Notice & Comment

Empirical Insight into the Use of Seminole Rock Doctrine (Part II), by William Yeatman

In my last post, I presented the results of an empirical investigation into Seminole Rock deference as a judicial methodology. Below, I lend perspective to these results.

Deference to Agency Interpretations of Non-Regulatory Texts Is an Understudied Area of Administrative Law

Perhaps the most noteworthy finding of this analysis is that the Seminole Rock framework is frequently employed by federal courts for reviewing agency interpretations of texts other than APA § 553 “notice and comment” regulations. From 1998 to 2013, the federal government sought Seminole Rock deference thirty-six times for non-regulatory interpretations before U.S. Courts of Appeals, which accorded deference twenty-nine times.

As a practical matter, binding deference to non-regulatory texts raises interesting issues. For example, a legal incongruity arises whenever a court gives controlling deference to an interpretation of any text that does not carry the force and effect of law. As Justice Antonin Scalia observed while concurring in Perez v. Mortgage Bankers Association, “if an [agency’s interpretation] gets deference, the people are bound to obey it on pain of sanction.” Accordingly, it makes little sense for an interpretation of a legally non-binding text to achieve binding effect due to a deference doctrine. While the Fifth Circuit has recognized associated problems with what it terms “Seminole Rock Squared,” others have not.

More generally, deference to non-regulatory and non-statutory text is an understudied area. Judicial deference is among the most analyzed matters in administrative law, but scholarship overwhelmingly concentrates on agency interpretations of texts with the force and effect of law—that is, of statutes and legislative rules. There is an entire realm of judicial deference that exists outside the focus of contemporary scholarship.

Seminole Rock Step One Is Arguably Underemployed

I identified 225 “step ones,” or 65% of the total instances of federal circuit court review of agency interpretations under the Seminole Rock framework (when non-regulatory interpretations are excluded). Of course, not all applications of the Seminole Rock framework are of equal rigor. Sometimes, the doctrine’s canonical formulation is announced in a section about the standard of review, but then the court’s review of the agency’s regulatory interpretation becomes clearly ancillary to judicial review of the agency’s statutory interpretation or the reasonableness of the agency’s decision-making. And other times, the court equivocates on whether it is according controlling deference or something less. I identified 42 instances where Seminole Rock doctrine seemingly performed little or no work (these decisions are labeled as “little/no work” in Column L of the dataset). If you remove consideration of insubstantial applications of Seminole Rock, then the rate at which federal circuit courts apply a step one analysis increases to 75%.

Even at 75%, the courts’ usage of Seminole Rock step one is arguably low to a fault, as there are three potential problems with a single-step framework in this context:

1) Because regulations carry the force of law, a court might violate its Article III responsibility to say what the law is when it jumps straight to deference without first determining if the regulation is amenable to binding deference (by virtue of a textual ambiguity);

2) By skipping step one, a court might fail to convey valuable information about future agency discretion, because if the regulation is unambiguous, then the agency is not permitted to subsequently change its interpretation (this point was noted in the Chevron context by Professors Kenneth Bamberger and Peter Strauss); and,

3) It’s possible that a single-step Seminole Rock puts the thumb on the scales in favor of the government, by engendering a deferential judicial posture from the outset, though this is purely speculative.

Seminole Rock Step Two Looks a Lot Like Chevron Step Two

As part of their comprehensive empirical review of Chevron deference to agency statutory interpretations in the U.S. Courts of Appeals, Profs. Christopher Walker & Kent Barnett categorized 51 agency losses at Chevron step two “under three leading theories of how step two should operate”: 1) arbitrary & capricious review of the interpretation’s reasonableness, 2) inquiry into whether the interpretation comports with the statute’s purpose; and 3) deciding the permissibility of an agency’s interpretation with regard to the “text of the statute and its meaning within the statute as a whole.” Their findings suggest that circuit courts most frequently employ arbitrary & capricious review (33.3 percent of the cases reviewed), followed by a purposive review (27.5 percent) and the least utilized textualism (11.8%).

In the previous post, I reported that the top five most employed interpretative aids at Seminole Rock step two are: consistency (43 times), sister court reasoning (38), lack of notice/post-hoc rationalizations (36), regulatory purpose (34), and regulatory preamble (30). The sixth most used aid was regulatory structure (29).

Comparing these datasets suggests that Seminole Rock step two and Chevron step two operate similarly as a judicial methodology. Two of the top three most employed interpretive aids for Seminole Rock step two—interpretive consistency and lack of notice/post hoc rationalization—fit comfortably within an arbitrary & capricious framework, which is identified by Professors Walker and Barnett as the foremost methodology at Chevron step two. The fourth and fifth most employed interpretive aids at Seminole Rock step two—regulatory purpose and use of the regulatory preamble required by APA § 553(c)—are readily categorized as purposive approaches to interpreting regulations, which is the second most often used approach at Chevron step two as identified by the professors. The sixth most used interpretive aid at Seminole Rock step two framework—regulatory structure-is a textualist method, which was also the least utilized in the Chevron context.

In sum, the aggregate data from my research indicates that circuit courts employ Seminole Rock step two in a similar fashion to the three strains of judicial review at Chevron step two identified by Professors Walker and Barnett.

William Yeatman is a public policy professional in Washington, D.C. and a J.D. candidate at the Georgetown University Law Center.

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