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This Data Set is from Isaiah McKinney, The Chevron Ball Ended at Midnight, but the Circuits are Still Two-Stepping by Themselves (Notice & Comment 12/18/22)
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Loper-App pdf
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CaseCircuitWas an exception applied?Agency Win/Lose?At which Step did the agency win/lose?Why?Original OrderImmig / BIAJAT CategoryJAT Notes
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AHA v. Azar, 448
U.S. App. D.C. 186, 964 F.3d 1230 (D.C. Cir. 2020)		DCNoWinStep2Agency’s interpretation was reasonable.35N3Earlier seems to be Step Two but concludes with (p. 1245) "In short, we conclude under Chevron that HHS's reduction in reimbursement for E & M services provided by off-campus PBDs qualifies as a "method for controlling unnecessary increases in the volume of covered [outpatient] services." 42 U.S.C. § 1395l(t)(2)(F). Because the challenged rate cut is thus a "method[ ] described in paragraph (2)(F)," judicial review of that action is precluded by the statute. See id. § 1395l(t)(12)(A). Consequently, neither we nor the district court has jurisdiction over the Hospitals' challenge.":
8
AHA v. Azar, 448
U.S. App. D.C. 425, 967 F.3d 818 (D.C. Cir. 2020)		DCNoWinStep2Agency’s interpretation was reasonable and within statutory bounds.36N6Court applied Chevron but did not opine as to the best interpretation of the statute
9
Aleutian Capital Partners, LLC v. Scalia, 975 F.3d 220
(2d Cir. 2020)		2NoWinStep2Agency’s interpretation was reasonable.37N6Court applied Chevron but did not opine as to the best interpretation of the statute (JAT Note this may be an open-ended ambiguous delegation per Sunstein)
13
Alvarado-Herrera v. Garland, 993 F.3d
1187 (9th Cir. 2021)		9NoWinStep2Agency’s interpretation was reasonable.38Y6Court applied Chevron because agency interpretation was reasonable but did not opine on the best interpretation.
15
Aposhian v. Barr, 958 F.3d 969 (10th
Cir. 2020)		10NoWinStep2Agency’s interpretation was reasonable39N6Asserts legislative rules get Chevron but interpretive rules do not.
16
Bahr v. Regan, 6 F.4th 1059 (9th Cir. 2021)9NoWinStep2Agency’s interpretation was reasonable.40N6Previously categorized on Morgan set
17
Baptist Mem’l Hosp. - Golden Triangle, Inc. v. Azar, 956 F.3d 689
(5th Cir. 2020)		5NoWinStep2Agency’s interpretation was reasonable.41N6Found reasonable but no indication that is not best.
19
Baystate Franklin Med. Ctr. v. Azar, 445 U.S. App. D.C.
213, 950 F.3d 84
(D.C. Cir. 2020)		DCNoWinStep2Agency’s interpretation was permissible.42N6Issue was interpretation of authority to enforce a deadline. Probably not susciptible to best or less best analysis, but could be read as category 3.
20
Birhanu v. Wilkinson, 990 F.3d
1242 (10th Cir. 2021)		10NoWinStep2For the first issue, the Court determined that agency’s interpretation was correct under the statute. For the second issue, the interpretation was reasonable under Chevron.34Y6Held: (1) interpretation was reasonable (not whether best); and (3) BIA was not arbitrary and capricious.
21
Brackeen v. Haaland, 994 F.3d 249 (5th
Cir. 2021)		5NoWinStep2Agency’s interpretation was reasonable.43N0I read Brackeen as a procedural regularity decision and not a Chevron decision, although Chevron was noised about.
22
Brathwaite v. Garland, 3 F.4th 542
(2d Cir. 2021)		2NoWinStep2Court deferred to agency’s unpublished decision to the extent the decision relied on a binding published BIA decision. Agency’s interpretation was reasonable.44Y6
23
Buffington v. McDonough, 7 F.4th
1361 (Fed. Cir. 2021)		FedNoWinStep2Agency’s interpretation was reasonable.45N6Previously categorized on Morgan set
25
Cabeda v. AG of the United States, 971 F.3d 165 (3d Cir.
2020)		3NoWinStep2Precedent deferred to the agency’s definition, and the court deferred and applied precedent’s definition. But the
agency lost when the definition was applied.		27Y6apparently applied Chevron because of precedent, but Govt lost on the issue of whethere the categorical approach to aggravated felonies (not a Chevron issue) required that she did not commit such as act.
