Empirical study of the effects of the Seminole Rock/Auer doctrine contributed to the decision of the Solicitor General (SG) to file the petition for writ of certiorari that led to the Supreme Court’s 2015 decision in Perez v. Mortgage Bankers Association and may contribute to a decision by the Supreme Court to retain some version of the doctrine.

This story begins with my description of the then-existing empirical literature on judicial review of agency action to my 2009 administrative law class. I told the students that an empirical study of Supreme Court applications of the Seminole Rock/Auer doctrine had found that the Court upheld 91% of agency interpretations of agency rules between 1984 and 2006. (William Eskridge & Lauren Baer, The Continuum of Deference from Chevron to Hamdan). That finding, compared with the roughly 70% rate at which courts upheld other types of agency actions, suggested that the doctrine conferred some form of super deference on agencies. I also noted, however, that there were no empirical studies of application of the Seminole Rock/Auer doctrine by circuit courts or district courts. I asked if there were any students who were willing to help me fill that gap in our knowledge.

Several students volunteered for the job. I chose a particularly promising student, Josh Weiss, to be my research assistant. Josh made contributions so important that I made him co-author of the resulting essay, An Empirical Study of Judicial Review of Agency Interpretations of Agency Rules. Based on our study of 219 opinions issued during the period 1999 to 2007, we found that district courts and circuit courts upheld 76% of agency interpretations of agency rules when they applied the Seminole Rock/Auer doctrine—about the same rate at which courts upheld other types of agency actions through application of other doctrines. We attributed the 91% rate of upholding found in the prior study to the small number of cases (11) that were the basis for that finding.

Shortly after the results of our empirical study were published, the D.C. Circuit issued its opinion in Mortgage Bankers Association v. Harris. In that opinion the D.C. Circuit reaffirmed and applied a doctrine that it had first announced in its 1997 opinion in Paralyzed Veterans v. D.C. Arena. The Paralyzed Veterans doctrine required an agency to use the notice and comment process to announce a new interpretation of a legislative rule. I considered the Mortgage Bankers opinion a perfect vehicle to persuade the Supreme Court to abrogate the Paralyzed Veterans doctrine.

Since the Paralyzed Veterans doctrine was inconsistent with the Administrative Procedure Act (APA), I had no doubt that the Supreme Court would abrogate it if given a chance to do so. See Pierce, Distinguishing Legislative Rules from Interpretative Rules. I encountered a problem, however. The Solicitor General was reluctant to file a petition for writ of certiorari in Mortgage Bankers. Members of his office expressed concern that a victory in Mortgage Bankers might eventually lead to a Supreme Court opinion overruling the Seminole Rock/ Auer doctrine.

The SG’s office placed a particularly high value on the Seminole Rock/Auer doctrine because they believed that it conferred a form of super deference on agencies in an important context. Several Justices had expressed strong reservations about the doctrine based in part on their similar belief. One of the arguments I used to convince the SG to file the petition in Mortgage Bankers was that both the Supreme Court and the SG overestimated the power of the Seminole Rock/Auer doctrine. I used my empirical study to support my belief that the doctrine is roughly similar to myriad other doctrines with respect to the degree of deference it confers on agencies. I also expressed the belief that my study would reduce the risk that the Justices would overrule the Seminole Rock/Auer doctrine by reassuring them that it does not confer super deference on agencies. The SG filed the petition. The Court granted the petition and issued an opinion in which it unanimously abrogated the Paralyzed Veterans doctrine.

In the meantime, the Supreme Court acted in a way that assured that the Seminole Rock/ Auer doctrine did not confer super deference on agencies. In their 2012 opinions in Christopher v. Smithkline Beecham Corp., all nine Justices agreed that the agency interpretation at issue in that case was not due deference. The Justices then used the case to remind lower courts of the important limits on the deference accorded by the Seminole Rock/Auer doctrine, including an expanded version of the “fair warning” limit that lower courts had applied for decades.

The most important limit on the Seminole Rock/Auer doctrine that the Court reaffirmed in Smithkline may be the principle that “deference is likewise unwarranted when the agency’s interpretation does not reflect the agency’s fair and considered judgment on the matter in question.” There is a lot of evidence that the Justices are increasingly concerned about the combined effect of deference doctrines and political polarity, e.g., if a court upholds as “reasonable” an interpretation of an ambiguous statute or rule, it might believe that it is required to uphold as “reasonable” the opposite interpretation adopted by an appointee of a newly-elected President of the opposite party, thereby creating a legal environment in which purely partisan changes in important areas of law and public policy become routine every time the White House changes hands. I discuss this problem in Pierce, The Future of Deference. The requirement of a “a fair and considered judgment” and the closely related requirement that an agency engage in “reasoned decision making” are the most promising ways of discouraging newly-elected presidents and their appointees from engaging in purely partisan flip flops. The Court’s 2016 opinion in Encino Motors v. Navarro illustrates the Court’s willingness to enforce those limits on the Seminole Rock/Auer doctrine.

It is too early to be sure, but I am cautiously optimistic that the Supreme Court will retain some version of the Seminole Rock/Auer doctrine now that the Court knows that it confers only an appropriately qualified degree of deference on agencies. The Court knows that, in part, because of empirical studies of the effects of the doctrine.

Richard J. Pierce, Jr. is Lyle T. Alverson Professor of Law at George Washington University. He has written over 20 books and 120 articles on administrative law and government regulation. His books and articles have been cited in over a dozen Supreme Court opinions.

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This post is part of an online symposium entitled Reflections on Seminole Rock: The Past, Present, and Future of Deference to Agency Regulatory Interpretations. You can read the entire series here.