Saying Goodbye to Chevron and Auer? New Developments in the Agency Deference Doctrine
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 determine 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.”15
In a number of recent concurring opinions, several members of the Court have similarly criticized or questioned the use of the Auer doctrine. In Talk America, Inc. v. Michigan Bell Tel. Co. , 564 U.S. 50, 63 (2011), the Court, relying upon Auer, found that the Federal Communications Commission’s interpretation of its regulations was permissible because it was “neither plainly erroneous nor inconsistent with the regulatory text.” Justice Scalia, in his concurring opinion, declared that he would have reached the same decision without relying upon Auer.16 Yet, he also observed: “It seems contrary to fundamental principles of separation of powers to permit the person who promulgates a law to interpret it as well.”17 Notably, Justice Scalia stated that he would be receptive to reconsidering Auer in a future case.18
More recently in Perez v. Mortgage Bankers Assoc. , 135 S. Ct. 1199 (2015), Justices Alito, Scalia, and Thomas pointedly questioned the continuing validity of Auer. In Perez, the appellee suggested that interpretive rules were entitled to Auer deference.19 The Court did not specifically address the argument, but observed that “[e]ven in cases where an agency’s interpretation receives Auer deference, however, it is the court that ultimately decides whether a regulation means what the agency says.”20 In a concurrence, Justice Scalia observed that §706 of the Administrative Procedure Act (APA) specifically requires courts to clarify ambiguities in statutes and regulations.21 As such, he would “restore the balance originally struck by the APA with respect to an agency’s interpretation of its own regulations, not by rewriting the [a]ct in order to make up for Auer, but by abandoning Auer and applying the [a]ct as written.”22 Justice Thomas took his critique a step further:
“Interpreting agency regulations calls for that exercise of independent judgment. Substantive regulations have the force and effect of law.”***
“But the agency, as part of the Executive Branch, lacks the structural protections for independent judgment adopted by the framers, including the life tenure and salary protections of [art.] III. Because the agency is not properly constituted to exercise the judicial power under the Constitution, the transfer of interpretive judgment raises separation-of-powers concerns.”23
Justice Alito in his concurring opinion wrote that Justice Scalia and Justice Thomas “offered substantial reasons why the [agency deference] doctrine may be incorrect” and he awaited a case to examine its validity.24
Last year, Justice Thomas continued his criticism of the agency deference doctrine in a case denying a petition of a writ of certiorari.25 Justice Thomas, in dissent, wrote that the question posed by the petition of whether the decisions in Auer and Bowles v. Seminole Rock, 325 U.S. 410 (1945) should be overturned was “worthy of review.”26 Interestingly, Justice Thomas noted that “[a]ny reader of this Court’s opinions should think that the [ Auer ] doctrine is on its last gasp.”27
The federal Administrative Procedure Act currently requires a reviewing court to “decide all relevant questions of law, interpret constitutional and statutory provisions, and determine the meaning or applicability of the terms of an agency action.”28 In 2016, H.R. 4768, the Separation of Powers Restoration Act of 2016 (SOPRA), was filed in the U.S. House of Representatives by Representative John Ratcliffe. The bill proposed to amend Title 5 of the U.S. Code to clarify the standards of judicial review of agency interpretations of statutes and regulations:
“(3) by inserting after ‘of the terms of an agency action’ the following ‘and decide de novo all relevant questions of law, including the interpretation of constitutional and statutory provisions, and rules made by agencies. Notwithstanding any other provision of law, this subsection shall apply in any action for judicial review of agency action authorized under any provision of law. No law may exempt any such civil action from the application of this section except by specific reference to this section….’”29
The report of the House Judiciary Committee explained why the legislation was necessary:
“[I]t is appropriate for Congress to overturn Chevron and Auer statutorily, rather than wait for the Court to address their numerous deficiencies. H.R. 4768, the ‘Separation of Powers Restoration Act of 2016,’ accomplishes these goals by amending the APA’s relevant provision, 5 U.S.C. §706, to insert a de novo review term to render it as explicit as possible that courts, not agencies, must decide all questions of law. The bill then applies that clarified standard explicitly to all questions of law concerning the interpretation of constitutional, statutory and regulatory provisions. applying the de novo term to the interpretation of statutory provisions, the bill overturns Chevron. applying the term to the interpretation of regulatory provisions, the bill overturns Auer. ”30
Conversely, the dissenting view in the House report identified a number of concerns with abandoning the agency deference doctrine, such as an increase in time and cost for the rule promulgation process and separation of powers issues arising from allowing judges to make policy determinations.31 SOPRA passed in the House of Representatives on July 12, 2016, but was not acted upon by the Senate. A similar bill, S.B. 2434, was introduced in the Senate that year, but died before consideration.
