E.I. DuPont de Nemours & Co. ( 2018 )

Cite as: 585 U. S. ____ (2018) 1
Statement of GORSUCH, J.
SUPREME COURT OF THE UNITED STATES
E. I. DU PONT DE NEMOURS & CO., ET AL. v.
BOBBI-JO SMILEY, ET AL.
ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED
STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
No. 16–1189. Decided June 28, 2018
The motion of the Cato Institute for leave to file a brief
as amicus curiae is granted. The motion of Pacific Legal
Foundation, et al. for leave to file a brief as amici curiae is
granted. The petition for a writ of certiorari is denied.
JUSTICE ALITO took no part in the consideration or deci-
sion of these motions and this petition.
Statement of JUSTICE GORSUCH, with whom THE CHIEF
JUSTICE and JUSTICE THOMAS join, respecting the denial
of certiorari.
Can an agency advance an interpretation of a statute for
the first time in litigation and then demand deference for
its view? There is a well-defined circuit split on the ques-
tion. The Court of Appeals in this case said yes, joining
several other circuits who share that view. 839 F. 3d 325,
329, 333–334 (CA3 2016) (case below); SEC v. Rosenthal,
650 F. 3d 156, 160 (CA2 2011); TVA v. Whitman, 336 F. 3d
1236, 1250 (CA11 2003); Dania Beach v. FAA, 628 F. 3d
581, 586–587 (CADC 2010). But “[t]wo circuits, the Sixth
and Ninth, expressly deny Skidmore deference to agency
litigation interpretations, and the Seventh does so implic-
itly.” Hubbard, Comment, Deference to Agency Statutory
Interpretations First Advanced in Litigation? The Chevron
Two-Step and the Skidmore Shuffle, 80 U. Chi. L. Rev.
447, 462 (2013) (footnotes omitted); Smith v. Aegon Com-
panies Pension Plan, 769 F. 3d 922, 929 (CA6 2014); Alaska
v. Federal Subsistence Bd., 544 F. 3d 1089, 1095 (CA9
2008); In re UAL Corp. (Pilots’ Pension Plan Termination),
2 E. I. DU PONT DE NEMOURS & CO. v. SMILEY
Statement of GORSUCH, J.
468 F. 3d 444, 449–450 (CA7 2006).
The issue surely qualifies as an important one. After
all, Skidmore deference only makes a difference when the
court would not otherwise reach the same interpretation
as the agency. And a number of scholars and amici have
raised thoughtful questions about the propriety of afford-
ing that kind of deference to agency litigation positions.
For example, how are people to know if their conduct is
permissible when they act if the agency will only tell them
later during litigation? Don’t serious equal protection
concerns arise when an agency advances an interpretation
only in litigation with full view of who would benefit and
who would be harmed? Might the practice undermine the
Administrative Procedure Act’s structure by incentivizing
agencies to regulate by amicus brief, rather than by rule?
Should we be concerned that some agencies (including the
one before us) have apparently become particularly ag-
gressive in “attempt[ing] to mold statutory interpretation
and establish policy by filing ‘friend of the court’ briefs in
private litigation”? Eisenberg, Regulation by Amicus: The
Department of Labor’s Policy Making in the Courts, 65
Fla. L. Rev. 1223, 1223 (2013); see also, e.g., Hickman &
Krueger, In Search of the Modern Skidmore Standard, 107
Colum. L. Rev. 1235, 1303 (2007); Pierce, Democratizing
the Administrative State, 48 Wm. & Mary L. Rev. 559,
606–607 (2006); Merrill, Judicial Deference to Executive
Precedent, 101 Yale L. J. 969, 1010–1011 (1992).
Respectfully, I believe this circuit split and these ques-
tions warrant this Court’s attention. If not in this case
then, hopefully, soon.