Developments in Administrative Law and Regulatory Practice 2004-2005




Murphy, Richard

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American Bar Association


During the last term, the Supreme Court issued opinions of note on third-party standing, preclusion of review, displacement of § 1983 actions, and sovereign immunity. In addition to discussing these Supreme Court opinions, Part I of this chapter will highlight some of the more notable opinions the circuit courts have issued on standing and sovereign immunity.

Last term, the Supreme Court issued two decisions concerning Chevron deference. In Smith v. City of Jackson, the Court debated the propriety of extending Chevron deference to an EEOC interpretation. More significantly, in National Cable & Telecommunications Assn. v. Brand X Internet Services, the Court held that a prior judicial interpretation of a statute does not trump a subsequent interpretation otherwise entitled to Chevron deference. But the 800-pound gorilla in scope of review continues to be United States v. Mead Corp. Part II of this chapter explains the scope and impact of these decisions.

Part III of this chapter discusses attorney’s fees and costs. In cases involving claims for attorney’s fees or costs based on fee shifting statutes such as the Equal Access to Justice Act, 28 U.S.C. § 2412, three types of disputes often arise. First, the parties may disagree over whether the plaintiffs satisfied statutory provisions authorizing attorney’s fees, especially statutes awarding fees to “prevailing parties.” Second, fees may be denied under EAJA if the federal defendant’s position was substantially justified. Third, parties often dispute the amount of fees or costs.



third-party standing, preclusion of review, sovereign immunity, Chevron, Mead, Equal Access to Justice Act