Flock v. Department of Transportation

(1) Whether the U.S. Court of Appeals for the 1st Circuit erred by holding, in conflict with the U.S. Courts of Appeals for the 3rd, 5th, 11th and District of Columbia Circuits, that ambiguity required for granting Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc. deference may be established on the basis of congressional silence perceived where the statute expressly authorized the agency to do one thing but did not expressly forbid it from doing another; (2) whether the 1st Circuit erred by granting Chevron deference to an agency's statutory interpretation advanced for the first time as a defense in litigation, where the circuits are deeply split and confused as to whether or under what circumstances to grant Chevron or Skidmore v. Swift & Co. deference or no deference at all; and (3) whether the 1st Circuit erred, in conflict with the 5th Circuit and the U.S. Court of Appeals for the 6th Circuit, by approving the release of documents that were not identified in the agency's System of Records Notice.