Reasonable agencies

Virginia Law Review

Volumn 96, Issue 1, 2010, Pages 135-197

  Zaring, David ^a  

^a UNIVERSITY OF PENNSYLVANIA   (United States)

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EID: 77952030297     PISSN: 00426601     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (267)

1. See 5 U.S.C. § 706(2)(A), (E), (F) (2006) (spelling out these standards).
2. For the two tests of review of law, see Chevron, U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 842-43 (1984)
3. and Skidmore v. Swift & Co., 323 U.S. 134, 140 (1944). For an explanation of the operation of these tests,
4. see infra Section I.A.
5. Motor Vehicle Mfrs. Ass'n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 42-43 (1983);
6. see also Harold Leventhal, Environmental Decisionmaking and the Role of the Courts, 122 U. Pa. L. Rev. 509, 514 (1974).
7. Dickinson v. Zurko, 527 U.S. 150, 162 (1999).
8. Paul R. Verkuil, An Outcomes Analysis of Scope of Review Standards, 44 Wm. & Mary L. Rev. 679, 682 (2002).
9. The Chevron and Mead tests are discussed infra Section LA.
10. See infra Section III.A.
11. The applicable standard of review is dependent on the type of procedure the agency has used. This, however, is not the only consideration. The deference owed to administrative agencies for their legal interpretations requires an inquiry into whether agency rulemaking has been "legislative" or "interpretive." Other agency rules are exempt from review if they are "procedural" rather than "substantive," a distinction that has bedeviled lawyers and civil procedure scholars in other areas since Erie Railroad Co. v. Tompkins, 304 U.S. 64 (1938).
12. Jerry L. Mashaw, Richard A. Merrill & Peter M. Shane, Administrative Law: The American Public Law System 798 (6th ed. 2009).
13. Gary Lawson, Federal Administrative Law 364 (4th ed. 2007).
14. Ernest Gellhorn & Glen O. Robinson, Perspectives on Administrative Law, 75 Colum. L. Rev. 771, 780 (1975);
15. see also Thomas O. McGarity, Some Thoughts on "Deossifying" the Rulemaking Process, 41 Duke L.J. 1385, 1453 (1992) (concluding that in complex scientific cases, courts apply a pass/fail standard to grade the agency);
16. Verkuil, supra note 5, at 682 ("[R]eviewing judges are still struggling to make sense of these standards, especially as they apply to scope of review of facts or of law and policy.");
17. Patricia M. Wald, Judicial Review in Midpassage: The Uneasy Partnership Between Courts and Agencies Plays On, 32 Tulsa L.J. 221, 258 (1996) ("After fifty years... we have yet to agree on how this review should operate in practice. We are still struggling with where to draw the line between obsequious deference and intrusive scrutiny.").
18. In fact, the reasonableness standard that courts actually apply in administrative law may apply even more broadly. See, e.g., Martin Shapiro, The Giving Reasons Requirement, 1992 U. Chi. Legal F. 179, 189 ("[F]rom a reviewing court's perspective, in American constitutional law and all other constitutional law, the ultimate test of a statute or other government action is reasonableness."). For the classic statement of the role of reasonableness in Fourth Amendment jurisprudence,
19. see Terry v. Ohio, 392 U.S. 1, 21 (1968) ("The scheme of the Fourth Amendment becomes meaningful only when it is assured that at some point the conduct of those charged with enforcing the laws can be subjected to the more detached, neutral scrutiny of a judge who must evaluate the reasonableness of a particular search or seizure in light of the particular circumstances.").
20. See Peter M. Haas, Epistemic Communities and International Policy Coordination, Introduction to Knowledge, Power, and International Policy Coordination, 46 Int'l Org. (Special Issue) 1, 3 (Peter M. Hass ed., 1992) for a well-known review of the importance of these elite communities in policymaking.
21. And have been thought to do so since Oliver Wendell Holmes' common law lectures. See O.W. Holmes, Jr., The Common Law 111 (1881) suggesting that juries are best suited to determine liability under negligence standards because of their familiarity with community standards);
22. see also Catharine Pierce Wells, Tort Law as Corrective Justice: A Pragmatic Justification for Jury Adjudication, 88 Mich. L. Rev. 2348, 2411 (1990) (arguing that jury adjudication is important because it requires jurors to strive to apply community standards rather than subjective judgment in negligence cases).
23. Chevron, U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 842-913 (1984).
24. Id. at 844.
25. See infra Section III.A.
26. -18I am unaware, at least, of any administrative law casebook that dispenses with it. Moreover, the case announcing the test for substantial evidence review, Universal Camera Corporation v. NLRB, 340 U.S. 474 (1951), was, as of 2006, the second most cited case in administrative law.
27. See David Zaring, The Most Cited Cases in Administrative Law, Concurring Opinions, Mar. 29, 2006, http://www.concurringopinions.com/archives/2006/03/the- most-cited.html.
28. See infra Section III.B for a review of these studies.
29. For an example of a pooled weighted average of studies, see Lucian Bebchuk, Alma Cohen & Allen Ferrell, Does the Evidence Favor State Competition in Corporate Law?, 90 Cal. L. Rev. 1775, 1791-1794 (2002).
30. For a discussion of selection bias in administrative law, see Cary Coglianese, Empirical Analysis and Administrative Law, 2002 U. Ill. L. Rev. 1111, 1118-1119
31. Holmes, supra note 14, at 1.
32. It is also worth noting that, to make things more confusing, none of these standards is duplicated by the standards of review used by appellate courts to review trial courts. Of course-as might be expected given the analysis here-it is by no means clear that these doctrinal differences are strictly observed. The Supreme Court tried to compare the agency review standard of substantial evidence with the judicial review standard of clear and convincing evidence and concluded that [t]he court/agency standard, as we have said, is somewhat less strict than the court/court standard. But the difference is a subtle one-so fine that (apart from the present case) we have failed to uncover a single instance in which a reviewing court conceded that use of one standard rather than the other would in fact have produced a different outcome.
