parent nodes: administrative law | agency adjudication | agency interpretations of regulation | Chevron v NRDC | judicial review | scope of administrative review
agency decisions of law
An agency's interpretation of its organic statute is sometimes entitled to deference on judicial review under either the doctrine of Chevron v NRDC or of [Skidmore v Swift and Co] (described below). This page describes in which circumstances Chevron or Skidmore applies.
Pre-Chevron: Skidmore deference
[Skidmore v Swift and Co]:
• "The rulings, interpretations and opinions of (an agency), while not controlling upon the courts by reason of their authority, do constitute a body of experience and informed judgment to which courts and litigants may properly resort to for guidance. The weight of such a judgment in a particular case will depend on:"The thoroughness evident in the agency’s consideration;The validity of its reasoning;Its consistency with earlier and later pronouncements; And all those factors giving it power to persuade, if lacking power to control.
The heart of Skidmore deference is that a court has ultimate authority to make the decision, but the court can take into account the agency’s opinions and ideas, e.g., the "interpretive" rather than "legislative" rules that the agency creates.
o Legislative rules are a product of an exercise of delegated legislative powers to make law through rules. Legislative rules are controlling upon courts.
o Interpretive rules are a any rule an agency issues without exercising delegated legislative power. Interpretive rules may have the power to persuade, if lacking the power to control.
Note that in Skidmore cases, agencies win about 60% of the time, suggesting that Skidmore deference is a workable concept.
When to apply Chevron deference ("Chevron step Zero")
Agency interpretations of law that "lack the force of law" get only Skidmore rather than Chevron deference. See [US v Mead] (tariff ruling letters, which were issued without formal process and carried no precedential weight, lacked the force of law); [Christensen v Harris Co] (opinion letter that did not, "for example," involve "formal adjudication or notice-and-comment rulemaking," lacked force of law).
Agency actions that lack the force of law include:- tariff ruling letters [US v Mead]
- opinion letters [Christensen v Harris Co]
- "policy statements, agency manuals, and enforcement guidelines" (dicta in [US v Mead])
- agency prosecutorial actions [Crandon v US]
- agency "litigating positions" [Bowen v Georgetown Univ Hospital]
- interpretations of the APA or statutes that apply to multiple agencies [Metro Stevedore Co v Rambo]
Note that [Christensen v Harris Co] implies that formal APA proceedings and notice-and-comment rulemaking receive Chevron v NRDC deference. Less clear cases include:
- agency decisions about their own jurisdiction
- There is a circuit split here; deference seems inappropriate because the agency could unlawfully expand its own power; note also that it might violate the Article III prerogative to determine jurisdictional facts.
- agency interpretations of the way their organic statutes cross-reference general law
- lower-level employees' interpretation of statute; but see [US v Mead] (Scalia dissenting) (arguing that the "authoritativeness" of agency action should depend on whether the action "represent(s) the judgment of central agency management)
Generally, [Barnhart v Walton] provides a (confusing) list of factors to apply to test whether agency action less stringent than § 553 notice-and-comment rulemaking has the "force of law" and thus deserves Chevron v NRDC deference:
- the "interstitial nature of the legal question"
- the "related expertise of the Agency"
- the "importance of the question to administration of the statute"
- "the complexity of that administration
- "the careful consideration (of) the Agency"
- note that the longstanding nature or the inconsistency of the action is not relevant
- this implies that stare decisis is not relevant
[Barnhart v Walton] (upholding SSA interpretation not based on notice-and-comment rulemaking, but on an agency manual, an informal ruling, and a letter)
Lower court strategies after Mead
"Chevron avoidance:" The threshold issue of whether to apply Chevron is so baffling that the court tries to avoid application if it can by saying that the agency wins or loses whether or not Chevron applies
The Barnhart approach (Breyer): if the agency view is thoroughly reasoned, and the issue is "interstitial," Chevron applies
Mead avoidance: Mead is an unusual case which doesn't involve an agency interpretation, but rather one of many agency tariff classifications, so Scalia's approach may still apply—continue to regularly apply Chevron, despite Mead, unless the agency action is really like the classifications in Mead
[alias: agency interpretation of law]
[alias: agency decision of law]