Kisor

Kisor is a U.S. Supreme Court decision that limited deference to agency interpretations and guidances:

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In 2019, the Supreme Court clarified the limits on deference to administrative agencies' interpretations of their rules and "reinforc[ed]" courts' obligation to "perform their reviewing and restraining functions" under the Auer paradigm. See Kisor, 139 S. Ct. at 2414-15. Significantly for our purposes, Auer deference applies only in cases of "genuine" interpretive ambiguity. See id. at 2415. This means that "before concluding that a rule is genuinely ambiguous, a court must . . . carefully consider the text, structure, history, and purpose of [the rule], in all the ways it would if it had no agency to fall back on." Id. If there is no uncertainty as to the rule's meaning—that is, where "there is only one reasonable construction of" the rule—then "a court has no business deferring to any other reading, no matter how much [an] agency insists it would make more sense." Id. In that circumstance, the rule "just means what it means" and "the court must give it effect, as the court would any law." Id.

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United States v. Alford, No. 3:21cr052/MCR, 2022 U.S. Dist. LEXIS 149494, at *4-5 (N.D. Fla. Aug. 20, 2022).

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The Eleventh Circuit has not yet considered the Kisor decision in the context of Guidelines interpretive commentary. However, it has applied the Kisor framework for Auer deference in other contexts. See, e.g., United States v. US Stem Cell Clinic, LLC, 998 F.3d 1302, 1308 (11th Cir. 2021) (observing that courts faced with a challenge to an administrative rule may "[no longer] . . . simply wave the ambiguity flag and defer to the agency's interpretation"); see also Dobson v. Sec'y of Health & Hum. Serv., 26 F.4th 401, 2022 WL 424813 (11th Cir. 2022) (FDA interpretation of prescription coverage provision of Medicare Part-D statute); Rafferty v. Denny's, Inc., 13 F. 4th 1166 (11th Cir. 2021) (Department of Labor interpretation of dual-jobs regulation).

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United States v. Alford, No. 3:21cr052/MCR, 2022 U.S. Dist. LEXIS 149494, at *6 n.5 (N.D. Fla. Aug. 20, 2022).