Let's look at how the Fifth Circuit handles Brand X questions, shall we? The embattled doctrine has played a central role in a couple of recent cases, so it's a good time for a deep-ish dive.

Acosta v. Hensel Phelps Construction Company, 909 F.3d 723 (5th Cir. 2018) (Graves, Costa, Bennett)

This case required the Fifth Circuit to decide whether the Secretary of Labor has the authority--under OSHA or the regulations that implement it--to issue a citation to a general contractor at a multi-employer construction site who controls a hazardous condition at that site when the condition affects some other employer's employees. Under Fifth Circuit precedent that has been settled for about forty years, the answer is easy: No. See Melerine v. Avondale Shipyards, Inc., 659 F.2d 706, 711 (5th Cir. Unit A 1981) ("OSHA regulations protect only an employer's own employees."). So why on earth did the Secretary of Labor go through the effort of presenting that question to the Fifth Circuit again in Acosta, especially when doing so meant asking the SG for permission?  See 28 C.F.R. 0.20(b) (SG must sign off on any appeal taken by the government to an appellate court). Answer: Brand X.  

You see, Melerine was decided before Chevron, and Brand X held that "[a] court's prior judicial construction of a statute trumps an agency construction otherwise entitled to Chevron deference only if the prior court decision holds that its construction follows from the unambiguous terms of the statute and thus leaves no room for agency discretion." Nat'l Cable & Telecomms. Ass'n v. Brand X Internet Servs., 545 U.S. 967, 982 (2005). So, Acosta required the Court to reconsider Melerine "through a Chevron lens." 909 F.3d at 731 (cites omitted). The result? An abrupt about-face on a question of law that has been settled in the Fifth Circuit for nearly four decades just like that.

Along the way, the panel reaffirmed that the Fifth Circuit applies Brand X to the Court's pre-Chevron interpretation of a federal regulation. Id. at 731 n.6. That surprised me. Chevrondoesn’t govern judicial constructions of regulations at all. So why it makes any difference whether the Court interpreted a regulation before or after Chevron was decided is a real mystery to me.Anyway, moving right along . . .

As far as I know, this is the first time the Fifth Circuit has applied Brand X to invalidate its pre-Chevron construction of a statute.  How can that be consistent with the Fifth Circuit's rule of orderliness, you ask? Here's the panel's response:

Texas v. Alabama-Coushatta Tribe of Texas, 918 F.3d 440 (5th Cir. 2019) (Smith, Duncan, Engelhardt)

This case features another Fifth-Circuit style application of Brand X. The Alabama-Coushatta Tribe argued that the district court abused its discretion by refusing to grant Chevron deference to the National Indian Gaming Commission's interpretation of the Indian Gaming Regulatory Act, 25 U.S.C. 2701-2721. The NIGC, which administers the IGRA, concluded that the IGRA governs the Tribe's gaming activity, thus bringing the Tribe within the NIGC's jurisdiction. The problem? That interpretation contradicted a 1994 Fifth Circuit decision holding that (1) the IGRA conflicted with another Indian gaming statute--the Ysleta del Pueblo and Alabama-Coushatta Indian Tribes of Texas Restoration Act (which, curiously, is uncodified but still in effect--Pub. L. No. 100-89, 201-07, 101 Stat. 666 (Aug. 18, 1987))--and (2) the Restoration Act controls the Tribe's gaming activities. See Ysleta del sur Pueblo v. Texas ("Ysleta I"), 36 F.3d 1325, 1335 (5th Cir. 1994).

The Tribe argued deference was appropriate anyway under Brand X and City of Arlington. The district court rejected that argument and held that Ysleta I's interpretation of the interplay between the IGRA and the Restoration Act trumped the NIGC's subsequent decision to the contrary.

The Fifth Circuit affirmed. It framed the issue this way:

According to the panel, Yslet I is such a precedent:

There are lots of interesting issues lurking just below the surface of this opinion. Query, for example, why the Court applied Brand X at all. After all, Chevron only applies when an agency is interpreting a statute it administers and only that statute. Or at least that seems to have been the lesson of Epic Systems Corp. v. Lewis, 138 S. Ct. 1612 (2018). That case concerned the NLRB's construction of the National Labor Relations Act, a statute the NLRB administers, in a way that impinged on Congress's directives in another statute that the NLRB does not administer--the Federal Arbitration Act. The NLRB sought Chevron deference, but the Supreme Court held that Chevron didn't apply because NLRB "sought to interpret its statute, the NLRA, . . . . in a way that limit[ed] the work of a second statute, the Arbitration Act." The Court explained that "on no account might we agree that Congress implicitly delegated to an agency authority to address the meaning of a second statute that it does not administer." In other words, "[o]ne of Chevron's essential premises is simply missing here."

Epic Systems also reaffirmed that Chevron doesn't apply to the reconciliation of distinct statutory regimes:

Given that Ysleta I dealt with the reconciliation of distinct statutory regimes, it seems like it would have been easier simply to cite Epic Systems and declare Chevron (and therefore Brand X) inapplicable in Alabama-Coushatta Tribe of Texas.

In any event, I think the panel reached the right result. Brand X and City of Arlington are two aggressively "pro-Chevron" opinions. As Epic Systems illustrates, the current Court is no longer so aggressively pro-Chevron. Far from it. So the Court took a safe path by reading Brand X in a way that allows courts to safeguard their statutory interpretations from the future contrary interpretation of an agency simply by (1) applying the traditional tools of statutory construction, including canons and legislative history and (2) being careful not to call the statutory language unclear, subject to complex debate, ambiguous, or the like.


Brand X Fifth-Circuit Style
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