Searching over 5,500,000 cases.

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Alderete-Lopez v. Whitiker

United States District Court, D. New Mexico

December 5, 2018


          Santiago E. Juarez Attorney for the Petitioner

          John C. Anderson Tiffany L. Walters Attorneys for the Respondents


         THIS MATTER comes before the Court on the Petition for Writ of Habeas Corpus and Release from Detention Pursuant to 28 U.S.C. § 2241, filed November 29, 2018 (Doc. 1)(“Petition”). Petitioner Jose Alderete-Lopez, a Mexican national, currently is subject to electronic detention and is scheduled for removal from the United States of America on December 6, 2018. In the Petition, Alderete-Lopez requests the Court to: (i) “[i]ssue a Writ of Habeas Corpus requiring Respondents to release Petitioner”; (ii) “[i]ssue an injunction ordering Respondents to rescind the Final Administrative Removal Order”; (iii) expedite the “request” given Alderete-Lopez' “eminent removal”; and (iv) “[g]rant any other and further relief that this Court may deem fit and proper.” Petition at 7. The Court will treat a portion of Alderete-Lopez' Petition as a request for a Temporary Restraining Order (“TRO”). The Court held a hearing on December 4, 2018. The primary issues are: (i) whether the Court has jurisdiction to consider the Petition and to grant the requested relief, and (ii) whether Alderete-Lopez is likely to succeed on the merits on his argument that, because the Notice to Appear, Form I-863 (dated June 8, 2011), filed November 29, 2018 (Doc. 1-1), lacked removal hearing date and time information, the immigration court did not have jurisdiction to issue a final removal order. The Court concludes that it lacks jurisdiction to review Alderete-Lopez' claim and to grant the requested relief. The Court further concludes that, if it had jurisdiction in this matter -- which it does not -- it would nevertheless deny the Petition's request for injunctive relief, because Alderete-Lopez has not demonstrated to the Court's satisfaction that he is likely to succeed on the merits of his challenge to his removal order's validity. Accordingly, the Court will dismiss the Petition without prejudice.


         The Court takes its facts from the Petition and the Memorandum of Law in Support of Petition for Writ of Habeas Corpus and Release from Detention Pursuant 28 U.S.C. § 2241, filed November 29, 2018 (Doc. 1-1)(“Memo.”). The Court does not set forth these facts as findings or the truth. The Court recognizes that the Petition and Memo. contain largely Alderete-Lopez' version of events and that, although the Respondents have made representations in this matter, see Respondents' Motion to Dismiss Petition for Writ of Habeas Corpus for Lack of Subject Matter Jurisdiction, filed December 3, 2016 (Doc. 6)(“Response”), the Court has not relied on the Response for its facts, given the time restraints that Alderete-Lopez' forthcoming removal imposes.

         Alderete-Lopez asserts that he is a native and citizen of Mexico and that he entered the United States “on a border crossing card[1] on or about June 8th, 1989.” Petition at 3. On June 8, 2011, the United States Department of Homeland Security (“DHS”) personally served Alderete-Lopez with a Notice to Appear (“NTA”).[2] Petition ¶ 12, at 3. See Form I-863 at 1 (dated June 8, 2011), filed November 29, 2018 (Doc. 1-1). The NTA states that Alderete-Lopez has “been admitted to the United States, ” but is removable, pursuant to § 212(a)(7)(B)(i)(I) of the Immigration and Nationality Act of 1952, 66 Stat. 182 (“INA”), [3] because, according to DHS, Alderete-Lopez is “not a citizen of the United States”; is “a native of MEXICO and a citizen of MEXICO”; and is “not in possession of a passport valid for a minimum of six months from the date of [Alderete-Lopez'] admission to the United States.” Form I-863 at 1. Further, the NTA orders Alderete-Lopez

to appear before an immigration judge of the United States Department of Justice at: Executive Office for Immigration Review[, ] 8915 Montana Avenue[, ] El Paso[, ] TX 79925 on a date to be set at a time to be set to show why [Alderete-Lopez] should not be removed from the United States based on the charge(s) set forth above.

