Petition for Writ of Certiorari — Berkley V. Walker, Petitioner v. BOKF, National Association, dba Bank of Albuquerque, N.A.

Supreme Court briefSep 16, 2022

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No. 22-____

IN THE

Supreme Court of the United States

————

BERKLEY V. WALKER,

Petitioner,

BOKF, N.A., D/B/A BANK OF ALBUQUERQUE, N.A.,

Respondent.

————

On Petition for a Writ of Certiorari to the

United States Court of Appeals

for the Tenth Circuit

————

PETITION FOR A WRIT OF CERTIORARI

————

J. AARON LAWSON

EDELSON PC

150 California Street

18th Floor

San Francisco, CA 94111

RYAN D. ANDREWS

Counsel of Record

ROGER PERLSTADT

ALEXANDER G. TIEVSKY

EDELSON PC

350 North LaSalle Street

14th Floor

Chicago, IL 60654

(312) 589-6370

randrews@edelson.com

Counsel for Petitioner

September 16, 2022

WILSON-EPES PRINTING CO., INC. – (202) 789-0096 – WASHINGTON, D.C. 20002

QUESTIONS PRESENTED

When an account holder at Respondent BOKF, N.A.

(“the Bank”) overdraws their account and the Bank

covers the shortfall by extending its own money, the

Bank will continuously impose so-called “extended”

overdraft charges until the covered amount is repaid.

This case concerns whether those extended overdraft

fees are “interest” within the meaning of the National

Bank Act of 1864, 12 U.S.C. § 85, as implemented by

12 C.F.R. § 7.4001(a). That regulation, as relevant

here, defines “interest” as “any payment compensating

a creditor . . . for an extension of credit . . . .” A

divided panel of the Court of Appeals resolved that

question by deferring, under Auer v. Robbins, 519 U.S.

452 (1997), to an interpretive letter issued by the Office

of the Comptroller of the Currency that addresses a

different question about a different regulation, that

does not cite to § 7.4001, that does not use the word

“interest,” and that ignores a previous agency interpretation of the same statute. A dissenting judge (Eid,

J.) disagreed that the regulation was ambiguous, and,

even if it was, that the interpretive letter in question

was worthy of deference. The questions presented are:

1. May a court defer to an agency’s post-promulgation pronouncements to determine that a regulation is

genuinely ambiguous?

2. Is an agency interpretation that only addresses

the question at issue by implication and which is inconsistent with a previous position taken by the same

agency the product of that agency’s “fair and considered judgment,” and therefore potentially entitled to

judicial deference?

3. Is 12 C.F.R. § 7.4001(a) genuinely ambiguous,

such that an agency interpretation of the regulation

(i)

can be entitled to judicial deference under Auer and

Kisor v. Wilkie, 139 S. Ct. 2400 (2019)?

iii

PARTIES TO THE PROCEEDINGS

Petitioner Berkley V. Walker was the plaintiff in the

district court proceedings, and appellant in the court

of appeals proceedings.

Respondent BOKF, N.A., d/b/a Bank of Albuquerque,

N.A. was the defendant in the district court proceedings, and appellee in the court of appeals proceedings.

RELATED PROCEEDINGS

Petitioner is unaware of any other proceedings that

are directly related to this case.

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED ...............................

PARTIES TO THE PROCEEDINGS ..................

iii

RELATED PROCEEDINGS ...............................

TABLE OF AUTHORITIES ................................

vii

OPINIONS BELOW ............................................

JURISDICTION ..................................................

STATEMENT OF THE CASE ............................

REASONS FOR GRANTING THE PETITION..

I. This Court should clarify that Kisor’s

ambiguity analysis does not include

baked-in deference to agency interpretations of their own regulations ..................

II. There is no “fair and considered” agency

judgment on the issue presented that

merits deference ........................................

III. The decision below is wrong .....................

IV. The questions presented are exceptionally

important ..................................................

CONCLUSION ....................................................

APPENDIX

APPENDIX A: OPINION, Court of Appeals

for the Tenth Circuit (April 8, 2022) .............

APPENDIX B: MEMORANDUM OPINION

AND ORDER, District Court for the District

of New Mexico (March 20, 2020) ...................

49a

(v)

TABLE OF CONTENTS—Continued

Page

APPENDIX C: MEMORANDUM OPINION

AND ORDER, District Court for the District

of New Mexico (July 15, 2019) .......................

58a

APPENDIX D: ORDER, Court of Appeals

for the Tenth Circuit (May 19, 2022).............

71a

APPENDIX E: CLASS ACTION COMPLAINT, District Court for the District of

New Mexico (August 22, 2018) ......................

73a

APPENDIX F: 12 U.S.C. § 85 .......................

88a

APPENDIX G: 12 C.F.R. § 7.4001 ................

90a

APPENDIX H: 12 C.F.R. § 7.4002 ................

92a

vii

TABLE OF AUTHORITIES

CASES

Page(s)

Adamo Wrecking Co. v. United States,

434 U.S. 275 (1978) ...................................

Akzo Nobel Salt, Inc. v. FMSHRC,

212 F.3d 1301 (D.C. Cir. 2000) .................

Am. Hosp. Ass’n v. Becerra,

142 S. Ct. 1896 (2022) ...............................

Ass’n of Bituminous Contractors, Inc. v.

Apfel,

156 F.3d 1246 (D.C. Cir. 1998) ................. 16, 17

Auer v. Robbins,

519 U.S. 452 (1997) ..................................passim

Bostock v. Clayton County,

140 S. Ct. 1731 (2020) ...............................

Calcasieu-Marine Nat’l Bank of Lake Charles

v. Am. Emp. Ins. Co.,

533 F.2d 290 (5th Cir. 1976) .....................

Christopher v. SmithKline Beecham Corp.,

567 U.S. 142 (2012) ...................................

Fawcett v. Citizens Bank, N.A.,

919 F.3d 133 (1st Cir. 2019) ............ 9-10, 16, 19

FCC v. Fox Television Studios, Inc.,

556 U.S. 502 (2009) ...................................

FDA v. Brown & Williamson Tobacco Corp.,

529 U.S. 120 (2000) ...................................

FERC v. Elec. Power Supply Ass’n,

136 S. Ct. 760 (2016) .................................

First Bank v. Tony’s Tortilla Factory, Inc.,

877 S.W.2d 285 (Tex. 1994) ......................

viii

TABLE OF AUTHORITIES—Continued

Page(s)

Goffney v. Becerra,

995 F.3d 737 (9th Cir. 2021) ..................... 16, 17

INS v. Cardoza-Fonseca,

480 U.S. 421 (1987) ...................................

Johnson v. BOKF, N.A.,

15 F.4th 356 (5th Cir. 2021) .....................

Kisor v. Wilkie,

139 S. Ct. 2400 (2019) ..............................passim

Marquette Nat’l Bank v.

