Kelli Ludlum, Research Fellow
Brigit Rollins, Staff Attorney
In 2024, the United Statues Supreme Court issued Loper Bright Enters. v. Raimondo, 603 U.S. 369 (2024). The ruling overturned the longstanding doctrine of Chevron deference, a legal principle that arose from the Supreme Court case Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984) and helped courts answer the question of when they should defer to agency interpretations of statutory law. The judicial branch, as the Supreme Court noted in the landmark 1803 opinion Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803), has the authority “to say what the law is” when resolving legal cases and controversies. However, it is not always clear when courts should defer to federal agency interpretations of the statutory laws that Congress has tasked them with implementing. The Chevron doctrine held that courts should defer to an agency’s reasonable interpretation of statutory language if that language is ambiguous. In overturning Chevron, the Loper Bright ruling states that courts may not “defer to an agency interpretation of the law simply because a statute is ambiguous.” Instead, courts should apply their own judgement to determine what the law says. To learn more about the Loper Bright ruling and its impact to agency deference, click here.
While Loper Bright definitively overturned Chevron, it did not overturn any other Supreme Court case addressing court deference to agency statutory interpretation. As lower courts begin to hear cases involving agency interpretations of law in a post-Chevron world, they are likely to look towards other Supreme Court cases addressing agency deference for guidance. One case that courts are likely to consider is Skidmore v. Swift & Co., 323 U.S. 134 (1944). Prior to the Court’s ruling in Chevron, the Skidmore decision was the controlling case on the matter of agency deference. The Loper Bright decision referenced Skidmore multiple times, indicating that the level of agency deference set in Skidmore may still be appropriate in at least some circumstances. This article is the first in a series that will examine various Supreme Court cases that discuss when and how courts should defer to agency expertise.
Background
In Skidmore v. Swift & Co., the Supreme Court was asked to consider what activities counted as “work” for purposes of the Fair Labor Standards Act of 1938 (FLSA). The FLSA mandated higher pay rates for unusually long working hours and was administered by an agency, the Wage and Hour Division, within the U.S. Department of Labor. In granting the agency power to investigate and seek injunctive relief against FLSA violations, Congress authorized the agency to learn about how the statute should be applied in various workplaces and to inform Congress and the regulated community of its findings.
Additionally, the FLSA created an office of Administrator of the Wage and Hour Division. 29 U.S.C. § 204. Congress directed the Administrator to investigate conditions in businesses that were subject to the FLSA and issue guidance documents to assist in compliance. 29 U.S.C. § 211. The FLSA also allowed the Administrator to publish documents interpreting the FLSA requirements, with examples of activities that occurred in the regulated industries. 29 U.S.C. § 208.
Significantly, Congress delegated no rulemaking or adjudicatory authority to the Administrator. Instead, ultimate fact-finding was directed to the judicial branch. The Administrator could pursue court injunctions to halt violations but could only request a business’s voluntary compliance without seeking a court order. 29 U.S.C. § 210. Courts were charged with determining FLSA violations and penalties.
The Skidmore plaintiffs were seven employees of a meat packing plant who received regular daytime pay to perform firefighting-related duties, including maintaining equipment and cleaning the fire hall. The employees were also required to spend three to four nights each week on-call at the plant. They were not required to perform specific duties during evening shifts but were required to be on premises ready to respond in case of fire. During this shift, they were paid only for their time spent responding to fire alarms.
The employees sued under the FLSA to receive overtime pay for the “wait time” when they were not actively engaged in emergency response but were nonetheless required to be at their place of employment. The Administrator of the Wage and Hour Division had issued a series of bulletins providing FLSA guidance and examples for determining whether wait time was compensable in particular circumstances. Rather than barring pay for inactive duty, the Administrator suggested that the treatment of wait time required a flexible solution and outlined standards to be considered. According to the administrative bulletin, compensability depended “upon the degree to which the employee is free to engage in personal activities during periods of idleness when he is subject to call and the number of consecutive hours that the employee is subject to call without being required to perform active work.”
It was unclear whether and how this agency guidance document, which did not carry the force of law, should be considered by courts during the employees’ overtime suit. The trial court refused to consider the agency’s recommendation for flexibility, finding that wait time did not constitute work for overtime pay and ruling against the Swift employees as a matter of law. The Fifth Circuit agreed with the lower court’s decision to ignore the agency guidance and affirmed the decision.
