An Epic Change to Employment Law.

• Author: Brady, Brooke V.

1. Introduction 245 II. Chevron Deference History, Criticism, And its Politics 246 A. Chevron Deference History 246 1. The Floodgate of Chevron--Administrative Agency's Broadened Power 246 2. Criticism of Chevron Deference 248 B. Is There a Political Battle Over Chevron Deference? 250 C. The Purpose of Chevron Deference 251 III. The Future of Chevron Deference and Employment Law 252 A. Class Action and Arbitration--Epic Systems 252 B. Epic Systems' Fallout 256 C. An Epic Look Forward 257 D. The Epic Impact 258 IV. Some Epic Recommendations 258 A. Chevron Deference Threatens the Integrity of a Tri-partite System 259 B. Unpredictability in the Work-Force 259 C. Congressional Solution 260 V. Conclusion 261 I. INTRODUCTION

   With a primarily conservative Supreme Court, the importance of Chevron deference rings stronger than ever. This Note argues that the Court's holding in Epic Systems Corporation v. Lewis, decided on May 21, 2018, (1) will arguably be one of the most important administrative agency cases for the next decade. Part II will discuss the history and importance of Chevron deference and introduce the current debate regarding the doctrine in the court system.

   Part III of this Note will explore the impact that the Epic Systems decision will have on the Chevron deference doctrine, administrative law, and, more particularly, employment law. Part III will also discuss what effect the Epic Systems decision will have in the future when the Executive Branch disagrees with an independent agency's interpretation of an ambiguous statute. Part IV recommends that because Epic Systems undermines Chevron deference, Congress should reconsider the doctrine through regulatory reform that encompasses both rules and statutes in cases where a statute heeds ambiguity.

2. CHEVRON DEFERENCE HISTORY, CRITICISM, AND ITS POLITICS

   1. Chevron Deference History

      As a long-standing principle of administrative law, critics have questioned the constitutionality of Chevron deference repeatedly over the last decade. (2) Judges, Congress, and several of the United States Supreme Court justices have heavily critiqued Chevron. (3) Utilizing a two-step approach for evaluating an administrative agency's interpretation of a statute, Chevron set a foundation for interpretative malleability in the case of ambiguous statutes.

      1. The Floodgate of Chevron--Administrative Agency's Broadened Power

         Initially a case "over the proper interpretation of the Clean Air Act (CAA)," Chevron quickly became a fixture within the court systems with respect to deference to administrative agencies. (4) Under the implementation of Congress, the CAA required states to establish permit programs to monitor national air quality standards. (5) The Environmental Protection Agency (EPA) established these standards. (6) Under the EPA's regulation, states that did not meet the national standard were considered "nonattainment" states and the EPA required them "to establish a permit program." (7) This program assisted in the regulation of "new or modified major stationary sources." (8) The regulation included "all pollutionemitting activities within a single 'industrial grouping,'" and allowed States to group the sources emitting pollution in one plant during assessment. (9)

         The impact of this decision was monumental, and completely changed the way facilities evaluated its pollution-emitting sources. (10) This plant-wide definition prompted the Natural Resources Defense Council (NRDC) to file for judicial review of the correct definition of "stationary source." (11) Initially, the court found that Congress was unclear in its definition, and the issue was not addressed further in its legislative history. (12) With this contradictory conundrum in mind, the Supreme Court took on this issue subsequent to the Court of Appeals setting aside this regulation. (13) After a unanimous decision disagreeing with the Court of Appeals, the Supreme Court held that "[t]he EPA's plantwide definition is a permissible construction of the statutory term 'stationary source.'" (14) Subsequently, the Court set up a system for courts to follow when reviewing an administrative agency's interpretation of a statute. (15) When reviewing statutes, the court must answer two questions:

         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. (16) Through a two-step analysis, the Court gives great "deference to administrative interpretations," and, therefore, respects the executive department by allowing necessary formulation of policy in the presence of contradictory statutory language. (17)