         Form I-863 at 1 (emphasis added). The NTA includes a Certificate of Service, which indicates that DHS Border Patrol Agent Jaime Armendariz served the NTA on Alderete-Lopez, that Armendariz provided oral notice “of the time and place of his or her hearing and of the consequences of failure to appear” to Alderete-Lopez in Spanish, and that Alderete-Lopez “refused to sign” the certificate. Form I-863 at 2.

         In February 2017, an immigration judge ordered Alderete-Lopez' removal to Mexico. Petition ¶ 13, at 4. Alderete-Lopez appealed to the Board of Immigration Appeals (“BIA”), [4] which sustained the Immigration judge's removal order. See Petition ¶ 14, at 4. In December, 2017, Alderete-Lopez filed a motion to reconsider “and was placed on electronic monitoring.” Petition ¶ 15, at 4. On September 11, 2018, the BIA denied Alderete-Lopez' Motion to Reconsider. See Petition ¶ 14, at 4. On November 9, 2018, DHS mailed to Rosa Lopez De Alderete a Notice of Obligor to Deliver Alien which demands that Lopez De Alderete deliver Jose Alderete-Lopez to the United States Immigration and Customs Enforcement Albuquerque Sub Office at 9:00 a.m. on December 6, 2018, for removal. See Notice to Obligor to Deliver Alien at 1, filed November 29, 2018 (Doc. 1-1).


         On November 29, 2018, Alderete-Lopez' filed the Petition. See Petition at 1. In the Petition, Alderete-Lopez alleges two violations of the Fifth Amendment to the Constitution of the United States: (i) that the Final Administrative Removal Order violates “Fundamental Due Process, ” because the immigration judge lacked subject matter jurisdiction to issue the removal order, Petition ¶ 24, at 5, and (ii) that Alderete-Lopez' “continued detention” violates his right to “substantive due process, ” Petition ¶ 31, at 6. Regarding the Final Administrative Removal Order, Alderete-Lopez argues that, because the NTA “lacked a date and time, it was invalid and failed to vest jurisdiction in the immigration court that ordered him removed.” Petition ¶ 24, at 5. As authority for this assertion, Alderete-Lopez quotes from the Supreme Court of the United State's June 21, 2018, decision in Pereira v. Sessions, 138 S.Ct. 2105 (2018): “A putative notice to appear that fails to designate the specific time or place of the noncitizen's removal proceedings is not a ‘notice to appear under section 1229(a), [5]' and so does not trigger the stop-time rule.[6]” Petition ¶ 23, at 5 (quoting Pereira v. Sessions, 138 S.Ct. at 2113-14). Alderete-Lopez further contends that his detention is predicated on the allegedly unlawful removal proceedings that the NTA initiated. See Petition ¶ 33, at 6.

         In his Memo., Alderete-Lopez avers that jurisdiction vests with the immigration court only when DHS files a proper NTA, i.e., an NTA that includes a date and time to appear before the tribunal. See Memo. at 2 (citing 8 C.F.R. § 1003.14 (a)). Moreover, according to Alderete-Lopez, 8 U.S.C. § 1299(a) “makes clear” that an NTA must include “the time and place of the hearing.” Memo. at 3 (citing 8 U.S.C. § 1299(a) (“In removal proceedings under section 1229(a) . . . written notice . . . shall be given in person to the alien . . . specifying . . . [t]he time and place at which the proceedings will be held.”). Hence, according to Alderete-Lopez, Pereira v. Sessions stands for a pronouncement broader than holding an NTA deficient only for cancellation-of-removal purposes:

The statutory text plainly requires inclusion of the “time and place at which proceedings will be held, ” and, accordingly, an NTA without this information is not just defective -- it is, quite simply, not a sufficiently legal Notice to Appear. Because it omits the time and place of proceedings, the charging document in this case is, per Pereira, not a Notice to Appear.

         Memo. at 3 (citing 8 U.S.C. § 1299(a)). Alderete-Lopez concludes that, in this case, “removal proceedings were thus not commenced, and the Immigrations Court's jurisdiction did not vest, upon [the NTA's] filing.” Memo. at 3. Although Alderete-Lopez concedes that the specific issue in Pereira v. Sessions was whether an NTA without time and-place information triggers § 1229(a)'s stop-time rule, the Supreme Court's use of the words “integral” and “essential” to describe the NTA's time-and-place information demonstrate that, in reaching its holding, the Supreme Court necessarily concluded that any NTA lacking such information, no matter the context, is an invalid NTA. Memo. at 6.