SOPRA was introduced again in the House of Representatives on January 3, 2017, but to date there has been no action on the bill.32 However, H.R. 5, the “Regulatory Accountability Act of 2017,” sponsored by Rep. Bob Goodlatte, R-VA, passed the House of Representatives on January 11, 2017.33 The legislation incorporates many provisions of SOPRA and amends 5 U.S.C. §706, in part as follows:
“(A) by striking ‘decide all relevant questions of law, interpret constitutional and statutory provisions, and’; and
(B) by inserting after ‘of the terms of an agency action’ the following ‘and decide de novo all relevant questions of law, including the interpretation of constitutional and statutory provisions, and rules made by agencies. If the reviewing court determines that a statutory or regulatory provision relevant to its decision contains a gap or ambiguity, the court shall not interpret that gap or ambiguity as an implicit delegation to the agency of legislative rule making authority and shall not rely on such gap or ambiguity as a justification either for interpreting agency authority expansively or for deferring to the agency’s interpretation on the question of law. Notwithstanding any other provision of law, this subsection shall apply in any action for judicial review of agency action authorized under any provision of law. No law may exempt any such civil action from the application of this section except by specific reference to this section.’”34
The Senate received the bill on January 12, 2017, and referred it to the Committee on Homeland Security and Governmental Affairs. On March 29, 2017, the Senate Committee on Small Business and Entrepreneurship held hearings on the bill.
Criticisms of the Doctrine in Florida
Florida’s Administrative Procedure Act (APA) is located in F.S. Ch. 120. The Florida APA specifically prescribes the amount of deference that must be given by a court to issues of fact, procedure, policy, and law.35 In Florida, the agency deference doctrine “recognizes that policy considerations left to the discretion of an agency may take precedence over findings of fact by an administrative law judge.”36 Florida courts have given deference to an agency’s interpretation of its own rules,37 and statutes that an agency administers.38 he similarity in the treatment of the agency deference doctrine in state and federal jurisprudence has been recognized by the Florida Supreme Court.39
To date, no legislation has been filed in the Florida Legislature that addresses agency deference. Concerns about the use of the agency deference doctrine have been voiced recently by at least one Florida district court of appeal. In Housing Opportunities Project v. SPV Realty, LC, 2016 Fla. App. LEXIS 18680 (Fla. 3d DCA 2016), the court considered whether the Florida Fair Housing Act required a claimant to engage in a statutory conciliation process prior to bring suit. After analyzing the act, the court concluded that the conciliation process was mandatory.40 Judge Salter, in dissent, argued that the court should have given “great deference” to the Commission on Human Relations’ interpretation of the act.41 The majority rejected the dissent’s argument, stating:
“The ‘great deference’ mantra cited by the dissent illustrates the point. The refrain seems to have become so much a part of our legal culture as to be incontestable. An important separation-of-powers issue lurks just below the surface, however. There is no reason for the rule when we are as capable of reading the statute or rule as the agency, which may well have its own an agenda.”42
The Third District Court of Appeal again considered whether an agency’s interpretation of a statute was entitled to deference by the court in Pedraza v. Reemployment Assistance Appeals Commission, 208 So. 3d 1253 (Fla. 3d DCA 2017). In reaching its decision, the court observed that “an agency’s interpretation of a statute, with which it is legislatively charged with administering, shall be accorded great weight and should not be overturned unless clearly erroneous, arbitrary, or unreasonable.”43 The court found that the commission’s statutory interpretation was clearly erroneous and, as such, not entitled to deference.44 Judge Shepherd concurred with the court’s opinion, but wrote separately to address his concerns with the agency deference doctrine:
“In my view, deference to an agency’s construction or application of a statute implicates important due process and separation of powers questions deserving of serious contemplation by future members of this and other courts around the state. The fundamental concern of keeping the individual branches separate is that the fusion of the powers of any two branches into the same department would ultimately result in the destruction of liberty. We should be reluctant to so readily abandon our judicial independence and alter the structure upon which our entire system of government is based. Moreover, we should not be so quick to embrace a course of conduct that results in systemic bias towards one of the parties. While I recognize the reality of agency deference, I share Justice Thomas’s concern that ‘we seem to be straying further and further from the Constitution without so much as pausing to ask why. We should stop and consider that document before blithely giving the force of law to any other agency “interpretations[.]”’”45
As it currently stands, Chevron and Auer are still key in determining the validity of an agency’s interpretation of a statute or rule. Nevertheless, it appears that at the federal level, the agency deference doctrine may be, as Justice Thomas remarked, “on its last gasp.” Whether the “remedy” is judicial or legislative, the message has been telegraphed by Congress, the federal courts, and at least one Florida district court of appeal, that there is a desire to restore the separation of powers that many feel has been unraveled by Chevron and Auer. U.S. Supreme Court Justice Neil Gorsuch has levied criticisms of the agency deference doctrine similar to those of Justices Scalia and Thomas.46 If the appropriate case presents itself, the Court may finally succeed at altering or overturning Chevron and Auer. Time will determine whether a legislative or judicial response to the agency deference doctrine appears in Florida; however, despite differences between the Florida and federal Administrative Procedure Acts, Florida courts have followed or found persuasive cases construing the federal Administrative Procedure Act.47 Thus, if the Supreme Court or Congress alter or eliminate the agency deference doctrine, it is likely that similar action may be taken in Florida.