First of Omaha Serv. Corp.,

439 U.S. 299 (1978) ...................................

Morrissette v. United States,

342 U.S. 246 (1952) ...................................

NationsBank of N. Carolina, N.A. v.

Variable Annuity Life Ins. Co.,

513 U.S. 251 (1995) ...................................

Payne v. Freer,

91 N.Y. 43 (1883) ......................................

Skidmore v. Swift & Co.,

323 U.S. 134 (1944) ................................... 15, 16

Smiley v. Citibank (S.D.), N.A.,

517 U.S. 735 (1996) ................................... 4, 20

Thiele v. Sec. State Bank of New Salem,

396 N.W.2d 295 (N.D. 1986) .....................

Torrance Nat’l Bank v.

Enesco Fed. Credit Union,

285 P.2d 737 (Cal. Ct. App. 1955) ............

TABLE OF AUTHORITIES—Continued

Page(s)

United States v. Adair,

38 F.4th 341 (3d Cir. 2022) ..........................

United States v. Gonzales,

520 U.S. 1 (1997) .......................................

Univ. of Texas Sw. Med. Ctr. v. Nassar,

570 U.S. 338 (2013) ...................................

Walker v. BOKF, N.A.,

30 F.4th 994 (10th Cir. 2022) ...................

Watters v. Wachovia Bank, N.A.,

550 U.S. 1 (2007) .......................................

Whitman v. Am. Trucking Ass’n,

531 U.S. 457 (2001) ......................................

STATUTES AND REGULATIONS

12 U.S.C. § 24 ...............................................

28 U.S.C. § 1254(l) ........................................

Equal Credit Opportunity Act, 15 U.S.C.

§§ 1691-1691f ...........................................

National Bank Act of 1864, 12 U.S.C.

§ 85 ...................................................... 2, 4, 5, 18

U.C.C. § 4-401(a) ...........................................

12 C.F.R. § 7.4001 .......................................passim

12 C.F.R. § 7.4002 .......................................passim

12 C.F.R. § 7.4007 ............................................ 6, 14

12 C.F.R. § 7.8000 (1971) .............................. 3, 4, 5

TABLE OF AUTHORITIES—Continued

Page(s)

12 C.F.R. part 32 ..........................................

Regulation B, 12 C.F.R. §§ 1002.1-1002.16 .

RULES

Fed. R. Civ. P. 12(b)(6) .................................

COURT FILINGS

Br. for Amici Curiae The Nat’l Immigrant

Justice Ctr. and The Am. Immigration

Lawyers Ass’n, Kisor v. Wilkie (No. 1815) (Jan. 31, 2019).....................................

Br. of Wash. Legal Found. as Amicus

Curiae in Support of Pet’r, Kisor v. Wilkie

(No. 18-15) (Jan. 31, 2019) .......................

OTHER AUTHORITIES

1 Barkley Clark & Barbara Clark, The Law

of Bank Deposits, Collections and Credit

Cards (Rev. Ed. 2010) ...............................

Consumer Fin. Prot. Bureau, Data Point:

Account Overdrafts (July 2014), available

at https://perma.cc/96SY-UNGQ ................

Comment, Melissa Corry, Kisor’s Chaos:

Conflicting Meanings of the Clean Air

Act’s “Applicable Requirements” in the

Fifth and Tenth Circuits, 74 S.M.U. L.

Rev. 749 (2021)..........................................

Credit, Black’s Law Dictionary (11th ed.

2019) .......................................................... 18, 21

TABLE OF AUTHORITIES—Continued

Page(s)

Lawrence Summers, Sec’y of the Treasury,

Extending the Frontiers of Capital,

Remarks before the CDFI Coalition (Jan.

27, 2000), available at https://perma.cc/

K2XY-M45V ..............................................

Final Rule, Investment Securities; Bank

Activities and Operations; Leasing, 66

Fed. Reg. 34,784 (July 2, 2001) ............ 5, 11, 14

Interpretive Ruling Concerning National

Bank Service Charges, 48 Fed. Reg.

54,319 (Dec. 2, 1983) .................................

Interpretive Rulings, 60 Fed. Reg. 11,924

(Mar. 3, 1995) ............................................

Interpretive Rulings, 61 Fed. Reg. 4,849

(Feb. 9, 1996) .............................................

Kevin O. Leske, Splits in the Rock: The

Conflicting Interpretations of the Seminole

Rock Deference Doctrine by the U.S.

Courts of Appeals, 66 Admin. L. Rev. 787

(2014) .........................................................

Lars Noah, Divining Regulatory Intent:

The Place for A “Legislative History” of

Agency Rules, 51 Hastings L.J. 255

(2000) ......................................................... 11, 12

Michael S. Barr, Banking the Poor, 21 Yale

J. on Reg. 121 (2004) .................................

xii

TABLE OF AUTHORITIES—Continued

Page(s)

Notice of Proposed Rulemaking, Investment

Securities;

Bank

Activities

and

Operations; Leasing, 66 Fed. Reg. 8,178

(Jan. 30, 2001) ........................................... 5, 11

OCC Interpretive Letter, 1984 WL 164096

(May 22, 1984)......................................... 4, 5, 15

OCC Interpretive Letter No. 1082, 2007

WL 5393636 (May 17, 2007) ....................passim

Rebecca Borné, Peter Smith & Rachel

Anderson,

Broken

Banking:

How

Overdraft Fees Harm Consumers and

Discourage Responsible Banking Products

(May 2016), available at https://perma.cc/

F9Q6-2ET3 ................................................... 22, 23

Ronald Hersbergen, Banking Law, 44 La.

L. Rev. 247 (1983) .....................................

Rourke O’Brien, “We Don’t Do Banks”:

Financial Lives of Families on Public

Assistance, 19 Geo. J. on Poverty L. &

Pol’y 485 (2012)............................................

PETITION FOR A WRIT OF CERTIORARI

Petitioner Berkley V. Walker respectfully petitions

for a writ of certiorari to review the judgment of the

U.S. Court of Appeals for the Tenth Circuit.

OPINIONS BELOW

The opinion of the court of appeals (App. 1a-48a) is

reported at 30 F.4th 994. The order denying rehearing

and rehearing en banc (App. 71a-72a) is unreported.

The district court’s order granting Respondent’s motion

to dismiss (App. 58a-70a) is unreported. The district

court’s order denying Petitioner’s motion to alter or

amend the judgment (App. 49a-57a) is unreported.

JURISDICTION

The judgment of the court of appeals was entered on

April 8, 2022. A timely petition for rehearing was

denied on May 19, 2022. By order dated August 15,

2022, Justice Gorsuch extended the time in which to

file a petition for certiorari to and through September

16, 2022. This Court has jurisdiction under 28 U.S.C.

