Notice & Comment

D.C. Circuit Review – Reviewed: Chevron Waiver

At first blush, it may look like we had a busy week in the D.C. Circuit:

But not really. Four of our entries are about amending prior opinions — and the amendments are not earth-shattering. In Reid v. Hurwitz, Judge Katsas clarified: “Reid was convicted of robbing a convenience store at gunpoint.” And in National Lifeline Association v. FCC, the Court clarified: “Accordingly, because the Commission’s adoption of the Tribal Facilities Requirement and Tribal Rural Limitation was arbitrary and capricious, the court vacates the 2017 Lifeline Order, 32 FCC Rcd. at 10,522–23, and remands the matter to the Commission for a new notice-and-comment-rulemaking proceeding the court grants the petitions and vacates the 2017 Lifeline Order as challenged in the petitions, and remands the matter to the Commission for a new notice-and-comment rulemaking proceeding.” Nor is United States v. Gray-Burriss especially noteworthy. Chief Judge Garland, joined by Judges Griffith and Wilkins, rejected a criminal defendant’s claims for ineffective assistance of counsel.*

But what about the administrative law cases? Well, John Doe 1 v. FEC is interesting. There, Judge Randolph, joined by Chief Judge Garland, concluded that the Federal Election Commission can “releas[e] information identifying a trust and its trustee in connection with a misreported federal campaign contribution.” Judge Henderson dissented. This appeal is worth thinking through. Randolph, for instance, includes this sentence: “Does an agency’s disclosure regulation constitute ‘law’ within the meaning of § 706 of the Administrative Procedure Act?” Both the majority and dissent, I think, agree that a regulation can be a “law” for APA purposes — so long as it is a valid regulation. But that’s hardly surprising. A valid regulation, after all, is necessarily authorized by Congress; that is tautological (or at least should be). So the real question is whether the FEC’s regulation is valid. In other words, did Congress authorize it? Well, that’s a question of statutory interpretation. Congress has provided for disclosure only in a couple of circumstances; does that mean the agency cannot go beyond those circumstances? The majority says that the agency’s authority, inter alia, to “make, amend, and repeal such rules … as are necessary to carry out the provisions of this Act” means the FEC can do so. The dissent, by contrast, says that “Congress has charged the Commission with making limited disclosures in two carefully defined circumstances and there is no textual basis for concluding that additional discretionary disclosure authority exists.” The dissent disagrees that the authority to make necessary rules is enough to hurdle that textual barrier; in evaluating whether a rule is necessary, the Court should “focus both on the goals the Congress seeks to achieve and the mechanism it uses to achieve them.” There is more going on in this case, but you get the gist of the dispute.

Oceana, Inc. v. Ross is about dead fish. As Judge Wilkins (joined by Judges Tatel and Katsas) explains, “When fishermen catch fish but do not sell or keep them for personal use, they harvest what is referred to as ‘bycatch.’ … Because a significant portion of bycatch do not survive (although some may be returned to the water), the phenomenon of bycatch can have detrimental effects on the marine ecosystem.” Is the National Marine Fisheries Service’s methodology for collecting and reporting this bycatch data okay? Yep. Why? Read the opinion! But be warned: you may need to learn about a “coefficient of variation.” To be sure, this thought caught my attention: “Congress did not instruct that a ‘standardized reporting methodology’ must be constant across all possible funding scenarios. Rather, the Fisheries Service adopts a rational interpretation of the Act by establishing a dynamic but nondiscretionary methodology.” As did this one: “We need not, as Oceana would like, interpret the statute’s use of the word ‘standardized’ to require that the Fisheries Service consider all bycatch species, rather than a subset thereof, in determining observer assignments.” This one too: “The federal rules do not require parties to provide logs of all documents that were not produced because they were deemed immaterial or irrelevant. It would be quite odd to require a different procedure in agency review cases.” These ideas may be cited in the future.

So the Court, this week, wasn’t that busy. Which is good, because it gives me time to elaborate on an issue that came up last week: Chevron waiver. I promised to discuss recent scholarship on the topic. Well, here are three recent articles worth reading: James Durling & E. Garrett West, May Chevron Be Waived?, 71 Stan. L. Rev. Online 183 (2019); Note, Waiving Chevron Deference, 132 Harv. L. Rev. 1520 (2019); and Jeremy D. Rozansky, Waiving Chevron, 85 U. Chi. L. Rev. 1927 (2018). They all reject Chevron waiver; as they see it, an agency’s failure to argue for deference during litigation should not stop a court from deferring. (This is different from Chevron Step One-and-a-Half, where the agency did not acknowledge ambiguity during the regulatory process itself.)

Taking Chevron on its own terms, I think their analysis is mostly right (for what it is worth, I reviewed drafts, but the ideas are entirely the authors’). But I’m not sure it is always right. I’m still working through a theory of waiver. But — and I’m just thinking out loud here — I can imagine situations where a reviewing court, in its discretion, should be able to decline to do the work of the litigants, even when it comes to legal interpretation. That is, at least if the decision does not preclude another party from later advancing the correct interpretation. If, say, it would take a great deal of independent research (be it historical, linguistical, or contextual) to figure out the right answer to an interpretative question, and spending the time to research the issue may cause other cases on the docket to fall behind (for instance, criminal cases), then, depending on our theory of waiver, perhaps waiver/forfeiture may be appropriate “sanction” against the relevant party for offloading that work onto the court. To be sure, I don’t think a court should be required to stay within the four corners of the parties’ briefs when it comes to questions of interpretation. But is it really the case that a court is never even allowed to do so, no matter what? And how do burdens fit into this? And what about appellate review (at least where the agency is the appellant, and so may have a greater burden) versus direct review? Maybe Chevron, moreover, is different because it is never hard for the court to identify ambiguity? But is that right? We don’t even have a standard theory of ambiguity. Hmmm. You know what? These are bigger thoughts than I can spell out in a blog post! So I’ll call it a week — I have an exam to write.

* I did like how Chief Judge Garland praised the district court: “[W]e remanded Gray-Burriss’ ineffective-assistance-of-counsel claims because he had not previously raised them in the district court. That court conducted the remand proceedings in an exemplary fashion, leaving little for us to do other than recount its conclusions and express our agreement that Gray-Burriss’ claims lack merit.”

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