33. Dickinson v. Zurko, 527 U.S. 150, 162-163 (1999);
34. see also Lawson, supra note 10, at 363 ("For the most part, the contemporary system of judicial review of federal administrative agency action employs none of the benchmarks familiar from appellate review of lower court decisionmaking.").
35. Some agency legal determinations, such as those related to national security, are exempt from review under the APA, 5 U.S.C. § 552 (2006), while other decisions are "committed to agency discretion by law."
36. Id. § 701.
37. A final basis for agency action involves an agency's interpretation of its own regulations, to which reviewing courts confer Auer, or Seminole Rock, deference. The Auer test provides that if an agency applies and interprets a test that is "a creature of [its] own regulations, [its] interpretation of it is, under our jurisprudence, controlling unless 'plainly erroneous or inconsistent with the regulation.'" Auer v. Robbins, 519 U.S. 452, 461 (1997)
38. (quoting Bowles v. Seminole Rock & Sand Co., 325 U.S. 410, 414 (1945)). Although the point is debatable, many scholars believe that Auen/Seminole Rock deference is indistinguishable from Chevron deference. "It would seem that there are few, if any, cases in which the standard applicable under Chevron would yield a different result than the 'plainly erroneous or inconsistent' standard set forth
39. in Bowles v. Seminole Rock & Sand Co."
40. Paralyzed Veterans of Am. v. D.C. Arena L.P., 117 F.3d 579, 584 (D.C. Cir. 1997). Partly for that reason, this Article will not consider Auer deference separately-though the interpretive task in Auer is a bit different: rather than interpreting some source of law that comes from outside the agency, regulatory interpretation requires it to interpret law that the agency itself has made.
41. At least, as of 2006.
42. See Zaring, supra note 18.
43. Chevron, U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 842, 843 n.9 (1984).
44. Id. at 842-913
45. Id. at 843.
46. Communications Act of 1934, 47 U.S.C. § 201(b) (2006) (empowering the Commission to prescribe rules and regulations "in the public interest").
47. -29 U.S.C. § 652(8) (2006).
48. For example, Cass Sunstein believes that the extraordinarily broad OSHA mandate implicates the nondelegation doctrine. Cass R. Sunstein, Is OSHA Unconstitutional?, 94 Va. L. Rev. 1407, 1407-1408 (2008).
49. The Sarbanes-Oxley Act and the Foreign Investment and National Security Act (FTNSA) are examples of such statutes. See Sarbanes-Oxley Act, Pub. L. No.107-204, § 208, 116 Stat. 745, 775 (2002);
50. id. § 307 at 784;
51. id. § 401(b) at 786;
52. Foreign Investment and National Security Act of 2007, Pub. L. No. 110-49, § 9, 121 Stat. 246, 259 (2007).
53. United States v. Mead Corp., 533 U.S. 218, 226-227 (2001).
54. Cass R. Sunstein, Chevron Step Zero, 92 Va. L. Rev. 187, 191 (2006).
55. Mead, 533 U.S. at 227.
56. Skidmore v. Swift & Co., 323 U.S. 134, 140 (1944). For an example of such a statute,
57. see Title VII of the 1964 Civil Rights Act, 42 U.S.C. § 2000e-5 et seq. (2000).
58. Skidmore,323 U.S. at 140.
59. Crowell v. Benson, which first approved the adjudication of private rights by an administrative agency rather than an Article III court, is an example of a case where facts necessary to adjudication of a constitutional right were subject to de novo review. 285 U.S. 22, 46 (1932). The APA and Title VII apply to all federal agencies (even the Equal Employment Opportunity Commission), thus leaving none of them with the power to interpret the test authoritatively.
60. See 5 U.S.C. §§ 551-552 (2006);
61. -42 U.S.C. § 2000e(a) (2006).
62. -5 U.S.C. § 706(2)(F) (2006).
63. The APA specifies elaborate procedures for formal adjudications, but neither specifies processes for informal adjudications nor uses the term.
64. See 5 U.S.C. §§ 554, 556-557 (containing the APA's adjudication requirements);
65. id. § 555(e) (requiring that "[p]rompt notice shall be given of the denial in whole or in part of a written application, petition, or other request of an interested person made in connection with any agency proceeding. Except in affirming a prior denial or when the denial is selfexplanatory, the notice shall be accompanied by a brief statement of the grounds for denial"). Although this Article is concerned with modern standards of judicial review, it is worth noting that in the pre-APA era "mixed" questions of law and fact are entitled to deference similar to "pure" fact questions under the appropriate scope of review standards.
66. See, e.g., NLRB v. Hearst Publ'ns, 322 U.S. 111, 130-131 (1944).
67. -5 U.S.C. §§ 556(c), 557(b)(2).
68. Though the ability of agencies to choose the level of formality of their adjudication procedures has been debated by the courts for some time. Compare Dominion Energy Brayton Point, LLC v. Johnson, 443 F.3d 12, 18-19 (1st Cir. 2006) (finding that agencies may choose whether to conduct formal or informal adjudications if their governing statute does not unambiguously require formal proceedings), and Chem.
69. Waste Mgmt. v. U.S. Envtl. Prot. Agency, 873 F.2d 1477, 1482 (D.C. Cir. 1989)(same),
70. with Seacoast Anti-Pollution League v. Costle, 572 F.2d 872, 877 (1st Cir. 1978) (finding that if the statute did not specify the proceedings required, formal proceedings would be presumed).
71. -5 U.S.C. §§ 556-557
72. Id. § 556.
73. -5 U.S.C. § 706(2)(E) (2006).
74. -340 U.S. 474, 477 (1951)
75. (quoting Consol. Edison Co. v. Labor Bd., 305 U.S. 197, 229 (1938)).
76. Allentown Mack Sales & Serv. v. NLRB, 522 U.S. 359, 366-367 (1998).
77. For an overview, see Office of Disability & Income Sec. Programs, Soc. Sec. Admin., The Red Book, A Summary Guide to Employment Supports for Individuals with Disabilities Under the Social Security Disability Insurance and Supplemental Security Income Programs, SSA Pub. No.64-030 (2008).
