Recent opinions from the Supreme Court and policy debates within the halls of Washington have placed a renewed focus on the amount of deference administrative agencies receive when interpreting statues. Kent Barnett of the University of Georgia Law School and Christopher Walker of Ohio State’s Moritz College of Law have written a draft law review article entitled Chevron in the Circuit Courts that empirically examines the effect of so-called Chevron, and its weaker cousin Skidmore, deference on cases heard by the federal intermediate appellate courts. Administrative law practitioners should keep the article close at hand.
Barnett and Walker examined 1,330 published federal circuit court decisions that involved 1,561 separate agency statutory interpretations between 2003 and 2013. In addition to examining how circuit courts apply Chevron and Skidmore cumulatively, the authors report the data circuit-by-circuit and agency-by-agency. Among other revelations, the data show that the D.C. Circuit applies Chevron to 88.9% of its administrative law cases, by far the highest rate of any circuit. It also applies Chevron to an astounding 84.1% of informal agency interpretations, i.e., interpretations that do not involve notice-and-comment procedures or formal agency adjudication. This is forty percentage points more than the median circuit applies Chevron to such informal interpretations. By contrast, the Sixth Circuit is the least likely to apply Chevron, applying it to only 60.7% of its administrative law decisions. Practitioners who have a colorable challenge to an agency action may well want to set their sights on Cincinnati rather than Washington.
Other data reveal:
- Agencies win 77.3% of cases when circuit courts apply Chevron, 56.0% of cases when courts apply Skidmore, and only 38.5% when courts review agency action de novo.
- Agencies win 93.8% of cases when courts reach step two (whether the agency’s interpretation was reasonable) of the Chevron analysis but only 38.8% of cases decided at step one (whether the statute speaks directly to the question at issue, foreclosing any contrary agency interpretation).
- 70% of administrative law cases applying Chevron in the circuit courts are resolved at step two.
- Circuit courts applied Chevron to 74.8% of their administrative law cases, Skidmore to 10.8%, and de novo review of 7.5%.
- Interestingly, the authors found no material difference in agencies’ win rate with regard to notice-and-comment rulemaking when Chevron applied compared to when it did not (73.0% all notice-and-comment cases v. 74.2% when Chevron applied).
- The FCC and NLRB are among the most successful agencies in the circuit courts while the IRS, EEOC, and Department of Energy are among the least.
One of the report’s conclusions should give administrative law practitioners concern. The authors find that, when courts apply Chevron, agency decisions reached by formal adjudication are upheld more frequently than those that come from notice-and-comment rulemaking (81.8% v. 74.2%). The authors therefore suggest that agencies issue more decisions through formal adjudication rather than notice-and-comment procedures. In addition to the higher win rate, agencies can “escape review by the White House’s Office of Information and Regulatory Affairs” as well as “onerous congressionally imposed constraints on rulemaking.” (pp. 40-41.) Those who have followed the debate concerning the Securities and Exchange Commission’s attempt to try more cases before its administrative law judges cannot be heartened by an academic love note to agency “independence” and “retroactive standard-setting when necessary.” (Id.)
These points aside, Barnett and Walker have done the impossible and written a law review article that is of use to private practitioners. Administrative law attorneys may want to set aside time to read the article before filing their next challenge to agency action in the circuit courts. It just may change the venue of their suit.