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Wednesday, May 18, 2011

Deferring to agency amicus briefs that present new guidance

In reading some of the Supreme Court's recent cases, I was intrigued by its willingness to defer to administrative interpretations presented to the Court in the form of amicus briefs filed by the relevant agency or by the Solicitor General. I refer in particular to Williamson v. Mazda Motor (relying, in part, on a brief expressing the government's view that a federal vehicle-safety regulation did not preempt a state tort suit) and Chase Bank v. McCoy (deferring to the agency's interpretation of its own regulation, which was conveyed in an amicus brief). Giving some degree of deference to positions expressed in agency amicus briefs is not a new development, though it does seem to me that the Court perhaps used to express a bit more hesitation about doing so.

In any event, whether or not there is a trend in this regard, one interesting feature of deferring to an amicus brief is that the Supreme Court might be relying on an interpretive authority that did not exist until the Supreme Court's decision to review the case brought it into existence. (This new-authority scenario doesn't describe every instance in which the Court defers to a brief. After all, agencies sometimes file briefs in lower courts; plus, some briefs merely restate administrative guidance offered elsewhere, in which case the deference is not to the brief's position per se.) The right answer to the case could therefore change as the case moves from the lower court to the high court. That seems, at first blush, a bit strange. How should we respond to this state of affairs?

There are a few possibilities:

1. Because uniformity, consistency, and predictability are important, the lower courts should do a better job of conforming their interpretive practices to the Supreme Court's model. Indeed, in Chase Bank v. McCoy, the Supreme Court seemed to criticize the Ninth Circuit for not inviting the agency to submit an amicus brief. And yet . . . Should we really expect every lower court in the land to ask for, and wait for, an agency's views whenever a statute administered by the agency is the subject of litigation? Would the agencies and the Department of Justice welcome a regime in which they had to take positions like this routinely?

2. Because uniformity, consistency, and predictability are important, the Supreme Court should stop deferring to new guidance provided in government amicus briefs.

3. No change is needed. When the Supreme Court decides to hear a case, it should try to get the right answer, even if that means relying on a new source of guidance that was called into existence by its decision to review the case. If Congress passed a new statute that applied to pending cases, the Court would apply that. Same thing here. (Here I am borrowing from footnote 6 of Justice Scalia's dissent in Mead.)

Thoughts? (I should add that I recognize that the considerations presented here concern just one aspect of the larger issue of deferring to agency views expressed in connection with litigation.)

Posted by Aaron Bruhl on May 18, 2011 at 04:20 PM in Civil Procedure, Judicial Process | Permalink


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Is there an example of the "right" answer truly changing from the trial to appellate level because of something novel stated by the agency in the interim? Regardless of whether one believes the agency's new statement/brief/etc. influenced the appellate court's views of the case, I bet in most and perhaps all such cases that same outcome could have been reached below (although perhaps not by the judge who actually did decide) even without the new statement.

I don't know about other agencies, but I know the Department of State as a rule does not appear in district court cases (although perhaps it makes exceptions from time to time).

Posted by: Jen Kreder | May 18, 2011 5:11:26 PM

I'm troubled by the underlying issue of the public's inability to interpret the laws we are bound to follow. If the method of interpretation is whatever the agency says it is, but the agency isn't in the habit of publicizing their views on the matter until the court asks them to, they're formulating regulations to govern people's actions that don't have an actual meaning until they're challenged. If I'm an auto manufacturer and I want to know what safety features I should put in my new cars, I need to know what the law says I'm obligated to do and by what standard my actions will be judged in order to make a sound decision. I worry that this method of interpretation puts people in the position of being unable to discern whether they will be liable for acting in a certain way, chilling legal conduct.

Posted by: Amy | May 18, 2011 9:24:46 PM

I share Amy's concerns, but the problem described exists regardless of the agency's decision to make its position known in court. For example, getting an opinion letter from an agency in order to plan a business investment does not guarantee the agency's interpretation in the future.

Posted by: Jen Kreder | May 18, 2011 11:53:10 PM

"Is there an example of the "right" answer truly changing from the trial to appellate level because of something novel stated by the agency in the interim?"

Virtually every bizarre statutory interpretation issue imaginable can be found in the tax law. Regarding the possibility Jen raised, check out Grapevine Imports v. United States, 636 F.3d 1368 (Fed. Cir. 2011). In that case, the Court of Fed. Claims accepted the taxpayer's interpretation of IRC 6501 and ordered a refund. The government issued regulations and the Fed Circuit reversed, relying on regulations not in existence at the time of the trial. See id. ("Grapevine argues that the Treasury Department should not be permitted to transform a lower court loss into an appellate win via new regulations. While we understand Grapevine's disappointment, we disagree that this is an improper outcome.") (citing a few SCOTUS cases).

Regarding whether the Fed Circuit would have reversed without the regulations -- that answer seems clear. In 2009, the Fed Circuit, like the Claims Court in 2007, rejected the IRS's interpretation of Section 6501 and found in favor of the taxpayer. Thus, the Fed Circuit's holding against the taxpayer in Grapevine can be fairly traced to the regulations issued midstream. The Fed Circuit in Grapevine reversed the 2007 decision of the Claims Court because of the new regulations, and also decided to abandon its 2009 holding because of the regulations.

The DOJ also filed petitions for rehearing in appellate cases that it lost regarding IRC 6501, and argued that while the appellate courts had found in favor of the taxpayer, the promulgation of regulations required that the appellate courts vacate their decisions.

It's highly likely that some of this stuff will go to SCOTUS, as the circuits are split on the various interpretive and administrative law principles regarding IRC 6501, and both the SG and the adversely affected taxpayers will favor Court review.

Posted by: andy | May 19, 2011 3:26:12 AM

Insightful comments all around. To respond to just one of them, Jen's initial comment regarding how often the "right" answer could change:

There are plenty of cases in which the actual result changes, i.e. lower court rules one way, agency files an amicus brief setting forth its official position in the Supreme Court, Supreme Court reverses and relies in part on the brief. I fully agree with you that it is nonetheless hard to confidently identify cases in which the "right" answer changes (because rightness is often a matter of dispute) or in which the lower court would have ruled otherwise if it had the brief. It seems to me that the prevalence of instances in which the right answer changes depends on the quantum of authority accorded the agency's guidance. The prevailing doctrine is that an agency's interpretation of its own regulations is supposed to get a bunch of deference (Auer/Seminole Rock). So, if we are going to be in the business of paying any attention to positions expressed in a brief (which perhaps we shouldn't), it would seem that considering the agency's construction of its own regulations would, due to the high degree of authority ordinarily given such constructions, change the right result in many cases. Where the agency is acting in a way that triggers a lesser deference regime, like the Skidmore regime, then fewer right answers should change. (Of course, one can also question the degree to which these supposedly different levels of deference actually play out differently in real cases. See, e.g., Eskridge & Baer.)

Posted by: Aaron Bruhl | May 19, 2011 11:11:01 AM

Today there was another decision in which the Supreme Court deferred to an agency position presented in an amicus brief, Talk America v. Michigan Bell.

Posted by: Aaron Bruhl | Jun 9, 2011 12:09:18 PM

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