Saying goodbye to Chevron and Auer? New Developments in the agency deference doctrine.

• Author: Oates, Jowanna Nicole
• Position: Administrative Law

The agency deference doctrine is a longstanding principle of administrative law that has guided courts in reviewing agency action over the past 30 years. The doctrine requires courts to respect an agency's interpretation of statutes and rules that it administers. Over the past few years, courts have increasingly criticized the practice of allowing agencies rather than courts to interpret ambiguous statutes and rules. In the past year alone, in several high-profile cases, federal courts have refused to defer to an agency's interpretation of federal regulations. (1) Additionally, criticism of the agency deference doctrine has led to proposed legislation that may prohibit its use in federal courts. These developments and whether there are any potential implications in Florida are the focus of this article.

A Brief History of Agency Deference Doctrine: Chevron and Auer

The seminal case of Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984), established a framework for courts in reviewing an agency's interpretation of a statute that it is charged with administering. (2) The Supreme Court developed a two-step test for reviewing such interpretations:

First, always, is the question whether Congress has directly spoken to the precise question at issue. If the intent of Congress is clear, that is the end of the matter; for the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress. If, however, the court determines Congress has not directly addressed the precise question at issue, the court does not simply impose its own construction on the statute, as would be necessary in the absence of an administrative interpretation. Rather, if the statute is silent or ambiguous with respect to the specific issue, the question for the court is whether the agency's answer is based on a permissible construction of the statute. (3)

The Court observed that the test comports with its longstanding policy of deferring to an agency's statutory interpretation, particularly in cases in which "a full understanding of the face of the statutory policy in the given situation has depended on more than ordinary knowledge respecting matters subjected to agency regulations." (4)

The Supreme Court was faced with a similar interpretation question in Auer v. Robbins, 519 U.S. 452 (1997), in considering whether the secretary of labor's interpretation of a statute and regulation pertaining to overtime pay was reasonable. Citing Chevron, the Court determined the secretary's construction of the statute was reasonable because Congress had not addressed the specific question at issue in the case. (5) In affirming the lower court's decision, the Court found that the secretary's interpretation of the agency's regulation was reasonable "[b]ecause the salary-basis test is a creature of the [s]ecretary's own regulations, his interpretation is under our jurisprudence, controlling unless 'plainly erroneous or inconsistent with the regulation.'" (6) Accordingly, the Court affirmed the lower court's judgment.

Criticisms of the Agency Deference Doctrine

In City of Arlington v. FCC, 133 S. Ct. 1863 (2013), the Supreme Court again considered whether an agency's interpretation of a statute pertaining to the scope of its jurisdiction was entitled to Chevron deference. After describing the requirements of the Chevron two-step test, the Court explained the reasoning for the doctrine:

Chevron is rooted in a background presumption of congressional intent: namely, "that Congress, when it left ambiguity in a statute" administered by an agency, "understood that the ambiguity would be resolved, first and foremost, by the agency, and desired the agency (rather than the courts) to possess whatever degree of discretion the ambiguity allows." (7)

Ultimately, following an extensive analysis of past decisions, the Court found that the agency's construction of the statute was entitled to Chevron deference. (8) The Court affirmed the lower court's decision. (9)

However, the dissenting opinion took issue with the majority's analysis, opining that before Chevron deference can apply, a court must make an initial determination of whether Congress has delegated authority to the agency to interpret the specific statutory ambiguity at issue. (10) Chief Justice Roberts advocated for limits on the agency deference doctrine:

...Chevron deference is based on, and finds legitimacy as, a congressional delegation of interpretative authority. An agency interpretation warrants such deference only if Congress has delegated authority to definitively interpret a particular ambiguity in a particular manner. Whether Congress has done so must be determined by the court on its own before Chevron can apply.

In other words, we do not defer to an agency's interpretation of an ambiguous provision unless Congress wants us to, and whether Congress wants us to is a question that courts, not agencies, must decide. (11)

Since the lower court did not deter mine whether Congress had delegated authority to the Federal Communications Commission to interpret the statute, Chief Justice Roberts would have remanded the case for consideration of the issue. (12)

The applicability of the Chevron doctrine was also an issue in Michigan v. EPA, 135 S. Ct. 2699 (2015). In Michigan, the Court considered whether the Environmental Protection Agency properly interpreted the Clean Air Act in determining that regulation of power plants was "appropriate and necessary." (13) The Court found that based upon an application of the Chevron test, the EPA's interpretation of the Clean Air Act was not entitled to deference because it was unreasonable to disregard cost in determining whether a regulation was "appropriate and necessary." (14) Justice Thomas noted in his concurrence that the EPA's "request for deference raises serious questions about the constitutionality of our broader practice of deferring to agency interpretations of federal statutes."...