Scholars detect Chevron ‘half-step’ in D.C. Circuit

By Amanda Reilly | 11/23/2016 01:28 PM EST

Breaking with other courts, the federal appellate court in Washington, D.C., has been adding an intermediate layer of review to determine whether agencies receive deference under the Chevron legal doctrine, according to a new report.

Breaking with other courts, the federal appellate court in Washington, D.C., has been adding an intermediate layer of review to determine whether agencies receive deference under the Chevron legal doctrine, according to a new report.

Under Chevron, named for a 1984 Supreme Court decision, courts defer to agencies when Congress has been silent on a topic. The doctrine is cited frequently in environmental litigation.

Typically, courts apply a two-step process when deciding whether a federal agency such as U.S. EPA should receive deference. In the first step, judges determine whether Congress has been silent on an issue; if it has, courts then ask whether an agency’s decision is a reasonable interpretation of the law.


But since 1985, just a year after the Supreme Court issued the Chevron decision, the U.S. Court of Appeals for the District of Columbia Circuit added what report authors call a "Chevron Step One-and-a-Half."

After determining whether Congress has been ambiguous, the D.C. Circuit has asked whether the agency recognized that it was dealing with an unclear statute before moving on to the second step.

"In the D.C. Circuit, a misstep at this intermediate stage is fatal to an agency’s cause: the court will remand if the agency claimed that the statute is clear but the court concludes it is not," authors Daniel Hemel of the University of Chicago Law School and Aaron Nielson of Brigham Young University’s J. Reuben Clark Law School wrote Saturday in a blog post.

In other words, the pair wrote, the D.C. Circuit gives an agency deference only when it has exercised its own judgment — not when the agency believes Congress controlled its interpretation.

The findings appeared in the Nov. 15 issue of The University of Chicago Law Review.

According to Hemel and Nielson, the D.C. Circuit first applied "Chevron Step One-and-a-Half" in a 1985 case involving a truck driver’s unfair labor practice complaint to the National Labor Relations Board.

Since then, federal agencies have lost dozens of cases in which judges invoked the intermediate step.

Recent litigation over the Endangered Species Act listing for the polar bear highlights the trend.

In 2008, the Fish and Wildlife Service issued a rule determining that polar bears were threatened, and not endangered, under the statute. FWS acknowledged that shrinking sea ice may pose a danger to polar bears in the long run but determined that the danger was not imminent enough to warrant an endangered designation.

The Center for Biological Diversity and other environmentalists sued, arguing that FWS misinterpreted the Endangered Species Act by adding an imminence requirement into the definition of endangered. FWS, on the other hand, argued that it was unambiguous that Congress meant for an endangered designation to represent imminent threat to a species’ survival.

Relying on the D.C. Circuit’s precedent, the D.C. district court found that it couldn’t defer to FWS’s interpretation because the agency was mistaken about the statute’s clarity. The court remanded the listing decision to the agency.

FWS added qualifying language into the listing that stated it still stood by its interpretation even if Congress was ambiguous on the matter. The district court and then the D.C. Circuit in 2013 upheld the listing.

According to the analysis, the D.C. Circuit is unique among federal appellate courts in invoking "Chevron Step One-and-a-Half." Neither the 2nd U.S. nor the 3rd U.S. Circuit Court of Appeals has addressed whether an intermediate step exists. The 6th U.S. Circuit Court of Appeals, on the other hand, previously deferred to the Agriculture Department in a case where the department incorrectly concluded it was compelled to act by Congress.

The 9th U.S. Circuit Court of Appeals, according to the report, appeared to adopt the doctrine in 2013 but has not applied it since. The 10th U.S. Circuit Court of Appeals and the Federal Circuit have cited the D.C. Circuit’s practice — but haven’t remanded any cases to agencies based on "Chevron Step One-and-a-Half."

It’s "perplexing" why cases continue to crop up in the D.C. Circuit where federal agencies frequently lose on the intermediate step, the authors wrote.

"Chevron Step One-and-a-Half is a firmly entrenched principle of D.C. Circuit law," Hemel and Nielson said, adding, "It is not 1985 anymore. Over time, we should expect agencies to become accustomed to Step One-and-a-Half and to write their rules and orders to avoid being tripped up by the doctrine."

The authors of the report say the doctrine could appear to accomplish nothing but an extra round of litigation, given that agencies typically come back to the court with a similar caveat to what FWS wrote into the polar bear listing.

"We understand why some readers might conclude that Chevron Step One-and-a-Half is nonsense twice over," Hemel and Nielson wrote. "Nonsense in that no sensible agency should ever find itself ensnared by the doctrine, and nonsense in that the doctrine itself accomplishes absolutely nothing."

But there may be instances where an agency might "deliberately choose" to argue that a law is clear, the authors note.

An agency, for example, may argue that Congress has been explicit in order to bind the hands of a future administration.

Or an agency could be trying to blame Congress when it feels that an unpopular policy it’s embarking on is the correct course of action.

In the polar bear case, the authors ask: "Might the Service’s reluctance to take ownership of the interpretation until it was forced to do so be explained by the fact that many of the Obama Administration’s supporters, particularly in the environmental law community, wanted the agency to take a more aggressive position?"

When he was a judge in the D.C. Circuit, Supreme Court Chief Justice John Roberts criticized the use of the doctrine to toss a Drug Enforcement Administration action.

But Hemel and Nielson say they’re "sympathetic" overall to the position that the D.C. Circuit has taken.

"This half step, we think, advances the values that motivate (and help justify) Chevron in the first place," they wrote. "If agencies are entrusted with discretionary power on the grounds that they are more accountable than courts, then judicial review should encourage agencies to take full account for their decisions."