War Story – Judge Henry J. Friendly (8/31/23)

I am writing an article that, for reasons not relevant to this blog entry, I have to address Judge Henry J. Friendly’s lament about two inconsistent lines of authority for deference in Pittston Stevedoring Corp. v. Dellaventura, 544 F.2d 35, 49 (2d Cir. 1976), here, aff’d sub nom. Northeast Marine Terminal Co. v. Caputo, 432 U.S. 249 (1977). As many, particularly older practitioners, will know, Judge Friendly was a giant among appellate judges, said to be the best of his generation. See, e.g., Pierre Laval (a 2d Circuit Judge), Remarks on Henry Friendly, 15 Green Bag 2d 257 (2012), here (highly recommended for practitioners who are not very familiar with Judge Friendly).

I have a personal Judge Friendly anecdote from an appearance for DOJ Tax Division Appellate Section in my first brief and oral argument. Fishman v. Commissioner, 420 F. 2d 491 (2d Cir. 1970) (Per Curiam with authorship not attributed), here. I was assigned the case on the first day in the Appellate Section in June 1969. The Chief of Appellate, the great and wonderful Lee Jackson, did not assign a difficult case to newbies but he did say that if I lost the case (involving the timely-mailing timely filing, § 7502 regulations), a large part of the edifice of tax administration would fall. (He was trying to infuse importance into a case that would be hard to lose.) He also told me that my opposing counsel was Morton Ginsburg of New York but, since I heard that orally, I could only think of Marty Ginsburg who I had as a Professor of tax law (yes, that Marty Ginsburg, see Wikipedia here) and once testified was the smartest tax lawyer in the universe. (Some hyperbole there, but not much.) After I got over the shock of thinking it was Marty, I settled down to write the brief.

Being my first, the Appellate Section gave me a practice oral argument before three seasoned appellate lawyers, as best I recall Mickey Rothwacks, Bill Friedlander, and Grant Wiprud. At the conclusion, they pronounced that I would be a better oral advocate than brief writer. (I got much better at brief writing but started very low; which surprises me because one of the best lawyers in Section, Tom Stapleton, reviewed the brief and always in my experience brought the brief up to high standards on review.)

At oral argument before the 2d Circuit before Judges Friendly, Smith, and Anderson, though, I had 30 minutes for argument and planned to use no more than 15 minutes unless some of the judges’ questions prompted me to go longer. About 3 minutes into the argument, I concluded that each panel member was reading something other than paying attention to my oral argument (I inferred each was reading either the briefs or clerks’ briefing memoranda for the next case). So, I quickly and succinctly summarized my argument and closed in 5 or 6 minutes total. After I concluded, Judge Friendly thanked me and allowed opposing counsel to rebut. I don’t know whether Judge Friendly’s thanks was courtesy for a fresh but unpolished lawyer, a comment on the quality of the argument (I doubt), or that I quickly brought it to a close in 5 or 6 minutes rather than 15 or 30 minutes wasting everybody's time (I suspect).

Republicans Press Again On SOPRA Legislation that, They Claim, Eliminates Deference (8/30/23)

I am presently drafting an article, the principal point of which is to bring deference in tax cases to the discussion of the original meaning of APA § 10(e) of the original APA in 1946 (now codified at 5 USC § 706, here), which requires court review of agency action, in this case, agency regulations interpretations of ambiguous statutory text. The question is whether de novo review includes or does not include deference. For an example where prominent scholars have agreed upon de novo review including deference, see Conference of the United States (“ACUS”) and the American Bar Association Section of Administrative Practice and Regulatory Practice (“ACUS/ABA Site”), here:

Agency conclusions on questions of law are reviewed de novo. When a court reviews an agency’s construction of the statute it administers, the court is required to uphold Congress’s intent where Congress has directly spoken to the precise statutory question at issue. If the statute is silent or ambiguous with respect to the specific issue, however, the agency’s interpretation of the statute must be upheld if the agency’s construction of the statute is “permissible.” See Chevron USA Inc. v. Nat. Res. Def. Council, Inc., 467 US 837 (1984).