26
California v. Azar, 950 F.3d 1067 (9th
Cir. 2020)		9NoWinStep2Statute was ambiguous and agency’s interpretation was
reasonable.		46N6But could be categorized as 5
27
CASA de Md., Inc. v. Trump, 971 F.3d 220
(4th Cir. 2020)		4NoWinStep2Agency’s interpretation was within the bounds of the statute.47Y3Court did alternatively say it qualified for Chevron: "The DHS Rule thus comports with the best reading of the INA—namely that Congress actively sought variability over time as different administrations responded to different exigencies and circumstances. To whatever extent this appeal presents a close question—and, again, we think it does not—Chevron makes the outcome clear. Under Chevron, courts must uphold an agency interpretation as long as it is a "permissible construction of the statute." 467 U.S. 837, 843, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). The DHS Rule satisfies this test."
28
Chacon v. Wilkinson, 988 F.3d 1131 (9th
Cir. 2021)		9NoWinStep2Agency’s interpretation was persuasive and would win whether Skidmore or Chevron was applied. The interpretation “fit” within the statute.30Y3Since Skidmore is not deference but used to determine the best interpretation, this holding would be category, sustaining the best interpretation which happens to be the agency interpretaiton.
29
Changzhou Hawd Flooring Co. v.
United States, 947 F.3d 781 (Fed. Cir. 2020)		FedNoWinStep2Agency’s interpretation was reasonable.48N6Several choices could have been reasonable, with perhaps none the best; agency's reasonable choice sustained.; THIS ARGUABLY COULD BE A 7 CATEGORY TYPE.
30
Cigar Ass’n of Am. v. United States FDA, 453 U.S. App. D.C.
339, 5 F.4th 68 (D.C.
Cir. 2021)		DCNoWinStep2Court deferred to the agency’s interpretation in the first issue since the interpretation was not arbitrary and capricious. For the second issue, the agency’s interpretation was correct, but even if the statute was ambiguous, the agency’s interpretation was reasonable.81N3Previously categorized on Morgan set; arbitrary and capricious s not chevron, so the second issue is key and on that issue court says the agency iterpretation was correct (with alternative holding that it was reaonable under Chevron)
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Corbett v. Transp. Sec. Admin., 455 U.S. App. D.C. 25, 19 F.4th 478 (D.C. Cir.
2021)		DCNoWinStep2Agency’s interpretation was reasonable and within the bounds of the statute.49N6
36
Diaz-Reynoso v. Barr, 968 F.3d 1070
(9th Cir. 2020)		9NoWinStep2Agency’s interpretation was not arbitrary or capricious, which means it was reasonable.50Y6
37
Fisher v. Pension Benefit Guar. Corp., 452 U.S. App. D.C.
49, 994 F.3d 664
(D.C. Cir. 2021)		DCNoWinStep2Agency’s interpretation was reasonable.51N3In Morgan set; I categorized at 3 because there were no competing interpretations offered or determined by the court; hence this sounds like a 3
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Garcia v. Barr, 969 F.3d 129 (5th Cir. 2020)5NoWinStep2Agency’s interpretation was reasonable.52Y6
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Great Lakes Commun. Corp. v. FCC, 453 U.S. App. D.C. 170, 3 F.4th 470
(D.C. Cir. 2021)		DCNoWinStep2Agency’s interpretation was permissible.53N6Open ended type statute
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Greenberg v. Commissioner, 10 F.4th 1136 (11th Cir. 2021)11NoWinStep2Agency’s interpretation was reasonable.54N6In Morgan set;
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Hays Med. Ctr. v. Azar, 956 F.3d 1247
(10th Cir. 2020)		10NoWinStep2Agency waived Chevron by not actually arguing through the two step standard. But since reasonableness under Chevron Step 2 is akin to the arbitrary/capricious analysis, it does not impact the statutory interpretation. The Court determined the agency’s interpretation was not arbitrary and capricious.80N6From fn 18 p. 1264: "In any event, eliding a formal Chevron analysis does not materially alter our resolution of the issue before us or, more specifically, our consideration of the parties' arguments. After all, the Secretary engages fully with the Hospitals' arbitrary-and-capricious arguments. See, e.g., Aplee.'s Resp. Br. at 22-30. And insofar as the Secretary's reasonableness arguments involve a tacit claim for deference at the second step of Chevron, the Secretary is effectively arguing that his methodology is not "arbitrary or capricious in substance." Judulang, 565 U.S. at 52 n.7, 132 S.Ct. 476 (quoting Mayo Found. for Med. Ed. & Research v. United States, 562 U.S. 44, 53, 131 S.Ct. 704, 178 L.Ed.2d 588 (2011)). Consequently, whether we apply Chevron or arbitrary-and-capricious review does not materially alter the outcome or change our analysis."
