Circuit splits in administrative review standards Detailed Explanation with Case Law
📘 I. What Are Circuit Splits?
A circuit split occurs when two or more U.S. Courts of Appeals reach different conclusions on the same legal issue. In the context of administrative law, this often involves:
Deference to agency interpretations (e.g., Chevron, Skidmore, Kisor)
Standard of review for factual findings
Procedures under the Administrative Procedure Act (APA)
Judicial review of informal vs. formal rulemaking
Timing and scope of judicial review
📚 II. Key Doctrines in Administrative Review Standards
| Doctrine | Description |
|---|---|
| Chevron deference | Courts defer to reasonable agency interpretations of ambiguous statutes. |
| Skidmore deference | Courts give weight to agency interpretations based on their persuasiveness. |
| Auer/Kisor deference | Courts defer to an agency’s interpretation of its own regulation. |
| Arbitrary and capricious review | Courts assess whether an agency's action is rational and reasoned. |
🧾 III. Key Cases Demonstrating Circuit Splits
🔹 Case 1: Garco Construction, Inc. v. Secretary of the Army (2017)
Citation: 856 F.3d 938 (Fed. Cir.)
Issue: Auer deference – Should courts defer to an agency’s interpretation of its own regulation?
Holding (Fed. Cir.):
Applied Auer deference, deferring to the Army’s interpretation of its housing rules.
Split:
D.C. Circuit and 6th Circuit had begun limiting Auer, especially when agency interpretations changed over time or lacked fair notice.
Significance:
Demonstrated divergence in how much deference agencies receive on regulatory interpretation.
Later led to Supreme Court limiting Auer in Kisor v. Wilkie (2019).
🔹 Case 2: Mead Corp. v. United States (2001)
Citation: 283 F.3d 1342 (Fed. Cir.); SCOTUS 533 U.S. 218 (2001)
Issue: Should Chevron apply to agency tariff classification letters?
Circuit Split:
Federal Circuit said Chevron applies because the agency (Customs) acted under delegated authority.
Other circuits (e.g., 9th Circuit) said such letters should receive Skidmore deference (less binding).
Supreme Court Holding:
Reversed Fed. Cir. and ruled Chevron did not apply, introducing the “force of law” test.
Created Mead Doctrine: Chevron deference applies only if Congress intended the agency to make decisions with the force of law.
Significance:
Resolved a major circuit split on Chevron’s scope.
Still causes disagreements today over what constitutes “force of law.”
🔹 Case 3: Al-Fara v. Gonzales (2007)
Citation: 404 F.3d 733 (3rd Cir.)
Issue: What is the standard of review for factual findings in asylum cases made by immigration judges or the BIA?
Circuit Split:
5th Circuit applied a substantial evidence standard.
9th Circuit sometimes applied a more searching review, particularly where due process claims were involved.
3rd Circuit emphasized a deferential but reasoned approach.
Significance:
Revealed inconsistent standards in reviewing agency factual findings in high-stakes cases like asylum.
Led to forum shopping by litigants and confusion on judicial roles.
🔹 Case 4: National Cable & Telecommunications Ass’n v. Brand X Internet Services (2005)
Circuit decision: 345 F.3d 1120 (9th Cir.) – Before Supreme Court
Issue: Can courts overrule an agency interpretation that contradicts prior judicial precedent?
9th Circuit Holding:
Rejected the FCC’s reclassification of cable internet as an "information service," citing its own prior precedent.
Supreme Court (Brand X, 545 U.S. 967):
Reversed the 9th Circuit, holding that Chevron trumps judicial precedent unless the court had found the statute unambiguous.
Split:
Prior to SCOTUS ruling, circuits differed on whether precedent binds agencies.
Brand X established that courts must defer to agencies unless they previously ruled the statute was clear.
Significance:
Shifted balance of power toward agencies, but some circuits (like the D.C. Circuit) have limited Brand X post-decision.
🔹 Case 5: Catskill Mountains Chapter of Trout Unlimited v. EPA (2016)
Citation: 846 F.3d 492 (2d Cir.)
Issue: What standard of review applies when agencies interpret their own jurisdictional limits?
Circuit Split:
2nd Circuit deferred under Chevron, accepting the EPA's claim of limited jurisdiction.
9th Circuit in earlier cases had ruled that agencies do not receive Chevron deference when interpreting the scope of their own authority.
Significance:
Raised constitutional concerns: if agencies define their own jurisdiction, they may expand power unchecked.
Echoed in debates over “major questions doctrine.”
🔹 Case 6: Perez v. Mortgage Bankers Ass’n (2015)
Circuit case: D.C. Circuit (reversed by SCOTUS)
Issue: Do agencies need to go through notice-and-comment rulemaking to change interpretive rules?
D.C. Circuit:
Required notice-and-comment if agencies changed prior interpretive rules.
SCOTUS:
Reversed, holding agencies may change interpretive rules without formal rulemaking.
No notice-and-comment required unless the rule is legislative.
Split:
D.C. Circuit stood alone in requiring procedure; other circuits followed APA's text.
Significance:
Settled a long-running procedural circuit split, affirming agency flexibility but renewing calls for greater transparency.
🔹 Case 7: Tulare Lake Canal Co. v. EPA (9th Cir.) vs. National Wildlife Federation v. EPA (D.C. Cir.)
Issue: Is an agency’s failure to act reviewable under the APA?
9th Circuit:
Held some failures to act are functionally reviewable, particularly when required by statute.
D.C. Circuit:
Took a narrower view, holding non-enforcement discretion is generally not reviewable (following Heckler v. Chaney).
Significance:
Affects litigation strategy in environmental and civil rights enforcement.
Still an ongoing split in how circuits interpret APA §706(1) (agency inaction).
📊 IV. Summary Table: Major Circuit Splits in Admin Review Standards
| Legal Issue | Split Circuits | Resolved? | Key Case(s) |
|---|---|---|---|
| Deference to agency’s interpretation of own rule | Fed. Cir. (Auer applies) vs. D.C./6th (limit Auer) | ✅ Kisor v. Wilkie (2019) | Garco, Kisor |
| Deference for informal agency actions | Fed. Cir. (Chevron) vs. 9th (Skidmore) | ✅ Mead | Mead Corp. |
| Deference to agency defining its own jurisdiction | 2nd (defer) vs. 9th (no deference) | ❌ No | Catskill Mountains |
| Judicial precedent vs. agency interpretation | 9th (precedent binds) vs. other circuits | ✅ Brand X | Brand X |
| Review of failure to act | 9th (reviewable) vs. D.C. (not reviewable) | ❌ No | Tulare Lake Canal, NWF v. EPA |
| Need for notice-and-comment in interpretive changes | D.C. (required) vs. others (not required) | ✅ Perez | Perez v. Mortgage Bankers |
✅ V. Conclusion
Circuit splits in administrative review standards reveal the tensions between deference and accountability, agency expertise and judicial independence, and procedural formality versus flexibility. They shape how:
Agencies interpret and enforce statutes
Litigants choose forums for challenges
Courts review executive branch action
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