         Alderete-Lopez urges the Court to disregard the BIA's decision in Matter of Bermudez-Cota, 27 I&N 441 (BIA 2018)(“Bermudez-Cota”). See Petition ¶ 33, at 6. Alderete-Lopez asserts that the BIA in Bermudez-Cota “held that a ‘Putative' NTA may meet the statutory requirements under Sec. 239(a) of the [INA] and vest the immigration court with jurisdiction provided that the date, time, and place of the hearing is later sent to the alien' via a notice of hearing.” Memo. at 7 (quoting Bermudez-Cota, 27 I&N at 447). According to Alderete-Lopez,

Pereira expressly rejects the premise that a putative notice to appear can be cured by a subsequently issued notice of hearing; rather, a notice of appear lacking the hearing date and time is not merely an “incomplete” notice to appear -- it is not a notice to appear . . . at all.

         Memo. at 7 (citing Pereira v. Sessions, 138 S.Ct. at 2113-14, 2116-17). Moreover, Alderete-Lopez avers that an immigration court lacks statutory authority to issue NTAs, which, pursuant to 8 C.F.R. 239.1(a), only DHS can issue. See Memo. at 7 (citing 8 C.F.R. 239.1(a)).

         Alderete-Lopez adds that the BIA's decision to “hem in” Pereira v. Sessions to the stop-time rule and cancellation-of-removal context is “misplaced and in contravention of the plain meaning of the statute in question, ” because Pereira v. Sessions does not address the jurisdictional issue central to the case before the Court. Memo. at 8. According to Alderete-Lopez, the Supreme Court “passed the jurisdictional question in Pereira sub silentio, ” and thus it does not stand for the proposition that the immigration court in fact had jurisdiction in Pereira's case. Memo. at 9 (citing Lewis v. Casey, 518 U.S. 343, 352 n.2 (1996)(“The existence of unaddressed jurisdictional defects has no precedential effect.”)). As support for this assertion, Alderete-Lopez cites to an opinion authored by the Honorable David Briones, Senior United States District Judge for the Western District of Texas, wherein, according to Alderete-Lopez, Judge Briones rejected the BIA's decision in Bermudez-Cota and concluded that “[t]he immigration court lacked subject matter jurisdiction when it failed to comply with the statutory guidelines by proceeding with removal when the Notice to Appear, the charging document that vests jurisdiction in the court, lacked a date and time.” Memo. at 9 (quoting United States v. Pedroza-Rocha, EP-18-CR-1286-DB, 2018 U.S. Dist. LEXIS 178633, *14 (W.D. Tex. Sept. 21, 2018)(Briones, J.)). Alderete-Lopez asserts that Judge Briones also concluded that the BIA overemphasized the phrase: “and so does not trigger the stop-time rule, ” because the phrase follows “the coordinating conjunction ‘and, '” and therefore functions as “a separate point that does not limit the first independent clause [of] the sentence, ‘[a] putative notice to appear . . . is not a notice to appear under section 1229(a).'” Memo. at 9 (quoting United States v. Pedroza-Rocha, 2018 U.S. Dist. LEXIS 178633, at *11 (quoting Pereira v. Sessions, 138 S.Ct. at 2113-114 (internal quotation marks omitted)).

         On December 3, 2018, the Respondents filed the Response. See Response at 1. In the Response, the Respondents contend that the Court should dismiss the Petition, because the Court, according to the Respondents, lacks jurisdiction to review Alderete-Lopez' claims. See Response at 1. The Respondents further assert that “[e]ven if the Court could reach the merits of Petitioner's argument, Pereira's narrow holding does not support the broad proposition advanced by Petitioner.” Response at 4.

         The Court held a hearing. See Transcript of Hearing at 1:21-22 (taken December 4, 2018)(“Dec. 4 Tr.”).[7] At the hearing, Alderete-Lopez represented that, although the NTA lacked date and time information, he nevertheless participated in his removal proceedings, to which the Court inquired: “But from a factual standpoint tell me what happened. How did he end up being in front of the immigration court and vigorously contesting it. How did that happened?” Dec. 4 Tr at 11:1-4 (Court). Alderete-Lopez responded that he “He got a notice of a hearing. And then, based on the notice of a hearing, he appeared. And he did at that point start contesting the issues of his deportability at that time.” Dec. 4 Tr at 11:1-4 (Juarez). At Alderete-Lopez' request, the Court stated that it would provide Alderete-Lopez with an order by 12:00 p.m. on December 5, 2018. Dec. 4 Tr at 43:15-17 (Juarez, Court).


