The Supreme Court’s decision in County of Maui v. Hawaii Wildlife Fund has prompted a flurry of discussion on Twitter and elsewhere about whether Justice Breyer’s majority opinion in the case adopted the position that the government can waive or forfeit eligibility for Chevron deference by failing to argue for it, and thus overturned the D.C. Circuit’s rejection of Chevron waiver last year in Guedes v. Bureau of Alcohol, Tobacco, Firearms & Explosives. Chevron waiver is a topic of some debate these days. The D.C. Circuit has addressed the issue most prominently and extensively, in Guedes and elsewhere. The Tenth Circuit endorsed it just last week in Hays Medical Center v. Azar, arguably in dicta, but also arguably establishing a circuit split with the D.C. Circuit. Law reviews at Harvard, Stanford, and Chicago all published short notes or essays last year discussing the issue. I have given the issue its own subsection in the Administrative Law Treatise. In my view, however, it would be premature to claim that the Supreme Court has embraced the Chevron waiver argument.

County of Maui is not the first time the Chevron waiver question has arisen in a Supreme Court opinion. Just last month, Justice Gorsuch rather overtly signaled his support for Chevron waiver in a statement respecting the Supreme Court’s denial of certiorari in Guedes. I discussed that statement in another blog post. Justice Gorsuch’s treatment of the issue in Guedes was unequivocal but brief, and he wrote for himself alone.

Justice Breyer’s reference in County of Maui, though on behalf of five Justices, was much less clear — a mere observation that the Solicitor General had not asked for Chevron deference. But the EPA “Interpretive Statement” at issue would not have been eligible for Chevron deference in any event, as Justice Breyer seems to have recognized by citing Mead and Skidmore:

“Neither the Solicitor General nor any party has asked us to give what the Court has referred to as Chevron deference to EPA’s interpretation of the statute. See Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 844 (1984). Even so, we often pay particular attention to an agency’s views in light of the agency’s expertise in a given area, its knowledge gained through practical experience, and its familiarity with the interpretive demands of administrative need. See United States v. Mead Corp., 533 U.S. 218, 234-235 (2001); Skidmore v. Swift & Co., 323 U.S. 134, 139-140 (1944). But here, as we have explained, to follow EPA’s reasoning would open a loophole allowing easy evasion of the statutory provision’s basic purposes. Such an interpretation is neither persuasive nor reasonable.”

As I have documented elsewhere, Justice Breyer has always held a fairly idiosyncratic view of Chevron and Skidmore as a single standard, with Chevron‘s emphasis on the exercise of delegated power merely adding another factor to be considered in deciding whether or not to defer. For that matter, minor disagreements regarding Chevron‘s operation and scope abound among the Justices. Because Chevron, Skidmore, and Mead are “meta-standards,” the Justices may disagree over how these standards work or even which to apply but still agree to accept or reject an agency’s particular statutory interpretation in a given case. Whereas commentators may analyze and critique every snippet of Supreme Court rhetoric, the Justices seem more willing to let minor disagreements over dicta go unremarked, rather than write separately over every questionable turn of phrase. For this reason alone, one should always be leery of overreading an ambiguous turn of phrase about Chevron in a single Supreme Court opinion.

Moreover, none of the briefing before the Court mentioned the Chevron waiver concept. Neither the Petitioners nor the Solicitor General as amicus said anything at all about deference doctrine. The Respondents said only that, as mere “guidance,” the EPA’s Interpretive Statement was “not an exercise of congressionally delegated authority to fill an interpretive gap in the statute” and thus “was not entitled to deference under Chevron” in light of Mead. Given the complete lack of briefing on Chevron waiver in this case, the mere observation that the Solicitor General did not ask for Chevron deference in a case where it wasn’t available anyway is pretty slim evidence that the Court has suddenly embraced a new requirement that the government actively argue in favor Chevron deference before its interpretations will be Chevron-eligible.

Indeed, the idea of Chevron waiver itself seems to have emerged initially more from inartful judicial rhetoric and inadequately-reasoned analytical leaps than from deliberate arguments. Consider the experience of the D.C. Circuit, which seems to be where the doctrine originated, and which to date has made the most definitive statement on the subject. In Peter Pan Bus Lines v. Federal Motor Carrier Safety Admin. (2006), the D.C. Circuit declined to evaluate the reasonableness of an agency regulation under Chevron step two after the agency had contemporaneously justified its decision in the regulation’s preamble by declaring the statute unambiguous. Separately, in Intercollegiate Broadcasting System v. Copyright Royalty Board (2009), which had nothing to do with agency statutory interpretation or Chevron, the D.C. Circuit noted “the axiom” that nonjurisidictional issues may be waived. Several years later, in Lubow v. Department of State (2015), after observing that the challenging party had accepted without argument that Chevron applied, the D.C. Circuit cited Intercollegiate and Peter Pan in suggesting that Chevron is nonjurisdictional and that “a party can forfeit an argument against deference by failing to raise it.” Finally, in Neustar, Inc. v. FCC (2017), the D.C. Circuit cited Lubow in holding that the FCC had waived any entitlement to Chevron deference by not expressly advocating for it. The FCC in Neustar had cited Chevron and recited its two steps as the relevant standard of review, but the court deemed that “nominal[] reference[]” inadequate. The court offered little reasoning, however, beyond a parenthetical to the Lubow citation — “Chevron deference is not jurisdictional and can be forfeited” — even though Lubow involved a challenger failing to raise an objection to Chevron deference, rather than a government failure to claim Chevron deference.

