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Should Courts Defer to Agency Litigating Positions?

How much deference should amicus briefs and agency advocacy receive from the courts?

When an agency adopts a particular statutory interpretation in the course of litigation, should courts care? Agency interpretations adopted for the first time in litigation do not receive Chevron deference unless and until they are adopted or ratified in a more formal manner (such as through informal rulemaking). But does that mean such interpretations should receive no deference at all? Or should they simply receive the less demanding and less controlling form of deference known as Skidmore deference?

As it happens, lower courts are divided on whether agency litigations should receive Skidmore deference. As it also happens, this morning the Court aso denied certiorari in a case that could have resolved this question, E.I. Dupont de Nemours & Co v. Smiley.

Justice Gorsuch, joined by the Chief Justice and Justice Thomas, issued an opinion regarding the denial of certiorari, expressing an interest in resolving this question.

Can an agency advance an interpretation of a statute for the first time in litigation and then demand deference for its view? There is a well-defined circuit split on the question. The Court of Appeals in this case said yes, joining several other circuits who share that view. 839 F. 3d 325, 329, 333–334 (CA3 2016) (case below); SEC v. Rosenthal, 650 F. 3d 156, 160 (CA2 2011); TVA v. Whitman, 336 F. 3d 1236, 1250 (CA11 2003); Dania Beach v. FAA, 628 F. 3d 581, 586–587 (CADC 2010). But "[t]wo circuits, the Sixth and Ninth, expressly deny Skidmore deference to agency litigation interpretations, and the Seventh does so implicitly." Hubbard, Comment, Deference to Agency Statutory Interpretations First Advanced in Litigation? The Chevron Two-Step and the Skidmore Shuffle, 80 U. Chi. L. Rev. 447, 462 (2013) (footnotes omitted); Smith v. Aegon Companies Pension Plan, 769 F. 3d 922, 929 (CA6 2014); Alaska v. Federal Subsistence Bd., 544 F. 3d 1089, 1095 (CA9 2008); In re UAL Corp. (Pilots' Pension Plan Termination), 468 F. 3d 444, 449–450 (CA7 2006).

The issue surely qualifies as an important one. After all, Skidmore deference only makes a difference when the court would not otherwise reach the same interpretation as the agency. And a number of scholars and amici have raised thoughtful questions about the propriety of affording that kind of deference to agency litigation positions. For example, how are people to know if their conduct is permissible when they act if the agency will only tell them later during litigation? Don't serious equal protection concerns arise when an agency advances an interpretation only in litigation with full view of who would benefit and who would be harmed? Might the practice undermine the Administrative Procedure Act's structure by incentivizing agencies to regulate by amicus brief, rather than by rule? Should we be concerned that some agencies (including the one before us) have apparently become particularly aggressive in "attempt[ing] to mold statutory interpretation and establish policy by filing 'friend of the court' briefs in private litigation"? Eisenberg, Regulation by Amicus: The Department of Labor's Policy Making in the Courts, 65 Fla. L. Rev. 1223, 1223 (2013); see also, e.g., Hickman & Krueger, In Search of the Modern Skidmore Standard, 107 Colum. L. Rev. 1235, 1303 (2007); Pierce, Democratizing the Administrative State, 48 Wm. & Mary L. Rev. 559, 606–607 (2006); Merrill, Judicial Deference to Executive Precedent, 101 Yale L. J. 969, 1010–1011 (1992).

Respectfully, I believe this circuit split and these questions warrant this Court's attention. If not in this case then, hopefully, soon.

Interestingly enough, Justice Alito did not join this statement. That might also mean that Justice Alito was not a vote for certiorari. This may not mean much of anything. On the other hand, Justice Alito's absence from this statement is interesting in light of Justice Alito's fervent defense and application of Chevron deference in his solo Pereira dissent. [Note: As Sasha notes on his post -- and I overlooked -- Justice Alito did not participate in this case, so there's no reason to place any significance in his failure to join Justice Gorsuch's statement.]

UPDATE: See also Sasha's post on this case.

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  • Noscitur a sociis||

    Interestingly enough, Justice Alito did not join this statement. That might also mean that Justice Alito was not a vote for certiorari. This may not mean much of anything. On the other hand, Justice Alito's absence from this statement is interesting in light of Justice Alito's fervent defense and application of Chevron deference in his solo Pereira dissent.

    According to the actual order, "JUSTICE ALITO took no part in the consideration or decision of these motions and this petition." So presumably he did not join the statement because he was recused from this case.

  • FlameCCT||

    Perhaps that is why they didn't take the case as it would have been under 8 Justices not 9 so they are waiting for a case that all Justices can act upon.

  • Scarecrow Repair & Chippering||

    The whole idea of judges deferring to agency bureaucrats is perverse.

  • perlchpr||

    This.

  • Voize of Reazon||

    For example, how are people to know if their conduct is permissible when they act if the agency will only tell them later during litigation?

    How does this argue in favor of the only other option, that of relying on the court for first interpretations? The court is incapable of that task except during litigation.
    I could better understand if the point had been that there is no rationale for deference in this case, but that isn't what the statement appears to be saying.

  • MatthewSlyfield||

    "How does this argue in favor of the only other option, that of relying on the court for first interpretations? The court is incapable of that task except during litigation."

    That isn't the only other option an agency can provide advance public notice of it's interpretation by going through the administrative rule making process in compliance with the administrative procedures act.

    If the agency doesn't formulate a specific interpretation until they have a case they want to litigate, the agency is doing it wrong and deserves no deference.

  • Voize of Reazon||

    Sure, but in the inevitable situation where their prescience failed and a case presents that they were not able to anticipate should their view receive deference, or not?

    I wouldn't characterize the question as whether the agency "deserves" deference, we're not handing out gold stars here, but whether deference operates to generate more or less favorable outcomes. There are reasoned and sensible arguments on both sides, but my point was that what Gorsuch raises is neither. "Deference is bad because it doesn't provide advanced notice" is not an argument for non-deference, because non-deference doesn't provide advanced notice either.

  • Drewski||

    I feel like there should be a rule of lenity equivalent, where an agency's interpretation raised first in litigation cannot be retroactively applied to the case at hand, even if deferred to.

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