         Under the Administrative Procedure Act (“APA”),

[a] person suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action within the meaning of a relevant statute, is entitled to judicial review thereof. An action in a court of the United States seeking relief other than money damages and stating a claim that an agency or an officer or employee thereof acted or failed to act in an official capacity or under color of legal authority shall not be dismissed nor relief therein be denied on the ground that it is against the United States or that the United States is an indispensable party. The United States may be named as a defendant in any such action, and a judgment or decree may be entered against the United States: Provided, that any mandatory or injunctive decree shall specify the Federal officer or officers (by name or by title), and their successors in office, personally responsible for compliance. Nothing herein (1) affects other limitations on judicial review or the power or duty of the court to dismiss any action or deny relief on any other appropriate legal or equitable ground; or (2) confers authority to grant relief if any other statute that grants consent to suit expressly or impliedly forbids the relief which is sought.

5 U.S.C. § 702 (emphasis in original). The APA states that district courts can:

(1) compel agency action unlawfully withheld or unreasonably delayed; and
(2) hold unlawful and set aside agency action, findings, and conclusions found to be --
(A) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law;
(B) contrary to constitutional right, power, privilege, or immunity;
(C) in excess of statutory jurisdiction, authority, or limitations, or short of statutory right;
(D) without observance of procedure required by law;
(E) unsupported by substantial evidence in a case subject to sections 556 and 557 of this title or otherwise reviewed on the record of an agency hearing provided by statute; or
(F) unwarranted by the facts to the extent that the facts are subject to trial de novo by the reviewing court.

5 U.S.C. § 706.

         Under Olenhouse v. Commodity Credit Corp., “[r]eviews of agency action in the district courts [under the APA] must be processed as appeals. In such circumstances the district court should govern itself by referring to the Federal Rules of Appellate Procedure.” 42 F.3d 1560, 1580 (10th Cir. 1994)(emphasis in original). See WildEarth Guardians v. U.S. Forest Serv., 668 F.Supp.2d 1314, 1323 (D.N.M. 2009)(Browning, J.). “As a group, the devices appellate courts normally use are generally more consistent with the APA's judicial review scheme than the devices that trial courts generally use, which presume nothing about the case's merits and divide burdens of proof and production almost equally between the plaintiff and defendant.” N. New Mexicans Protecting Land & Water Rights v. United States, No. CIV 15-0559, 2015 WL 8329509, at *9 (D.N.M. 2015 Dec. 4, 2015)(Browning, J.).

         1. Reviewing Agency Factual Determinations.

         Under the APA, a reviewing court must accept an agency's factual determinations in informal proceedings unless they are “arbitrary [or] capricious, ” 5 U.S.C. § 706(2)(A), and its factual determinations in formal proceedings unless they are “unsupported by substantial evidence, ” 5 U.S.C. § 706(2)(E). The APA's two linguistic formulations amount to a single substantive standard of review. Ass'n of Data Processing Serv. Orgs., Inc. v. Bd. of Govs. of Fed. Reserve Sys., 745 F.2d 677, 683-84 (D.C. Cir. 1984)(Scalia, J.)(explaining that, as to factual findings, “there is no substantive difference between what [the arbitrary or capricious standard] requires and what would be required by the substantial evidence test, since it is impossible to conceive of a ‘nonarbitrary' factual judgment supported only by evidence that is not substantial in the APA sense” (emphasis in original)). See Ass'n of Data Processing Serv. Orgs., Inc. v. Bd. of Govs. of Fed. Reserve Sys., 745 F.2d at 684 (“[T]his does not consign paragraph (E) of the APA's judicial review section to pointlessness. The distinctive function of paragraph (E) -- what it achieves that paragraph (A) does not -- is to require substantial evidence to be found within the record of closed-record proceedings to which it exclusively applies.” (emphasis in original)). See also Jarita Mesa Livestock Grazing Ass'n v. U.S. Forest Serv., 140 F.Supp.3d at 1167-68 (discussing this fact).

