70 Analyses of this case by attorneys

  1. Supreme Court Upholds EPA's Logging Road Exception from Clean Water Act NPDES Permitting

    Holland & Knight, LLPApril 12, 2013

    at 12–13.23 519 U.S. 452, 461 (1997).24Decker, 81 USLW 4190, slip op. at 14.

  2. Eighth Circuit Rejects OSHA’s Attempt to Expand the Scope of its Machine Guarding Standard

    Seyfarth Shaw LLPCraig SimonsenOctober 16, 2015

    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.

  3. Supreme Court to Decide Whether a Verbal Complaint is Protected Activity Under the Anti-Retaliation Provision of the FLSA

    Robert B. Fitzpatrick, PLLCRobert B. FitzpatrickApril 2, 2010

    (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.”

  4. The Ninth Circuit Affirms that California QF Contracts Do Not Comply with PURPA

    King & SpaldingZori FerkinAugust 16, 2019

    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).

  5. This Week In Securities Litigation (Week starting July 22, 2019)

    Dorsey & Whitney LLPThomas O. GormanJuly 21, 2019

    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.”

  6. SCOTUS: Auer Deference Stays Alive Despite Narrow Application

    Weiner Brodsky Kider PCJuly 19, 2019

    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.

  7. Declining to Overrule a Long-Standing Agency Deference Doctrine, the Supreme Court Nonetheless Cautions That its Limitations Provide a Meaningful Check on Federal Agencies' Power to Regulate Business Activities

    K&L Gates LLPJohn LongstrethJuly 12, 2019

    [1] 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)). [2] See Kisor v. Wilkie, No. 18-15, slip op.

  8. Leveling the Playing Field against Federal Agency Regulatory Interpretation: The Supreme Court’s Kisor Decision and the U.S. Attorney General’s 2018 Memorandum

    Blank Rome LLPJuly 10, 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.

  9. Who Gets to Decide What an Agency Meant? U.S. Supreme Court Places Limits on Agency Deference

    Beveridge & Diamond PCJuly 9, 2019

    When judicial deference applies, a court will treat an agency’s interpretation of an ambiguous regulatory provision as controlling so long as it is reasonable or at times even just plausible, even if another interpretation is better in the court’s view. The Supreme Court first established the judicial deference doctrine for agency interpretations of their own regulations in the 1945 decision Bowles v. Seminole Rock & Sand Co., 325 U. S. 410 (1945), which was expanded and extended in the 1997 decision Auer v. Robbins, 519 U.S. 452. This doctrine is now known as “Auer deference.”

  10. What Employment Issues did the Supreme Court Address this Term, and What’s in Store for 2019-2020?

    LittlerRachel Fendell SatinskyJuly 2, 2019

    o Arbitration Agreements, Reinforcing the Force of Delegation Provisions, Littler ASAP (Jan. 14, 2019).3For a more detailed discussion of this decision,seeKaitlyn Burke and Robert Friedman,Supreme Court Confirms Class Arbitration May Not Proceed Unless Expressly Permitted by the Arbitration Agreement,Littler ASAP (Apr. 25, 2019).4For a more detailed discussion of this decision,seeSteve McCown and Andrew Gray,Supreme Court Holds EEOC Charge-Filing Requirement is Not Jurisdictional, Littler ASAP (June 4, 2019).5SeeTara Presnell and Alexandra Hemenway,U.S. Supreme Court Vacates and Remands Ninth Circuit's Decision in Equal Pay Case, Littler ASAP (Feb. 29, 2019).6SeeSocial Security Bd. v. Nierotko, 327 U. S. 358 (1946) andUnited States v. Quality Stores, Inc., 572 U. S. 141 (2014), respectively.7For a more detailed discussion of this decision,seeWilliam Hays Weissman and Dustin Bodaghi,Supreme Court Holds "Compensation" for Lost Time Is Taxable under the RRTA, Littler ASAP (Mar. 5, 2019).8Auer v. Robbins, 519 U.S. 452 (1997).9For his part, Chief Justice Roberts opined that the “the distance between the majority and Justice Gorsuch is not as great as it may initially appear.” Touching on another deference doctrine, Justice Roberts added: Issues surrounding judicial deference to agency interpretations of their own regulations are distinct from those raised in connection with judicial deference to agency interpretations of statutes enacted by Congress.See Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U. S. 837 (1984).