§ 1254(1).

STATEMENT OF THE CASE

1. Petitioner Berkley V. Walker held an account at

the Bank of Albuquerque, a branch of BOKF, N.A., a

national bank chartered in Oklahoma. Pet. App. 75a

(¶¶ 7-8). According to his deposit account agreement,

any time Walker overdrew his account, he would be

charged $34.50. Pet. App. 76a (¶ 12).1 The Bank

The “Summary of Fees and Definitions” attached to Walker’s

account agreement labels this $34.50 charge either an “Overdraft

Fee” or a “Returned Item Fee,” depending on whether the Bank

elects to honor the overdraft or not. C.A. App. 71. This Petition

will refer to this fee as the “initial overdraft fee.”

retained the option of covering any overdraft with its

own funds. If it did so and Walker failed to repay the

bank within five business days, the Bank would

charge a fee of $6.50 (the “extended overdraft fee”) on

each business day until the debt was repaid. Id.

In 2017 Walker overdrew his account by about $25,

and was charged the $34.50 initial overdraft fee. Pet.

App. 80a (¶ 21). The Bank exercised its discretion to

cover Walker’s overdraft, extending its own money to

cover Walker’s shortfall. Walker was unable to repay

the Bank for two months. Pet. App. 80a (¶¶ 22-23).

During that time he incurred $234 in extended overdraft charges, a sum amounting to an annualized interest

rate of over 500%. Pet. App. 84a-85a (¶¶ 41-42.)

After repaying his debt to the Bank, Walker instituted this lawsuit. He contends that the extended

overdraft fees are a type of interest charge and that,

as applied to his situation, they are usurious. The

claim arises under 12 U.S.C. § 85, part of the National

Bank Act, which allows national banks to receive

interest at the rate allowed by the state in which the

bank is chartered, here, Oklahoma. See Marquette

Nat’l Bank v. First of Omaha Serv. Corp., 439 U.S. 299,

308-13 (1978). An implementing regulation, 12 C.F.R.

§ 7.4001, defines “interest,” in pertinent part, as “any

payment compensating a creditor for an extension of

credit . . . .” 12 C.F.R. § 7.4001(a). The regulatory

definition includes a non-exclusive list of example

interest charges that neither includes nor excludes

extended overdraft fees. See id. Walker alleges that

the extended fees “are unrelated to any particular

event causing an account to become overdrawn . . .

and, instead, are solely related to the fact that the

Bank has extended credit to a customer to cover

charges and it seeks compensation for the time value

of that money.” Pet. App. 77a-78a (¶ 16). Walker does

not challenge the initial overdraft fee, because that fee

is supported by separate consideration, such as the

time and expense necessary to process the bad check,

rather than imposed to compensate the Bank for the

use of its money. Respondent, for its part, contends

that its extended overdraft fees are properly classed as

a “deposit account service charge,” 12 C.F.R. § 7.4002(a),

and are therefore not a type of interest charge.

2. a. The Office of the Comptroller of the Currency

(“OCC”) is charged with regulating the activities of

national banks and thrift institutions. Watters v.

Wachovia Bank, N.A., 550 U.S. 1, 6 (2007). OCC first

formally addressed initial overdraft charges in 1983.

See Interpretive Ruling Concerning National Bank

Service Charges, 48 Fed. Reg. 54,319 (Dec. 2, 1983).

Clarifying an existing regulation, see 12 C.F.R. § 7.8000

(1971), OCC wrote that the practice of “honoring . . .

checks drawn against nonsufficient funds [has] the

potential for misuse” because “such a practice, if left

uncontrolled, provides a customer with automatic loans.”

48 Fed. Reg. 54,319. Thus, OCC urged banks to impose

service charges to discourage the practice, issuing the

interpretive ruling specifically to clarify that thenexisting § 7.8000 permitted the practice. Id.

OCC first considered extended overdraft charges the

next year, in 1984. That year, a bank in Houston

sought an Interpretive Letter concerning whether it

could charge interest on sums advanced to cover a

customer’s overdraft.2 That is, the bank already charged

In the course of administering laws governing national banks,

OCC frequently issues Interpretive Letters, written by senior

OCC staff in response to queries from regulated parties, which

a fee for processing the bad check (as permitted by

§ 7.8000), and wished to know if additional charges

would be permissible under federal law. In an

Interpretive Letter, an OCC official said yes:

when a bank pays a check written on nonsufficient funds, it, in effect, extends a loan to

the customer in an amount equal to the

amount of the check minus the amount that

is present in the customer’s checking account.

National banks have express authority to make

loans. 12 U.S.C. § 24 (Seventh). Therefore, it

is my opinion that a national bank may pay

checks written on nonsufficient funds and

charge interest on the amount of credit that

is extended.

OCC Interpretive Letter, 1984 WL 164096, at *1 (May

22, 1984) (the “1984 Letter”).

b. Fast forward 12 years: In response to a split of

authority concerning whether credit card late fees

were a type of interest charge under 12 U.S.C. § 85,

OCC promulgated 12 C.F.R. § 7.4001. See Smiley v.

Citibank (S.D.), N.A., 517 U.S. 735, 739-40 (1996). The

new § 7.4001 defines “interest” to “include[] any payment compensating a creditor or prospective creditor

for an extension of credit, making available of a line of

credit, or any default or breach by a borrower of a

condition upon which credit was extended.” 12 C.F.R.

§ 7.4001(a). The Notice of Proposed Rulemaking insisted

that the proposed rule was intended to “reflect current

. . . interpretive letters.” Interpretive Rulings, 60 Fed.

Reg. 11,924, 11,929 (Mar. 3, 1995). And OCC later

wrote that the rule “is consistent with OCC interpreconstrue either the laws OCC administers (including the NBA) or

the regulations it has promulgated. See Pet. App. 15a n.7.

tive letters in this area.” Interpretive Rulings, 61 Fed.

Reg. 4,849, 4,849 (Feb. 9, 1996). A companion regulation, 12 C.F.R. § 7.4002, governing “deposit account

service charges,” replaced former § 7.8000, restating

the authority of national banks to impose “non-interest”

charges according to “safe and sound banking principles.”

12 C.F.R. § 7.4002(a)-(b).

Despite these efforts to clarify and restate current

law, in 2001 OCC professed to identify ambiguity in

the way in which the new regulation interacted with

charges imposed when a bank honors an overdraft. In

a Notice of Proposed Rulemaking, OCC wrote that “a

bank that pays a check drawn against insufficient

funds may be viewed as having extended credit to the

accountholder.” Investment Securities; Bank Activities

and Operations; Leasing, 66 Fed. Reg. 8,178, 8,180

(Jan. 30, 2001). As such, “the difference between what

the bank charges a customer when it pays the check

and what it charges when it dishonors the check and

returns it could be viewed as interest within the meaning of 12 U.S.C. 85.” Id. Thus, OCC invited comment

on whether the regulatory definition of “interest”

should be amended explicitly to “include at least some

portion of the fee imposed by a national bank when it

pays a check notwithstanding that its customer’s account

contains insufficient funds to cover the check.” Id.