The review of tax cases applying deference before enactment of the APA in 1946 (thus setting the background for the meaning of the words in the APA), ignored or discussed only at the margins by most pundits pontificating. In my article, I will show that the mainstream discussion at the time of enactment of the APA in 1946 treated deference to agency interpretations as a process for interpreting de novo with deference, like tools of interpretation applied during the de novo review of the agency interpretation just as the quote above says it is. I discuss some tax deference cases and articles before 1940 (I peg that date to a claim by UVA Law Professor Bamzai in his acclaimed article, The Origins of Judicial Deference to Executive Interpretation, 126 Yale L.J. 908 (2017), here, that there are 2 key periods to understand the state of deference prior to enactment of the APA in 1946 -- (i) pre 1940 and (1940 (app) to the date of enactment. I read the case authority and scholarly discussion differently than does Professor Bamzai particularly because of the tax case authority and scholarly discussion which he basically ignores.

I pause from attention to that future (if ever article) to write this blog to bring attention to readers a recent Republican legislative initiative to statutorily repeal deference by amending § 706 to require de novo review without deference. (The current brouhaha and misinformation about Chevron and how and when it works is mostly political and ideological emerging from hatred and fear, at least imagined, of the administrative state.)  Actually, this Republican legislative initiative goes back several years to other Congresses, all pursued with smoke and mirrors but, thankfully, no legislation.

On June 15, 2023, the House passed an act with the “Short Title” of “This Act may be cited as the ‘Separation of Powers Restoration Act of 2023” or “SOPRA”. (See Congress.gov, here,  on the bill and its movement through Congress.) The net effect intended by the Republicans introducing SOPRA in the House and voting to pass it over Democrat opposition is, so Republicans believe, is to eliminate deference. The act thus would amend APA 5 USC 706(a) to read as follows (new language is redlined):

(a)         To the extent necessary to decision and when presented, the reviewing court shall decide all relevant questions of law, interpret constitutional and statutory provisions, and determine the meaning or applicability of the terms of an agency action and decide de novo all relevant questions of law, including the interpretation of constitutional and statutory provisions, rules made by agencies, and interpretative rules, general statements of policy, and all other agency guidance documents. Notwithstanding any other provision of law, this subsection shall apply in any action for judicial review of agency action authorized under any provision of law. No law may exempt any such civil action from the application of this section except by specific reference to this section.

For the House Committee Report showing the amended entire § 706 with the changes in italics, see here.

This quixotic Republican adventure with no reasonable prospect of being enacted any time soon is a play to their base who Republicans have convinced should hate the administrative state as much as Republican politicians claim they (the Republican politicians) do. They claim that deference  is an administrative agency takeover from the courts of a large swath of the interpretive process. See Daniel Goldbeck & Shantanu Kamat, The Administrative State After Chevron (American Action Forum: Insight 8/8/23), here (caveat, this is a screed by an organization, the American Action Forum which as the name implies is a Republican Group not surprisingly anti-deference; why do Republicans consistently wrap their political agendas in things like America First or, in this case, the American Action Forum to imply that those who oppose are unamerican? That’s a rhetorical question.) Why is it when Republicans raise such whipping boys (the IRS is one, but the deference whipping boy goes to all agencies) as this can we assume that there is much hyperbole exceeding the bounds of critical analysis?

I have the following questions:

Federal Tax Procedure Book 2023 Editions on SSRN (8/19/23)

The 2023 versions of the Federal Tax Procedure Book are now posted on SSRN. SSRN still has to approve them, but I think that those interested can view or download them in the interim. See here.

Liberty Global Court Holds that Government May Proceed by Collection Suit without a Notice of Deficiency (8/13/23)

I earlier wrote on an unresolved issue in United States v Liberty Global (D. Colo. Civil Dkt.22-cv-02622-RBJ), CL here. The issue was whether, as in this case, the Government could bring a tax collection suit without first issuing a notice of deficiency. See Further Commotion in Liberty Global Collection Suit Over Whether a Notice of Deficiency Is Required Before Collection Suit (1/16/23; 1/19/23), here.

The district court resolved the issue in United States v. Liberty Global, Inc. (D. Colo. Opinion dated June 1, 2023), CL here. The Court summarizes its holding (Slip Op.. 5-6):

          LGI’s proposition that § 6213(a) was intended to convert the administrative route to a plenary scheme for income tax collection is inconsistent with the weight of authority among courts who have addressed this issue. Moreover, the analysis required to reach that conclusion does not comport with canonical approaches to statutory interpretation, which charge courts to refrain from adopting interpretations that would displace longstanding common-law rights or disrupt established distributions of power among governmental bodies in the absence of clear language demonstrating Congress’s intent to do so. See FBI v. Fazaga, 142 S. Ct. 1051, 1060-1061 (2022). Because there is no indication that § 6213(a) was intended to supplant the existing common-law avenue for the government to recover unpaid taxes, the Court will not infer that intent here.

