Other Views of Skidmore "Deference" (10/12/17; 10/15/17)

In my Federal Tax Procedure book (both editions), I say (footnotes omitted):

Before introducing my summary of the state of the law on IRS interpretations other than regulations, I first return to Skidmore deference which is a weaker form of interpretive deference (weaker in comparison to Chevron deference).  Skidmore v. Swift & Co., 323 U.S. 134 (1944).  Although formulations of Skidmore deference may vary, I think it is fair to say that agency interpretations not entitled to Chevron deference are entitled to some deference to the extent that they are persuasive.  Skidmore deference seems to stand somewhere between Chevron deference and no deference.  If the agency interpretation is intrinsically persuasive (including touchstones of thoroughness and consistency), does it need any deference in order to carry the day?  Presuming the Court means something in paying homage to Skidmore deference, perhaps it means that a court must give slight tilt in favor of an agency interpretation when it does not rise to the level required for Chevron deference.  So, in a case in which the court will not apply Chevron deference, it might still apply Skidmore deference.  (This, of course, raises the question I cannot answer here as to how much conceptual space there is for any given agency interpretation between Chevron deference and Skidmore deference; are there really many cases that can pass muster under Chevron but would not pass muster under Skidmore?)

I just read -- well, given its length, skimmed -- the en banc opinions in Aqua Products, Inc. v. Matal, ___ F.3d ___, 2017 U.S. App. LEXIS 19293 (Fed. Cir. 2017), here, a patent case (which may be even more onerous than a tax case).  There is a lot of discussion in the various opinions about Chevron and its progeny, but only one discussion about Skidmore.  Judge Moore says in his dissent (p. 11 of his dissent in fn. 8):

   n8 An agency interpretation not entitled to Chevron deference may nonetheless be entitled to Skidmore deference which the Supreme Court describes as follows: "Such a ruling may surely claim the merit of its writer's thoroughness, logic, and expertness, its fit with prior interpretations, and any other sources of weight." Mead, 533 U.S. at 235. Skidmore deference is a somewhat ethereal concept as it amounts to deference which the Supreme Court explains is proportional to the ruling's "power to persuade." Id. This feels a lot like saying I defer to your interpretation because I have determined that it is correct.

Still another conceptualization of Skidmore is present in Secretary U.S. Dept. of Labor v. American Future Systems, Inc., ___ F.3d ___, 2017 U.S. App. LEXIS 19991 (3rd Cir. 10/13/17), here (at slip op. 10-12, footnotes omitted):

An agency's interpretation of a statute "may merit some deference whatever its form, given the specialized experience and broader investigations and information available to the agency . . ., and given the value of uniformity in its administrative and judicial understandings of what a national law requires." The weight afforded the agency's interpretation "will depend upon the thoroughness evident in its consideration, the validity of its reasoning, its consistency with earlier and later pronouncements, and all those factors which give it power to persuade, if lacking power to control." 

We have "adopted Mead's conceptualization of the Skidmore framework as a 'sliding-scale' test in which the level of weight afforded to an interpretation varies depending on [the] analysis of the enumerated factors." Those factors include whether the interpretation was: (1) issued contemporaneously with the statute; (2) consistent with other agency pronouncements; (3) reasonable given the language and purposes of the statute; (4) within the expertise of the relevant agency; and (5) part of a longstanding and unchanging policy. 

Applying these factors, we conclude that WHD's interpretation, as set forth in section 785.18, should be afforded the highest level of deference under Skidmore.  

 JAT Note: So, under this view of Skidmore, the Court applies an amorphous sliding scale by consideration of certain of the types of factors that have historically guided courts in "deferring" -- if you will -- to agency interpretations.  The Court does not tell the  relative importance of each of the factors to Skidmore deference (how they are to be weighted against each other) or how many of the factors need to be present for Skidmore deference.  The Third Circuit then applies the factors in the text of the opinion after the part quoted.  But, I am not sure at the end of the day whether Skidmore deference is not more akin to Potter Stewart's comment that, while defining it may be difficult, "I know it when I see it."