Notice & Comment

Wishful Thinking? Justice Gorsuch and the Future of the Seminole Rock/Auer Deference Doctrine, by Kevin O. Leske

On July 9, Chris Walker posted about the cert petition filed in July in Kisor v. O’Rourke, which presents the question of “whether the Court should overrule Auer and Seminole Rock” – the doctrine that requires courts to defer to a federal agency’s interpretation of its own regulation unless the agency’s interpretation is “plainly erroneous or inconsistent with the regulation.”

I had the pleasure of participating in the Notice & Comment online symposium two years ago on The Past, Present, and Future of Deference to Agency Regulatory Interpretations. I summarized my scholarship on the doctrine and offered my thoughts on a new test for courts to apply when determining whether to defer under Seminole Rock, which was based on my 2013 article. I explained that a re-assessment is clearly necessary as there is little dispute that the lower courts have been confused and conflicted on how to interpret the doctrine.

And by 2015 there finally seemed to be significant momentum by the Court to re-evaluate the doctrine, as demonstrated by the various opinions in Perez v. Mortgage Bankers Association (explored in more detail here). But after the death of Justice Scalia, who had waged a “crusade” to overturn the doctrine, it seemed that the drive to reassess the doctrine only remained with Justice Thomas, who was the lone dissenter in a 2016 case that would have squarely presented the issue.

But with Justice Neil Gorsuch now on the bench and Judge Brett Kavanaugh in the pipeline, Seminole Rock’s future is again uncertain. Will the Court abandon the doctrine as Professor John Manning’s seminal 1994 article endorses? Or could the Court be persuaded by more recent scholarship, such as a 2017 article by Professors Cass Sunstein and Adrian Vermeule, who assert that Manning’s separation of powers arguments are “overheated.”

Given that Judge Kavanaugh has already predicted (and stated that he “hoped”) that Justice Scalia’s view on Seminole Rock will ultimately prevail, the answer could very well rest with Justice Gorsuch. After all, he has already expressed interest as both a justice and an appeals court judge to jettison the Chevron doctrine, which is Seminole Rock’s doctrinal cousin.

As I set forth in more detail here, Justice Gorsuch has expressed views on “both sides of the Rock.” On one hand, given the relatedness to Chevron, he will surely similarly question Seminole Rock’s validity. He also has been called an “Echo of Scalia” , so his legal philosophy, such as his adherence to judicial nondelegation, suggests that he would be wary of the doctrine. In fact, he may have already tipped his hand recently in Garco Construction, Inc. v. Speer, where he joined Justice Thomas in a dissent from the denial of certiorari that “Seminole Rock deference is constitutionally suspect.”

On the other hand, while on the Tenth Circuit, then-Judge Gorsuch applied the Seminole Rock standard numerous times and raised no objection to it– even in a case decided after Justice Scalia and other members of the Court, including Chief Justice Roberts, had expressed concern over the doctrine. It seems implausible that then-Judge Gorsuch was not aware of the Court’s growing interest in Seminole Rock and it’s therefore fair to surmise that he either did not fully agree with the mounting skepticism of the doctrine or was, at least, unphased with its continued vitality.

So, how might Justice Gorsuch rule if and when called upon to re-evaluate Seminole Rock?

On balance, I (wishfully) conclude that although Justice Gorsuch will certainly show a newfound deep skepticism for Seminole Rock, he will not go as far as to vote for a complete abandonment of the doctrine and will choose to “keep the Rock.” Although his pledge that he would start with a “heavy, heavy presumption in favor of precedent in our system” cannot be completely trusted, it could be that, before overruling such an established doctrine, he would see whether the criticism levied at Seminole Rock can be pragmatically mitigated in a way to preserve the doctrine. In fact, he has already shown he knows how to do just that.

Then-judge Gorsuch has made clear that he would protect parties from the same perceived unfairness that critics have alleged result from the application of Seminole Rock deference, such as surprise, detrimental reliance, lack of equal protection and due process. For example, in a 2010 case, which had potentially implicated Seminole Rock, he wrote for an unanimous panel that “one might worry that administrative law has simply abandoned regulated parties to the whims of an agency’s arbitrary interpretive reversals.” But he identified “at least two other layers of protection” for such interests: the APA’s “arbitrary and capricious, an abuse of direction, or otherwise not in accordance with law” standard (in situations when an agency sets forth a new administrative interpretation that creates surprise) and that “the Due Process Clauses of the Fifth and Fourteenth Amendments would still prohibit the imposition of penalties without fair notice.” In fact, he reflected on these safety nets during his confirmation hearing when defending his criticism of Chevron. Therefore, assuming that he has not completely endorsed the “extreme” views on deference expressed by Justice Thomas in Perez, which no other member of the Court joined, Justice Gorsuch could continue to enforce protections to mitigate or even mute any perceived Seminole Rock over-reach.

In sum, if Justice Gorsuch and his colleagues choose to face Seminole Rock, perhaps the Court will not “flip the Rock.” Instead, with Justice Gorsuch’s help, it has the option to reform the 60+ year-old doctrine in way that addresses some of the perceived practical and constitutional concerns identified by scholars and members of the Court.

Kevin Leske is an Associate Professor of Law at the Barry University School of Law, where he teaches and writes in the areas of administrative, environmental, energy, and climate change law.

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