Almost immediately — perhaps having realized it had made a significant doctrinal statement with little supportive reasoning — the D.C. Circuit walked back its Neustar holding regarding Chevron waiver. In SoundExchange v. Copyright Royalty Board (2018), and then in the aforementioned Guedes decision (2019), the D.C. Circuit discussed Neustar and Chevron waiver at great length and expressly rejected the proposition that the government can waive Chevron deference by failing to argue for it adequately in a legal brief. First, in SoundExchange, the court noted that the government did not claim Chevron deference because it did not frame the case as involving statutory interpretation at all. Nevertheless, the court insisted that its opinion in Neustar “did not indicate a ‘magic words’ requirement for Chevron deference”; what mattered was whether the agency, in the action being challenged, clearly “exercis[ed] its lawmaking authority.” The SoundExchange court then contended that “Chevron is a standard of judicial review, not of agency action” and that “we can apply Chevron deference to the agency’s interpretation even if there is no invocation of Chevron in the briefing in our court.”

In Guedes, the D.C. Circuit went even further in repudiating Chevron waiver. The court first distinguished waiver from forfeiture: “A waived claim or defense is one that a party has knowingly and intelligently relinquished; a forfeited plea is one that a party has merely failed to preserve.” The court described SoundExchange as holding “that an agency’s lawyers cannot forfeit the applicability of Chevron deference” except by failing to exercise delegated power as described in Mead. The Guedes court then went on to hold the same with respect to Chevron waiver. The court’s analysis was extensive — too long to cover fully in an already-overlong blog post. The general gist of the court’s reasoning, however, was that Chevron is “a doctrine about statutory meaning” akin to a canon of construction, advising “how courts should construe a statute” when that statute is ambiguous and Congress has given an agency responsibility to utilize its expertise to fill statutory gaps. Just as courts “give no mind to a litigant’s failure to invoke interpretive canons such as expressio unius or constitutional avoidance,” it is up to courts rather than litigants to decide whether Chevron applies. The court also made the point that Chevron is rooted in “the expertise of the agency, not its lawyers” — in other words, that courts defer to the exercise of agency expertise in the first instance, not to the litigation strategies pursued by agency lawyers later on.

The Tenth Circuit’s opinion last week in Hays Medical Center v. Azar, which arguably established a circuit split with the D.C. Circuit, more closely resembled the D.C. Circuit’s Neustar opinion than either SoundExchange or Guedes in the depth of its analysis of the Chevron waiver issue. The merits of Hays Medical Center concerned whether HHS’s methodology for calculating Medicare reimbursements is arbitrary and capricious under APA s. 706(2)(A) and State Farm. Apparently, in its Hays Medical Center brief, the government attempted briefly to recast the argument as concerning Chevron rather than State Farm. The Tenth Circuit in Hays Medical Center rejected this reframing in a long footnote, saying that the government’s arguments about “reasonableness” were “relevant” for both State Farm and Chevron. The court then proceeded to analyze the agency’s regulation under State Farm. But the footnote went on to contend that the government’s “perfunctory and fleeting invocation of Chevron waives [its] argument for Chevron deference.” The court cited the D.C. Circuit’s Neustar decision for this proposition, but did not acknowledge that court’s more recent and more extensive analysis rejecting Chevron waiver in SoundExchange and Guedes. The Tenth Circuit’s footnote is arguably dicta, and one wonders if the Tenth Circuit would reach the same conclusion if forced to confront the Chevron waiver question squarely. Given that footnote, however, one anticipates the Tenth Circuit will have the opportunity to do just that in the not-so-distant future.

In summary, despite somewhat hazy and under-theorized origins, the Chevron waiver issue seems to have legs. Although the D.C. Circuit has now repudiated Chevron waiver, its flirtation with the idea means that arguments for and against the doctrine are multiplying. The Supreme Court may find it necessary eventually to take up the Chevron waiver question. Justice Gorsuch appears to be receptive to it. Maybe Justice Breyer is as well, although I do not think that Justices Gorsuch and Breyer view judicial deference doctrine very similarly. Still, given the robustness with which the issue is being explored in the circuit courts, along with the realities of the Supreme Court’s often-ephemeral Chevron musings, contentions that a single paragraph — really, a single sentence — in Justice Breyer’s County of Maui opinion adopted Chevron waiver and overruled the D.C. Circuit’s rejection of the same in Guedes seem vastly overblown.

Cross-posted at OfInterest.blog