OCC ultimately declined to issue any additional rule,

citing “complex and fact-specific concerns.” Investment

Securities; Bank Activities and Operations; Leasing,

66 Fed. Reg. 34,784, 34,787 (July 2, 2001). In neither

the Notice of Proposed Rulemaking nor the final order

did OCC acknowledge the 1984 Letter.

c. Then, in 2007, in response to a question from a

California bank concerning whether federal law permitted banks to collect debts from accounts containing

public benefit funds, the OCC issued another interpretive letter, Interpretive Letter No. 1082, 2007 WL

5393636 (May 17, 2007) (the “2007 Letter”). Certain

account holders had challenged the California bank’s

practice of recovering debts, including overdraft charges,

from accounts containing public benefit funds as unlawful

under state law. The California bank inquired whether

that state law was pre-empted. See 12 C.F.R. § 7.4007(c)

(saving from preemption laws dealing with, among

other subjects a bank’s “rights to collect debts”).

The 2007 Letter does not cite to § 7.4001, or even

mention the word “interest,” but in a footnote it notes

that the bank overdraft program at issue includes an

extended overdraft fee imposed not indefinitely, but

from the fourth through the eleventh calendar day an

account was overdrawn. See 2007 WL 5393636, at *1

n.3. The 2007 Letter also notes that the California

bank itself provided evidence that it considered factors

set forth in 12 C.F.R. § 7.4002(b) that banks should

consider when establishing “deposit account service

charges.” Id. at *3-*4 & n.11. The 2007 Letter then

reasons, following the California bank’s lead, that banks

may impose “deposit account service charges” after

consideration of the factors in 12 C.F.R. § 7.4002(b).

Id. at *3. The Letter discusses that the savings clause

in § 7.4007(c) refers to the “right to collect a debt”

(which can be subject to state law) as opposed to “how

national banks elect to collect their debts” (subject

only to federal control), but nevertheless ultimately

concludes that “when the Bank processes an overdraft

item and recovers a fee for doing so, it is not exercising

its right to collect a debt,” and therefore the state debtcollection law does not govern the practice. Id. at *4 & n.12.

3. The district court dismissed Walker’s complaint,

see Fed. R. Civ. P. 12(b)(6), citing the 2007 Letter, and

a divided panel of the Court of Appeals for the Tenth

Circuit affirmed, holding that deference to the 2007

Letter under Auer v. Robbins, 519 U.S. 452 (1997),

was appropriate. According to the panel majority,

12 C.F.R. § 7.4001 is ambiguous. Pet. App. 20a. The

panel majority observed that, in 2001, OCC itself had

deemed the regulation ambiguous on the issue of its

application to extended overdraft fees and that the list

of example interest charges in the regulation does not

expressly include overdraft fees, and opined that the

phrase “extension of credit” lacks a commonly accepted

meaning. Pet. App. 20a-24a. And although the Bank

had never asked for Auer deference to the 2007 Letter

(indeed it had not even cited Auer in its briefs to the

court of appeals), the panel majority elected to defer to

the 2007 Letter, gleaning from the Letter a dispositive

rule of decision governing this case. Rejecting Walker’s

contention that the 2007 Letter does not reflect the

agency’s fair and considered judgment on the issue in

question, the majority wrote that the Letter was not a

“post hoc rationalization,” did not create any “unfair

surprise,” and did not “impose[] retroactive liability

for long-standing conduct that the agency had not

previously addressed.” Pet. App. 31a-32a.

Judge Eid dissented. She first explained that 12

C.F.R. § 7.4001 is not ambiguous. In her view, the

Bank’s decision to provide funds to cover Walker’s

shortfall is plainly a loan or credit transaction. Thus,

she reasoned, the costs imposed specifically to compensate the Bank for the use of its money are unambiguously

interest. Because that is how Walker’s complaint

alleged the Extended Overdraft Fees operated, Judge

Eid would have held that the fees are “interest.” Pet.

App. 33a-38a.

But even assuming ambiguity, Judge Eid continued,

the panel majority should not have deferred to the

2007 Letter. The Letter did not evidence thorough

consideration, or any consideration, of the key legal

issue before the court. As she wrote, “the question

whether extended overdraft fees qualify as interest

under the regulatory definition was not considered or

answered in the letter—except for improper inference

and illogical implication.” Pet. App. 42a-43a. The

result, she reasoned, was a “kind of contingent, even

inadvertent, agency interpretation” that “hardly supports

Auer deference as a general matter, and certainly does

not support it after Kisor.” Pet. App. 43a. The panel

majority’s “ambitious” read of the 2007 Letter, she

concluded, was the product of “inference, not deference.” Pet. App. 43a, 48a.

REASONS FOR GRANTING THE PETITION

The panel majority’s decision to defer to the 2007

Letter highlights the need for clarification regarding

this Court’s recent decision in Kisor v. Wilkie, 139 S.

Ct. 2400 (2019). Prior to Kisor, “substantial inconsistency, even confusion, exist[ed] with respect to how

courts interpret[ed] and appl[ied]” the Auer deference

standard. Kevin O. Leske, Splits in the Rock: The

Conflicting Interpretations of the Seminole Rock Deference Doctrine by the U.S. Courts of Appeals, 66 Admin.

L. Rev. 787, 801 (2014). In addition to addressing

constitutional objections to this doctrine, Kisor sought

to bring order to the chaos by emphasizing the

“cabined” but “potent” role Auer plays in our judicial

system. But despite the Court’s efforts, Auer continues

to receive uneven treatment. See Comment, Melissa

Corry, Kisor’s Chaos: Conflicting Meanings of the

Clean Air Act’s “Applicable Requirements” in the Fifth

and Tenth Circuits, 74 S.M.U. L. Rev. 749, 778 (2021)

(“the Court’s recent limitations on Auer have only

increased confusion in the lower courts”). The decision

below brings aspects of this inconsistent treatment

into sharp relief.

In deferring to the 2007 Letter, a majority of the

court of appeals set aside important limits on the scope

of agency deference in favor of a procedure by which

Auer deference is bootstrapped into Kisor’s analysis

after only the briefest of attempts to discern the plain

meaning of the text. In the hands of the court of

appeals, Kisor merely opens up new opportunities to

defer to an agency interpretation, despite the presence

of unambiguous regulatory text. The decision below

therefore demonstrates that further guidance from

this Court is sorely needed.