62
Huawei Techs. USA, Inc. v. FCC, 2 F.4th 421 (5th Cir. 2021)5NoWinStep2Agency’s interpretation was reasonable.55N6In Morgan set
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Int’l Bhd. of Teamsters, Local 2785 v. Fed. Motor Carrier Safety Admin., 986 F.3d 841
(9th Cir. 2021)		9NoWinStep2Agency’s interpretation was reasonable.56N6In Morgan set
69
Kiewit Power Constructors Co. v. Sec’y of Labor, 447
U.S. App. D.A100C. 18, 959 F.3d 381 (D.C. Cir. 2020)		DCNoWinStep2Agency’s interpretation was permissible.57N6Secretary did not use formal rulemaking (here regulation) but was exempted from doing so; accordingly Chevron could apply; said agency interpretation did not have to be best, only reasonable.
73
Lambert v. Saul, 980 F.3d 1266 (9th Cir. 2020)9NoWinStep2Agency’s interpretation was reasonable.28N6
85
Mass. Dep’t of Telecomms. & Cable v. FCC, 983 F.3d 28
(1st Cir. 2020)		1NoWinStep2Agency’s interpretation was reasonable.58N6In Morgan set
88
N.Y. State Dep’t of Envtl. Conservation
v. FERC, 991 F.3d 439 (2d Cir. 2021)		2Yes—Chevron was not available if the agency does not administer the statute.WinStep2Agency sought deference for interpretations of multiple statutes, and it was given deference for its interpretation of the statute it administered
since its interpretation was reasonable.		31N6Court cited "Florez v. Holder, 779 F.3d 207, 212 (2d Cir. 2015) ("[W]e are not looking for the best interpretation, or the majority interpretation— only a reasonable one.")."; Coiurt did not say or hint that some other interpretation was the best and the one iit would have applied without the agency interpretation.
90
Northport Health Servs. of Ark., LLC v. United States HHS, 14 F.4th 856 (8th Cir.
2021)		8NoWinStep2Agency’s interpretation was reasonable.59N6In Morgan set
93
NRDC, Inc. v. United States EPA, 961 F.3d 160 (2d Cir. 2020)2NoWinStep2Two of three regulations were reasonable interpretations, but one was not.29N6Seemed to stop at reasonablenes determination without decidingn whether it was best interpretation or less best interpretation.
98
Ortega-Lopez v. Barr, 978 F.3d 680 (9th
Cir. 2020)		9NoWinStep2Court deferred to agency’s published decision because it was reasonable.60Y6
100
Outdoor Amusement Bus. Ass’n v. Dep’t of Homeland Sec., 983 F.3d 671 (4th Cir.
2020)		4NoWinStep2The agency had implied delegated power to rulemake and its rules were within the bounds of the statute.61N6In Morgan set
104
Overdevest Nurseries, L.P. v. Walsh, 453 U.S. App.
D.C. 25, 2 F.4th 977 (D.C. Cir. 2021)		DCNoWinStep2Agency’s interpretation was reasonable.62N6In Morgan set
106
Pac. Choice Seafood Co. v. Ross, 976 F.3d
932 (9th Cir. 2020)		9NoWinStep2Agency’s interpretation was reasonable.63N6Applied Chevron because agency "permissibly interpreted the act,
107
Pharaohs GC, Inc. v. United States SBA, 990 F.3d 217 (2d Cir.
2021)		2NoWinStep2Statute was unambiguous, and the agency would also have won under Step 2.32N3The Chevron Step Two holding is an alternative to earlier unambiguous holding. "Finally, even if subparagraph D were ambiguous, the Administrator would still prevail because the SBA's interpretation is reasonable. "The question for the reviewing court at Chevron Step Two is whether the agency's answer to the interpretive question is based on a permissible construction of the statute." Catskill Mountains Chapter of Trout Unlimited, Inc. v. EPA, 846 F.3d 492, 520 (2d Cir. 2017) (cleaned up)"
108
Rodriguez v. Barr, 975 F.3d 188 (2d Cir.
2020)		2NoWinStep2Court adopted the interpretation it applied in earlier cases deferring to the agency’s prior decisions.64Y6
109
Romero v. Sec’y, U.S. Dep’t of Homeland Sec., 20 F.4th 1374
(11th Cir. 2021)		11NoWinStep2Agency’s interpretation was reasonable.65Y6"not the only reasonable reading, but it is a reasonable reading. Accordingly, the regulation is entitled to deference."
110
Route v. Garland, 996 F.3d 968 (9th
Cir. 2021)		9NoWinStep2Agency’s interpretation was reasonable.66Y6In Morgan set
111
Safaryan v. Barr, 975 F.3d 976 (9th Cir.
2020)		9NoWinStep2The agency’s prior decision was entitled to deference since it was
reasonable.		67Y3hat particular question of deference is ultimately of "no practical significance," because "we have noted that our understanding [of the phrase] does not differ materially from the [BIA's]."
112
Santana v. Barr, 975 F.3d 195 (2d Cir.
2020)		2NoWinStep2Interpretation in the agency’s published decision was reasonable.79Y6
113
Scarlett v. Barr, 957 F.3d 316 (2d Cir.
