Sometimes a loss in a discovery battle is really a win. That is
certainly the outcome in Sunoco, Inc. v. United States,
2016 WL 334578 (Fed. Cl., No. 1:15-cv-00587, 10/6/16). In
Sunoco, Judge Wheeler of the Court of Federal Claims
denied Sunoco's motion to compel production of the background
file documents for Notice 2015-56 (Aug. 15, 2015). The court,
however, denied the motion on the grounds that the requested
documents are unnecessary because the Notice is not entitled to
Skidmore deference.
Under Skidmore v. Swift, courts may give deference to
an agency's interpretation of its governing laws even when the
agency does not use its rulemaking powers. In deciding whether to
give deference to the agency's interpretation, courts consider
the interpretation's "thoroughness evident in its
consideration, the validity of its reasoning, its consistency with
earlier and later pronouncements, and all those factors which give
it power to persuade, if lacking power to
