Edward A. Robinson III and Diana R. Robinson - Page 30




                                       - 118 -                                         
          797-798.  Based on the Blue Book and the deference to be accorded            
          under Chevron, however, the court upheld the validity of the                 
          regulation.  Id.                                                             
               F.   Summary of the Cases                                               
               Thus, all five of the Courts of Appeals accorded the 9T                 
          regulation Chevron deference.                                                
          III.  Post-Mead Case Law                                                     
               In the years that have passed since the U.S. Courts of                  
          Appeals issued their opinions regarding the 9T regulation,                   
          principles of law have developed regarding the Chevron doctrine.             
          See supra, part I.  The U.S. Court of Appeals for the Fifth                  
          Circuit, the circuit to which appeal in the instant case lies,               
          has stated:  “Mead clarified that Chevron’s expansive conception             
          of judicial deference to an administrative agency’s legal                    
          interpretation applies only when ‘Congress delegated authority to            
          the agency generally to make rules carrying the force of law, and            
          * * * the agency interpretation claiming deference was                       
          promulgated in the exercise of that authority.’”  Pool Co. v.                
          Cooper, 274 F.3d 173, 177 n.3 (5th Cir. 2001).  In the absence of            
          Chevron deference, pursuant to Mead, the agency’s interpretation             
          is accorded respect under Skidmore according to its “power to                
          persuade”.  Id. at 177; see also Landmark Legal Found. v. IRS,               
          267 F.3d 1132, 1135-1136 (D.C. Cir. 2001) (when Chevron deference            
          does not apply, the IRS’s interpretations are entitled to “no                
          more than the weight derived from their ‘power to persuade.’”).              




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