However, the Supreme Court decided the agency Administrator’s views were entitled to some deference due to the agency’s “body of experience and informed judgment.” Even though the guidance was not binding on the court’s decision, the agency’s interpretation reflected its “specialized experience” gained through “broader investigations and information.” According to the Court, this expertise could benefit judges who were less familiar with the intricacies of FLSA-regulated businesses and could help courts understand the context for the facts they were tasked with finding. The Court decision also recognized the value of uniformity in administrative and judicial understandings of how a federal statute should be interpreted.
In discussing the impact of the Administrator’s bulletin in Skidmore, the Supreme Court concluded that the agency’s Congressionally mandated work with the FLSA made its expertise useful to a court applying the FLSA in a workplace claim. The degree of the agency’s influence was determined by what came to be known as the Skidmore test: “the weight of [the agency’s] judgment in a particular case 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.” In other words, Skidmore established that when courts are determining how much deference to give an agency’s interpretation of a law that Congress has tasked it with implementing, the court should consider factors such as the agency’s reasoning and the thoroughness of its consideration to decide how much weight to give the agency’s interpretation. Importantly, Skidmore notes that courts may be persuaded by an agency’s statutory interpretation, even if such interpretations may not control how a court ultimately rules.
Skidmore’s Application
Skidmore established that courts “give a degree of weight” to an agency’s views. That weight is grounded in the agency’s expertise, which helps make its views on the correct reading of a statute persuasive. However, determining the degree of weight is neither a scientific nor mathematical exercise and courts have grappled with the appropriate measurement. Skidmore suggested that courts consider factors such as the agency’s thoroughness, logic, and consistency, when deciding when to defer to an agency’s statutory interpretation. Guidance on how to apply each of those factors has been expanded upon through case law.
Thoroughness
A well-reasoned analysis and detailed explanation of statutory authority may indicate thoroughness of consideration. In Young v. U.P.S., Inc., 575 U.S. 206 (2015), the Supreme Court declined deference to the agency because it did not explain the basis for its guidance. In S.E.C. v. Sloan, 436 U.S. 103 (1978), the Court found that the agency’s consideration was not thorough because it never addressed in any detail the statutory authorization under which it issued a series of suspension orders.
When a statute is first interpreted by an agency’s lawyers during litigation and that interpretation is not supported by prior regulations, rulings, or administrative practice, the agency receives no judicial deference. Reasoning that Congress delegates implementation to policymakers responsible for enforcing the statute, the Court gives no deference to an agency counsel’s interpretation of a statute when the agency itself has articulated no position on the question. In Bowen v. Georgetown Univ. Hosp., 488 U.S. 204 (1988), the Supreme Court refused to recognize a Medicare reimbursement cost-limit schedule from the Department of Health and Human Services, stating that it would be “entirely inappropriate” to defer to what amounted to an “agency’s convenient litigating position.”
Logic
The depth of the agency’s reasoning can demonstrate a logical interpretation. In Christensen, the Supreme Court found an agency letter lacking in necessary logic because it contained only a brief textual analysis of the statute being interpreted. In Sierra Club v. Trump, 929 F.3d 670 (9th Cir. 2019) the Ninth Circuit Court of Appeals concluded that an agency’s interpretation of an appropriations act to allow reprogramming of funds was unpersuasive because it was “entirely conclusory” and “fail[ed] to rest on the sort of expertise that might inspire deference.”
Consistency
An agency’s position is “entitled to considerably less deference” if it conflicts with the agency’s previous interpretation of a statutory provision. In General Electric Co., v. Gilbert, 429 U.S. 125 (1976) the Supreme Court declined to defer to an agency guideline that contradicted the agency’s position at an earlier date, closer to the statute’s enactment. Consistency with the agency’s goals and purpose may also be considered. In Kornman & Assocs., Inc. v. United States, 527 F.3d 443 (5th Cir. 2008) the Fifth Circuit Court of Appeals found IRS revenue rulings persuasive because they were consistent with the agency’s desire to prevent taxpayers from deducting non-economic losses and a contrary interpretation would lead to absurd results.
Comparing Skidmore and Chevron
As the Supreme Court developed other rules for judicial deference to agency interpretations, including Chevron, lower courts deliberated over which standard should apply. Chevron gave stronger judicial deference to agency interpretations but applied only when the agency was exercising delegated lawmaking authority, such as issuing regulations through notice-and-comment rulemaking or conducting formal adjudication. Courts continued to apply Skidmore deference to informal agency actions, such as agency guidance documents and memorandum which outline an agency’s interpretation of statutory law, but do not themselves carry the force of law. This differentiation can be traced back to the nonbinding nature of the Administrator’s guidance in the original Skidmore case.