Moreover, the subject matter of this lawsuit is of

great national importance. Research shows that banks

collect well over $1 billion in extended overdraft fees

every year, and that such fees help drive hundreds of

thousands of Americans every year out of the banking

system, leaving them in an economically precarious

position.

Finally, review at this time and in this case is

appropriate. This Petition presents purely legal questions that have received thorough ventilation in the

courts of appeals, with judges reaching differing conclusions about the propriety of Auer deference to

the 2007 Letter. Indeed, similar claims have been

presented to three courts of appeals, and none have

produced a unanimous opinion. In the First Circuit,

Judge Lipez dissented, like Judge Eid in the court

below, on the ground that 12 C.F.R. § 7.4001 is

unambiguous, and thus the issue of agency deference

should have been off the table. See Fawcett v. Citizens

Bank, N.A., 919 F.3d 133, 140-43 (1st Cir. 2019)

(Lipez, J., dissenting). In the Fifth Circuit, Judge Ho

concurred in the judgment only, though he declined to

produce a separate written opinion. See Johnson v.

BOKF, N.A., 15 F.4th 356, 358 n.* (5th Cir. 2021).

Thus, there is significant underlying disagreement

among the judges on the courts of appeals, demonstrating the need for this Court’s intervention and

guidance. And as the arguments for and against Auer

deference have been thoroughly developed, the Court

would not benefit from waiting for additional decisions

from the courts of appeals.

The petition for certiorari should be granted.

I. This Court should clarify that Kisor’s

ambiguity analysis does not include

baked-in deference to agency interpretations of their own regulations.

Kisor teaches that before declaring a regulation

ambiguous and applying Auer deference, courts must

“exhaust all the traditional tools of construction” by

“carefully consider[ing] the text, structure, history,

and purpose of a regulation, in all the ways it would if

it had no agency to fall back on.” 139 S. Ct. at 2415

(majority opinion). “[T]hose tools include all sorts of

tie-breaking rules for resolving ambiguity even in the

closest cases.” Id. at 2448 (Gorsuch, J., concurring in

the judgment). But the approach taken by the court

of appeals exploits perceived loopholes in Kisor to

continue deferring to agency interpretations when it is

possible—and desirable—not to do so.

The majority opinion begins by making some gestures

at the analysis required by Kisor, but it does not

approach the required rigor. Most troublingly, the

panel majority understood this Court’s directive to

consider the regulation’s history as a backdoor to

import Auer deference into the ambiguity analysis

itself. After briefly describing the text of the regulation

at a high level, the panel majority invoked what it

termed the regulation’s “history” not to understand

the meaning of the words in the regulation, but to

demonstrate that OCC believes the regulation to be

ambiguous, and in fact intentionally wrote it to be

ambiguous. See Pet. App. 24a (“[T]he fact that OCC

noted an ambiguity and expressly refused to resolve it

in the final rule provides historical support for finding

that § 7.4001(a) was intentionally ambiguous.”). But

the support for this statement was a Notice of Proposed

Rulemaking issued in 2001, five years after the regulation in question was adopted, and after a change in

presidential administrations. This subsequent statement,

written amidst a rulemaking proceeding in which OCC

specifically declined to amend § 7.4001 to say what the

court of appeals held that it says, sheds no light on the

context of the regulation or the meaning of the words

used by the agency at the time it was adopted. See Lars

Noah, Divining Regulatory Intent: The Place for A

“Legislative History” of Agency Rules, 51 Hastings L.J.

255, 300 (2000) (“Whatever congruence may have

existed between an agency’s original intent and a

contemporaneous interpretation announced shortly

after promulgation, the passage of time will lead to a

divergence between the agency’s likely original understanding and its current considered view of the rule.”).

As Kisor recognizes, a review of a regulation’s history

may be useful because of the possibility that “a . . .

term that means one thing today or in one context

might have meant something else at the time of its

adoption or might mean something different in another

context.” Bostock v. Clayton County, 140 S. Ct. 1731,

1750 (2020). But Kisor’s reasoning about the need for,

and wisdom of, consulting a regulation’s history, does

not change the fundamental principle that “[t]he text

of the regulation is treated as the law, and the agency’s

policy judgment has the force of law only insofar as it

is embodied in the regulatory text.” Kisor, 139 S. Ct.

at 2442 (Gorsuch, J., concurring in the judgment)

(emphasis in original); see also Noah, Divining

Regulatory Intent, 51 Hastings L.J. at 290 (“Even with

this deeply ingrained tradition of deference, courts

may have to search for an agency’s original intent in

order to determine whether the latest view espoused

by the incumbent administration deserves to be

regarded as authoritative.”). And of course, “all agree

that legislators’ statements about the meaning of an

already-enacted statute are not a legitimate tool” of

interpretation. Kisor, 139 S. Ct. at 2441 (Gorsuch, J.,

concurring in the judgment) (quotations omitted). In

truth, what the panel majority termed an analysis of

the regulation’s history was no more than backdoor

deference. Pet. App. 42a (Eid, J., dissenting)

(“Deferring to an agency’s view that its own

regulations are ambiguous distorts our important

ambiguity determination.”).

It is implausible that the approach of the court of

appeals adheres faithfully to Kisor. An agency’s postpromulgation statements about the meaning of a regulation are the sort of material to which a court might

theoretically defer (assuming the preconditions of

deference are met), not the sort of material which may

establish whether deference is appropriate in the first

place. Treating an agency’s post hoc statements as

dispositive evidence that a regulation was “intentionally

ambiguous” in the first place, Pet. App. 24a, plainly

flouts Kisor’s teachings. Allowing agencies an openended remit to determine the existence of and then to

resolve regulatory ambiguities ultimately robs litigants

of “a fair hearing before an impartial judge.” Kisor, 139

S. Ct. at 2440 (Gorsuch, J., concurring in the judgment). Auer deference should be unwarranted in such

circumstances. See id. at 2440-41 (“Whether purposeful or not, the agency’s failure to write a clear

regulation winds up increasing its power, allowing it

to both write and interpret rules that bear the force of

law—in the process uniting powers the Constitution

deliberately separated and denying the people their

right to an independent judicial determination of the

law’s meaning.”); Christopher v. SmithKline Beecham

Corp., 567 U.S. 142, 158 (2012) (observing that Auer

deference imparts “important advantages” but “also

creates a risk that agencies will promulgate vague and

open-ended regulations that they can later interpret

as they see fit”). This Court’s review is necessary to

clarify that for purposes of whether to apply Auer

deference, the history of a regulation does not include

subsequent agency pronouncements that purport to

interpret or contextualize a regulation.

II. There is no “fair and considered” agency

judgment on the issue presented that

merits deference.

