Sunday, July 7, 2019

Even More on Skidmore (Including Equipoise as to Interpretation)(7/7/19)

I have discussed so-called Skidmore deference on several occasions on this Federal Tax Procedure Blog.  I list the principal discussions at the end of this blog.  As traditionally formulated, Skidmore tells a court that an agency interpretation of law not entitled to Chevron deference can prevail if the interpretation is persuasive.  In Chevron parlance, Skidmore would involve Chevron-like steps as follows:  Step One would require that that the statutory text be ambiguous within the scope of the agency interpretation.  That would mean that the agency interpretation must be reasonable within the scope of the ambiguity but there must be other reasonable interpretations (otherwise the statutory text would not be ambiguous).  Then at Step Two, the agency interpretation of the ambiguous statutory text would apply if it is "persuasive."  But, if the interpretation is persuasive, then no deference is needed to apply it over any other reasonable interpretation that is not persuasive.  For this reason, many believe that calling Skidmore a deference concept is an oxymoron.  (See the quote from a recent article at the end of this blog.)

Now, this model of competing reasonable interpretations does raise an interesting issue.  In the fact-finding model, where there are competing interpretations of the facts and none prevail over the others, the fact-finder is said to be in a state of equipoise.  In the state of equipoise, under the preponderance of the evidence standard (more likely than not), the party bearing the burden of persuasion loses.  Of course, most observers of triers of fact (juries or judges) feel that the state of equipoise is rare, so that the assignment of the burden of persuasion is rarely outcome determinative.  But, obviously, assigning a winner or loser based on equipoise is outcome determinative when there is a state of equipoise, however rare.

The question I ask is whether the state of equipoise is a useful model in the deference context.  Let's assume that the court determines that an agency interpretation is reasonable but is at least one other reasonable interpretation and that none of the interpretations are more "persuasive" than the other.  This would mean that the court is in a state of equipoise as to the most persuasive interpretation.  Of course, if the agency made that interpretive choice in a Chevron-entitled regulation, Chevron would compel that the agency interpretation prevail.  But assume that the agency adopts the interpretation of the ambiguous statutory text in subregulatory guidance not entitled to Chevron deference.

What happens?

Well, if, after applying all available tools of statutory interpretation, the court really is in equipoise as to the most persuasive interpretation, I suppose the court could use the time-honored tie-breaker--flip a coin or some other arbitrary factor to reach a decision.  Or alternatively, the Court could default in equipoise to the reasonable agency interpretation.  I have not seen any court articulate such a default tie-breaker rule, however. Perhaps there has just been no need to default to such a tie-breaker because, like the fact-finding analog, equipoise is rare.

Justice Gorsuch asserts such positions of equipoise in interpretation are rare, perhaps nonexistent.  A good judge, he asserts, applying available interpretive tools should be able to determine that one interpretation is more persuasive than others, without a condition of equipoise between or among the interpretations.  In Kisor v. Willkie, 588 U.S. ___, 139 S.Ct. 2400 (2019) [Sup Ct Slip Op here; Google Scholar with S.Ct. pagination here], Justice Gorsuch in concurring in the judgment (but not accepting the plurality analysis) addressed equipoise as to a regulations interpretation as a basis for Auer deference, saying (Slip Op. 9-10 and 139 S.Ct., at pp. 2429-30, one footnote omitted):
To be sure, JUSTICE KAGAN paints a very different picture of Auer, asking us to imagine it riding to the rescue only in cases where the scales of justice are evenly balanced between two equally persuasive readings. But that's a fantasy: "If nature knows of such equipoise in legal arguments, the courts at least do not." n31 In the real world the judge uses his traditional interpretive toolkit, full of canons and tie-breaking rules, to reach a decision about the best and fairest reading of the law. Of course, there are close cases and reasonable judges will sometimes disagree. But every day, in courts throughout this country, judges manage with these traditional tools to reach conclusions about the meaning of statutes, rules of procedure, contracts, and the Constitution. Yet when it comes to interpreting federal regulations, Auer displaces this process and requires judges instead to treat the agency's interpretation as controlling even when it is "not . . . the best one."
   n31 Scalia, Judicial Deference to Administrative Interpretations of Law, 1989 Duke L. J. 511, 520. 
I think the following from Justice Scalia's remarks captured in the article (a must read in this area, here) gives a fuller description of his meaning (521):
What does it take to satisfy the first step of Chevron-that is, when is a statute ambiguous? Chevron becomes virtually meaningless, it seems to me, if ambiguity exists only when the arguments for and against the various possible interpretations are in absolute equipoise. If nature knows of such equipoise in legal arguments, the courts at least do not. The judicial task, every day, consists of finding the right answer, no matter how closely balanced the question may seem to be. In appellate opinions, there is no such thing as a tie. If the judicial mentality that is developed by such a system were set to answering the question, "When are the arguments for and against a particular statutory interpretation in equipoise?," I am certain that the response would be "almost never." If Chevron is to have any meaning, then, congressional intent must be regarded as "ambiguous" not just when no interpretation is even marginally better than any other, but rather when two or more reasonable, though not necessarily equally valid, interpretations exist. 
Justice Scalia, of course, was not one who commonly encountered doubts or ambiguities in his reading of text (in the context of Chevron deference, statutory texts, the context of his article).  As he said in the article, textualist judges who know (or, as I see it, think they know) what text means are much less likely to find the type of ambiguity that gets past Chevron Step One.  While he was a proponent of Chevron, he was constrained in his application of Chevron because he found plain meaning where others might perceive ambiguity (or, as to the proper interpretation, equipoise as to the most persuasive meaning).

