This is the first of several posts that I'm going to dedicate to discussing every federal case that cites Kisor as of November 2, 2019. I'll proceed from the oldest case to the newest. Once I'm done, I'll probably do an overview post as well with charts etc. Cases marked with an * are ones that, in my view, are particularly interesting for one reason or another.

Important note: this list will not include cases decided since Kisor that rely on Seminole Rock or Auer without discussing Kisor. Nor will it cover cases decided since Kisor that don't address judicial deference doctrines at all even where they might seem applicable. I'm sure there are several. Take Continental Resources, Inc. v. Gould, 2019 4889273 (D.D.C. Oct. 3, 2019), for example. Despite the fact that it was decided months after Kisor, the Court applies Seminole Rock and drops this mysterious footnote: "Although the Supreme Court is currently considering whether to limit or overturn Auer v. Robbins and Bowles v. Seminole Rock & Sand Co., see Kisor v. Wilkie, ––– U.S. ––––, 139 S. Ct. 657, 202 L.Ed.2d 491 (2018), that decision is unlikely to have any bearing on the present dispute for the reasons discussed below." Was the court unaware that Kisor had already been decided? Who knows? My point is, the discussion that follows in this post and the other that will follow it is just a starting point for understanding Kisor's impact.

Sierra Club v. Trump, 929 F.3d 670 (9th Cir. July 3, 2019)

Sierra Club sued President Trump and certain members of his Cabinet for claims arising from defendants' decision to "reprogram" funds appropriated by Congress to DOD for Army personnel needs and redirect those funds toward building a "wall" along the southern border. District court entered preliminary injunction and then a permanent injunction barring defendants from using reprogrammed funds to construct wall. Defendants filed an emergency motion to stay the permanent injunction pending appeal and appealed the preliminary injunction.

The Ninth Circuit, in an opinion by Judge Clifton, joined by Judge Friedland, ruled in favor of Sierra Club and refused to stay the injunction. Along the way, the Court held that DOD's interpretation of the Appropriations Act was not entitled to deference under Chevron or Skidmore.  It explained that DOD's Chevron argument failed at Step Zero because Congress didn't give the agency rulemaking power with respect to the question at issue, and the agency didn't use formal procedures to issue the interpretation such that it might have the force and effect of law. Explaining that the agency's interpretation wasn't entitled to Skidmore deference either, the Court cited Kisor and emphasized that the agency's interpretation didn't reflect DOD's exercise of any particular expertise. So not really a Kisor case at all. The fact that the Court drew on Kisor anyway is interesting.

Hyland v. Navient Corp., 2019 WL 2918238 (SDNY July 8, 2019)

Court grants Navient's 12(b)(6) motion to dismiss plaintiffs' claims in part. Cites Kisor in rejecting Navient's argument that an agency interpretation of a statute is entitled to Auer deference. Helpfully explains that Kisor applies to certain agency interpretations of regulations.

*Spencer v. Macado's, Inc., 2019 WL 2931304 (W.D. Va. July 8, 2019)

Restaurant workers sued their employer alleging violations of the Fair Labor Standards Act. Boiled down, this case hinges on whether DOL's recent change in position on the proper interpretation of its own regulation implementing the FLSA is entitled to Kisor or Skidmore deference. On November 8, 2018, while this lawsuit was pending, DOL issued an opinion letter purporting to reverse an interpretation of its own guidance regarding the proper interpretation of a particular regulation. Shortly thereafter, DOL memorialized that opinion letter in an update to its Handbook.

Defendant moved to dismiss the employees' claims based on the new DOL interpretation of the relevant regulations, but the court denied the motion, concluding that neither the opinion letter nor the Handbook update were entitled to deference. The court found the relevant regulation ambiguous, but refused to defer to DOL's new interpretation under Kisor because, in the court's view, that interpretation was not the result of the agency's fair and considered judgment. The court explained that the fact that the agency's new interpretation coincided with a change in administration and reversed existing agency guidance that DOL had been applying consistently for over 30 years "strongly suggest[s] that the change is a matter of policy, not an effort to determine the meaning of the regulation.” Confusingly, despite having just found the regulation ambiguous, the court added that "DOL's new interpretation contradicts the regulation as it plainly reads." (emphasis added). In addition, the court found Kisor deference inappropriate because it would result in "unfair surprise" to the regulated public. For the same reasons, the court refused to defer to DOL's interpretation under Skidmore as well.

A couple of comments on this one. First, the court's view that an agency's interpretation is not entitled to deference because it is based on a policy judgment strikes me as flat wrong. After all, one of the primary reasons courts presume that Congress would want agencies to resolve these ambiguities instead of courts is that doing so often requires policy judgment and agencies are more politically accountable than courts. Second, it's interesting that the court reviews DOL's interpretation of its regulations even though DOL is not involved in the case.

Luis v. RBC Capital Markets, 2019 WL 3034597 (D. Minn. July 11, 2019) (appeal pending)

Not really a Kisor case, but cites Kisor for the important and often-overlooked point that in it, the Supreme Court held that while interpretive rules are subject to deference, they can't form the basis for an enforcement action because they don't impose binding requirements on private parties. Instead, enforcement actions must rely on legislative rules, which (to be valid) must go through notice and comment.

Lower Courts Applying Kisor (Kisor Rant 3)
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