Equally important, the decision of the court of

appeals highlights the need for further guidance from

this Court regarding when an agency’s interpretation

constitutes the “fair and considered judgment” of the

agency. See Kisor, 139 S. Ct. at 1417. The court of

appeals rejected Walker’s argument that the 2007

Letter does not represent the agency’s fair and considered judgment on how to class extended overdraft fees

under §§ 7.4001 and 7.4002 because the 2007 Letter

was not a “post hoc rationalization” to justify unconsidered agency action, and did not create any “unfair

surprise,” Pet. App. 31a-32a, parroting examples provided by this Court in Kisor, see 139 S. Ct. at 2417-18.

But there remain serious questions about the extent

to which the 2007 Letter actually represents OCC’s

judgment on the issue presented by Walker’s claim,

and how thoroughly OCC considered the issue.

As Judge Eid observed in her dissent, there is no

indication that OCC was presented with the issue of

how to categorize extended overdraft fees, or that OCC

was even aware that the issue might be relevant to the

California bank’s situation. Pet. App. 42a-45a (Eid, J.,

dissenting). The 2007 Letter discusses only the operation of §§ 7.4002 and 7.4007, without even attempting

to explain why the Letter’s author concluded that the

California bank’s overdraft charges are governed by

§ 7.4002 and not § 7.4001 (and whether those reasons

are specific to the California bank or apply to all

overdraft programs). Moreover, the 2007 Letter was

issued six years after the agency’s published statement that application of § 7.4001 to extended overdraft

fees implicates “complex and fact-specific” concerns.

66 Fed. Reg. at 34,787. The absence of any discussion

of these concerns is powerful evidence that the OCC

did not appreciate that the issue of how to classify

extended overdraft fees (i.e., either as interest or not)

was presented by the California bank’s request for

guidance. See Pet. App. 45a (Eid, J., dissenting). Thus,

the 2007 Letter cannot reflect the agency’s “fair and

considered” judgment on the issue. Cf. Akzo Nobel

Salt, Inc. v. FMSHRC, 212 F.3d 1301, 1305 (D.C. Cir.

2000) (declining to defer to agency interpretation

because the record “strongly suggests to us that the

Secretary has in fact never grappled with—and thus

never exercised her judgment over—the conundrum

posed by the regulation’s clear ambiguity”).

OCC’s omission is even more glaring given that

guidance predating § 7.4001 treated charges imposed

for nonrepayment of overdraft sums as interest.

See 1984 WL 164096, at *1. It is Walker’s contention

that the pre-1996 rule—that initial overdraft fees are

a “deposit account service charge” and additional sums

are “interest”—survived the promulgation of §§ 7.4001

and 7.4002. Nothing in the text of the regulation or

OCC’s published statements suggests that the 1996

regulations intended to change the law in this regard.

See FCC v. Fox Television Studios, Inc., 556 U.S. 502,

515 (2009) (“An agency may not, for example, depart

from a prior policy sub silentio . . . .”). That this

change in position went completely unremarked upon

in the 2007 Letter is additional evidence that—to the

extent the 2007 Letter actually embodies a dispositive

rule as applied to this case—the Letter does not

constitute the agency’s fair and considered judgment.

See INS v. Cardoza-Fonseca, 480 U.S. 421, 446 n.30

(1987) (“An additional reason for rejecting the INS’s

request for heightened deference to its position is

the inconsistency of the positions the BIA has taken

through the years.”).

Nor does affording binding deference to the 2007

Letter’s “inadvertent” agency interpretation make

doctrinal sense. This Court has held that an agency’s

views have the power to persuade in direct proportion

to, among other things, the “thoroughness evident in

[the agency’s] consideration” of the issue. Skidmore v.

Swift & Co., 323 U.S. 134, 140 (1944). And this Court

has reasoned that this “thoroughness” requires careful

attention to the specific statutory regime and a specific

explanation for a particular action or interpretation.

See Univ. of Texas Sw. Med. Ctr. v. Nassar, 570 U.S.

338, 361 (2013) (“The manual’s failure to address the

specific provisions of this statutory scheme, coupled

with the generic nature of its discussion of the

causation standards for status-based discrimination

and retaliation claims, call the manual’s conclusions

into serious question.”); Adamo Wrecking Co. v. United

States, 434 U.S. 275, 287 n.5 (1978) (declining to afford

Skidmore deference in light of the “lack of specific

attention to the statutory authorization”).

Given its lack of attention to the issue presented

here, the 2007 Letter lacks the power to persuade with

respect to the application of § 7.4001 to extended

overdraft fees. And if the 2007 Letter cannot persuade,

it is doubtful that this Court’s cases would require a

court nevertheless to defer to the agency’s implicit,

unexplained stance regarding the proper construction

of its regulations. See Fawcett, 919 F.3d at 142 (Lipez,

J., dissenting) (“Silence . . . is not guidance, and we

would thus need to infer a ruling on a debated issue

from between the lines of the [2007] Letter. I do not

see how we can defer to an interpretation that the

OCC never clearly made on an issue that it previously

described as complex and fact-specific.”).

This is not to say that an agency must explain all

facets of its reasoning, or even that deference under

Auer to an agency position that is only implicit is never

appropriate. But when courts have deferred to

“implicitly adopted” interpretations, those interpretations have been part and parcel of longstanding and

generally well-accepted agency practices. See Goffney

v. Becerra, 995 F.3d 737, 747 (9th Cir. 2021)

(confronted with regulatory silence regarding whether

Medicare billing privileges could be reactivated retroactively, court of appeals held that deference was

appropriate to agency’s answer of no, because that

was consistent with how agency had long processed

Medicare provider reactivation requests); Ass’n of

Bituminous Contractors, Inc. v. Apfel, 156 F.3d 1246,

1252 (D.C. Cir. 1998) (deferring to agency interpreta-

tion that had not been expressed explicitly until a brief

filed in the case because the interpretation was

consistent with past agency practice).

This case presents nothing of that sort. The agency

“interpretation” at issue surfaced, if at all, by implication in the 2007 Letter. The Bank has never cited any

other instance of the OCC relying on the interpretation the Bank contends was advanced in the 2007

Letter. Unlike in Goffney and Bituminous Contractors,

there is no longstanding agency practice to provide

context for a supposedly “implicit” agency interpretation.

The court of appeals’ analysis on this score makes

clear the need for additional guidance from this Court.

The 2007 Letter does not opine at all on whether and

why extended overdraft fees are or are not interest

charges under § 7.4001. But consistent with its efforts

to bootstrap a broad deference doctrine into Kisor’s

analysis, the court of appeals brushed aside concerns

about the thoroughness of the agency’s consideration

of the issue, construing contrary precedent from this

Court narrowly. That analysis demonstrates that further

clarification of this Court’s precedents is needed.