          Therefore, this analysis adopts the proposition that there exist two avenues for the government to collect unpaid taxes: the administrative route (assessment and collection) and the common-law route (filing suit on the debt). Defendant alleges a defect in the government’s compliance with the requirements to proceed via the administrative route. However, compliance with those requirements is irrelevant here because the government does not seek to proceed via the administrative route (and in fact was foreclosed from doing so by defendant’s own maneuvers), and because defendant has not shown that the notice requirements in the administrative process have been or should be read onto the alternative common-law process.

 JAT Notes:

Some Justices' Aversions to Tax Cases (8/4/23; 9/6/23)

 Over the years, I have accumulated some interesting insights from Supreme Court Justices on how they view tax cases. Generally, in the snippets I have accumulated, it appears that Supreme Court Justices (or some representative number of them) dislike tax cases. I wanted to say in my article that part of which may have motivated Justice Jackson, Wikipedia here, the author of a key deference case, Dobson v. Commissioner, 320 U.S. 489 (1943), here, (Caveat, Dobson is a key case but subtle on the issue of deference to agency interpretations; I discuss Dobson in my article; suffice it to say here Dobson adopted a strong form of deference to Tax Court interpretations, but treated the Tax Court as an agency (as the statute said it was); so the strong form of deference Dobson adopted can be applied to agency interpretations.)

I wanted to say in my article what may have motivated Justice Jackson to adopt a strong form of deference to Tax Court tax interpretations. There are some good reasons to do so--agency expertise, etc. But another reason might be that deference could prevent the courts from being overwhelmed where agency interpretations of the esoterica of tax law when deference would promote more uniformity in the tax law.  (Maybe there's some notion that tax interpretations are good enough for government work; for the surprising history of the idiom, see Good enough for government work and close enough for government work (Grammarist undated, here viewed 8/2/23)) .

In order to support that claim of Justice aversion to tax cases, I had a footnote addressing some anecdotal instances where Justices since then have asserted (sometimes tongue in cheek) aversions to tax cases. The source for some of these is an article titled "Tax Cases" at Greenbag here.

• Justice Souter when asked why he sang with Chief Justice Rehnquist at the Court’s annual Christmas party, responded “I have to. Otherwise I get all the tax cases.”  
• As reported in Bernard Schwartz, The Unpublished Opinions of the Rehnquist Court 7-8 (1996), “Some justices have said that they would rather volunteer to wash windows than be assigned the chore of writing tax opinions.”
• Justice Brennan’s normal reactions to tax case cert petitions: “This is a tax case. Deny.”
• Justice Blackmun, the only Justice with extensive tax background: “If one’s in the doghouse with the Chief, he gets the crud, He gets the tax cases, and some of the Indian cases.”
• Quoting Justice Powell:  “A dog is a case that you wish the Chief Justice had assigned to some other Justice.” A deadly dull case, “a tax case, for example.” 
• Scholars have also noted “the widespread view among the Supreme Court justices that tax cases are boring.”  Lawrence Zelenak, The Court and the Code: A Response to the Warp and Woof of Statutory Interpretation, 58 Duke L.J. 1783, 1789 (2009) (citing James J. Brudney & Corey Ditslear, The Warp and Woof of Statutory Interpretation: Comparing Supreme Court Approaches in Tax Law and Workplace Law, 58 Duke L.J. 1231, 1272-1273 (2009) (“"Some of the Justices likely deferred to Justice Blackmun simply because they were not interested in tax law - something Blackmun recognized inside the Court as well as in public statements.”).

It is interesting that the last quote said that some of the other Justices "deferred" to Justice Blackmun because of his practice prior to coming to the court and supposed interest in and expertise in tax. As my own poster child to show the other Justices should not have deferred to Justice Blackmun, see Frank Lyon Co. v. United States, 435 U.S. 561 (1978), here. And, it is notable that Justice Stevens. the author of Chevron dissented in Frank Lyon (rightly so, I think; I have some atypical reasons for believing that the Court accepted cert in Frank Lyon for one wrong reason, but I may develop that later.). Justice Stevens, not a tax lawyer, got it right; Justice Blackmun, a tax lawyer, got it wrong. Justice Blackmun's opinion for the Court in Frank Lyon breathed hope into the bullshit tax shelter industry that persisted well into the 2000s. I don't recall many tax shelter "more likely than not" opinions that did not claim support from Frank Lyon.

