Rock Products

AUG 2019

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120 • ROCK products • August 2019 W hat 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 seem- ingly 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 claim- ing 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 retro- active 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 exam- ination of the precise wording of the regulation, in the context of its rulemaking history. If a regulation gives an operator 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 mark. 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 erik.dullea@ 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 Law Aggregates Industry Almanac

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