78. -29 U.S.C. § 160(f) (2006).
79. Universal Camera, 340 U.S. at 476-478
80. The latter question was presented by two well-known First Circuit cases on formal adjudication.
81. See Seacoast Anti-Pollution League v. Costle, 572 F.2d 872, 874 (1st Cir. 1978),
82. abrogated by Dominion Energy Brayton Point, LLC v. Johnson, 443 F.3d 12 (1st Cir. 2006).
83. Particulate matter disputes, because they offer the prospect of real expense to much of the American economy, are particularly likely to be contested. The Clinton administration's dispute eventually reached the Supreme Court in Whitman v. American Trucking Associations, 531 U.S. 457, 480-81 (2001);
84. the Bush administration's efforts were reversed by the D.C. Circuit in American Farm Bureau Federation v. EPA, 559 F.3d 512, 515 (D.C. Cir. 2009).
85. -5 U.S.C. § 706(2)(A) (2006). For a leading discussion of the requirements of judicial review of informal factfinding,
86. see Association of Data Processing Service Organizations v. Board of Governors of the Federal Reserve, 745 F.2d 677, 681-686 (D.C. Cir. 1984) (Scalia, J.).
87. Citizens to Pres. Overton Park, Inc. v. Volpe, 401 U.S. 402, 416 (1971);
88. see also Paul R. Verkuil, Judicial Review of Informal Rulemaking: Waiting for Vermont Yankee II, 55 Tul. L. Rev. 418, 424 (1981) (characterizing the Overton Park approach as "intrusive substantive review").
89. Overton Park, 401 U.S. at 415.
90. Tex. World Serv. Co. v. NLRB, 928 F.2d 1426, 1430 (5th Cir. 1991).
91. U.S.C. § 706(2)(a).
92. -463 U.S. 29, 42-44(1983).
93. Id. at 43
94. (citing Bowman Transp., Inc. v. Ark.-Best Freight Sys., 419 U.S. 281, 285 (1974)).
95. Id.
96. (quoting Burlington Truck Lines v. United States, 371 U.S. 156, 168 (1962)).
97. Kathryn Watts believes that the problem with these decisions is that the explanation for policy changes-a change in political administration, frequently - are not acknowledged to be legitimate ones in arbitrariness review. Kathryn A. Watts, Proposing a Place for Politics in Arbitrary-and-Capricious Review, 119 Yale L.J. 2, 7-8 (2009).
98. The Ninth Circuit has said as much when it comes to distinguishing between Chevron and Mead.
99. See United States v. W.R. Grace & Co., 429 F.3d 1224, 1235 (9th Cir. 2005) ("Following Mead, the continuum of agency deference has been fraught with ambiguity. Our decisions understandably have been conflicted as to whether Chevron deference only applies upon formal rulemaking and whether lesser deference applies in other situations.") (citations omitted);
100. see also Wilderness Soc'y v. U.S. Fish & Wildlife Serv., 316 F.3d 913, 921 (9th Cir. 2003) ("After Mead, we are certain of only two things about the continuum of deference owed to agency decisions: Chevron provides an example of when Chevron deference applies, and Mead provides an example of when it does not.").
101. See, e.g., Ernest Gellhorn & Clark Byse, Administrative Law 1037 (Peter Strauss et al. eds.,10th ed. 2003) ("Can you put Chevron together with State Farm and Overton Park?");
102. id. at 1034;
103. Administrative Law And Regulatory Policy 415 (Stephen Breyer et al. eds., 5th ed. 2002) (noting the "many puzzles" involved with sorting through the standards);
104. see also Ernest Gellhorn, Justice Breyer on Statutory Review and Interpretation, 8 Admin. L.J. Am. U. 755, 755 n.4 (questioning "whether the legal rules were worth serious study - or at least the amount of time usually invested in them in the classroom or casebooks").
105. Bullcreek v. Nuclear Regulatory Comm'n, 359 F.3d 536, 541 (D.C. Cir. 2004) (citation omitted).
106. William F. Funk & Richard H. Seamon, Examples & Explanations: Administrative Law 310 (3rd ed. 2009) (emphasis added). The task is made all the more difficult by the fact that none of these standards of review are, at least in theory, matched by the standards of review applied to appellate review of trial courts.
107. Lawson, supra note 10, at 363.
108. Instead of de novo review of legal findings, agencies receive deference for the legal interpretations they are charged by Congress with making. Instead of clearly erroneous review of factfinding, agencies get substantial evidence or arbitrary-andcapricious review. And there is no judicial review analog for the hard look taken at the policy choices made by agencies.
109. Infra, notes 169-269
110. Sunstein, supra note 35, at 190 ("Chevron famously creates a two-step inquiry for courts to follow in reviewing agency interpretations of law.").
111. Matthew C. Stephenson & Adrian Vermeule, Chevron Has Only One Step, 95 Va. L. Rev. 597, 599 (2009).
112. Id. at 598.
113. Sweet Home Chapter of Cmtys. for a Great Or. v. Babbitt, 30 F.3d 190, 193 (D.C. Cir. 1994), rev'd, 515 U.S. 687 (1995).
114. Id.
115. Kenneth A. Bamberger & Peter L. Strauss. Chevron's Two Steps, 95 Va. L. Rev. 611, 611 (2009).
116. Clark Byse, Judicial Review of Administrative Interpretation of Statutes: An Analysis of Chevron's Step Two, 2 Admin. L.J. 255, 256 n.10 (1988) (suggesting that the Chevron two-step test can be collapsed into a rule that courts must respect an agency's reasonable interpretation of its organic statute).
117. Erika Jones et al., Developments in Judicial Review with Emphasis on the Concepts of Standing and Deference to the Agency, 4 Admin. L.J. 113, 123-24,126 (1990) (remarks of the Hon. Stephen F. Williams).