Because Skidmore deference was comparatively weaker than Chevron deference, agency interpretations were less important determinants of statutory meaning when courts applied Skidmore. However, Skidmore offered practical utility from agencies’ expertise, broad investigative powers, and understanding of national issues. Skidmore also fulfilled a desire to create uniformity in administration. As a result, courts continued to reference Skidmore deference.
After Chevron, the first major application of Skidmore deference was in Christensen v. Harris County, 529 U.S. 576 (200). Like the original Skidmore case, Christensen involved nonbinding agency guidance on FLSA application. Harris County, TX, gave its employees compensatory time – paid time off as compensation for overtime work. The county required employees to use their paid time off within a specified timeframe or else forfeit the “comp” time. The county sought confirmation of their “use it or lose it” comp time policy from the Department of Labor (DOL). The DOL responded in an opinion letter, stating that employers could implement a “use it or lose it” requirement if they had a prior employee agreement to that effect. Harris County had no prior agreement, so county employees challenged the policy in court, relying in part on the DOL opinion letter.
The Supreme Court concluded that the DOL letter should be reviewed under the Skidmore test rather than the more deferential Chevron standard because Chevron applied only to formal adjudication or notice-and-comment rulemaking. Agency interpretations contained in certain formats that lack the force of law – such as an opinion letter, policy statement, agency manual, or enforcement guidelines – did not warrant the same level of deference. Instead, under Skidmore, such formats are “’entitled to respect’ . . . only to the extent that those interpretations have the ‘power to persuade.’” The Court applied Skidmore to find the agency’s interpretation unpersuasive and rejected the employees’ claim, upholding the county’s comp time policy.
One year after Christensen, the Court again applied Skidmore in United States v. Mead Corp., 533 U.S. 218 (2001). The issue in Mead was a tariff classification ruling by the United States Customs Service. The Customs Headquarters Office and all 46 port-of-entry Customs offices could issue “ruling letters” to provide guidance on application of the customs laws to specific items. The Mead Corporation imported certain day planners that Customs classified as “bound diaries” according to its ruling letters. The classification subjected Mead’s imports to a tariff, and the company challenged the Customs decision. In discussing how to evaluate the impact of the ruling letters that Customs relied upon for its classification, the Supreme Court settled on Skidmore for a more open-ended consideration where the degree of deference varies with the circumstances. Those circumstances included “the degree of the agency’s care, its consistency, formality, and relative expertness,” as well as the persuasiveness of the agency’s position. The Court remanded the case to the Federal Circuit to allow the ruling letters to be considered under Skidmore’s deference test.
Overall, courts tended to consider Chevron to grant a stronger level of agency deference that applied specifically to formal agency actions such as regulations passed through notice-and-comment rulemaking or formal adjudication. To apply Chevron, a court would determine whether the statutory language the agency’s regulation was interpreting was ambiguous. If so, then the court would defer to the agency. In contrast, Skidmore is considered a lower level of agency deference that applies to informal agency guidance documents such a bulletins, letters, or other memorandum that do not carry the full force of law. Unlike Chevron, which required courts to defer to the agency’s interpretation of ambiguous statutory language, Skidmore requires courts to weigh various factors to determine whether the agency’s interpretation should be persuasive on the court’s final decision.
Going Forward
The Supreme Court’s Loper Bright decision overturned the Chevron doctrine that was used for the past forty years to weigh judicial deference toward agencies when interpreting statutes. However, the Court specifically noted that Skidmore deference remains good law. As cases involving agency interpretation continue to occur, it is increasingly likely that courts will look to the Skidmore decision and later cases interpreting Skidmore when making their rulings.
While Skidmore gives agencies less deference than they received under Chevron, Skidmore allows the courts to consider an agency’s statutory interpretation. The weight given to an agency’s views under Skidmore is based on its experience and expertise demonstrated by a series of factors, including the agency’s thoroughness, logic, and consistency of interpretation. Decisions after Loper Bright suggest that judges still take note of agency experience even as they exercise independent judgment, an application that the Sixth Circuit described as “Skidmore respect” rather than deference.
To read the decision in Skidmore v. Swift & Co., click here.
For more information on administrative law from the National Agricultural Law Center, click here.