Added 9/6/23:

In preparing an article that features prominently Dobson v. Commissioner, 320 U.S. 489 (1943), I came across some more quotes, like sound bites, that grade the Supreme Court's output in tax cases as substandard which may be a reflected of the Justice's aversion to tax cases note above. Here are some:

Kirk J. Stark, The Unfulfilled Tax Legacy of Justice Robert H. Jackson, 54 Tax L. Rev. 171, 173 (2001) 

Tax lawyers have derided the Supreme Court, complaining that the Court "hates tax cases" and generally bungles the tax cases it does hear.19 Charles Lowndes echoed a longstanding sentiment of the tax bar  when he wrote, "[i]t is time to rescue the Supreme Court from federal taxation; it is time to rescue federal taxation from the Supreme Court.' 20 
   n19 See Erwin N. Griswold, Is the Tax Law Going to Seed? Remarks Before the Annual

Meeting of the American College of Tax Counsel (Feb. 5, 1993), in 11 Am. J. Tax Pol'y 1, 7

(1994). Writing about the Burger Court in 1975, Erwin Griswold commented that Supreme

Court Justices often find "no intellectual interest or challenge in tax cases....

Indeed,... it is hard to find a member of the present Court who has a real 'feel' for tax

law." Erwin N. Griswold, Foreword to Bernard Wolfman, Jonathan LF. Silver & Marjorie

A. Silver, Dissent Without Opinion: The Behavior of Justice William 0. Douglas in Federal

Tax Cases, at xii (1975) [hereinafter Foreword].

   n20 Charles L.B. Lowndes, Federal Taxation and the Supreme Court, 1960 Sup. Ct. Rev.

222, 222. The tax bar's disillusionment with the Supreme Court has provoked some scathing

critiques. See, e.g., Martin D. Ginsburg, The Federal Courts Study Committee on

Claims Court Tax Jurisdiction, 40 Cath. U. L. Rev. 631, 634-35 (1991) ([P]ractitioners

cannot expect, and surely, as rational men and women, practitioners ought not to hope,

that the Supreme Court will take too many tax cases. It is, history teaches, not a job the

high court performs superbly."); William A. Klein, Tailor to the Emperor With No Clothes:

The Supreme Court's Tax Rules for Deposits and Advance Payments, 41 UCLA L Rev.

1685, 1721, 1727 (1994) (characterizing Supreme Court tax opinion as "[gobbledegook"

and suggesting that Court may "lack the tools for effective development of new tax principles

and rules"); Bernard Wolfman, The Supreme Court in the Lyon's Den: A Failure of

Judicial Process, 66 Cornell L. Rev. 1075, 1099 (1981) (noting that "[A] Supreme Court

opinion ought not become the basis for tax lawyers to make a laughingstock of the Court

as they now do ... ").

FYI, the Martin D. Ginsburg noted above was the husband of Justice Ruth Bader Ginsburg. I once testified that I believed he was the smartest tax lawyer in the universe. That was hyperbole but not much.

Posting of General Interest Excisions of General Interest from Final Draft of Article on Chevron Deference (8/4/23)

I am on my last draft of an article discussing the tax angle to the issue of whether § 706 of the APA, 5 USC (originally enacted in 1946, requires, permits, or eliminates deference (a concept applied by the Supreme Court at least since the early 20th century). Deference has appeared in many articulations over the years, now referred to generally as Chevron deference. Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984). The issue is currently before the Supreme Court in  Loper Bright Enterprises v. Raimondo (SEC) (Dkt 22-451) to consider whether it should overrule or modify Chevron deference.  See Supreme Court Grants Cert to Consider Overruling or Clarifying Chevron (Federal Tax Procedure Blog 5/1/23), here.

The article explores the contribution of tax cases and scholarly discussions of how important Supreme Court tax cases are to the issue of deference. Most authorities have either ignored the tax cases and scholarly comments or treated them, shall I say, inadequately.

In preparing the earlier drafts, I find that I was too verbose, particularly in footnotes which may not be important to the reader audience I seek for the article. Accordingly, as I excise materials from the article that readers of this blog might be interested in, I will post them as blogs. (That way, also, in the article, I can just refer to the posts.)