III. The decision below is wrong.

Plenary review is especially warranted here because

the panel majority’s misapplication of Kisor led it to

reach the wrong result. Consider a critical question

that was only seriously addressed by Judge Eid in the

court below: is overdraft coverage an extension of

credit? If a bank’s decision to extend its own funds to

cover a customer’s shortfall with the expectation of

repayment is an extension of credit, then any compensation for that extension of credit, including, under

the allegations here, Respondent’s Extended Overdraft

Fees, is an interest charge. And the structure of the

regulation makes clear that this is the first question

that must be asked. See 12 C.F.R. § 7.4002(c) (“Charges

and fees that are ‘interest’ within the meaning of

12 U.S.C. 85 are governed by § 7.4001 and not be

this section.”).

Black’s Law Dictionary defines “credit” as, pertinent

here, “[t]he availability of funds either from a financial

institution or under a letter of credit.” See Credit,

Black’s Law Dictionary (11th ed. 2019). Because, as

Walker alleges, overdraft coverage requires a bank to

make available to an account holder the bank’s own

funds, overdraft coverage is an extension of credit. Pet.

App. 77a (¶ 15). And, in fact, the common law has

always treated overdraft coverage in this way. See,

e.g., First Bank v. Tony’s Tortilla Factory, Inc., 877

S.W.2d 285, 287 (Tex. 1994) (“The parties acknowledge

that in this case there was a loan—honoring a check

drawn on insufficient funds[.]”); Thiele v. Sec. State

Bank of New Salem, 396 N.W.2d 295, 298 (N.D. 1986)

(“When a bank honors a customer’s overdraft, it makes

an unsecured loan to that customer[.]”); Torrance Nat’l

Bank v. Enesco Fed. Credit Union, 285 P.2d 737,

739 (Cal. Ct. App. 1955) (“An overdraft is in legal effect

a loan by the bank to its depositor.”); Payne v. Freer,

91 N.Y. 43, 48 (1883) (“As between a banking firm and

a depositor not a member of the firm, an overdraft is

a loan.”).

Positive law, including federal banking regulations,

has followed the same understanding. For instance,

the total sum of a bank’s overdrafts to all customers

counts against the lending limits imposed by 12 C.F.R.

part 32. “Deposit-related credit products,” such as

overdraft protection, are subject to the non-discrimination provisions established by the Equal Credit

Opportunity Act, see 15 U.S.C. §§ 1691-1691f, and its

implementing regulation, Regulation B, 12 C.F.R.

§§ 1002.1-1002.16. And section 4-401(a) of the Uniform

Commercial Code, which is codified both in New

Mexico, where the Bank of Albuquerque is located,

and Oklahoma, where BOKF is chartered, and which

permits banks to honor overdrafts, treats an overdraft

as an application for credit. See Ronald Hersbergen,

Banking Law, 44 La. L. Rev. 247, 261 n.86 (1983)

(“The drawing of an item against an insufficient

account is treated as an implied request for a loan from

the drawee in the amount necessary to pay the item

and an implied promise to repay the loan; therefore,

the act of paying the overdraft is actually a loan to the

drawer of the amount of the overdraft.”).

This uniform background understanding ought to

have settled the principal interpretive question in

this case. True enough, “a characterization fitting

in certain contexts may be unsuitable in others.”

NationsBank of N. Carolina, N.A. v. Variable Annuity

Life Ins. Co., 513 U.S. 251, 262 (1995). But nothing

about the National Bank Act in general, or § 7.4001 in

particular, provides any reason to depart from the

uniform treatment of overdrafts as loans or extensions

of credit. Cf. Morrissette v. United States, 342 U.S. 246,

263 (1952) (lawmaking bodies that borrow terms with

an accumulated legal meaning “presumably know[]

and adopt[] the cluster of ideas that were attached to

each borrowed word”).

And if that treatment applies, then, as explained

above, the judgment below is incorrect. Walker alleges

that the Bank’s extended fees do not compensate the

bank for any additional services, and are charged

simply as a function of the amount of time Walker

needed to repay the bank. See Fawcett, 919 F.3d at

141 (Lipez, J., dissenting) (“Those fees unquestionably

relate to the accountholder’s continuing ‘use’ of the

bank’s money over time—a service for which banks

ordinarily charge interest.”). They are, in other words,

a “payment compensating a creditor . . . for an extension of credit.” 12 C.F.R. § 7.4001(a). Since “any” such

payment is considered “interest” under the regulation,

so, too, must the Bank’s extended overdraft fees be.

See United States v. Gonzales, 520 U.S. 1, 5 (1997)

(noting that the word “any” has an “expansive meaning”);

see also Smiley, 517 U.S. at 746-47 (rejecting arguments that interest charges must be time- or ratebased and holding that (1) the form of a charge (i.e.,

flat or expressed as a percentage of some principal)

did not determine whether it was interest, (2) that

federal law did not command, and § 7.4001 did not

incorporate, any distinction between “interest” and

“penalties,” and that charges imposed for the breach of

an agreement could qualify as “interest,” and (3) that

late fees and over limit fees could and do qualify as

“interest” under the regulation).

The panel majority nevertheless intoned that Walker’s

proffered understanding of “extension of credit” is “far

from well-accepted.” But this statement is supported

only by citations to district courts who also deferred to

the 2007 Letter, or which relied on authority that is

incompatible with Smiley. This echo chamber does not

reveal the sort of unsettled landscape that might

imply ambiguity, particularly when many of the cited

decisions predate Kisor. See United States v. Adair,

38 F.4th 341, 349 (3d Cir. 2022) (“[P]rior caselaw that

had afforded Auer deference to the Commission’s

interpretive commentary without engaging in the Kisor

process does not automatically retain its controlling

force.”).

The panel majority further suggested that “extension

of credit” does not include overdraft coverage because

such coverage does not “arise from credit transactions”

or create a “creditor-debtor relationship” between the

bank and the customer. But this reasoning is inherently circular, since the majority nowhere defines

“credit” itself. It is also wrong. 1 Barkley Clark &

Barbara Clark, The Law of Bank Deposits, Collections

and Credit Cards ¶3.04[2], at 3-85 (Rev. Ed. 2010)

(“The relationship of debtor and creditor is reversed to

the extent of the overdraft.”). Moreover, as Black’s

shows, see Credit, Black’s Law Dictionary, supra

(defining “credit” as “the availability of funds from

a financial institution or under a letter of credit”)

(emphasis added), and as caselaw confirms, a formal

loan instrument has long been unnecessary for a

transaction to be considered a loan or extension of

credit. See Calcasieu-Marine Nat’l Bank of Lake

Charles v. Am. Emp. Ins. Co., 533 F.2d 290, 297-98

(5th Cir. 1976) (“While a note would certainly be

evidence of a loan, it is not a prerequisite for the

transaction to be a loan.”).

