Kasten v. Saint-Gobain on Skidmore and Chevron

March 22nd, 2011

Kasten v. Saint-Gobain provides some insights into the Court’s current thinking on Skidmore and Chevron Deference.

From Justice Breyer’s opinion:

Second, given Congress’ delegation of enforcement powers to federal administrative agencies, we also give a degree of weight to their views about the meaning of this enforcement language. See 29 U. S. C. §216(c) (vestingenforcement power in Secretary of Labor); Reorganization Plan No. 1 of 1978, 5 U. S. C. App. §1, p. 664 (transferring to Equal Employment Opportunity Commission (EEOC) enforcement of this antiretaliation provision as part of itsEqual Pay Act enforcement responsibilities); Skidmore v. Swift & Co., 323 U. S. 134, 140 (1944) (giving weight to apersuasive articulation of views within an agency’s area ofexpertise) . . .

These agency views are reasonable. They are consistentwith the Act. The length of time the agencies have held them suggests that they reflect careful consideration, not “post hoc rationalizatio[n].” Motor Vehicle Mfrs. Assn. of United States, Inc. v. State Farm Mut. Automobile Ins. Co., 463 U. S. 29, 50 (1983). And they consequently add force to our conclusion. Skidmore, supra, at 140; cf. United States v. Mead Corp., 533 U. S. 218, 229, 234–235 (2001) (Court sometimes finds judicial deference intended even inabsence of rulemaking authority); Babbitt v. Sweet Home Chapter, Communities for Great Ore., 515 U. S. 687, 703– 704, and n. 18 (1995) (agency views, where the law counsels deference, can clarify otherwise ambiguous statutory provisions).

Justice Scalia, unsurprisingly did not agree with Breyer’s approach.

Kasten argues that this Court should defer to the De-partment of Labor and Equal Employment Opportunity Commission’s (EEOC) interpretations of 29 U. S. C. §215(a)(3). He claims that those agencies have construed §215(a)(3) to protect intracompany complaints “[f]or al-most half a century,” in litigating positions and enforce-ment actions. Reply Brief for Petitioner 22. He also argues that although the Department of Labor lacks theauthority to issue regulations implementing §215(a)(3), it has such authority for several similarly worded provisions and has interpreted those statutes to include intracom-pany complaints. Id., at 20.

Even were §215(a)(3) ambiguous, deference would still be unwarranted. If we are to apply our new jurisprudence that deference is appropriate only when Congress has given the agency authority to make rules carrying the force of law, see Gonzales v. Oregon, 546 U. S. 243, 255– 256 (2006), deference is improper here. The EEOC has no such authority. Although the Secretary of Labor andhis subordinates have authority to issue regulationsunder various provisions of the FLSA, see, e.g., §203(l);§206(a)(2), they have no general authority to issue regula-tions interpreting the Act, and no specific authority toissue regulations interpreting §215(a)(3).Presumably for this reason, the Court’s opinion seems tosuggest that only so-called Skidmore deference is appro-priate, see Skidmore v. Swift & Co., 323 U. S. 134, 140 (1944).5

FN5- 5Or perhaps not. The actual quantum of deference measured out bythe Court’s opinion is unclear—seemingly intentionally so. The Court says that it is giving “a degree of weight” to the Secretary and EEOC’sviews “given Congress’ delegation of enforcement powers to federal administrative agencies.” Ante, at 12. But it never explicitly states thelevel of deference applied, and includes a mysterious citation of United States v. Mead Corp., 533 U. S. 218 (2001), along with a parentheticalsaying that “sometimes . . . judicial deference [is] intended even in [the]absence of rulemaking authority.” Ante, at 13. I say this is mysterious because Mead clearly held that rulemaking authority was necessary for full Chevron deference, see Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U. S. 837 (1984). I have chosen to interpret the Court as referring to Skidmore deference, rather than Chevron deference or something in-between, in order to minimize the Court’s ongoing obfuscation of this once-clear area of administrative law. See Mead, supra, at 245 (SCALIA, J., dissenting).

Most noteworthy, Justice Thomas did not join Scalia’s footnote 6:

This doctrine states that agencies’ views are “‘entitled to respect’” to the extent they have “‘the power to persuade.’” Christensen v. Harris County, 529 U. S. 576, 587 (2000) (quoting Skidmore, supra, at 140).6 For the reasons stated above, the agencies’ views here lack the“power to persuade.”

FN6 6In my view this doctrine (if it can be called that) is incoherent, both linguistically and practically. To defer is to subordinate one’s own judgment to another’s. If one has been persuaded by another, so that one’s judgment accords with the other’s, there is no room for deferral—only for agreement. Speaking of “Skidmore deference” to a persuasive agency position does nothing but confuse.