Agency interpretations of their own regulations

There seems to be a variety of judicial opinions about how much deference courts should give to an agency's interpretation of its own regulations, AKA Auer deference (after Auer v. Robbins, 519 U.S. 452 (1997). One argument is that deference is not warranted when the "interpretation" rises to the level of a new regulation without notice or an opportunity to be heard. Applebee's (the restaurant chain) has petitioned for the Supreme Court to take another look. Petition of the day : SCOTUSblog has links to both the Eighth Circuit opinion and the petition for certiorari. From the Eighth Circuit opinion:

These types of agency interpretations (opinion letters and handbooks) of its own regulation are not entitled to Chevron deference because they are not subject to notice and comment rule making procedures. Where the rule to be interpreted "is a creature of the Secretary's own regulations, [however, its] interpretation of it is, under [Supreme Court] jurisprudence, controlling unless plainly erroneous or inconsistent with the regulation." This type of Auer deference is appropriate for DOL interpretations of its own regulations, where the regulations "g[i]ve specificity to a statutory scheme the Secretary [of the DOL] [i]s charged with enforcing and reflect[] the considerable experience and expertise the Department of Labor ha[s] acquired over time with respect to the complexities of the Fair Labor Standards Act." ... Less deference is due an agency when, "instead of using its expertise and experience to formulate a regulation, it has elected merely to paraphrase the statutory language," in which case an agency's interpretation is "entitled to respect" to the extent it has the "power to persuade," (discussing Skidmore v. Swift & Co., 323 U.S. 134, 140 (1944)). Nonetheless, "Auer deference is warranted only when the language of the regulation is ambiguous."

Slip op. at 8-9 (some citations omitted). One to watch. EMM