2020)		2NoWinStep2The attorney general’s decision was entitled to deference since it was reasonable.68Y6
118
Seminole Nursing Home, Inc. v.
Commissioner, 12 F.4th 1150 (10th Cir. 2021)		10NoWinStep2Agency’s interpretation was reasonable.69N6In Morgan set
122
Seyi Muyiwa Adeeko
v. Garland, 3 F.4th 741 (5th Cir. 2021)		5NoWinStep2Court deferred to a prior BIA decision interpretting the statute, because other precedents deferred to that interpretation.70Y6
127
Stand Up for Cal.! v. United States DOI, 959 F.3d 1154 (9th
Cir. 2020)		9NoWinStep2Agency’s interpretation was reasonable.71N3Seems to approve agency interpretation but offers Chevron as fallback. "We conclude that Appellants' reading of the statute is not persuasive. But even if we found Appellants' reading convincing, the conflicts explained above create, at a minimum, ambiguity in the statute. Chevron deference and the Indian canon of statutory construction would demand that we resolve such ambiguity in favor of Appellees' reasonable construction in this case.
131
Texas v. United States EPA, 983 F.3d 826 (5th Cir. 2020)5NoWinStep2Agency’s interpretation was reasonable.72N6In Morgan set
132
Tovar v. Zuchowski, 950 F.3d 581 (9th
Cir. 2020)		9NoWinStep2Agency’s interpretation was reasonable.73Y6
133
Trejo v. Garland, 3 F.4th 760 (5th Cir. 2021)5NoWinStep2Court implicitly agreed the agency’s interpretation was reasonable by citing to prior precedent deferring to the agency’s
interpretation.		74Y6
135
Upper Mo. Waterkeeper v. United States EPA, 15 F.4th 966 (9th Cir.
2021)		9NoWinStep2Agency’s interpretation was reasonable.75N6In Morgan set
137
USF Fed. Credit Union v. Gateway Radiology Consultants, P.A. (In re Gateway Radiology Consultants, P.A.), 983 F.3d 1239 (11th
Cir. 2020)		11NoWinStep2Agency’s interpretation was reasonable.76N6In Morgan data set
143
Wambura v. Barr, 980 F.3d 365 (4th
Cir. 2020)		4NoWinStep2Court deferred to the agency’s decision because it was reasonable.77Y6
145
Yanez-Pena v. Barr, 952 F.3d 239 (5th
Cir. 2020)		5NoWinStep2Court agreed with the agency’s interpretation, but even if the court had not, it would have deferred under Step 2.33Y3Court of appeals agreed with BIA's determination (interpretation) and then said: "Our conclusion also aligns with the BIA's interpretation of the statute as set forth in its en banc opinion in Mendoza-Hernandez.[39] Even if we were to conclude that "written notice" and "a notice to appear" are ambiguous, we would defer to the BIA's reasonable interpretation of the statute " Court made alternative holding under Chevron: "Deferring to the BIA's interpretation, we would reach the same result." Could possibly be a Category 6.
148
Zarate-Alvarez v. Garland, ` (10th Cir. 2021)10NoWinStep2Prior agency’s decisions were rational interpretations of the statute, so the court deferred to them.78Y6
149
Total555555555555555541
150
151
Stats below are for IRS Wins at Chevron Step Two (per columns D&E of Loper-App Spreadsheet)
152
Category 0 - Cannot characterize but no deference; some could be like Chevron Step 0. this Category was not in the Postscript1
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Category 1 - Statute unambiguous because no interpretive space for agency interpretation; no deference. Could be Chevron Step One.0
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Category 2 - Statute ambiguous; no agency interpretation; court interprets; no deference0
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Category 3 - Court determines agency interpretation is best interpretation and applies it; no deference9
156
Category 4 - Court determines agency interpretation unreasonable & applies the court's better interpretation; no deference (could be Chevron Step Two or even Step One)0
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Category 5 - Court determines agency interpretation is reasonable but not best interpretation and defers to the agency interpretation anyway; deference (This is only category where it is clear that a court actually deferred to a less reasonable agency interpretation) (Conceptually Chevron Step Two)0
158
Category 6 - Court determines agency interpretation is reasonable but makes no determination of best interpretation; applies agency interpretation; possible deference but inconclusive (Conceptually Chevron Step Two)45
159
Category 7 - Court determines agency interpretation is reasonable but there is at least one other reasonable interpretation and court is in equipoise as to the best interpretation; court applies agency interpretation; no deference (because the court does not defer to a less persuasive agency interpretation) (Conceptually Chevron Step Two without deference)0
160
Total55
161
162
Total Wins & Step255
163
164
165
166
167
168
169
170
171
172
173
174
175
176
177
178
179
180
181
182
183
184
185
186
187