It is not clear to me exactly which part of Justice Kagan's opinion (presumably the plurality part) Justice Gorsuch tilts against.  I do not read Justice Kagan as limiting her Auer analysis to states of equipoise as to the interpretation of a regulation.  As I read her opinion, she is talking about choices among reasonable interpretations, not just reasonable equally persuasive interpretations which would be choices in a state of equipoise.  To state that another way, I think her opinion would embrace Auer deference for a reasonable agency interpretation of a regulation even if the court thinks there is a more persuasive reasonable interpretation.  So viewed, Auer would function like Chevron deference so that it could apply to have an agency interpretation apply over a court's determination of a more reasonable interpretation.  But, for purposes of the present discussion, I think the key takeaway from Justice Gorsuch's analysis is that, at least in his mind (and apparently Scalia's as well), states of equipoise in law-finding are extremely rare, if they exist at all.  Cf. Adrian Vermeule, The Votes of Other Judges, 105 Georgetown L. J. 159, 172-173 (2016) (noting with respect to treating the rule of lenity "as a mere tiebreaker, to be invoked only if all other interpretive," that courts "rarely are in equipoise.")

The trial fact-finding analog of equipoise is also rare, but I think most authorities say that it exists; and I wonder why Justice Scalia says so confidently that it does not exist in law-finding where there could certainly be some tool like the burden of persuasion standard that would resolve the case better than a coin-flip or some other arbitrary basis when and if equipoise exists.

I should note that one author has mentioned Chevron as a possible tie-breaking canon for equally valid interpretations but has rejected that limited function for Chevron.  Nicholas R. Bednar, The Clear-Statement Chevron Canon, 66 DePaul L. Rev. 819, 868 (2017) ("A tiebreaking Chevron ignores the fact that Chevron is a highly deferential standard," then quoting Justice Scalia's 1989 Duke Law Journal article); see also Kristin E. Hickman, To Repudiate or Merely Curtail? Justice Gorsuch and Chevron Deference, 70 Ala. L. Rev. 733, 745 (2019) (also quoting Justice Scalia's article).

In my meanderings in the Chevron area, I have found other contexts where a fact-finding state of equipoise concept might (or might not) be useful.  Keep in mind that, in a sense, finding facts and finding law (finding interpretations of law) are analogous exercises.
Consider Chevron Step One, where a court determines ambiguity which is the context Justice Scalia address in his article. Justice Scalia rejects the notion of equipoise in statutory interpretation.

Professor Sunstein posits that the Chevron Step one determination of ambiguity might require the following:  (i) if, after using the tools of statutory construction, the interpreter is in a state of equipoise as to the meaning of the word; (ii) if the interpreter believes there are “objectively reasonable arguments both ways;” and (iii)  if the interpreter cannot determine with “a fair degree of confidence (say 65%) that one interpretation is best. Sunstein, Cass R., Chevron As Law 12-13 (January 1, 2019). Georgetown Law Journal, Forthcoming. Available at SSRN: For a similar analysis, although not addressing the state of equipoise, see Brett M. Kavanaugh, Book Review: Fixing Statutory Interpretation, 119 Harv. L. Rev. 2118, 2136-2137 (2016).  A theoretical state of equipoise would be 50-50, with persuasion at the 49% or 51% level then determining the outcome.  But recognizing that probability analysis where the assessment of probability is 49% or 51% is quite uncertain, perhaps the effect of Sunstein's third category is an equipoise-type analysis, where anything within the range of even 35% to 65% might be sufficiently uncertain as to be a state of practical equipoise or uncertainty as to the most persuasive interpretation.

