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Humpty Dumpty and the Zombie Apocalypse


A Recent Supreme Court Decision Could Change The Way Courts (Including The Federal Mine Safety And Health Review Commission) Decide What Regulations Really Mean.

By Mark Savit and Erik Dullea

What does a legal column 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 (including the Federal Mine Safety and Health Review Commission) decide what regulations really mean.

First, a little background.

The Supreme Court held in Bowles v. Seminole Rock, 325 U.S. 410 (1945), that when a regulation is ambiguous, courts should defer to the government’s interpretation of it, so long as the interpretation is reasonable.

Fifty-two years later, the Supreme Court restated and seemingly reinforced that doctrine in Auer v. Robbins, 519 U.S. 452 (1997). Because of the Auer decision, judicial deference to an agency’s interpretation of its own regulations became known as “Auer deference.”

Auer deference has been a staple of MSHA’s legal arguments when there is a question as to the meaning of regulation. It has gotten to a point where MSHA resembles the character Humpty Dumpty in Alice in Wonderland.

In that book, Lewis Carroll describes an argument between Alice and the nursery rhyme character Humpty Dumpty about a word that clearly didn’t mean what Humpty Dumpty said it meant. When Alice questioned the word’s meaning, 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 easily claim that when the agency interprets a word in a regulation, the court was required to accept whatever MSHA choses it to mean, unless the court found that meaning “plainly erroneous” – a legal standard that is almost impossible to prove.

So what changed?

In June 2019, the Supreme Court issued a 5-4 decision in Kisor v. Wilkie, 588 U.S. __ (2019), which all but overturned Auer. Kisor, a Vietnam veteran, applied for VA benefits claiming he had PTSD from his military service.

The VA initially denied Kisor’s claim, stating he didn’t have the proper diagnosis from a psychiatrist. Kisor re-applied, after obtaining the necessary diagnosis, and the VA approved his claim, but the VA calculated his benefits from the date of his second application, not the original. 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 declined to overturn Auer completely, but they severely limited its application. The majority made clear that courts were not always required to accept an agency’s interpretation of a regulation no matter the circumstances. The Court described four important limitations on Auer’s application:

First

Before concluding a regulation was ambiguous, courts must exhaust all of the traditional tools of statutory interpretation including its text, structure, history and purpose. In other words, rather than simply taking the parties’ word that there might be more than one reasonable reading of a regulation, courts must use all the tools at their disposal to determine the meaning of the regulation without relying on the agency’s interpretation.

For Commission proceedings, this will require a close examination of the precise wording of the regulation, in the context of its rulemaking history. If a regulation gives an operator two alternative methods of compliance, MSHA can no longer claim it interprets the regulation to mean only one of those alternatives is acceptable.

Second

If, after that close examination, the courts find that the regulation was ambiguous, they must examine the character and context of the interpretation to determine whether it was of “controlling weight.”

The majority took some pains to point out that to be entitled to “controlling weight” the agency’s interpretation must be one that is “authoritative” (that is, it could be relied upon) or its “official position.” In other words, MSHA cannot simply come up with interpretations for the first time in an enforcement action or in litigation. Instead, MSHA will have to rely on established interpretations, well known to the industry.

Third

Courts will have to examine whether the agency’s interpretation implicated its substantive expertise, rather than being simply a different reading of the regulation that has no real impact on the regulation’s purpose.

Finally, the majority required that, before accepting the agency’s interpretation, courts must find that the interpretation is the agency’s “fair and considered judgment” and not just a convenient litigation position. Additionally, courts should not defer to an agency interpretation that constituted an “unfair surprise” on the regulated community.

By imposing this four-part test, the majority transformed Auer deference from a doctrine requiring courts to adopt agency interpretations of their own rules into a mechanism through which courts exercise their own independent judgment in spite of agency interpretations. Thus, while not explicitly overturning Auer, the majority essentially stripped it of all of its power.

What does this have to do with a zombie apocalypse?

In a concurring opinion, Justice Gorsuch characterized the majority’s ruling this way:

…[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.” (emphasis added).

There is a growing sentiment among Supreme Court justices (led by Justice Gorsuch) who make no secret of their desire to do away with a series of decisions that expanded agency power, and return that power to the court. In other words, this could be the beginning of a kind of zombie apocalypse that the regulators may fear, but the regulated community should not.

Final Message

Back to Humpty Dumpty and Alice, a final message:

The issue here was directly addressed by Alice after Humpty allowed himself to dictate the meaning of any word he used.

“The question is,” said Alice, “whether you can make words mean so many different things.”

“The question is,” said Humpty Dumpty,“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 at Husch Blackwell. As a member of its Energy & Natural Resources group, Savit counsels clients in government investigations and regulatory matters, and litigates improper enforcement actions and whistleblower cases. He can be reached at This email address is being protected from spambots. You need JavaScript enabled to view it..

Erik Dullea is senior counsel at Husch Blackwell. As a member of its Technology, Manufacturing & Transportation team, he focuses on administrative/regulatory law, with an emphasis on heavily regulated industries and government contractors.He can be reached at This email address is being protected from spambots. You need JavaScript enabled to view it..