118. -129 S. Ct. 1498, 1505 (2009). The Court noted in a footnote that: The dissent finds it "puzzling" that we invoke this proposition (that a reasonable agency interpretation prevails) at the "outset," omitting the supposedly prior inquiry of '"whether Congress has directly spoken to the precise question at issue.'" But surely if Congress has directly spoken to an issue then any agency interpretation contradicting what Congress has said would be unreasonable.
119. -129 S. Ct. at 1505 n.4 (citation omitted).
120. Global Crossing Telecomms. v. Metrophones Telecomms., 550 U.S. 45, 47-48 (2007).
121. Dissenting from the Mead decision itself, Justice Scalia said making some agency actions in furtherance of their regulatory mission subject to strong deference, while others would be subject to more limited deference, is "neither sound in principle nor sustainable in practice." United States v. Mead Corp., 533 U.S. 218, 241 (2001) (Scalia, J., dissenting). The lower courts have also expressed some displeasure.
122. See supra note 64 and accompanying text. For an introduction to the academic literature,
123. see Lisa Schultz Bressman, How Mead Has Muddled Judicial Review of Agency Action, 58 Vand. L. Rev. 1443, 1445 (2005).
124. Wilderness Soc'y v. U.S. Fish & Wildlife Serv., 316 F.3d 913, 922 (9th Cir. 2003) (concluding, after a long discussion admitting the complexity of the interaction between the two standards, that Chevron applies but that the result is the same as it would be under Skidmore).
125. Pronsolino v. Nastri, 291 F.3d 1123, 1135 (9th Cir. 2002).
126. Amy J. Wildermuth, Solving the Puzzle of Mead and Christensen: What Would Justice Stevens Do?, 74 Fordham L. Rev. 1877, 1895-96 (2006). For examples, as Wildermuth notes,
127. see Pension Benefit Guar. Corp. v. Wilson N. Jones Mem'l Hosp., 374 F.3d 362, 369 (5th Cir. 2004) ("We do not need to decide whether the [order]... warrants Chevron deference because it is clear that the.. order may be upheld as a matter of law under the less deferential standard set forth in [Mead].")
128. and Cmty. Health Ctr. v. Wilson-Coker, 311 F.3d 132, 138 (2d Cir. 2002) (affording an interpretation "considerable deference, whether under Chevron or otherwise")
129. and compare United States v. Atandi, 376 F.3d 1186, 1189 (10th Cir. 2004) ("Without determining whether full Chevron deference is owed.. we unquestionably owe 'some deference' to the.. regulation." (citation omitted)).
130. s83 See, e.g., Adrian Vermeule, Introduction: Mead in the Trenches, Recent Decisions of the United States Court of Appeals for the District of Columbia Circuit, 71 Geo. Wash. L. Rev. 347, 350-51 (2003) ("The costs of the elaborate predecision required by Mead will be highest whenever the difference between Chevron deference and Skidmore deference will make no difference to the resolution of the ultimate statutory question." (emphasis added)). This is not to say that there is no meaningful difference in the choice of test - parties will incur significantly higher costs under the Mead regime - but simply that a given case's ultimate outcome may well be unaffected by that choice.
131. The Supreme Court has long held that these jurisdictional issues could not be disregarded with an eye to the merits, though it has occasionally been posited that this dictum is sometimes observed in the breach. Mansfield, Coldwater & Lake Mich. Ry. Co. v. Swan, 111 U.S. 379, 382 (1884) ("[T]he first and fundamental question is that of jurisdiction.... This question the court is bound to ask and answer for itself, even when not otherwise suggested ....").
132. Cardwell v. Greene, 152 F.3d 331, 338 (4th Cir. 1998)
133. (quoting Cardwell v. Netherland, 971 F.Supp 997, 1015 (E.D. Va. 1997)),
134. overruled by Bell v. Jarvis, 236 F.3d 149 (4th Cir. 2000).
135. Judge Richard Posner might disagree. As he has explained, "the cognitive limitations that judges share with other mortals may constitute an insuperable obstacle to making distinctions any finer than that of plenary versus deferential review." School Dist. of Wis. Dells v. Z.S. ex rel. Littlegeorge, 295 F.3d 671, 674 (7th Cir. 2002).
136. See supra notes 1-3 and accompanying text.
137. Arent v. Shalala, 70 F.3d 610, 616 n.6 (D.C. Cir. 1995) ("The Chevron analysis and the 'arbitrary, capricious' inquiry set forth in State Farm overlap in some circumstances, because whether an agency action is 'manifestly contrary to the statute' is important both under Chevron and under State Farm.");
138. id. at 620 (Wald, J., concurring) ("I agree with the panel that despite these distinctions, the Chevron and State Farm frameworks often do overlap.").
139. -41 F.3d 721, 728 (D.C. Cir. 1994).
140. See, e.g., Am. Fed'n of Labor & Cong, of Indus. Orgs. v. Brock, 835 F.2d 912, 917 (D.C. Cir. 1987).
141. -91A Guide to Judicial and Political Review of Federal Agencies 96, 180 (John F. Duffy & Michael Herz eds., 2005) [hereinafter ABA Judicial Review Guide][M]any cases applying the arbitrary and capricious test that are discussed in this chapter are assessing the 'reasonableness' of an agency interpretation as part of the Chevron step two inquiry.").
142. Ronald M. Levin, The Anatomy of Chevron: Step Two Reconsidered, 72 ChiKent L. Rev. 1253, 1271 (1997). Levin notes that the court "has stopped short of actually calling them identical," and argues "that this insistence on a possible divergence is misdirected."
143. Id.
144. ABA Judicial Review Guide, supra note 91 at 96, 100.
145. Stephenson & Vermeule, supra note 70, at 604 n.28;
146. cf. Jerry L. Mashaw, Reasoned Administration: The European Union, the United States, and the Project of Democratic Governance, 76 Geo. Wash. L. Rev. 99, 111 (2007) (noting that administrative law has been structured to permit "judicial review of policy choices for reasonableness").