         In reviewing agency action under the arbitrary-or-capricious standard, a court considers the administrative record -- or at least those portions of the record that the parties provide -- and not materials outside of the record. See 5 U.S.C. § 706 (“In making the foregoing determinations, the court shall review the whole record or those parts of it cited by a party . . . .”); Fed. R. App. P. 16(a) (“The record on review or enforcement of an agency order consists of . . . the order involved; . . . any findings or report on which it is based; and . . . the pleadings, evidence, and other parts of the proceedings before the agency.”); Ass'n of Data Processing Serv. Orgs., Inc. v. Bd. of Govs. of the Fed. Reserve Sys., 745 F.2d at 684 (“[W]hether the administrator was arbitrary must be determined on the basis of what he had before him when he acted . . . .”). See also Franklin Sav. Ass'n v. Dir., Office of Thrift Supervision, 934 F.2d 1127, 1137 (10th Cir. 1991)(“[W]here Congress has provided for judicial review without setting forth . . . procedures to be followed in conducting that review, the Supreme Court has advised such review shall be confined to the administrative record and, in most instances, no de novo proceedings may be had.” (footnote omitted)). Tenth Circuit precedent indicates, however, that the ordinary evidentiary rules regarding judicial notice apply when a court reviews agency action. See New Mexico ex. rel. Richardson v. Bureau of Land Mgmt., 565 F.3d at 702 n.21 (10th Cir. 2009)(“We take judicial notice of this document, which is included in the record before us in [another case].” (citing Fed.R.Evid. 201(b))); New Mexico ex. rel. Richardson v. Bureau of Land Mgmt., 565 F.3d at 702 n.22 (“We conclude that the occurrence of Falcon releases is not subject to reasonable factual dispute and is capable of determination using sources whose accuracy cannot reasonably be questioned, and we take judicial notice thereof.”). In contrast, the United States Courts of Appeals for the Ninth and Eleventh Circuits have held that taking judicial notice is inappropriate in APA reviews absent extraordinary circumstances or inadvertent omission from the administrative record. See Compassion Over Killing v. U.S. Food & Drug Admin., 849 F.3d 849, 852 n.1 (9th Cir. 2017); Nat'l Mining Ass'n v. Sec'y U.S. Dep't of Labor, 812 F.3d 843, 875 (11th Cir. 2016).

         To fulfill its function under the APA, a reviewing court should engage in a “thorough, probing, in-depth review” of the record before it when determining whether an agency's decision survives arbitrary-or-capricious review. Wyoming v. United States, 279 F.3d 1214, 1238 (10th Cir. 2002)(citation and internal quotation marks omitted). The Tenth Circuit explains:

“[I]n determining whether the agency acted in an ‘arbitrary and capricious manner,' we must ensure that the agency ‘decision was based on a consideration of the relevant factors' and examine ‘whether there has been a clear error of judgment.'” We consider an agency decision arbitrary and capricious if “the agency . . . relied on factors which Congress had not intended it to consider, entirely failed to consider an important aspect of the problem, offered an explanation for its decision that runs counter to the evidence before the agency, or is so implausible that it could not be ascribed to a difference in view or the product of agency expertise.”

Colo. Envtl. Coal. v. Dombeck, 185 F.3d 1162, 1167 (10th Cir. 1999)(quoting Friends of the Bow v. Thompson, 124 F.3d 1210, 1215 (10th Cir. 1997)). Arbitrary-or-capricious review requires a district court “to engage in a substantive review of the record to determine if the agency considered relevant factors and articulated a reasoned basis for its conclusions, ” Olenhouse v. Commodity Credit Corp., 42 F.3d at 1580, but it is not to assess the wisdom or merits of the agency's decision, see Colo. Envtl. Coal. v. Dombeck, 185 F.3d at 1172. The agency must articulate the same rationale for its findings and conclusions on appeal upon which it relied in its internal proceedings. See SEC v. Chenery Corp., 318 U.S. 80, 92-95 (1943). While the court may not supply a reasoned basis for the agency's action that the agency does not give itself, the court should “uphold a decision of less than ideal clarity if the agency's path may reasonably be discerned.” Bowman Transp., Inc. v. Ark.-Best Freight Sys., Inc., 419 U.S. 281, 286 (1974)(citation omitted).