Another situation where a state of equipoise analysis might be applied is at Chevron Step Two where, depending upon formulation, the agency interpretation prevails if reasonable or if not unreasonable.  Does the agency have to affirmatively persuade the court that its interpretation is reasonable or, alternatively, does the party opposing the agency interpretation have to prove that the interpretation is unreasonable?  (This would be analogous to the assignment of a burden of proof, with a tie-breaker if in equipoise.)  What happens if the court is in equipoise as to whether the agency interpretation is reasonable or unreasonable?  (I think that, as with fact-finding, there is some conceptual space of indeterminancy that might be conceptualized as equipoise in the middle of the spectrum.)  Hasn't that question already been answered at Chevron Step One where, I think, the question is whether the agency interpretation is reasonable within the zone of ambiguity in the statutory text?  In  other words, only a reasonable agency interpretation should get beyond Chevron Step One and then should prevail under Chevron Step Two because the court must defer to reasonable agency interpretations even when there are competing more reasonable interpretations.

Oh well.

What Does Skidmore Mean, Really?

I include this in a footnote in recent article:
For anecdotal evidence of where some current Supreme Court justices are on Skidmore, in oral argument in Kisor v. Willkie (Sup. Ct. 18-15), Justice Kavanaugh said: “Skidmore deference is really no deference because it --it applies only when it's persuasive, which is true of any argument.” (Transcript of Oral Argument dated 3/27/19, pp. 15-16.)  Justice Roberts then chimed in: “Skidmore deference, which I find hard to get my hands around too --I think I know more what a moiety is than I know what Skidmore deference is.”  (Transcript pp. 26-27.)  The reference to moiety was to an earlier Justice Breyer hyperbolic comment about FDA expertise in guidance as follows: “I mean, they give an example, one of them, where the Court deferred to the understanding of the FDA that a particular compound should be treated as a single new active moiety, which consists of a previously approved moiety, joined by a non-ester covalent bond to a lysine group. Do you know how much I know about that?”  (Transcript p. 11.)
Justice Breyer's comment on moiety found its way into the Kisor plurality opinion (Justice Kagan with Justices Ginsburg, Breyer and Sotomayor joining).  Kisor v. Willkie, 588 U.S. ___, ___ S.Ct. ___, 2019 U.S. LEXIS 4397 (6/26/2019) where Justice Kagan gives examples ambiguous regulations  in need further interpretation within the scope of an agency's expertise (and not within the scope of a court's expertise) and includes the following:
An FDA regulation gives pharmaceutical companies exclusive rights to drug products if they contain "no active moiety that has been approved by FDA in any other" new drug application. 21 CFR §314.108(a) (2010). Has a company created a new "active moiety" by joining a previously approved moiety to lysine through a non-ester covalent bond? See Actavis Elizabeth LLC v. FDA, 625 F. 3d 760, 762–763 (CADC 2010); Tr. of Oral Arg. 12, 35. n1
   n1 In case you're wondering, the regulatory definition of active moiety is "[t]he molecule or ion, excluding those appended portions of the molecule that cause the drug to be an ester, salt (including a salt with hydrogen or coordination bonds), or the noncovalent derivative (such as a complex, chelate, or clathrate) of the molecule, responsible for the physiological or pharmacological action of the drug substance." 21 CFR §314.3(b) (2018).
Other Federal Tax Procedure Skidmore Discussions

Readers can find all discussions of Skidmore on this blog by using the search feature which generates result ranked by relevance (the default ranking) or by date in reverse chronological order.  The key blogs on Skidmore are:
  • More on Skidmore (Federal Tax Procedure Blog 10/19/17), here
  • Other Views of Skidmore "Deference" (Federal Tax Procedure Blog 10/12/17; 10/15/17), here.
And I provide more on the equipoise analysis and relationship trial fact-finding and court law-finding:
  • More on Fact Finding Tools and Statutory Interpretation through Chevron Deference (Federal Tax Procedure Blog 1/21/19; 1/25/19), here.

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