147. Imagination would have to turn to something more suited to the professorial hypothetical than the real world, such as where an agency might interpret the comment requirement of the APA to permit comment, but only in a very particular format somehow related to the agency's mission-with balance sheets for SEC accounting rules, say, or in Spanish for particular aspects of DHS enforcement of the immigration laws.
148. The substantive aspect of State Farm review also, one suspects, serves as a failsafe to keep courts from immersing themselves in procedural technicalities, such as determining whether an agency has really met all of its notice and comment obligations when the result of that rulemaking seems bizarre.
149. For leading discussions of this "explain yourself" view, see Martin Shapiro, The Giving Reasons Requirement, 1992 U. Chi. Legal F. 179 (outlining this requirement as a matter of comparative administrative law), and Mashaw, supra note 94, at 101 (seeking, in a comparison of the U.S. and European Union systems, to "explain why reason giving is so prominent a part of both administrative systems, how it functions juridically, and, most crucially, what the reasons are for demanding reasons or for providing a 'right' to reasoned administration");
150. see also Frederick Schauer, Giving Reasons, 47 Stan. L. Rev. 633, 634 (1995) (discussing the requirement as a component of judicial, as well as agency, decisionmaking).
151. Motor Vehicle Mfrs. Ass'n of the U.S. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983)
152. (quoting Burlington Truck Lines v. United States, 371 U.S. 156, 168 (1962)).
153. Citizens to Pres. Overton Park, Inc. v. Volpe, 401 U.S. 402, 416 (1971).
154. Id. at 415-16;
155. see also Associated Indus, of N.Y. State v. U.S. Dep't of Labor, 487 F.2d 342, 349-350 (2d Cir. 1973) (identifying convergence between "substantial evidence" and "arbitrary or capricious" criteria).
156. Universal Camera Corp. v. NLRB, 340 U.S. 474, 488 (1951).
157. Id. at 490, 497 (emphasis added).
158. -745 F.2d 677, 683 (D.C. Cir. 1984).
159. Id. at 684.
160. Bangor Hydro-Elec. Co. v. Fed. Energy Regulatory Comm'n, 78 F.3d 659, 663 n.3 (D.C. Cir. 1996).
161. ABA Judicial Review Guide, supra note 91, at 162.
162. -2 Richard J. Pierce Jr., Administrative Law Treatise 806, 807 (4th ed. 2002).
163. For a recent Supreme Court decision that obscures the distinction between the sorts of tests involved in fact cases that also implicate Chevron, see United States v. Eurodif S.A., 129 S. Ct. 878, 886-87 & n.7 (2009).
164. For a critique on its choice of standard of review standard, see Posting of Jonathan Adler to The Volokh Conspiracy, Funk on Eurodif & Chevron, http://www.volokh.com/posts/1233170920.shtml (Jan. 28, 2009, 2:28 pm).
165. Thomas J. Miles & Cass R. Sunstein, The Real World of Arbitrariness Review, 75 U. Chi. L. Rev. 761 (2008) [hereinafter Miles & Sunstein, Arbitrariness].
166. Id. at 764.
167. Id. at n.25.
168. Id.
169. And I have no cause to think that there are such reasons-nor does the doctrine, given the difficulties that exist between separating the borders of many of the judicial review tests from one another.
170. Selection bias is an issue with these sorts of comparisons, of course-different litigants may bring different sorts of cases if they are confronted by different standards of review. But the fact that agency validation differs little among all of the standards of review offers some comfort to the claim here.
171. See Bebchuk et al, supra note 20, at 1790-1792
172. Thanks to Christina Yi for assistance with the figure.
173. Kiki Caruson & J. Michael Bitzer, At the Crossroads of Policymaking: Executive Politics, Administrative Action, and Judicial Deference by the DC Circuit Court of Appeals (1985-1996), 26 L. & Pol'y 347, 360 (2004).
174. Martha Anne Humphries & Donald R. Songer, Law and Politics in Judicial Over-sight of Federal Administrative Agencies, 61 J. Pol. 207, 215 (1999).
175. James J. Brudney, Sara Schiavoni & Deborah J. Merritt, Judicial Hostility Toward Labor Unions? Applying the Social Background Model to a Celebrated Concern, 60 Ohio St. L.J. 1675, 1714 (1999).
176. Id. at 1694.
177. Frank B. Cross, Decision Making in the U.S. Courts of Appeals 53 (2007).
178. Peter H. Schuck & E. Donald Elliott, To the Chevron Station: An Empirical Study of Federal Administrative Law, 1990 Duke L.J. 984, 1007-09 (1990).
179. Thomas J. Miles & Cass R. Sunstein, Do Judges Make Regulatory Policy? An Empirical Investigation of Chevron, 73 U. Chi. L. Rev. 823, 849 (2006) [hereinafter Miles & Sunstein, Chevron], The validation rate for Supreme Court justices, in aggregate, was approximately 67%, id., though some justices, such as Breyer and Souter, voted for the agency 79% of the time, while Scalia and Thomas voted for the agency approximately 53% of the time.
180. Id. at 831.
181. Jason J. Czarnezki, An Empirical Investigation of Judicial Decisionmaking, Statutory Interpretation, and the Chevron Doctrine in Environmental Law, 79 U. Colo. L. Rev 767, 782-783 (2008).
182. Orin S. Kerr, Shedding Light on Chevron: An Empirical Study of the Chevron Doctrine in the U.S. Courts of Appeals, 15 Yale J. on Reg. 1, 30 (1998). Like Kerr's mid-nineties study, earlier studies of judicial review are not quite as uniform as this paper suggests.
183. See Schuck & Elliott, supra note 122, at 1029-1031 (analyzing 2000 decisions by the courts of appeals that document a pve-Chevron affirmance rate of 71% versus a post-Chevron rate of 81%).
184. See supra Section II.A.
185. See Kristin E. Hickman & Matthew D. Krueger, In Search of the Modern Skidmore Standard, 107 Colum. L. Rev. 1235, 1275 (2007).
186. William N. Eskridge, Jr. & Lauren E. Baer, The Continuum of Deference: Supreme Court Treatment of Agency Statutory Interpretations from Chevron to Hamdan, 96 Geo. L.J. 1083, 1099, 1117-1119 (2008) (finding a 66% agency win rate with no deference).
