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Beyond Chevron's Domain: Agency Intepretations of Statutory Procedural Provisions

This Article examines procedural protections that safeguard substantive rights in administrative adjudications. Federal administrative agencies essentially conduct trials without a jury or an Article III judge, and their decisions are afforded deferential judicial review. Agencies also directly impact substantive rights through informal adjudications accompanied by only minimal procedures. For these reasons, we must closely watch agencies to ensure that regulated parties' rights are being adequately protected. The usual guardians of these rights are the federal courts. It is troubling, then, that the First Circuit recently abandoned twenty-eight year old precedent favoring formal procedures in agency adjudications where the enabling statute is ambiguous as to whether the agency must follow formal or informal procedures. This shift impacts a longstanding circuit split. Due to the absence of Supreme Court guidance or clear statutory language from Congress, agencies and lower courts must interpret ambiguous enabling statutes. This ambiguity has allowed agencies to increasingly favor informal procedures while courts have struggled with how to determine whether the APA's formal procedures are triggered in any particular case. Some courts, including the First Circuit, have granted Chevron deference to agency interpretations of their statutory procedural provisions. This Article argues this practice is inappropriate for two primary reasons. First, the rationales underlying Chevron deference - implied delegation and agency expertise - fail to support deference in this context. Second, Chevron deference maximizes the opportunity for agency discretion (and its accompanying concerns about agency self-interest) while potentially decreasing fairness to regulated parties. To address these concerns, the Article proposes that courts employ a nondeferential, contextual approach when interpreting ambiguous statutory procedural provisions regarding adjudications. This approach best recognizes the courts' expertise and institutional competence as well as the role of procedural formalities in protecting substantive rights from agency self-interest and arbitrariness.