Page 55 - FDCC Flyer Spring 2022

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Interpretations from Chevron to Hamdan, 96 Geo. L.J. 1083, 1089 (2008) (opining that the USSC employs a “continuum of deference regimes” and only applies Chevron 8.3%). As one commentator has noted, however, the doctrine applied is not as important as the position of the agency:
. . . the studies suggest that
a court’s choice of which doctrine to apply in reviewing agency action. . . The ranges of affirmance rates by doctrine are---Chevron—60-81.3%, Skidmore—55.1-73.5%, State Farm—64%, substantial evidence—64-71.2%, de novo—66%. All of the ranges of findings overlay and doctrinally-based difference in outcome are barely detectable.
Richard J. Pierce, Jr., What do the Studies of Judicial Review of Agency Actions Mean?, 63 Adm. L. Rev. 77-98, (2011). In other words, the position of the agency is the most determinative factor.
Some commentators have predicted the demise or reformulation of the Chevron doctrine. However, at present, the Chevron doctrine remains alive and well.
However, the answer (which
may support your position or your opponent’s position) is not always readily available. In such case, it may be in your client’s interest to determine the agency’s position, and whether (because
it is dispositive) you would want
to place it in the record. Courts more likely than not will give deference to the agency’s position even if appearing as amicus. See Hubbard, 80 U. Chi. L. Rev. 447,
448, 472 (2013) (noting unanimous deference when an agency appears as amicus and explaining that the six circuits addressing the issue— Second, Third, Fourth, Seventh, Ninth, and Tenth—give such agency deference).
Another factor to keep in mind in considering an agency’s amicus is this: in the unlikely result of a court not accepting an agency’s amicus position, eighty percent of the
time the agency will promulgate a Chevron interpretation to effectively mooting the court’s decision. Hubbard, 80 U. Chi. L. Rev. 447, 483 (2013). You may win, only to lose in such a scenario.
Accordingly, whether the analysis is Chevron or not, the deference given to the agency’s position in a case will often control the outcome. Keeping that in the forefront of your mind from the start of the case and strategizing on the impact of the agency position should be of great importance.
FDCC Defense Counsel Members Peter Glaessner, a Partner with Allen Glaessner Hazelwood Werth in San Francisco, California; and Jamie Jones, a Partner with Friday, Eldredge & Clark in Little Rock, Arkansas, are members of the FDCC’s Amicus and Public Policy Committee. Contact Peter at: Peter Glaessner pglaessner@aghwlaw.com, and Jamie at: jjones@fridayfirm.com.
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