Splits in the Rock: The Conflicting Interpretations of the Seminole Rock Deference Doctrine by the U.S. Courts of Appeals

Abstract

The Seminole Rock deference doctrine instructs federal courts to defer to an administrative agency’s interpretation of its own regulation unless the interpretation “is plainly erroneous or inconsistent with the regulation.” This crucial administrative law doctrine has largely escaped judicial and scholarly examination for close to seventy years. And this is astonishing because, as Chief Justice Roberts recently observed, this deference doctrine goes “to the heart of administrative law” and Seminole Rock questions “arise as a matter of course on a regular basis.”

But, at long last, a newfound skepticism and willingness to reconsider the Seminole Rock doctrine is gaining momentum in the U.S. Supreme Court. In the Court’s 2012-2013 Term, at least three members of the Court explicitly suggested that they were interested in re-evaluating this deference regime. Thus, further examination of the doctrine is both warranted and timely, especially given the Supreme Court’s likely review of the doctrine.

With that in mind, this Article analyzes how the federal appellate courts have interpreted and applied the Seminole Rock doctrine, also referred to as “Auer deference.” This analysis reveals that there are inconsistencies — to the point of being characterized as widespread confusion — on many aspects of the Seminole Rock doctrine, including its scope, applicability, and the relevant factors to be weighed when applying the doctrine.

The analysis further shows that the lack of consistency in the practical application of the Seminole Rock deference regime cannot be ignored any further, particularly because agency regulations rather than statutes are the principal way in which legal rights and obligations are established today. Consequently, the Article concludes that there are compelling pragmatic reasons why the Supreme Court should re-examine the doctrine to bring clarity to this important area of federal law.

Keywords: administrative law, deference, seminole rock, auer, agency