Hernandez-Carrera: Deference to Agencies' Interpretations After Supreme Court Decisions

By Amber Blasingame 

Three years after the Court decided National Cable & Telecommunications Ass’n v. Brand X Internet Services, the Tenth Circuit finally weighs-in on deference to agency interpretations subsequent to contrary judiciary interpretations.  545 U.S. 967 (2005).  In Hernandez-Carrera v. Carlson, the Tenth Circuit holds that courts should defer to agency interpretations published subsequent to judiciary opinions, even U.S. Supreme Court interpretations.  547 F.3d 1237 (10th Cir. 2008).  The Tenth Circuit’s decision in Hernandez-Carrera departs from other circuits which have generally held that an earlier Supreme Court interpretation prevails over a subsequent contrary agency interpretation.  Tran v. Mukasey, 515 F.3d 478 (5th Cir. 2008); Thai v. Ashcroft, 366 F.3d 790 (9th Cir. 2004).

The question before the court in Hernandez-Carrera is if the Tenth Circuit should defer to the agency or the Supreme Court on whether Mr. Santos Hernandez-Carrera and Mr. Pablo Santiago Hernandez-Arenado may be detained for longer than a statutorily-prescribed removal period.  547 F.3d at 1245-46.  Under 8 U.S.C. § 1231(a)(1)(A), an alien issued a final order of removal must be removed from the United States within 90 days.  However, a recent Department of Homeland Security (“DHS”) interpretation of the Immigration and Nationality Act has granted the Attorney General discretion to extend the detention period beyond the 90 days for certain classes of aliens.  8 C.F.R. § 241.14.  Those classes include aliens “determined by the Attorney General to be a risk to the community or unlikely to comply with the order of removal.”  8 U.S.C. § 1231(a)(6).

In 2001, prior to the agency’s adoption of this interpretation, the Supreme Court held in Zadvydas v. Davis and Clark v. Martinez that DHS could only detain an alien under the statute for a reasonable amount of time to remove the alien from the United States.  533 U.S. 678 (2001); 543 U.S. 371 (2005).  The Court presumed a period of six months was “reasonably necessary to remove an alien from the United States,” even under special circumstances under the controlling statute.  Hernandez-Carrera v. Carlson, 546 F. Supp.2d 1185, 1187 (D. Kan. 2008) (interpreting Zadvydas).  DHS subsequently published its interpretation in response to Zadvydas.  At least two circuits have followed the Supreme Court’s Zadvydas decision even after the agency adopted its new interpretation. The Fifth Circuit (in Tran v. Mukasey) and the Ninth Circuit (in Thai v. Ashcroft) concluded that the Supreme Court’s interpretation of the Immigration and Nationality Act in Zadvydas and Clark trumped the agency’s later interpretation.  515 F.3d at 484; 366 F.3d at 797. The Tenth Circuit disagrees with this interpretation of Brand X.  Hernandez-Carrera, 547 F.3d at 1246-47.

Other circuits defer to earlier Supreme Court interpretations of agency laws even in light of subsequent contrary agency interpretations, even while concluding Courts of Appeals’ interpretations must yield to an agency’s new contrary interpretation.  The Third Circuit concluded that in Brand X the Supreme Court “left no doubt that if a court of appeals interprets an ambiguous statute one way, and the agency charged with administering that statute subsequently interprets it another way, even that same court of appeals may not then ignore the agency’s more-recent interpretation.”  See, e.g., Levy v. Sterling Holding-Co., LLC, 544 F.3d 493, 502 (3d Cir. 2008) (emphasis added).  Likewise, the Fourth Circuit and First Circuits have adopted similar interpretations.  Fernandez v. Keisler, 502 F.3d 337, 347 (4th Cir. 2007); Dominion Energy Brayton Point, LLC v. Johnson, 443 F.3d 12, 16-17 (1st Cir. 2006).

However, the decisions of the circuits listed above did not involve comparison of an earlier Supreme Court decision to a more recent contrary agency interpretation of its organic statute.  The Tenth Circuit court points out in Hernandez-Carrera that other courts have implied an agreement with its decision, because to hold otherwise would lead to an absurd result.  547 F.3d at 1247.  The reasoning of Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc. and the Supreme Court’s subsequent decision includes deference to the knowledge and experience of the agency as well as its more intimate familiarity with its own organic statute and intent of Congress.  467 U.S. 837 (1984).  Hernandez-Carrera reasons that even if the Supreme Court alone were allowed controlling interpretation of an agency statute, then irresolute decisions between the agency and federal courts would result.  547 F.3d at 1247.  Under Chevron, a court may interpret a decidedly ambiguous agency statute which the agency had not previously interpreted. Then, according to Brand X, if the agency later publishes an interpretation, then a court must defer to the agency’s new interpretation, even if it conflicts with its previous decision.  545 U.S. at 983.  However, if a court’s prior contrary decision were controlling then the agency’s power to interpret its own statute as Congress intended would be undermined according to Hernandez-Carrera547 F.3d at 1247.

But what of stare decisis?  The Tenth Circuit explains that a “court’s ‘precedent has not been ‘reversed’ by the agency, any more than a federal court’s interpretation of a State’s law can be said to have been ‘reversed’ by a state court that adopts a conflicting (yet authoritative) interpretation of state law.’”  Hernandez-Carrera, 547 F.3d at 1247.

The Tenth Circuit’s Hernandez-Carrera decision clarifies that agencies are primarily responsible for interpreting their congressional mandates.  However, the decision, at least for the Tenth Circuit, leaves the circuits split on the power of the Supreme Court in such manners.