The recent U.S. Supreme Court decision in City of Arlington v. FCC, - U.S. - , No. 11-1545 (U.S. May 20, 2013) involved the validity of a Federal Communications Commission ruling on the regulation of wireless towers and antennas – more specifically, whether the agency’s interpretation of what constituted a “reasonable period of time” under the Telecommunications Act for state and local authorities to act on siting applications was permissible and enforceable.
In a 6-3 ruling, the Court upheld the agency’s interpretation of the statute, with the majority applying the holding of Chevron, U.S.A., Inc. v. Natural Resources Defense Counsel Inc., 467 U.S. 837 (1984), that if an agency’s interpretation of its authorizing statute is a “permissible” one, it is entitled to deference from the courts. (For those who think it’s always easy to guess how the Supreme Court’s majority and dissenting votes lined up: Justice Scalia wrote for the Court, joined by Thomas, Ginsburg, Sotomayor, and Kagan; Breyer concurred; Chief Justice Roberts wrote the dissenting opinion, joined by Kennedy and Alito.) The Arlington majority declined to adopt the dissenting justices’ view that Chevron deference should not be afforded to those agency interpretations that involve the scope of that agency’s own jurisdiction.
The majority observed that Chevron involves a two-step process: A court must first determine if the statute is ambiguous on the issue in dispute, and if it is not, then Congress has clearly spoken on the subject, and “that is the end of the matter.” But if the statute is silent or ambiguous, “the question for the court is whether the agency’s answer is based on a permissible construction of the statute.” (Slip op. at 4-5)
As to the dissenters’ concern that an agency might always have a tendency to over-reach as to the extent of its own authority, the majority held that “Where Congress has established a clear line, the agency cannot go beyond it….[W]here Congress has established an ambiguous line, the agency can go no further than the ambiguity will fairly allow”.
Why should labor and employment practitioners care about this decision interpreting telecommunications law? Simply, because the Arlington holding is not limited to FCC interpretation of its authority, and should, on its face, apply with equal force to the interpretations of agencies applying federal labor and employment laws.
Your author was once asked by a non-labor practitioner how the NLRB views the doctrine of stare decisis (i.e., the need to apply past precedent when the same issue arises again in litigation). My response was, and is: “Not only does the NLRB not believe in the stare decisis doctrine;they apply the ‘new sheriff in town’ doctrine. Every time an administration changes from Democratic to Republican or vice versa (dating back at least to the Eisenhower administration), a new set of Board members comes in, throws out most of the major precedents of the predecessor Board, and changes the law dramatically. In Democratic administrations, the pendulum swings in the pro-employee direction; in Republican administrations, in the pro-employer direction.”
To a somewhat lesser extent, the same has held true for EEOC and U.S. Department of Labor interpretations.
U.S. Courts of Appeal in the past have not hesitated to overturn federal labor/employment agency decisions that they felt did not adequately comport with the authorizing statute and existing case law. This has had some moderating effect on agency interpretations that have been prone to shift too readily with the political winds. The “permissible construction” standard, however, presents a rather low hurdle for an agency to clear. And the Arlington decision may make it easier for an agency to have its interpretation of its statute withstand a court challenge, even if it departs from past precedent, so long as the agency’s view raises one plausible reading of that statute, which “goes no further” than any ambiguity in the statutory language may allow.
Decision available here.