187. Id. at 1090 ("Indeed, our most striking finding is that in the majority of cases-53.6% of them-the Court does not apply any deference regime at all. Instead, it relies on ad hoc judicial reasoning of the sort that typifies the Court's methodology in regular statutory interpretation cases.").
188. Miles & Sunstein, Arbitrariness, supra note 109, at 776, 778-779
189. Miles and Sunstein were particularly concerned with the politicization of judicial review, both by party and by group dynamics. Although there is no question that ideology is an important predictor of many sorts of judicial review outcomes, this Article is principally occupied with the more fundamental questions: Around what baseline? And at what variance?
190. See Humphries & Songer, supra note 118, at 215 tb1.1;
191. David H. Willison, Judicial Review of Administrative Decisions: Agency Cases before the Court of Appeals for the District of Columbia, 1981-1984, 14 Am. Pol. Q. 317, 320-21 (1986).
192. Which is one reason why the consistency of the two-thirds win rate need not detain us for too long. In a well-known article, George Priest and Benjamin Klein argued that experience would lead litigants to select cases for litigation that would lead plaintiffs to win approximately 50%. See George L. Priest & Benjamin Klein, The Selection of Disputes for Litigation, 13 J. Legal Stud. 1, 4 (1984) (hypothesizing that the only cases brought to trial would be those in which the outcome was uncertain, and in cases where the plaintiff or defendant was likely to win, settlement would likely occur).
193. Empirically testing the hypothesis, however, did not confirm it. See Theodore Eisenberg, Testing the Selection Effect: A New Theoretical Framework with Empirical Tests, 19 J. Legal Stud. 337, 350 (1990).
194. Scholars such as Steven Shavell identified reasons why the 50% rule would not hold. See Steven Shavell, Any Frequency of Plaintiff Victory at Trial Is Possible, 25 J. Legal Stud. 493, 494 & n.7 (1996) (discussing the limitations of the Priest and Klein model with regard to high value cases, low transaction cost cases, and the like).
195. This Article only addresses the rates in the courts of appeals (though they are occasionally compared to the Supreme Court). District court review of agency action may present different circumstances; Paul Verkuil's research suggests as much, anyway.
196. For Social Security Administration (SSA) appeals, "[t]he rate at which district courts reverse and remand disability determinations exceeds 50%." Verkuil, supra note 5, at 706. In contrast, Verkuil finds that the district court reversal rate for Freedom of Information Act (FOIA) cases is only 10%.
197. Id. at 712-713 This is actually quite surprising, but it could be that the district courts, the experts at factual analysis, are more inclined to weigh in on appeals of fact-based agency determinations-which SSA determinations require-than legal interpretations, which, at least in theory, FOIA interpretations are. Verkuil's methods are aggregative, and do not involve a review of individual cases.
198. Id. at 713 n.152.
199. Id. at 682 n.4.
200. The D.C. Circuit is not always clear about whether it is, in fact, using the substantial evidence standard to decide its cases, even when it cites to it. In some opinions, it would make reference to boilerplate and mention that the agency decision could not be arbitrary and capricious and had to be supported by substantial evidence. If in these cases, the court's decision did not turn on a factual determination by the agency, I did not count it as a substantial evidence case, though making those determinations was not always easy (they only comprised a few of the 263 cases considered). I also removed from our dataset cases in which the agency's action was deemed supported by substantial evidence but illegal for some other reason. Because these cases were not agency wins, it seemed incongruous to treat them as such simply because they won on the substantial evidence review, but lost for some other reason. In other, easier cases, the court would mention the term "substantial evidence" but not base its review on it; I excluded these cases as well. Finally, I checked to see that any case that cited 5 U.S.C. § 706(2)(E), the part of the APA that defines the substantial evidence standard, was included in my database (they all were). Nonetheless, it is worth noting that these judgment calls could have an impact on the results here (although not by very much one way or the other). All told, 38 of the 264 cases initially collected, or 14% of them, were discarded for these reasons.
201. See, e.g., Patricia M. Wald, The "New Administrative Law"-With the Same Old Judges In It?, 1991 Duke L.J. 647, 662 ("In my twelve years on the D.C. Circuit, I have reviewed hundreds of administrative actions by the [EPA], the [FERC], [OSHA], the Department of Health and Human Services (HHS), the [FCC], the National Labor Relations Board (NLRB), and other agencies.... I hold suspicions or impressions about who is on top or at the bottom of the regulatory honor roll....").
202. See Tracey E. George, Developing a Positive Theory of Decisionmaking on U.S. Courts of Appeals, 58 Ohio St. L.J. 1635, 1640 (1998);
203. Miles & Sunstein, Chevron, supra note 123, at 848;
204. Richard L. Revesz, Environmental Regulation, Ideology, and the D.C. Circuit, 83 Va. L. Rev. 1717, 1727 n.31 (1997) ("The views generally held
205. Michael W. Giles, Virginia A. Hettinger & Todd Peppers, Picking Federal Judges: A Note on Policy and Partisan Selection Agendas, 54 Pol. Res. Q. 623, 631 (2001). Lee Epstein and her co-authors have explained how the scores work: "If a judge is appointed from a state where the President and at least one home-state Senator are of the same party, the nominee is assigned the NOMINATE Common Space score of the home-state Senator (or the average of the home-state Senators if both members of the delegation are from the President's party). If neither home-state Senator is of the President's party, the nominee receives the NOMINATE Common Space score of the appointing President."
206. Lee Epstein et al., The Judicial Common Space, 23 J.L. Econ. & Org. 303, 306 (2007).
207. The Maltzman-Bailey approach uses citation to place judges on an ideological spectrum, and is, as of this writing, unpublished;
208. Martin-Quinn uses judicial votes, among other factors. See Andrew D. Martin & Kevin M. Quinn, Dynamic Ideal Point Estimation via Markov Chain Monte Carlo for the U.S. Supreme Court, 1953-1999, 10 Pol. Analysis 134, 137 (2002).
