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SCOTUS Permits Chevron Deference to Agency’s View of Jurisdiction: A New Void to Fill

Posted in Agency Authority, Judicial Process, Judicial Review & Remedies

The Supreme Court of the United States (SCOTUS) today decided (5+1–3), in City of Arlington v. FCC, that courts do owe agencies deference in interpreting the statutory scope of agency jurisdiction.  The court held that lower courts should apply Chevron deference to agency determinations of their own jurisdiction in ambiguous statutes by rejecting the jurisdictional / non-jurisdictional distinction.  The decision, in effect, permits wider judicial deference to agency interpretation of its underlying statute, leaves a void for agencies to fill, and may shift the focus of litigation more to the actual statutory terms and the standard of review.

FCC, Local Jurisdictions & Cell Towers:  Congress tried to balance competing federal (nationwide communications) and local (zoning regulation) concerns about siting cell towers in the Telecommunications Act of 1996 by setting parameters for local primacy, with antidiscrimination provisions, and a timing limitation.  The State or local government “shall act on any request for [build a cell tower] within a reasonable period of time after the request is duly filed….”  The Federal Communications Commission (FCC) adopted a rule setting a presumptive “reasonable period.”  The United States Court of Appeals for the Fifth Circuit held that the Chevron framework applied to the threshold question whether the FCC possessed statutory authority to adopt specific 90- and 150-day timeframes.  The Court granted certiorari to consider whether an agency’s interpretation of a statutory ambiguity that concerns the scope of its regulatory authority (that is, its jurisdiction) is entitled to deference under Chevron U.S.A. Inc. v. NRDC, Inc.

Chevron DeferenceChevron holds that courts owe deference to an agency interpretation of their programmatic statutes in a familiar two-step process:

  1. The court must determine, applying the ordinary tools of statutory construction, “whether Congress has directly spoken to the precise question at issue.  If the intent of Congress is clear, that is the end of the matter; for the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress.”
  2. But “if the statute is silent or ambiguous with respect to the specific issue, the question for the court is whether the agency’s answer is based on a permissible construction of the statute.”  If so, the court must defer to the agency’s interpretation and the court not decide the issue itself.

In this case, the relevant Act of Congress imposed five substantive limitations, only one of which was at issue:  the Act requires state or local governments to act on wireless or cell tower siting applications “within a reasonable period of time after the request is duly filed” and the issue is whether the FCC has “jurisdiction” to interpret that phrase, and is due deference.

SCOTUS Decision:  The Court, by Justice Scalia, noted that Chevron is based on a presumption of congressional intent (establishing intent is a separate issue):  prior cases have held that Congress’s ambiguity in a statute delegating rulemaking authority, “understood that the ambiguity would be resolved, first and foremost, by the agency, and desired the agency (rather than the courts) to possess whatever degree of discretion the ambiguity allows.

The Court rejected for agencies the “jurisdictional” distinctions that are applicable to statutes affecting judicial review and the courts.  Justice Scalia makes clear that under Chevron:

the distinction be­tween “jurisdictional” and “nonjurisdictional” interpreta­tions is a mirage.  No matter how it is framed, the question a court faces when confronted with an agency’s interpretation of a statute it administers is always, simply, whether the agency has stayed within the bounds of its statutory authority.

Judicial “jurisdictional” distinctions do not apply to agency administration of Congressional Acts:

Both [the agency’s] power to act and how they are to act is authoritatively prescribed by Congress, so that when they act improperly, no less than when they act beyond their jurisdiction, what they do is ultra vires. Because the question — whether framed as an incorrect application of agency authority or an assertion of author­ity not conferred — is always whether the agency has gone beyond what Congress has permitted it to do, there is no principled basis for carving out some arbitrary subset of such claims as “jurisdictional.”

Granting an agency deference over the interpretation of its jurisdiction simplifies, in Justice Scalia’s view, the decision on the first and only critical element:

In sum, judges should not waste their time in the mental acrobatics needed to decide whether an agency’s interpretation of a statutory provision is “jurisdictional” or “nonjurisdictional.”  Once those labels are sheared away, it becomes clear that the question in every case is, simply, whether the statutory text forecloses the agency’s assertion of authority, or not.

Concur:  Justice Breyer joined the majority’s judgment and “such portions of its opinion as are consistent with” his concurring opinion.  Although not necessary to a Court majority and decision, Justice Breyer’s view (particularly in administrative law) may persuade judges in future cases.

I say that the existence of statutory ambiguity is sometimes not enough to warrant the conclusion that Congress has left a deference-warranting gap for the agency to fill because our cases make clear that other, sometimes context specific, factors will on occasion prove relevant.

And he provides those very relevant factors, citing prior authority, including:

the interstitial nature of the legal question, the related expertise of the Agency, the importance of the question to administration of the statute, the complexity of that administration, and the careful consideration the Agency has given the question over a long period of time.

Justice Breyer illuminates further two key points:

The subject matter of the relevant provision — for instance, its distance from the agency’s ordinary statutory duties or its falling within the scope of another agency’s authority — has also proved relevant.

Moreover, the statute’s text, its context, the structure of the statutory scheme, and canons of textual construction are relevant in determining whether the statute is ambiguous and can be equally helpful in determining whether such ambiguity comes accompanied with agency authority to fill a gap with an interpretation that carries the force of law.

Dissent:  Chief Justice Roberts (joined by Justices Kennedy and Alito) disagreed and succinctly expressed the disagreement:

A court should not defer to an agency until the court decides, on its own, that the agency is entitled to deference.  Courts defer to an agency’s interpretation of law when and because Congress has conferred on the agency interpretive authority over the question at issue.  An agency cannot exercise interpretive authority until it has it; the question whether an agency enjoys that authority must be decided by a court, without deference to the agency.

The dissent looks to the separation of powers problem inherent to deferring to an agency’s view of the contours of its own power:

The Court touches on a legitimate concern:  Chevron importantly guards against the Judiciary arrogating to itself policymaking properly left, under the separation of powers, to the Executive.  But there is another concern at play, no less firmly rooted in our constitutional structure.  That is the obligation of the Judiciary not only to confine itself to its proper role, but to ensure that the other branches do so as well.

The dissent holds to the structure of the question, agreeing that the Fifth Circuit correctly recognized that it could not apply Chevron deference to the FCC’s interpretation unless the agency possessed statutory authority to administer the reasonable time provision of the Act, but argues that the Fifth Circuit erred by granting Chevron deference to the FCC’s view on that antecedent question.

Rejecting Jurisdiction – Not Solving Issues:  The Court’s decision might be seen as expanding deference to an agency’s interpretation of its underlying statute, but only slightly or perhaps not at all.  Courts must still determine, often under the Administrative Procedure Act (APA), whether the agency has acted in accordance with the statute – but without the aid of a jurisdictional exception.  Agencies may, if they are capable, clarify ambiguity, apparently even ambiguity over common words, but their statements too must be clear and supported.  City of Arlington v. FCC eliminates a short-hand distinction but does not resolve issues generated by Chevron; rather it may complicate those issues.

The dissent points out, and the majority finds understandable, concern for the growth of agency power.  An agency naturally tends to expansively interpret its authority as a byproduct of political pressures to accomplish goals and bureaucratic pressures to respond, thereby expanding the regulatory portfolio.  City of Arlington does not help temper agency aggrandizement tendencies or require Congressional clarity.