Bench Memos

Law & the Courts

Judicial Winning: Amul Thapar

On September 11, 2001, Amul Thapar was a passenger on a plane that was grounded amid the terrorist attack that day. That motivated him to apply for a position as a federal prosecutor. He has been in public service ever since.

Thapar was the first Article III judge of South Asian descent in American history, appointed to the Eastern District of Kentucky by President Bush and elevated to the Sixth Circuit by President Trump — his first judicial appointment after elevating Neil Gorsuch to the Supreme Court.

On March 16, 2018, Judge Thapar issued a majority opinion in Duncan v. Muzyn, declining to defer to an agency’s interpretation of its own regulation.

In dispute was how much notice the Tennessee Valley Authority’s (TVA) pension board had to give plan members prior to a vote on amending the pension plan. Arguing that the operative regulation was ambiguous, the TVA maintained that its interpretation was entitled to agency deference under the Supreme Court’s standard in Auer v. Robbins (1997), which in recent years has fallen under considerable criticism because it gives agencies too much power to interpret their own regulations.

Writing over a dissent, Thapar rejected the argument that the regulation was unclear, and held that Auer inapplicable to the case. He asserted that “simply calling something ambiguous does not make it so,” and “where, as here, one interpretation far better accounts for the language at issue, the language is not ambiguous.”

Thapar’s concern about Auer deference ceding unchecked power to administrative agencies mirrors that of a growing number of Supreme Court justices, including Justices Thomas, Alito, Gorsuch, and Kavanaugh.

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