         2. Reviewing Agency Legal Interpretations.

         In promulgating and enforcing regulations, agencies must interpret federal statutes, their own regulations, and the Constitution of the United States, and Courts reviewing those interpretations apply three different deference standards, depending on the kind of law at issue. First, the federal judiciary accords considerable deference to an agency's interpretation of a statute that Congress has tasked it with enforcing. See United States v. Undetermined Quantities of Bottles of an Article of Veterinary Drug, 22 F.3d 235, 238 (10th Cir. 1994). This is known as Chevron deference, named after the supposedly seminal case, Chevron, U.S.A., Inc. v. Natural Resource Defense Council, Inc., 467 U.S. 837 (1984)(“Chevron”).[8] Chevron deference is a two-step process[9] that first asks whether the statutory provision in question is clear and, if it is not, then asks whether the agency's interpretation of the unclear statute is reasonable. As the Tenth Circuit has explained,

we must be guided by the directives regarding judicial review of administrative agency interpretations of their organic statutes laid down by the Supreme Court in Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 . . . (1984). Those directives require that we first determine whether Congress has directly spoken to the precise question at issue. If the congressional intent is clear, we must give effect to that intent. If the statute is silent or ambiguous on that specific issue, we must determine whether the agency's answer is based on a permissible construction of the statute.

United States v. Undetermined Quantities of Bottles of an Article of Veterinary Drug, 22 F.3d at 238 (citing Chevron, 467 U.S. at 842-43).

         Chevron's second step is all but toothless, because if the agency's decision makes it to step two, it is upheld almost without exception. See Ronald M. Levin, The Anatomy of Chevron: Step Two Reconsidered, 72 Chi.-Kent L. Rev. 1253, 1261 (1997)(“[T]he Court has never once struck down an agency's interpretation by relying squarely on the second Chevron step.”); Jason J. Czarnezki, An Empirical Investigation of Judicial Decisionmaking, Statutory Interpretation, and the Chevron Doctrine in Environmental Law, 79 U. Colo. L. Rev. 767, 775 (2008)(“Due to the difficulty in defining step two, courts rarely strike down agency action under step two, and the Supreme Court has done so arguably only twice.”). Courts essentially never conclude that an agency's interpretation of an unclear statute is unreasonable.

         Chevron's first step, in contrast, has bite, but there is substantial disagreement about what it means. In an earlier case, the Court noted the varying approaches that different Supreme Court Justices have taken in applying Chevron deference:

The Court notices a parallel between the doctrine of constitutional avoidance and the Chevron doctrine. Those Justices, such as Justice Scalia, who are most loyal to the doctrines and the most likely to apply them, are also the most likely to keep the “steps” of the doctrines separate: first, determining whether the statute is ambiguous; and, only then, assessing the merits of various permissible interpretations from the first step. These Justices are also the most likely to find that the statute is unambiguous, thus obviating the need to apply the second step of each doctrine. Those Justices more likely to find ambiguity in statutes are more likely to eschew applying the doctrines in the first place, out of their distaste for their second steps -- showing heavy deference to agencies for Chevron doctrine, and upholding facially overbroad statutes, for constitutional avoidance.

Griffin v. Bryant, 30 F.Supp.3d 1139, 1192 n.23 (D.N.M. 2014)(Browning, J.). A number of policy considerations animate Chevron deference, among them: (i) statutory interpretation, i.e., that Congress, by passing extremely open-ended and vague organic statutes, grants discretionary power to the agencies to fill in the statutory gaps; (ii) institutional competency, i.e., that agencies are more competent than the courts at filling out the substantive law in their field; (iii) political accountability, i.e., that agencies, as executive bodies ultimately headed by the President of the United States of America, can be held politically accountable for their interpretations; and (iv) efficiency, i.e., that numerous, subject-matter specialized agencies can more efficiently promulgate the massive amount of interpretation required to maintain the modern regulatory state -- found in the Code of Federal Regulations and other places -- than a unified but Circuit-fragmented federal judiciary can.

