Notice & Comment

Judge Thomas Hardiman: Administrative Lawyer, by Jeffrey Pojanowski

pojanowski_2015In the past few days a number of people have asked me about Judge Thomas Hardiman and administrative law. Each time my answer was, “Well, I actually don’t know.” There has been some good writing on Judge Gorsuch and administrative law, in particular with respect to his recently voiced skepticism toward judicial deference to agency interpretations of law. To that end, I wanted to get a rough feel for Judge Hardiman on deference issues. What I found shows a judge quite comfortable applying Chevron deference as instructed by the Supreme Court.

I ran a blunt Westlaw search for Third Circuit cases with Hardiman opinions that mention Chevron, Mead, Auer, and Seminole Rock. (E.g., “(JU)Hardiman + Chevron.”) Again, this is a rough cut: it does not include opinions that he joined but did not author, nor does it capture any Third Circuit-specific shorthand cases for deference.

My first take away is that this is not a large sample. Only ten cases were responsive. Outside of immigration issues, the Third Circuit does not have much administrative law, so perhaps we should not be surprised to see Judge Hardiman play by the Supreme Court’s deference book.

Nevertheless, the small sampling I uncovered suggests that, at least on the court of appeals, Judge Hardiman has no particular misgivings about deference. I found no separate opinions expressing concerns about the Supreme Court’s doctrines. That is not surprising; if there were such opinions, we probably would have heard about them by now. Like most judges, Hardiman also has a forgiving Step Two.

Of greater interest, a quick read of his opinions suggests that Judge Hardiman does not have a particularly aggressive Step One. Usually he gets to Step Two after no more than one paragraph of analysis. The only cases in which a government interpretation lost at Step One are (a) a case where the government confessed error and (b) a case where two other circuits had already found the interpretation to be clearly wrong. Now, this could be because the cases were easy—none of his Chevron applications garnered a dissent. On the other hand, at the very least his record on this score does not reveal a Scalia-esque zeal in ferreting out ambiguity before moving on to Step Two.

Now, past performance is not indicative of future governmental success. Kent Barnett and Chris Walker argue there is a Chevron Supreme that is less-deferential than the regular Chevron Regular we get at the court of appeals level. Judge Hardiman so far has been a purveyor of the latter octane. It is of course possible that a Justice Hardiman would become more aggressive in interpretation were he to move from Pittsburgh to First Street, but so far I see no indications that he is anything other than a down-the-middle administrative lawyer when it comes to judicial deference.

Here are my rough-and-ready notes on the cases:

Government Wins at Chevron Step One (1)

Lupera-Espinoza v. Attorney General, 716 F.3d 781 (2013)

Invokes 3d Circuit precedent to hold that the Bureau of Immigration Appeals’ (BIA’s) interpretation of the Immigration and Nationality Act (INA) was unambiguously correct.


Government Loses at Chevron Step One (2)

Debeato v. Attorney General, 505 F.3d 231 (2007)

Chevron standard invoked but not applied because the government conceded legal error on the part of the BIA. Government order was upheld on an alternative ground.

Erdman v. Nationwide Insurance, 582 F.3d 500 (3d Cir. 2009)

Technically not a government loss because the suit was between two private parties. In adjudicating the claim, however, Judge Hardiman rejected one party’s reliance on a Department of Labor regulation. He concluded that it plainly fell beyond the statute. In doing so, he block-quoted a unanimous opinion by Judge Posner and agreed with an 11th Cir. opinion to the same effect.


Government Wins at Chevron Step Two (4)

Hussain v. Attorney General, 413 Fed. Appx. 431 (2010)

Applies Chevron deference to find the BIA’s interpretation of the INA to be reasonable under Step 2. A very quick Step 1 to find the phrase “related to” ambiguous.

Schaar v. Lehigh Valley Health Svcs. 598 F.3d 156 (2010)

Technically not a government win, since it was a suit between two private parties about the Family Medical Leave Act. Nevertheless, Judge Hardiman’s interpretation on the contested question was “guided” by Department of Labor regulations, which he noted get Chevron deference.

Kosak v. Aguirre, 518 F.3d 210 (2008)

Applies Chevron deference to find BIA’s interpretation of the INA a “reasonable accommodation of conflicting policies.”

Council Tree Communications v. FCC, 503 F.3d 284 (2007)

Applies Chevron to uphold agency action under Step 2, briefly noting disagreement in the courts before agency promulgated the challenged regulation.


Government Wins under Skidmore (1)

Taransky v. Secretary of HHS, 760 F.3d 307 (2014)

Sides with the government based, in part, on an interpretation in the Medicare Secondary Payer Manual. While noting in a footnote that “policy statements and interpretive rules” do not receive Chevron deference, he observed that they “reflect ‘a body of experience and informed judgment to which courts and litigants may properly resort for guidance” (quoting Fed. Express Corp. v. Holowecki, 552 U.S. 389, 399 (2008).”


Government Wins under Seminole Rock (1)

United States v. Keller, 666 F.3d 103 (2011):

I did not find any cases directly applying Auer or Seminole Rock, but Judge Hardiman wrote a panel opinion applying Seminole Rock-strength deference. In Keller, Judge Hardiman cited Stinson v. United States, 508 U.S. 36 (1993), for the proposition that the Sentencing Guidelines commentary receives substantial deference akin to the Seminole Rock. His panel concluded the commentary on point was not plainly erroneous.


Miscellaneous (1)

Salazar Quiceno v. Attorney General, 304 Fed. Appx. 40 (2008)

Opinion notes that Chevron deference applies to BIA’s interpretation of “particularly serious crime” in the INA.  Upholds BIA’s application of the term to the facts at issue. Role Chevron played in brief, unpublished opinion not clear. Judge Garth dissented on grounds that the BIA ignored the Immigration Judge’s factual findings.


Pulled but Not Directly Responsive (2)

Santos v. Attorney General, 552 Fed. Appx. 197 (2014)

Cites Chevron in standard of review, but remands to the BIA because of inadequate explanation of findings.

Pierre v. Attorney General, 528 F.3d 180 (2008) (en banc)

Joins a ten-judge majority authored by Judge Fuentes applying Chevron to uphold BIA’s interpretation of statute implementing Convention Against Torture. The decision upheld preexisting circuit precedent. Three judges dissented.


Jeffrey Pojanowski is a Professor of Law at the University of Notre Dame Law School. Follow him on Twitter: @pojanowski.

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