Chipping Away at the Rock: Perez v. Mortgage Bankers Association and the Seminole Rock Deference Doctrine

Abstract

Largely escaping judicial and scholarly examination for close to seventy years, the Seminole Rock deference doctrine directs federal courts to defer to an administrative agency’s interpretation of its own regulation unless such interpretation “is plainly erroneous or inconsistent with the regulation.” But at long last the United States Supreme Court is poised to re-evaluate the doctrine.

In March 2015, in Perez v. Mortgage Bankers Association, the Court addressed whether a federal agency was required to follow the notice-and-comment procedures of the Administrative Procedure Act after it changed a prior interpretation of its regulation under the “Paralyzed Veterans doctrine.” Although the Supreme Court unanimously found the Paralyzed Veterans doctrine impermissible, thereby restoring the plain language requirements of the Administrative Procedure Act, the case implicated the Seminole Rock deference doctrine, especially through the several concurring opinions, which focused exclusively on the doctrine.

Accordingly, this Article explores the justices’ various opinions in order to explain the compelling practical and constitutional reasons why the Seminole Rock regime cannot be ignored any further. The Article concludes that when the Supreme Court re-examines the doctrine, it should do so with the intent to bring clarity to this important area of federal administrative law.

Keywords: Seminole Rock, Auer, Deference, Chevron, Regulations, Administrative Law