So the next few blogs will have those excisions.

Fun Word Distractions While Researching the APA (7/24/23)

In the course of writing an article exploring the as yet unexplored tax angle to the question of whether APA § 706’s de novo review requirement includes or does not include deference (now Chevron deference) to agency interpretations. I was reading two separate old law review articles and comment here on the wording in the articles without addressing the issue that led me to the articles.

Experts Who Are Particularly Experts.

The first answered an important question in a footnote. When do experts really need to be experts?  Louis Eisenstein, Some Iconoclastic Reflections on Tax Administration, 53 Harv. L. Rev. 477, 478 (1945).

I. PRESENT DISCONTENTS

          IF we may borrow from one who wrote wisely of more important things, these are the days that try the souls of tax men. There was a time, it seems, when a tax provision was naively expected "to be without perplexities and readily solvable by the off-hand conceptions of those to whom it was addressed." Matters have not, however, exactly worked out in accordance with such expectations and it is now fashionable to resign oneself to "innumerable complexities." Taxation" can never be made simple" is the [*478] lament, even if "we can try to avoid making it needlessly complex." Tax language normally has an enclosed meaning or has legitimately acquired such by the authority of those especially skilled in its application. The expert has come into his own as a necessary evil although the courts have not entirely reconciled themselves to his indispensability.

          A brief examination of our statute law discloses how sadly hopes of an earlier day have been frustrated. The remarkably ingenuous income tax of 1913, containing but fourteen subsections, has gradually grown to the Herculean proportions of almost two hundred sections. Nor do numbers relate the entire story. Sections and subsections seem to be interminable - a strain upon the eye and a puzzle to the brain. The statutes are chockfull of elusive refinements and concentrated complexities.7 Some of the provisions are perhaps not too bad if one can push through the verbal underbrush.8 Others, like the 1942 amendment following the Enright decision, are baffling both before and after study. Or a provision, such as § 23(a) (2), inserted to overcome the Higgins decision," may induce a deceptive impression of simplicity by using a few words to say a great deal. Still others dispose of their problems [*479] by directing the Commissioner to produce order out of chaos. A few, such as § 22(a), which enables the courts to scale with ease the wall supposedly standing between legislation and interpretation, fall within the "sleeper " category.

 I offer only part of one footnote from the above quote – footnote 7.

   n7 Some parts of the Code, such as §§ 201-207, dealing with the taxation of insurance companies, require experts who are particularly expert. * * * *

 Back with DOJ Tax in both Appellate and Trial Sections, I handled life insurance company cases and they are indeed complex, at least some of them. But once you learn the concepts of life insurance, you can then work through the tax provisions. And, following through on the quote, I guess I became some kind of expert who was particularly expert.

Interesting Turns of Phrases

Here is the better article, both in substantive content and the author’s ability to turn a phrase. Alfred Long Scanlan, Judicial Review Under the Administrative Procedure Act - In Which Judicial Offspring Receive a Congressional Confirmation, 23 Notre Dame L. Rev. 501 (1948). here. The gravamen of the article is APA § 706 (the positive law codified section in 5 U.S.C. of original APA § 10(e)) permits deference to agency interpretations. A growing number of judges and scholars, still a minority (and mostly very conservative or libertarian in political persuasion) do not agree. The Supreme Court has taken a case, Loper Bright Enterprises v. Raimondo (SEC) (Dkt 22-451), here, where, in the October 2023 term, the Court will consider the following question:

  2. Whether the Court should overrule Chevron or, at least clarify that statutory silence concerning controversial powers expressly but narrowly granted elsewhere in the statute does not constitute an ambiguity requiring deference to the agency.

 Just a few examples of this Professor Scanlan's ability to write.

 1. One of favorites in the article discusses one of the § 10(b), titled Form of Action and Venue as follows: “Again one is encountered by a farrago of opaque statutory gibberish which merely tells us what we knew all the time.”

Farrago means a confused mixture : HODGEPODGE, per Merriam Webster’s online dictionary.

2. Another example: “Indeed, Section 10(c) reads like a product of a semantic Alice-in-Wonderland world populated by legislative draftsmen and German philosophers. What does this unintelligible hodgepodge mean?”

