Notice & Comment

SCOTUS Revisits Chevron in Recent Opinion, by Katherine Kennedy

The following case stems from two Texas cities, Arlington and San Antonio, petition for review of a declaratory ruling by the Federal Communications Commission (FCC) establishing reasonable time frames under the Telecommunications Act for a state or locality to act on wireless facility siting applications. Judge Owen of the United States Court of Appeals for the Fifth Circuit denied the petitions in part and dismissed the petitions in part (668 F.3d 229).

Relying on Circuit precedent, the Court of Appeals held that the Chevron framework applied to the threshold question whether the FCC possessed statutory authority to adopt the 90– and 150–day timeframes allowed in the overarching statute, The Communications Act of 1934, as amended. Applying Chevron, the Court of Appeals found “§ 332(c)(7)(A)‘s effect on the FCC’s authority to administer § 332(c)(7)(B)‘s limitations ambiguous,”  and held that “the FCC’s interpretation of its statutory authority” was a permissible construction of the statute.  On the merits, the court upheld the presumptive 90– and 150–day deadlines as a “permissible construction of § 332(c)(7)(B)(ii) and (v) … entitled to Chevron deference.”

The United States Supreme Court granted certiorari in part to answer the limited question of whether … a court should apply Chevron to … an agency’s determination of its own jurisdiction. On May 21, 2013, Justice Scalia, in his opinion, held that 1) a court must defer under Chevron to an agency’s interpretation of a statutory ambiguity that concerns the scope of the agency’s jurisdiction, and 2) Chevron deference applied to the FCC declaratory ruling. City of Arlington, Tex. v. F.C.C., 11-1545, 2013 WL 2149789 (U.S. 2013). After lengthy discussion of the history of the two part Chevron test, Justice Scalia does away with the distinction between jurisdictional and non-jurisdictional statutory interpretation traditionally used in analyzing agency interpretation. Justice Scalia stated that “[o]nce 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.”

Justice Scalia was heavily persuaded by H. Edwards & L. Elliott, Federal Standards of Review 146 (2007) which states that “In practice, it does not appear to matter whether delegated authority is viewed as a threshold inquiry.” Further, Justice Scalia goes on to say that a federal judge who plays the role of an ancient Roman diviner in these types of cases, sifting through vast legislation to figure out if the agency at issue has jurisdiction over the topic at issue, is not really engaging in reasoned decision-making. Rather, the purpose of Chevron that resounds in every case dealing with agency statutory interpretation is that judges ought to refrain from substituting their own interstitial lawmaking for that of an agency. Thus, Justice Scalia seems to assert that characterizing the case as jurisdictional or non-jurisdictional is a commonplace game to signal the need for a Chevron analysis.

One group of respondents contended that Chevron deference is inappropriate here because the FCC has “assert[ed] jurisdiction over matters of traditional state and local concern. Justice Scalia, with minimal airtime, stated that this party has incorrectly comingled administrative law with the issue of federalism. However, the opinion ends in a stark contrast with the dissent. The opinion states that those who assert that applying Chevron to “jurisdictional” interpretations “leaves the fox in charge of the henhouse,” meaning that those who believe the distinction between jurisdictional and non-jurisdictional statutory interpretation overlook the reality that a separate category of “jurisdictional” interpretations does not exist. Justice Scalia feels that doing away with this distinction and by not by establishing “an arbitrary and undefinable category of agency decisionmaking that is accorded no deference” is instead, taking seriously, and applying rigorously, in all cases, statutory limits on agencies’ authority.

The court then states, which is probably the clearest take home message of this case: That where Congress has established a clear line, the agency cannot go beyond it; and where Congress has established an ambiguous line, the agency can go no further than the ambiguity will fairly allow. But in rigorously applying the latter rule, a court need not pause to puzzle over whether the interpretive question presented is “jurisdictional.” If “the agency’s answer is based on a permissible construction of the statute,” according to the majority, that is the end of the matter. 

This post was originally published on the legacy ABA Section of Administrative Law and Regulatory Practice Notice and Comment blog, which merged with the Yale Journal on Regulation Notice and Comment blog in 2015.

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