Perez v. Mortgage Bankers Association

Case Updates

The Supreme Court unanimously held that an agency’s change to its interpretive rule—which is a rule that does not have the force and effect of law (i.e., it is not binding on private parties or the courts)—is not subject to the notice-and-comment requirements of the Administrative Procedure Act.

In the coalition brief, the Chamber asked the U.S. Supreme Court to affirm the judgment of the DC Circuit Court holding that a federal agency must engage in notice-and-comment rulemaking before it can significantly alter an interpretive rule that articulates an interpretation of an agency regulation. The brief argues that the business community needs to know that it can rely upon the interpretive rules that increasingly affect its day-to-day operations. By requiring agencies to ask for and respond to public feedback before changing definitive, relied-upon agency interpretations, the Court can protect those reliance interests and foster the APA’s goals of increasing the effectiveness and legitimacy of agency decision making through notice-and-comment rulemaking. The Supreme Court of the United States along with lower courts have always interpreted the APA with an eye toward the need for fairness and predictability. Under that practical approach, agencies should be required to follow the requirements of notice and comment before reversing their definitive, relied-upon interpretations because in such situations the agency has effectively amended a legislative rule.

The U.S. Chamber filed the brief jointly with the American Fuel and Petrochemical Manufacturers, American Health Care Association, Business Roundtable, National Association of Manufacturers,and Securities Industry and Financial Markets Association.

Shay Dvoretzky and Jeffrey Johnson of Jones Day represented the U.S. Chamber as co-counsel to the U.S. Chamber Litigation Center.