In our administrative scheme, courts generally will defer to an agency's interpretation of a statute if (1) "Congress has not directly addressed the precise question at issue" and (2) the agency's construction "is based on a permissible construction of the statute." Chevron, U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 843, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). Deference under Chevron is appropriate if it is "apparent from the agency's generally conferred authority and other statutory circumstances that Congress would expect the agency to be able to speak with the force of law when it addresses ambiguity in the statute or fills a space in the enacted law." Mead, 533 U.S. at 229, 121 S.Ct. 2164. An agency's position that does not qualify for Chevron treatment nonetheless deserves some deference to the extent that it has the "power to persuade" based on, inter alia, the "thoroughness evident in [the agency's] consideration, the validity of its reasoning, [and] its consistency with earlier and later pronouncements." Skidmore, 323 U.S. at 140, 65 S.Ct. 161; see also Mead, 533 U.S. at 234-35, 121 S.Ct. 2164. Nielsen v. Aecom Technology Corp., 762 F. 3d 214 (2nd Cir. 2014).
The[re] is a crucial distinction in administrative law. That distinction is between the proper deference owed to an agency's interpretation of a statute and the proper deference owed to an agency's interpretation of its own regulations. The principles of Chevron deference apply to the former. See, e.g., Gonzales v. Oregon, 546 U.S. 243, 255-56, 126 S.Ct. 904, 163 L.Ed.2d 748 (2006), discussing Chevron U.S.A. Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). By contrast, the principles of Auer deference apply to the latter. See, e.g., id., discussing Auer v. Robbins, 519 U.S. 452, 117 S.Ct. 905, 137 L.Ed.2d 79 (1997); see also Price v. Stevedoring Servs. of Am., Inc., 697 F.3d 820, 828-29 (9th Cir.2012) (explaining that Auer stands for the "principle that agencies' interpretations of their own regulations are entitled to deference, even when their interpretation of statutes is not," whereas Chevron deference applies to an agency's statutory interpretations). Go v. Holder, 744 F. 3d 604 (9th Cir. 2014).
"Agencies are entitled to deference to their interpretation of their own regulations." Native Ecosystems Council v. U.S. Forest Serv., 418 F.3d 953, 960 (9th Cir. 2005). Under our precedents, "where an agency interprets its own regulation, even if through an informal process, its interpretation of an ambiguous regulation is controlling under Auer unless 'plainly erroneous or inconsistent with the regulation.'" Bassiri v. Xerox Corp., 463 F.3d 927, 930 (9th Cir.2006), citing Auer, 519 U.S. at 461, 117 S.Ct. 905 (emphases added). Go v. Holder, ibid.
THIS CASEBOOK contains a selection of 31 U. S. Court of Appeals decisions that analyze and interpret the Chevron doctrine. The selection of decisions spans from January 2013 to the date of publication.