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Perez v. Mortgage Bankers Ass'n

ELR Citation: 45 ELR 20050
Nos. 13-1041, (U.S., 03/09/2015)

The U.S. Supreme Court held that federal agencies need not follow the APA's formal notice-and-comment procedures when they wish to change an interpretive rule. In Paralyzed Veterans of America v. D. C. Arena L.P., 117 F. 3d 579 (D.C. Cir. 1997), the D.C. Circuit held that an agency must use the APA's notice-and-comment procedures when it wishes to issue a new interpretation of a regulation that deviates significantly from a previously adopted one. But the Paralyzed Veterans doctrine is contrary to the clear text of the APA's rulemaking provisions and improperly imposes on agencies an obligation beyond the APA's maximum procedural requirements. APA §4 states that unless "notice or hearing is required by statute," the Act's notice-and-comment requirement "does not apply . . . to interpretative rules." Because an agency is not required to use notice-and-comment procedures to issue an initial interpretive rule, it also is not required to use those procedures when it amends or repeals that interpretive rule. Sotomayor, J., delivered the opinion of the Court, in which Roberts, C.J., and Kennedy, Ginsburg, Breyer, and Kagan, JJ., joined, and in which Alito, J., joined except for Part III-B. Alito, J., filed an opinion concurring in part and concurring in the judgment. Scalia J., and Thomas, J., filed opinions concurring in the judgment.