3. The author also cited another article using the word “Hotchpotch.” Shine, Administrative Procedure Act: Judicial Review "Hotchpotch"? 36 GEO. L. J. 16 (1947). That was a new word for me but I inferred it is related to hodgepodge. Merriam Webster defines it thusly with some etymology:

Hodgepodge is an alteration of hotchpotch, which once referred to a thick soup of barley, peas, and other vegetables, and sometimes includes meat. Hotchpotch is itself an alteration of another word, hotchpot, derived from Old French words meaning "to shake" (hochier) and "soup" (potage).

4.  The author then offers this

The purpose of this article will be to demonstrate through a provision by provision analysis of Section 10, that the Act did not change the existing law of judicial review, either by increasing the availability of judicial remedy, or by widening the scope of judicial review. The Act undoubtedly * * * * will not upset the rubric of judicial review which the federal judiciary has fashioned piecemeal, and from which it has no intention of deviating, even though its homemade precepts also now have been expressed; however opaquely, in statutory flapdoodle.*

I got the sense of flapdoodle from reading the sentence, but thought it best to nail the meaning with a dictionary search. Flapdoodle means “nonsense,” per Merriam Webster.

See what fun one can have when researching the APA?

Regulations Interpreting Pre-1996 Code Provisions; Fixing Farhy (5/11/23; 5/12/23)

In Farhy v. Commissioner, 160 T.C. No. 6 (4/3/23), TN here and GS here, the Tax Court held that the Code did not give the IRS authority to assess § 6038(b)(1) or (2) penalties, here. Specifically, the Tax Court held that § 6201(a) did not authorize these penalties. I posted some concerns about the correctness of Farhy in a blog. Tax Court Holds that IRS Has No Authority to Assess § 6038(b) Penalties for Form 5471 Delinquencies (Federal Tax Procedure Blog 4/3/23; 4/23/23), here. Is there some possible self-help fix the IRS could use to pre-empt the Tax Court’s Farhy decision?

An interpretive regulation could fix the problem for the IRS. I noted such a fix for the Eleventh Circuit’s opinion in Hewitt v. Commissioner, 21 F.4th 1336 (11th Cir. 2021),  11^th Cir. here and GS here holding an interpretive regulation from the 1980s procedurally invalid for the foot-fault of failing to respond in the regulation to a comment which the Court second-guessed to be material to the rulemaking enterprise. The fix is for Treasury to adopt a replacement interpretive regulation and make it retroactive to the effective date of the regulation or retroactive to some point in between that would pick up all the syndicated shelters currently in the pipeline. Regulations Interpreting Pre-1996 Code Provisions; Fixing Hewitt (Federal Tax Procedure Blog 1/6/22; 5/12/23), here. That proposed fix was anchored in the pre-1996 § 7805(a), which generally unquestionably allowed retroactivity for interpretive regulations and that authority remained for pre-1996 Code provisions.

The same fix can work for § 6201(a). The relevant statutory language is:

The Secretary is authorized and required to make the inquiries, determinations, and assessments of all taxes (including interest, additional amounts, additions to the tax, and assessable penalties) imposed by this title.

That text’s "including" clause should be sufficiently capacious to be read as including provisions not specifically enumerated. § 7701(c) (“The terms ‘includes’ and ‘including’ when used in a definition contained in this title shall not be deemed to exclude other things otherwise within the meaning of the term defined.”) That avoids a dumb result -- Congress imposes a penalty treated generally as a tax without authority to assess which is just a formal recording of a liability Congress clearly meant to impose.

DC Circuit Denies Petition for Rehearing in Case Involving the Best Interpretation, Meaning no Deference (5/9/23)

The D.C. Circuit denied the petition for rehearing en banc in Guedes v. ATF, 45 F.4th 306 (D.C. Cir. 8/9/22), DCCir here and GS here, pet. reh. den. ___ F4th ___ (D.C. Cir. 5/2/23), DCCir here and GS here. In the panel decision (45 F.4^th 306), the question was “whether the Bureau [ATF] had the statutory authority to interpret ‘machine gun’ to include bump stocks;” the Court’s answer was: “Employing the traditional tools of statutory interpretation, we find that the disputed rule is consistent with the best interpretation of “machine gun” under the governing statutes.” In other words, the panel appears to have resolved the case at Chevron Step One where there is no deference, not even getting to Step Two (although it could have potentially been resolved at Step Two by applying the agency best interpretation, where there is also no deference).

