Last week over at Jotwell, Richard  Murphy reviewed Auer in Action: Deference After Talk America byCynthia Barmore, which was published last year in the Ohio State Law Journal. Here’s a summary of the paper from the SSRN abstract (the paper is available on SSRN here):

For decades, judges and commentators took for granted that courts should defer to an agency’s interpretation of its own ambiguous regulation, unless that interpretation is plainly erroneous or inconsistent with the regulation. In 2011, however, Justice Scalia announced his growing discontent with Auer deference in Talk America, and the Court has since rolled back Auer’s scope in recent decisions. While Auer’s judicial and academic critics have explored the theoretical dangers inherent in the doctrine, they have paid little attention to how courts applyAuer in practice. This Article adds to the literature on Auer deference by providing the first in-depth analysis of how federal courts of appeals have reacted to the Court’s recent Auer decisions. In the end, the data suggest that there is little to gain (and much to lose) by overruling Auer.

The results, drawn from an original data set of all 190 Auer cases decided by courts of appeals since 2011, reveal Auer is no longer the extremely deferential doctrine it was once considered to be. The rate at which courts grant Auer deference fell from 2011 to 2014 among both Republican and Democratic judges. Overall, deference is most common in traditionally conservative courts of appeals, when the agency is party to the litigation, and when the agency’s interpretation appears in an agency order or public issuance. The results also reveal why courts do — and do not — defer. When courts grant Auer deference, they rarely view the agency’s interpretation as unpersuasive, and when they withhold Auer deference, they typically rely on Auer’s historical boundaries. The data confirm that courts already have and use the necessary tools to reject unreasonable agency interpretations, while overruling Auer would bring substantial costs in lost predictability and reduced political accountability.

Entitled Counting Out Auer Deference, Professor Murphy’s Jotwell review of the piece is worth a read (as is the article being reviewed). Here’s a taste of the review:

Of course, all this data does not interpret itself. On its face, it does, however, suggest that agencies are not, armed with Auer deference, roaming the land abusing regulated parties with unreasonable interpretations of regulations. It also suggests that the lower courts are getting the Supreme Court’s message to be a bit more careful when applying Auer. One should think that data like this should inform the Supreme Court’s decision in whatever test case it takes to determine whether to get rid of Auer based on centuries-old abstractions concerning separation of powers. Cynthia Barmore is to be applauded for gathering and analyzing this data.

Barmore has lots more to say both descriptively and prescriptively based on her study. To pique your interest, here are a few of her observations: The court that knows agencies and administrative law the best, the D.C. Circuit, has one of the lowest affirmance rates among the circuits when applying Auer—65%. Practice may not make perfect—the Department of Labor and the Bureau of Immigration Affairs were among the agencies that invoked Auer most often, but their affirmance rates were among the lowest at 62% and 61%. And, although the good Baron de Montesquieu, were he still with us, might not care for Auer, lower courts do not seem to mind applying it. In only one case out of the 190 did a court suggest that Auer deference compelled it to accept an interpretation that the court would otherwise reject.

As I blogged about earlier this year (here), an ideal vehicle (at least in Judge Easterbrook’s opinion) to reconsider Auer is pending before the Court. With Justice Scalia’s passing, however, it seems less likely the Court would be interested in reconsidering Auer at this time.