court should defer to an agency when the agency is interpreting its own ambiguous language in a regulation. SeeAuer v. Robbins, 519 U.S. 452 (1997); see also Bowles v. Seminole Rock & Sand Co., 325 U.S. 410 (1945). Deference to an agency’s regulatory interpretation has long been a challenge to industry and the broader regulated community.