Page 54 - FDCC Flyer Spring 2022

FDCC Pillars
Considering The Position
Of Administrative Agencies
In Amicus Briefs
by Peter Glaessner and Jamie Jones
Peter Glaessner
Jamie Jones
Almost forty
years ago, the U.S. Supreme Court announced the “Chevron”1 doctrine. It is a judicially created doctrine permitting deference to the position of a federal administrative agency concerning interpretation of its own regulations. That
jurisprudence over for the past forty years. It arose in a lawsuit interpreting the Environmental Protection Agency’s interpretation of the Clean Air Act. Yet it cuts across virtually all areas of
FDCC members’ practices: products liability, transportation, communications and employment, just to name a few.
However, in recent years, certain Supreme Court justices are questioning the doctrine. Before
his retirement, Justice Kennedy questioned it in his concurring opinion in Pereira v. Sessions, 138 S.Ct. 2105, 2120 (2018). Justice Thomas suggested the doctrine should be re-examined in
Michigan v. EPA, 576 U.S.743 (2015) (concurring) and Justice Gorsuch, before his elevation to the Supreme Court, also questioned its wisdom in Gutierrez-Brizuela v. Lynch, 834 F.3d 1142 (10th Cir. 2016). Moreover, the vitality of Chevron deference has become especially acute when the agency is allowed to determine its own jurisdiction. As Justice
Roberts observed, “We do not leave it to the agency to decide when it is in charge.” Arlington v. FCC 569 U.S. 290 (2013) (dissenting).
Some commentators have predicted the demise or reformulation of the Chevron doctrine. However, at present, the Chevron doctrine remains alive and well.
As appellate lawyers and, especially when preparing amicus briefs, one of the most critical questions to
ask is “what is the administrative agency’s position on this issue?” The answer is sometimes obvious. For example, the administrative agency may have litigated the specific regulation at issue or, alternatively, have previously filed an amicus brief in a case involving the same regulation. Basic research and due diligence is necessary because it may well be dispositive of the issue. See e.g. William N. Eskirdge, Jr. & Lauren E. Baer, The Continuum of Deference: Supreme Court Treatment of Agency Statutory
deference is granted under a two- step test. First, Chevron instructs the court to ask whether the status it clear; if so, no deference is required. Second, when the statute is silent
or ambiguous, then the court is to consider the agency’s interpretation of the statute. Specifically, is the agency’s interpretation of the statute reasonable or not? The rationale for Chevron deference is the implied premise that Congress delegated interpretative authority regarding the statute it enacted.
The Chevron doctrine has significantly shaped federal
1 Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc. 467 U.S. 837 (1984)
51 spring | federation flyer
www.thefederation.org