“Auer deference,” announced by the U.S. Supreme Court in Auer v. Robbins (1997), requires courts to accord deference to a federal agency’s interpretation of its own statute. The U.S. Department of Education, contradicting some earlier statements, has lately taken the view that “collection costs may not be assessed against [student loan] borrowers who sign rehabilitation agreements,” thus turning unlawful in retrospect thousands of instances in which lenders have done that. The Seventh Circuit has now denied en banc rehearing in the case of Bryana Bible v. United Student Aid Funds, which — invoking Auer deference — let a suit go forward on that theory. Judge Frank Easterbrook, concurring in that denial of rehearing en banc (h/t Ted Frank), noted that Supreme Court justices including Auer’s original author have lately expressed doubts about the doctrine’s ongoing viability. Easterbrook:
…deference has set the stage for a conclusion that conduct, in compliance with agency advice when undertaken (and consistent with the district judge’s view of the regulations’ text), is now a federal felony and the basis of severe penalties in light of the Department’s revised interpretation announced while the case was on appeal.