         First, in examining the statutory language, the Court held that when a statute's language is broad, the administrative agency has ample "power to regulate." (18) Second, the Court examined the statute's ambiguity through its legislative history. (19) Importantly, if the history shows to be silent on the "precise issue before [the court]," the administrative agency is, again, given broad discretion. (20) This helps courts address potential policy concerns of Congress. (21)

         The Court's two-step deference scheme allowed administrative agencies the expanded, and often more lenient, ability to interpret congressional statutes for the agency's benefit. Under Chevron, the Court permitted an agency to change its interpretation of a statute so long as the interpretation is a "reasonable explanation." (22) In describing Chevron deference, Justice Antonin Scalia pointed out that once an interpretation is permitted, "there is a range of permissible interpretations, and that the agency is free to move from one to another, so long as the most recent interpretation is reasonable its antiquity should make no difference." (23) This premise recognizes that "there may not be a single correct interpretation of a statute." (24) Therefore, the decision in Chevron did not simply set a two-step process for interpretation but broadened the power of administrative agencies as a whole.

         The Court later expressed a limitation of Chevron deference in United States v. Mead Corporation. (25) Through a limiting principle, the Court held that Chevron deference applies "when it appears that Congress delegated authority to the agency generally to make rules carrying the force of law, and that the agency interpretation claiming deference was promulgated in the exercise of that authority." (26) In Mead, the Court ultimately determined that Congress had not indicated an intention to grant the agency deference. (27) The question of whether Congress intended to grant an agency interpretive authority added a third prong to the Chevron deference analysis, (28) which ultimately, for the Mead Court, assisted the Court in forming "its own independent judgment of how to interpret the statute." (29) This complication to the Chevron deference doctrine further exemplifies the complexity of interactions between the Judicial, Legislative, and Executive Branches.

      2. Criticism of Chevron Deference

         Following these critical cases, both proponents and opponents of Chevron deference have expressed their stances on the issue. Most notably, Justice Neil Gorsuch, a staunch opponent of Chevron deference, describes the practice as "a judge-made doctrine for the abdication of the judicial duty." (30) Like many other critics of Chevron deference, Justice Gorsuch believes that allowing administrative agencies to adopt their own reasonable interpretations of statutes directly takes away from the judicial branch's primary role of interpreting the law. (31) Ultimately, the resulting increased agency power leads to an intrusion between the political branches. (32) According to Justice Gorsuch, this increased power raises "due process and equal protection problems." (33) This tension has led to unreliable precedent within the law, as courts fluctuate in examining agency's interpretations of statutes.

         In addition, scholars have noted that "an increasing number of judges, policymakers, and scholars" have expressed dissatisfaction with the current core doctrine of administrative law. (34) Similar to Justice Gorsuch, many of these opponents cite "constitutional skepticism" over the administrative agency's power to determine what is legal. (35)

         Not exclusively limited to party lines, Chevron deference has faced opposition from both corners of the political sphere. In SAS Institute, Inc. v. Iancu, Justice Sotomayor and Justice Ginsburg joined Part III-A of Justice Breyer's dissent by expressing hesitation in the widespread use of the Chevron deference practice. (36) Specifically, the dissent does not encourage a "rigid, black-letter rule of law" that allows an agency to fill an ambiguous statutory gap with its own interpretation. (37) Rather, Justice Breyer refines his idea of deference to "a rule of thumb, guiding courts in an effort to respect that leeway which Congress intended the agencies to have." (38) Although this does not equate to Justice Gorsuch's staunch criticism, the Court has shown a steady impending and constant weariness of the doctrine. The Court's weariness typically rests on its hesitation to replace Congress' statutory intentions with the everchanging, and often gap-filling, interpretations of administrative agencies. (39)

         In the face of these critics, many proponents of the doctrine still adamantly advocate for the use...