209. For a glowing recommendation of the Martin-Quinn scores by a legal scholar, see Ward Farnsworth, The Use and Limits of Martin-Quinn Scores to Assess Supreme Court Justices, with Special Attention to the Problem of Ideological Drift, 101 Nw. U. L. Rev. 1891, 1892-96 (2007). Epstein et al, have recently attempted to develop JCS scores for all appellate judges; their study, however, ends at the beginning of 2000, the first year of the study undertaken here. Their study essentially does apply the Martin-Quinn scores to appellate judges, but, again, outside the time of this study.
210. See Epstein et al., supra note 139, at 306-307
211. Miles & Sunstein, Chevron, supra note 123, at 849 ("The validation rate of the average Democratic appointee is higher than that of the average Republican appointee by only 0.03 of a percentage point, which is an insignificant difference.").
212. Miles and Sunstein, however, attempted to evaluate whether a decision was liberal or conservative in these cases, and concluded that it was in those decisions where the politicization of the judiciary was most apparent. Id. at 849-850
213. MileS & Sunstein, Arbitrariness, supra note 109, at 776. ("[U]nder arbitrariness review the validation rate of Democratic appointees is 10 percentage points higher than that of Republican appointees.").
214. See Miles & Sunstein, Chevron, supra note 123, at 849-850
215. See id. at 829-831 for a description of their effort to tease out the liberalness of decisions.
216. Frank B. Cross & Emerson H. Tiller, Judicial Partisanship and Obedience to Legal Doctrine: Whistleblowing on the Federal Courts of Appeals, 107 Yale L.J. 2155, 2169 (1998).
217. Miles & Sunstein, Chevron, supra note 123, at 831 ("The advantage of this method of coding decisions is its mechanical and objective character. The disadvantage is its crudeness.").
218. Miles and Sunstein have another measure of ideology: whether the agency decision were made during a Democratic or Republican presidential administration. Miles & Sunstein, Arbitrariness, supra note 109, at 775 ("Our second proxy for the political direction of the agency decision is whether the case was decided during a Democratic or Republican administration.").
219. See Frank B. Cross, Political Science and the New Legal Realism: A Case of Unfortunate Interdisciplinary Ignorance, 92 Nw. U. L. Rev. 251, 290-291 (1997).
220. For some background on the lot of ALJs and the prominence of the SSA in employing them, see Robin J. Arzt, David H. Coffman & Pamela L. Wood, Federal Administrative Law Judges Conference, Advancing The Judicial Independence And Efficiency Of The Administrative Judiciary: A Report to the President-Elect of the United States, 29 J. Nat'l Ass'n Admin. L. Judiciary 93, 95 (2009) ("There are over 1,300 ALJs assigned to 31 different agencies, of which the [SSA] is by far the largest employer.").
221. For a description of this review, which is done under a rather specified substantial evidence standard and performed by the district court, see Paul R. Verkuil & Jeffrey S. Lubbers, Alternative Approaches to Judicial Review of Social Security Disability Cases, 55 Admin. L. Rev. 731, 738-42 (2003).
222. Before that review commences, they travel through the administrative judiciary in vast numbers. Margaret H. Taylor, Refugee Roulette in an Administrative Law Context: The Déjà vu of Decisional Disparities in Agency Adjudication, 28 J. Nat'l Ass'n Admin. L. Judiciary 158, 173 (2008) ("SSA receives some five million disability applications each year, and its ALJs resolve almost 500,000 contested cases.").
223. These tests were conducted with the assistance of the statistics department at The Wharton School, University of Pennsylvania.
224. Examination of the four possibilities-no concurring or dissenting opinion, concurring opinion only, dissenting opinion only, or both-was not possible here, since there was only one case with both a concurring and dissenting opinion.
225. This is particularly true in the D.C. Circuit, which makes the identity of panels known well in advance of the argument-a practice which has led some savvy D.C. lawyers to abandon claims when confronted with a particularly unfriendly judicial draw.
226. The report observed that In exercising their powers of review, the courts have been influenced, it is commonly thought, by a variety of inarticulate factors: The character of the administrative agency, the nature of the problems with which it deals, the nature and consequences of the administrative action, the confidence which the agency has won, the degree to which the review would interfere with the agency's functions or burden the courts, the nature of the proceedings before the administrative agency, and similar factors. Report of the Comm. on Admin. Procedure, Administrative Procedure in Government Agencies, S. Doc. No.77-8, at 91 (1941).
227. See id. at 87-92 (expressing concern about the potential detrimental expansion because of doctrinal ambiguities-of what should be a narrow inquiry into standard of judicial review).
228. For an overview, see Akhil Reed Amar, Fourth Amendment First Principles, 107 Harv. L. Rev. 757, 758 (1994);
229. Erin Murphy, Manufacturing Crime: Process, Pretext, And Criminal Justice, 97 Geo. L.J. 1435, 1470-71 (2009).
230. James Gibson, Doctrinal Feedback and (Un)Reasonable Care, 94 Va. L. Rev. 1641, 1646 (2008). ("And then there is that familiar legal fiction, 'reasonableness,' which invites us to use real-world practice as a guide for legal decisionmaking: [t]ort law declares us negligent if we fail to provide 'reasonable care' and conform to the conduct of a 'reasonable person.'").
231. The classic exposition of this view is Owen M. Fiss, Against Settlement, 93 Yale L.J. 1073, 1085 (1984).
232. Indeed, Justice Breyer himself has looked askance at the Chevron test on the basis that it deprives judges of the ability to perform the sort of statutory interpretation analyses that they do best. Stephen Breyer, Judicial Review of Questions of Law and Policy, 38 Admin. L. Rev. 363, 377-81 (1986).
233. For a Supreme Court decision suggesting that Breyer has put his doctrinal reservations into practice, see Christensen v. Harris County, 529 U.S. 576, 595 n.2 (2000) (Stevens, J., dissenting) (endorsing "fully" Justice Breyer's narrow reading of Chevron).