On the petition for rehearing en banc, the Court denied the petition without explanation by the full panel. Judge Wilkins wrote an opinion, joined by Judge Millett, concurring in denial of the petition. Judges Henderson and Walker wrote separate dissenting opinions. Judge Henderson’s opinion referred to her concurring in part and dissenting in part in the panel opinion. Judge Walker wrote a political screed with ample conservative/libertarian rhetoric but without, in my mind, serious consideration of how the country should interpret laws where the language of the statute, whatever it's original meaning, if sufficiently copious to cover the situation within the purpose of the statute. (There are huge debates about all of this, but I use examples in two contexts: (1) When the Declaration of Independence declared that all men are created equal, are or should we be locked into meaning of free white men with property?; or (2) when the Bible says eye for an eye, are we now locked into that concept as justice?)

Looking to a larger issue not directly addressed by the opinions concurring and dissenting from denial of the petition, I have addressed the key point that a best interpretation of statutory text is not in need of deference. Of course, if that best interpretation is determined at Chevron Step One, the interpretation is applied because there is no ambiguity in the statute that could permit deference, required to proceed to Step Two. Further, if that best interpretation is the agency interpretation determined at Step Two when competing interpretation(s) are considered, the agency interpretation is the best interpretation and not subject to real deference. Only where, at Step Two, the agency interpretation is the less persuasive interpretation to another interpretation is there any possibility of deference and then only when the Court applies the agency interpretation even though it thinks there is a better interpretation.

So, to put this in the expanded Chevron Steps where there is no deference to agency interpretations:

Deference--Real Deference--To Agency Less Persuasive Interpretations and APA Review of Agency Discretion (5/4/23)

Yesterday, I spent about 5 hours going through The Papers of Professor Carl McFarland at the UVA Law School Special Collections, here. Professor McFarland was a major player in shaping the Administrative Procedure Act (“APA”), enacted in 1946. What I hoped to find in the long, very long legislative and related history of the APA about (i) the consideration of deference and (ii) the distinction between legislative rules and interpretive rules (called interpretative) in the APA. I found nothing directly addressing those issues in Carl McFarland’s papers, but I did get have an insight from those materials that may help in the deference analysis. I will post that insight below. (As an aside, while at UVA law in 1966 or 1967, I played the role of Professor McFarland in the law school’s annual Libel Show roasting professors.)

While at the UVA Law Library, I recalled that some law professors uploaded to HeinOnline extensive history (statutory, legislative, and otherwise) of the APA. That collection is The Bremer-Kovacs Collection: Historic Documents Related to the Administrative Procedure Act of 1946 (HeinOnline), here. That collection requires a subscription to HeinOnLine, but it can be accessed at many law schools. This is an exhaustive collection; let me repeat that, exhaustive). For discussion of this collection, see Emily S. Bremer and Kathryn E. Kovacs, Editors, Introduction to The Bremer-Kovacs Collection: Historic Documents Related to the Administrative Procedure Act of 1946 (HeinOnline 2021), 106 Minnesota Law Review Headnotes 218 (2022), here. Yesterday, while at the UVA Law Library, I accessed a lot of that history and downloaded key documents in pdf format that I will review for the topics I mentioned in the opening paragraph.

Now to the insight. The insight is that it is clear from the legislative history and the APA itself, that the APA does not affect an agency’s exercise of discretion within the scope of the discretion. APA § 706(2) does permit review for abuse of discretion. But within the scope of discretion, there is no court review.

Relating discretion to deference, as I have noted many times, when the agency reasonable interpretation is better than other reasonable interpretations in the zone of the ambiguity in the statute, a court applying the agency interpretation is not deferring to a less persuasive agency interpretation. Only when a court determines the better interpretation within the ambiguity and nevertheless applies a lesser agency interpretation does it actually defer. In the latter case, real deference (both Chevron and pre-Chevron deference during the long history of deference) may be said to create a zone of deference (or discretion) on a spectrum from reasonable (real deference at Chevron Step Two) to unreasonable (no deference at Chevron Step Two). (Actually, that may be better conceptualized as a binary choice of agency reasonable but not the most persuasive (real deference) and unreasonable (no deference). Unreasonable may be equated to abuse of discretion in the words of § 706(2).

That is the insight I wanted to share. I will now get into a more technical discussion of key statutory and legislative history from the original APA as enacted to current § 706(2). I suspect most readers will not be interested in this, but here it is.