         Second, when agencies interpret their own regulations -- to, for example, adjudicate whether a regulated party was in compliance with them -- courts accord agencies what is known as Auer or Seminole Rock deference. See Auer v. Robbins, 519 U.S. 452 (1997)(“Auer”); Bowles v. Seminole Rock & Sand Co., 325 U.S. 410 (1945)(“Seminole Rock”). This deference is applied in the same manner as Chevron deference and is substantively identical. There would be little reason to have a separate name for this doctrine, except that its logical underpinnings are much shakier, and its future is, accordingly, more uncertain. Justice Scalia, after years of applying the doctrine followed by years of questioning its soundness, finally denounced Auer deference in 2013 in his dissent in Decker v. Northwest Environmental Defense Center, 568 U.S. 597 (2013). The Court cannot describe the reasons for Justice Scalia's abandonment of the doctrine better than the Justice himself:

For decades, and for no good reason, we have been giving agencies the authority to say what their rules mean, under the harmless-sounding banner of “defer[ring] to an agency's interpretation of its own regulations.” This is generally called Seminole Rock or Auer deference.
. . . .
The canonical formulation of Auer deference is that we will enforce an agency's interpretation of its own rules unless that interpretation is “plainly erroneous or inconsistent with the regulation.” But of course whenever the agency's interpretation of the regulation is different from the fairest reading, it is in that sense “inconsistent” with the regulation. Obviously, that is not enough, or there would be nothing for Auer to do. In practice, Auer deference is Chevron deference applied to regulations rather than statutes. The agency's interpretation will be accepted if, though not the fairest reading of the regulation, it is a plausible reading -- within the scope of the ambiguity that the regulation contains.
Our cases have not put forward a persuasive justification for Auer deference. The first case to apply it, Seminole Rock, offered no justification whatever -- just the ipse dixit that “the administrative interpretation . . . becomes of controlling weight unless it is plainly erroneous or inconsistent with the regulation.” Our later cases provide two principal explanations, neither of which has much to be said for it. First, some cases say that the agency, as the drafter of the rule, will have some special insight into its intent when enacting it. The implied premise of this argument -- that what we are looking for is the agency's intent in adopting the rule -- is false. There is true of regulations what is true of statutes. As Justice Holmes put it: “[w]e do not inquire what the legislature meant; we ask only what the statute means.” Whether governing rules are made by the national legislature or an administrative agency, we are bound by what they say, not by the unexpressed intention of those who made them.
The other rationale our cases provide is that the agency possesses special expertise in administering its “‘complex and highly technical regulatory program.'” That is true enough, and it leads to the conclusion that agencies and not courts should make regulations. But it has nothing to do with who should interpret regulations -- unless one believes that the purpose of interpretation is to make the regulatory program work in a fashion that the current leadership of the agency deems effective. Making regulatory programs effective is the purpose of rulemaking, in which the agency uses its “special expertise” to formulate the best rule. But the purpose of interpretation is to determine the fair meaning of the rule -- to “say what the law is.” Not to make policy, but to determine what policy has been made and promulgated by the agency, to which the public owes obedience. Indeed, since the leadership of agencies (and hence the policy preferences of agencies) changes with Presidential administrations, an agency head can only be sure that the application of his “special expertise” to the issue addressed by a regulation will be given effect if we adhere to predictable principles of textual interpretation rather than defer to the “special expertise” of his successors. If we take agency enactments as written, the Executive has a stable background against which to write its rules and achieve the policy ends it thinks best.
Another conceivable justification for Auer deference, though not one that is to be found in our cases, is this: If it is reasonable to defer to agencies regarding the meaning of statutes that Congress enacted, as we do per Chevron, it is a fortiori reasonable to defer to them regarding the meaning of regulations that they themselves crafted. To give an agency less control over the meaning of its own regulations than it has over the meaning of a congressionally enacted statute seems quite odd.
But it is not odd at all. The theory of Chevron (take it or leave it) is that when Congress gives an agency authority to administer a statute, including authority to issue interpretive regulations, it implicitly accords the agency a degree of discretion, which the courts must respect, regarding the meaning of the statute. While the implication of an agency power to clarify the statute is reasonable enough, there is surely no congressional implication that the agency can resolve ambiguities in its own regulations. For that would violate a fundamental principle of separation of powers -- that the power to write a law and the power to interpret it cannot rest in the same hands. “When the legislative and executive powers are united in the same person . . . there can be no liberty; because apprehensions may arise, lest the same monarch or senate should enact tyrannical laws, to execute them in a tyrannical manner.” Congress cannot enlarge its own power through Chevron -- whatever it leaves vague in the statute will be worked out by someone else. Chevron represents a presumption about who, as between the Executive and the Judiciary, that someone else will be. (The Executive, by the way -- the competing political branch -- is the less congenial repository of the power as far as Congress is concerned.) So Congress's incentive is to speak as clearly as possible on the matters it regards as important.
But when an agency interprets its own rules -- that is something else. Then the power to prescribe is augmented by the power to interpret; and the incentive is to speak vaguely and broadly, so as to retain a “flexibility” that will enable “clarification” with retroactive effect. “It is perfectly understandable” for an agency to “issue vague regulations” if doing so will “maximiz[e] agency power.” Combining the power to prescribe with the power to interpret is not a new evil: Blackstone condemned the practice of resolving doubts about “the construction of the Roman laws” by “stat[ing] the case to the emperor in writing, and tak[ing] his opinion upon it.” And our Constitution did not mirror the British practice of using the House of Lords as a court of last resort, due in part to the fear that he who has “agency in passing bad laws” might operate in the “same spirit” in their interpretation. Auer deference encourages agencies to be “vague in framing regulations, with the plan of issuing ‘interpretations' to create the intended new law without observance of notice and comment procedures.” Auer is not a logical corollary to Chevron but a dangerous permission slip for the arrogation of power.
It is true enough that Auer deference has the same beneficial pragmatic effect as Chevron deference: The country need not endure the uncertainty produced by divergent views of numerous district courts and courts of appeals as to what is the fairest reading of the regulation, until a definitive answer is finally provided, years later, by this Court. The agency's view can be relied upon, unless it is, so to speak, beyond the pale. But the duration of the uncertainty produced by a vague regulation need not be as long as the uncertainty produced by a vague statute. For as soon as an interpretation uncongenial to the agency is pronounced by a district court, the agency can begin the process of amending the regulation to make its meaning entirely clear. The circumstances of this case demonstrate the point. While these cases were being briefed before us, EPA issued a rule designed to respond to the Court of Appeals judgment we are reviewing. It did so (by the standards of such things) relatively quickly: The decision below was handed down in May 2011, and in December 2012 the EPA published an amended rule setting forth in unmistakable terms the position it argues here. And there is another respect in which a lack of Chevron-type deference has less severe pragmatic consequences for rules than for statutes. In many cases, when an agency believes that its rule permits conduct that the text arguably forbids, it can simply exercise its discretion not to prosecute. That is not possible, of course, when, as here, a party harmed by the violation has standing to compel enforcement.
In any case, however great may be the efficiency gains derived from Auer deference, beneficial effect cannot justify a rule that not only has no principled basis but contravenes one of the great rules of separation of powers: He who writes a law must not adjudge its violation.