234. Indeed, Gary Lawson believes that the Supreme Court had no idea it was fomenting an administrative law revolution when it decided Chevron; the case only took hold when the D.C. Circuit leapt to enshrine it as an overarching new standard applicable to most of the rulemaking cases they reviewed. See Lawson, supra note 10, at 442-443
235. See Elizabeth V. Foote, Statutory Interpretation or Public Administration: How Chevron Misconceives the Function of Agencies and Why It Matters, 59 Admin. L. Rev. 673, 709 (2007) ("This under-review of administrative work for its reasonableness as bureaucratic action has unfortunate consequences for the quality of public administration.").
236. Keith Werhan, Principles of Administrative Law 310 (2008).
237. For a critique of the pre-Chevron standards of review, see United States v. Mead Corp., 533 U.S. 218, 240-241 (2001) (Scalia, J., dissenting).
238. See ABA Judicial Review Guide, supra note 91, at 159-160 and accompanying text.
239. See, e.g., Merrick B. Garland, Deregulation and Judicial Review, 98 Harv. L. Rev. 505, 525-526 (1985).
240. Indeed, their choice of procedures is apparently a matter of absolute discretion. SEC v. Chenery Corp. (Chenery II), 332 U.S. 194, 203 (1947).
241. See Thomas W. Merrill & Kathryn Tongue Watts, Agency Rules with the Force of Law: The Original Convention, 116 Harv. L. Rev. 467, 492 (2002), for criticism.
242. Dickinson v. Zurko, 527 U.S. 150, 162 (1999) (noting the importance of the various standards of review); Verkuil, supra note 5, at 682 (same, albeit noting them somewhat skeptically).
243. As the experienced appellate advocate Howard Bashman has observed, "lawyers whose appellate briefs fail to explain clearly and convincingly why their client deserves to win on appeal, and why the trial court's rulings were wrong or right, decrease the client's chances of winning and complicate the appellate court's effort to reach the right result." Howard J. Bashman, Ten Tips for Excellence in Appellate Advocacy, Law.com http://Law.com (Nov. 13, 2006), http://www.law.com/jsp/article.jsp?id-1163194123382&hbxlogin=1. Although I can only source it as hearsay, I have heard my former colleagues in the Department of Justice contend that an important part of their appellate strategy often comes down to a recommendation that the court should "trust us, we're the government."
244. Richard A. Posner, How Judges Think 113-114 (2008).
245. Richard A. Posner, The Problems of Jurisprudence 26 (1993) (emphasis added).
246. Pub. L. No. 104-104, sec. 401, § 10, 110 Stat. 56, 128-29 (1996) (codified as amended at 47 U.S.C. § 160 (2006)).
247. Act to regulate commerce, ch. 104, 24 Stat. 379 (1887) (codified as amended at scattered sections of 49 U.S.C).
248. See supra notes 54-56, 103-105 and accompanying text.
249. This was the case both in Universal Camera Corp. v. NLRB, 340 U.S. 474, 491-97 (1951), and in a number of well-known appellate cases that intimate that such reversals occasion a closer look by the appellate judges. See, e.g.,
250. Harberson v. NLRB, 810 F.2d 977,984 (10th Cir. 1987) (reversing agency for failing to articulate the reasons for departing from recommendation of ALJ);
251. Int'l Bhd. of Elec. Workers v. NLRB, 510 F.2d 1274,1276 (D.C. Cir. 1975) (same); see generally Michael Asimow, A Guide to Federal Agency Adjudication 93-94 (2002) (describing an agency's ability to reverse initial decisions, even on factual matters).
252. See supra notes 97-99 and accompanying text.
253. -129 S. Ct. 1800, 1812-13, 1817 (2009);
254. id. at 1824 (Kennedy, J., concurring in part and concurring in the judgment);
255. id. at 1826-28 (Stevens, J., dissenting);
256. id. at 1833-36, 1838-1841 (Breyer, J., dissenting).
257. FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 125-126 (2000).
258. Id. at 131-33, 159, 161.
259. Id. at 160.
260. ABA Judicial Review Guide supra note 91, at 179-180
261. James M. Landis, The Administrative Process 154-155 (1938) (praising the professionalization of the bureaucracy, and concluding that it entitled them to flexibility in interpreting their legislative remit).
262. Pennsylvania v. West Virginia, 262 U.S. 553, 621-623 (Brandeis, J., dissenting).
263. Terry v. Ohio, 392 U.S. 1, 21 (1968) ("The scheme of the Fourth Amendment becomes meaningful only when it is assured that at some point the conduct of those charged with enforcing the laws can be subjected to the more detached, neutral scrutiny of a judge who must evaluate the reasonableness of a particular search or seizure in light of the particular circumstances."). There are, of course, reams of articles on this issue, but for considerations more cognate to this Article,
264. see Amar, supra note 156, at 801 ("The core of the Fourth Amendment, as we have seen, is neither a warrant nor probable cause, but reasonableness."); Orin S. Kerr, The Fourth Amendment in Cyberspace: Can Encryption Create a "Reasonable Expectation of Privacy?", 33 Conn. L. Rev. 503, 523-24 (2001) (discussing the relationship between reasonableness and probability).
265. Although one advantage of studying the courts of appeals is that they do not select their cases, at least not as much as does the Supreme Court, whose case law is particularly "fraught with ... selection effects." Jonathan Masur, Judicial Deference and the Credibility of Agency Commitments, 60 Vand. L. Rev. 1021, 1058 n.162 (2007) (concluding that, nevertheless, empirical research based on the Court's output may be useful); see also Eskridge & Baer, supra note 128, at 1096 ("Relatedly, the agency-interpretation cases that come before the Supreme Court are not representative of the cases that come before the courts of appeals.").
266. See Revesz, supra note 138, at 1717-19, 1769-1771 (1997).
267. Dickinson v. Zurko, 527 U.S. 150, 162 (1999) (noting the importance of the various standards of review); Verkuil, supra note 5, at 682 (same, albeit noting them somewhat skeptically).