Neither does the omission of extended overdraft fees

from the list of example interest charges in § 7.4001(a)

point in any direction. As Judge Eid attempted to

remind the majority, examples to one side, there is a

definition to interpret. Pet. App. 39a-40a.

Given the unambiguous language of the regulation,

the court of appeals should have had “no reason or

basis to put a thumb on the scale in favor of” the OCC’s

interpretation of the statute. See Kisor, 139 S. Ct. at

2448 (Kavanaugh, J., concurring in the judgment). But

the panel majority below declined to rigorously apply

the available “tools of construction,” instead “wav[ing]

the ambiguity flag,” not because “it found the regula-

tion impenetrable on first [or even second] read,” but

because of an agency statement made five years after

the adoption of the regulation in question, and in favor

of an interpretation the agency in question may not

even have made. The majority’s missteps demonstrate

that this Court’s review is needed.

IV. The questions presented are exceptionally

important.

This case presents questions of significant legal

import. In addition to the critical administrative issues

presented, legal protections on overdraft fees are of

enormous practical importance.

It is impossible to know how much Americans pay in

extended or sustained overdraft fees, because regulatory reports require this information to be included

among the total “interest income” generated by a

bank in a given year, but the Center for Responsible

Lending has estimated, based upon CFPB data, that

consumers pay around $17 billion in overdraft or nonsufficient funds fees every year. Rebecca Borné, Peter

Smith & Rachel Anderson, Broken Banking: How

Overdraft Fees Harm Consumers and Discourage Responsible Banking Products (May 2016), at 2 n.1, 5, available

at https://perma.cc/F9Q6-2ET3. But an analysis by the

Consumer Financial Protection Bureau of banking

practices between 2010 and 2012 estimated that 9.2%

of all overdraft and nonsufficient Funds fees were

extended or sustained overdraft fees. Consumer Fin.

Prot. Bureau, Data Point: Checking Account Overdraft,

at 10, available at https://perma.cc/96SY-UNGQ. That

means that American consumers pay at least $1.5 billion

in extended overdraft fees every year.

And the burden of these fees falls on the poorest

Americans. Nearly one million Americans reported

high or unpredictable checking account fees as the

reason they are currently unbanked. Borné, et al.,

supra, at 13; Michael S. Barr, Banking the Poor, 21

Yale J. on Reg. 121, 131 (2004) (“Broadly speaking, the

most common reason persons cite for lacking a

checking account is not having enough money to be able

to afford the costs of account ownership.”). And

“without access to a checking account, the individual

is deprived of the most basic link to the mainstream

economy.” Lawrence H. Summers, Sec’y of the

Treasury, Extending the Frontiers of Capital, Remarks

before the CDFI Coalition (Jan. 27, 2000), available at

https://perma.cc/K2XY-M45V. Lack of access to a

checking account pushes individuals to high-cost and

often predatory financial products, like payday loans,

or check cashing services. See Rourke O’Brien, “We

Don’t Do Banks”: Financial Lives of Families on Public

Assistance, 19 Geo. J. on Poverty L. & Pol’y 485, 485

(2012) (“Unbanked consumers spend hundreds of dollars

a year conducting routine financial transactions.”); see

generally Barr, Banking the Poor, 21 Yale J. on Reg. at

134-77.

And even for those who retain their accounts, enforcing limits on proper account charges provides an

important protection. This case provides a vivid

illustration. The $234 in extended charges paid by

Walker exceeded by orders of magnitude the interest

rate permitted by Oklahoma law. While $234 may not

be a huge amount from a bank’s perspective, it can be

of enormous consequence to economically vulnerable

consumers. It could be a week’s worth of groceries, or

the reason they make rent this month.

Interest groups of diverse political leanings have

noted the special dangers Auer deference poses for

disfavored or politically powerless groups. See Br. of

Wash. Legal Found. as Amicus Curiae in Support of

Pet’r, Kisor v. Wilkie (No. 18-15), at 18-19 (“It is when

dealing with unpopular groups that an empowered

regulator will feel least obliged to act consistently and

with restraint. . . . The fact that Auer assists agencies

in singling out disfavored groups for special (poor)

treatment is yet another strike against it.”); Br. for

Amici Curiae The Nat’l Immigrant Justice Ctr. and

The Am. Immigration Lawyers Ass’n, Kisor v. Wilkie

(No. 18-15), at 18 (“Auer deference thus creates myriad

traps for the unwary across most - if not all - federally

regulated contexts, and, as amici have learned from

experience, particularly undermines efficiency, fairness,

and predictability in immigration law.”) (quotations

omitted). But in this case, this Court’s efforts to rein

in Auer deference, and thus mitigate these concerns,

went for naught, as the court of appeals hid behind

Auer in permitting the bank to charge its customers

more than the law allows.

The Court should address the confusion regarding

Auer that persists in the courts of appeals. The

doctrine as applied by the court of appeals lacks the

critical guardrails set forth in Kisor, guardrails which

respect the concerns presented by an overbroad reading

of Auer. The majority’s decision to eviscerate important

limits on Auer deference that were only just reaffirmed

by this Court cries out for review.

And this case presents an ideal vehicle to address

the questions presented. Neither the defendant nor

the court of appeals have identified any lurking issues

that might disrupt this Court’s consideration of the

questions presented by this Petition. Both the district

court and the court of appeals have issued thorough

decisions analyzing whether Auer deference is warranted.

And two of the cases analyzing this issue in the courts

of appeals have generated published dissents, leaving

this Court with the benefit of dueling, reasoned

opinions on the propriety of agency deference.

Finally, the absence of a circuit split provides no

reason to deny review. Each court of appeals to

consider the issue presented by Walker’s claim has

fractured, revealing significant underlying disagreement

among appellate jurists. Moreover, this Court regularly

grants certiorari even absent a circuit split when, as

here, the case raises important questions regarding

the limits of federal agency interpretive authority on

issues relevant to the lives of many Americans. E.g.,

Am. Hosp. Ass’n v. Becerra, 142 S. Ct. 1896 (2022);

Kisor, 139 S. Ct. 2400; FERC v. Elec. Power Supply

Ass’n, 136 S. Ct. 760 (2016); Whitman v. Am. Trucking

Ass’n, 531 U.S. 457 (2001); FDA v. Brown & Williamson

Tobacco Corp., 529 U.S. 120 (2000). The same review

is merited here.

CONCLUSION

The petition for a writ of certiorari should be granted.

Respectfully submitted,

J. AARON LAWSON

EDELSON PC

150 California Street

18th Floor

San Francisco, CA 94111

RYAN D. ANDREWS

Counsel of Record

ROGER PERLSTADT

ALEXANDER G. TIEVSKY

EDELSON PC

350 North LaSalle Street

14th Floor

Chicago, IL 60654

(312) 589-6370

randrews@edelson.com

Counsel for Petitioner

September 16, 2022

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.