1 See Nevada v. United States Dep’t of Labor, 2016 U.S. Dist. LEXIS 162048, at *22 (E.D. Tex. Nov. 22, 2016) (finding that the Department of Labor’s interpretation of a statute was not entitled to deference because the interpretation ignored legislative intent and was not “based on a permissible construction of the statute.”); Texas v. United States v. United States of America, 2016 U.S. Dist. LEXIS 113459 (N.D. Tex. Aug. 21, 2016) (rejecting the Department of Education’s interpretation of regulations to allow individuals access to bathrooms, locker rooms, and other spaces that align with their gender identity rather than biological sex); see also Egan v. Del. River Port Auth., 2017 U.S. App. LEXIS 4993, at *28 (3d Cir. Mar. 21, 2017) (Jordan. J., concurring) (“The problems [ Chevron and Auer ] create are serious and ought to be fixed.”). But see G.G. v. Gloucester County Sch. Bd. , 822 F.3d 709 (4th Cir. 2016) (finding that the Department of Education’s interpretation of a regulation was entitled to deference because the regulation was ambiguous as it related to transgender students), vacated and remanded, Gloucester County. Sch. Bd. v. G. G., 2017 U.S. LEXIS 1626, at *1 (Mar. 6, 2017).
2 Similar principles were announced in a case predating the enactment of the federal Administrative Procedure Act. In Skidmore v. Swift & Co. , 323 U.S. 134, 140 (1944), the Court noted that an agency’s “rulings, interpretations and opinions” were a source of guidance for courts.
3 Chevron, 467 U.S. at 842-43.
4 Id. at 844 (citation omitted).
5 Auer, 519 U.S. at 457-58.
6 Id. at 461. In another case predating the enactment of the federal administrative procedure act, the Court came to a similar conclusion. See Bowles v. Seminole Rock, 325 U.S. 410, 413-14 (1945) (holding that an agency’s interpretation of a regulation is controlling “unless it is plainly erroneous or inconsistent with the regulation”). Many courts reference Auer and Seminole Rock interchangeably.
7 City of Arlington v. FCC, 133 S. Ct. at 1868 (citation omitted).
8 Id. at 1874-75.
9 Id. at 1875.
10 Id. at 1877 (Roberts, C.J., dissenting).
11 Id. at 1883.
12 Id. at 1886.
13 Michigan, 135 S. Ct. at 2700.
14 Id. at 2711.
15 Id. at 2712 (Thomas, J., concurring).
16 Talk America, 564 U.S. at 67 (Scalia, J., concurring).
17 Id. at 68.
19 Perez, 135 S. Ct. at 1208, n.4.
21 Id. at 1211 (Scalia, J., concurring).
22 Id. at 1212.
23 Id. at 1219-1220 (Thomas, J., concurring).
24 Id. at 1210-11 (Alito, J., concurring).
25 See Student Aid Funds, Inc. v. Bible, 136 S. Ct. 1607 (2016). The petitioners sought review of the decision in Bible v. United Student Aid Funds, Inc. , 799 F.3d 633 (7th Cir. 2015), when the court found that the secretary of education’s interpretation of a statute and related regulations was entitled to deference. The court cited Chevron and Auer as support for the proposition that even if the secretary’s interpretation of the relevant statutes and regulations was not the best, if “it is at least a reasonable one…we defer to that interpretation because it reflects the reasoned position of the secretary of education, who is tasked with administering the program.” Id. at 645.
26 Student Aid Funds, 136 S. Ct. at 1608 (Thomas, J., dissenting).
27 Id. Justice Thomas cites four cases in which members of the Court have advocated for reconsideration of the doctrine in “an appropriate case.” United Student Aid Funds, Inc. , 136 S. Ct. at 1608. (Thomas, J., dissenting).
28 5 U.S.C. §706 (2017).
