Washington Law Review


Brent Droze


In Flytenow, Inc. v. FAA, the D.C. Circuit encountered an important, yet unresolved, question: how much deference should a court give an agency for its interpretation of a common-law term used in a statute or regulation? Traditionally, the Chevron and Auer deference doctrines provide agencies significant freedom in clarifying and interpreting statutes and regulations. The use of these doctrines, though, becomes problematic when applied to fact patterns where agencies interpret the meaning of common-law terms. This Comment argues that courts should not apply either Chevron or Auer deference doctrines in cases where an agency interprets a term that already has a well-settled meaning in common law. Chevron deference is inappropriate in this scenario because Chevron is only applicable when a statute is ambiguous. By choosing to use a common-law term in a statute, Congress removed any possible ambiguity as to the meaning of the term. Congress intends for common-law terms in statutes to align with their common-law definitions. Auer deference is also inappropriate in this scenario. An agency cannot use a common-law term in a regulation, subsequently interpret that term to mean something other than its well-established definition in the common law, and then receive judicial deference for that interpretation. Courts, not agencies, are the appropriate arbiters of the meaning of a common-law term. This Comment argues that Skidmore deference is the most appropriate standard of review for agency interpretations of common-law terms. Skidmore appropriately balances an agency’s right to interpret statutes and regulations and the judiciary’s responsibility to create, maintain, and uphold the common law.

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