Decker v. Nw. Envtl. Def. Ctr., 568 U.S. at 616-21 (Scalia, J., dissenting)(alterations and emphasis in original)(citations omitted). Although the Court shares Justice Scalia's concerns about Auer deference, it is, for the time being, the law of the land, and, as a federal district court, the Court must apply it.

         Last, courts afford agencies no deference in interpreting the Constitution. See U.S. West, Inc. v. FCC, 182 F.3d 1224, 1231 (10th Cir. 1999)(“[A]n unconstitutional interpretation is not entitled to Chevron deference. . . . [D]eference to an agency interpretation is inappropriate not only when it is conclusively unconstitutional, but also when it raises serious constitutional questions.” (citing, e.g., Rust v. Sullivan, 500 U.S. 173, 190-91 (1991))). Courts have superior competence in interpreting -- and constitutionally vested authority and responsibility to interpret -- the Constitution's content. The presence of a constitutional claim does not take a court's review outside of the APA, however -- § 706(2)(B) specifically contemplates adjudication of constitutional issues -- and courts must still respect agency fact-finding and the administrative record when reviewing agency action for constitutional infirmities; they just should not defer to the agency on issues of substantive legal interpretation. See, e.g., Robbins v. U.S. Bureau of Land Mgmt., 438 F.3d 1074, 1085 (10th Cir. 2006)(“We review Robbins' [constitutional] due process claim against the [agency] under the framework set forth in the APA.”).

         3. Waiving ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.