29 Separation of Powers Restoration Act, H.R. 4768, 114 Cong. §(3)(2016).
30 H. R. REP. No. 114-622 at 9 (June 14, 2016).
31 Id. at 27-35.
32 H. R. 76 was introduced by Rep. John Ratcliffe, R-TX.
33 Rep. Goodlatte, R-VA, is the current chair of the House Judiciary Committee.
34 Regulatory Accountability Act, H.R. 5, 115 Cong. §202 (2017).
35 See Fla. Stat. §120.68(7)(e) (2016). The statute provides in pertinent part: “(7) The court shall remand a case to the agency for further proceedings consistent with the court’s decision or set aside agency action, as appropriate, when it finds that:…(e) [t]he agency’s exercise of discretion was: 1. [o]utside the range of discretion delegated to the agency by law; 2. [i]nconsistent with agency rule; 3. [i]nconsistent with officially stated agency policy or a prior agency practice, if deviation therefrom is not explained by the agency; or 4. [o]therwise in violation of a constitutional or statutory provision; but the court shall not substitute its judgment for that of the agency on an issue of discretion.”
36 Gross v. Dep’t of Health, 819 So. 2d 997, 1002 (Fla. 5th DCA 2002). Administrative law judges (ALJ) in Florida are not obligated to give deference to an agency’s statutory or rule interpretation, due in part to the ALJs’ role in the rulemaking process. In McDonald v. Dep’t of Banking and Finance, 346 So. 2d 569, 583 (Fla. 1st DCA 1977), the First District Court of Appeal explained that a hearing officer performs a role different than that of a court. More recently, in Associated Industries of Florida, Inc., v. Dep’t of Environmental Protection, Case No. 16-6899RP (DOAH Dec. 30, 2016), the ALJ rejected the department’s argument that he must give deference to its interpretation of the statutes cited as authority for the rule. The ALJ noted that such deference only applies to courts, is not required by Fla. Stat. Ch. 120, and “would be inconsistent with chapter 120’s emphasis on de novo proceedings and its prohibition against an agency’s rejection of an [a]dministrative [l]aw [j]udge’s conclusion of law unless the agency makes a specific finding that its own interpretation of law is ‘as or more reasonable’ than the rejected interpretation.” Id. at ¶37. See also The Public Health Trust of Miami-Dade Cty., Fla. v. Dep’t of Health, Case No. 15-3171, at ¶118-19 (DOAH Feb. 29, 2016).
37 See Baptist Hospital, Inc. v. Dep’t of Health & Rehab. Serv., 500 So. 2d 620 (Fla. 1st DCA 1986).
38 See Doyle v. Dep’t of Bus. Regulation, 794 So. 2d 686 (Fla. 1st DCA 2001). A court is not required to defer to an agency’s construction of a statute where the statute is clear or where special expertise is not required. See Doyle, 794 So. 2d at 690. Also, a court is not required to give deference to an agency’s “erroneous conclusion of law.” Bridlewood Group Home v. Agency for Persons with Disabilities, 136 So. 3d 652, 655 (Fla. 2d DCA 2013).
39 See McKenzie Check Advance of Fla., LLC v. Betts, 928 So. 2d 1204, 1216 n.9 (Fla. 2006) (Cantero, J., concurring in part and dissenting in part) (“Florida is by no means unique in deferring to agency interpretations of a statute the agency is charged with implementing. Both the federal courts , and the vast majority of states share these principles.”) (citation omitted).
40 Housing Opportunities Project, 2016 Fla. App. LEXIS 18680, at *7-*8.
41 Id. at *27 (Salter, J., dissenting).
42 Id. at *16, n. 9. The mandate was issued in the case on March 23, 2017.
43 Pedraza, 208 So. 3d at 1255-56.
44 Id. at 1256.
45 Id. at 1257. (Shepherd, J., concurring) (citations omitted). Judge Frank Shepherd retired from the Third District Court of Appeal on January 3, 2017.
46 See, e.g., Gutierrez-Brizeula v. Lynch, 834 F.3d 1142, 1149-58 (10th Cir. 2016) (suggesting that its it time to reconsider Chevron based on the separation of powers doctrine) (Gorsuch, J., concurring).
47 See, e.g. , McKenzie Check Advance of Fla., LLC, 928 So. 2d at 1216, n.9; F. Scott Boyd, A Traveler’s Guide for the Road to Reform, 22 Fla. St. U. L. Rev. 247, 263 (1994).
Jowanna Nicole Oates is a chief attorney with the Joint Administrative Procedures Committee. She is the chair of the Administrative Law Section and serves as co-editor of the Administrative Law Section Newsletter. Oates earned a J.D. from the University of Florida Levin College of Law. The views expressed herein are those of the author and not intended to reflect the views of the Joint Administrative Procedures Committee or the Florida Legislature. The author thanks Lawrence E. Sellers, Jr., for his invaluable input and insight.
This column is submitted on behalf of the Administrative Law Section, Jowanna Nicole Oates, chair, and Stephen Emmanuel, editor.