Tuesday, May 21, 2013

Yesterday's Supreme Court Chevron Decision and Its Impact on the NLRB

GelernterA very interesting guest post today by Lise Gelernter (Buffalo) on the potential impact of yesterday's U.S. Supreme Court decision involving administrative law and the FCC, which could have some impact on the NLRB's power to interpret the jurisdictional bounds of its own statute:

As an administrative law geek, I read the Supreme Court’s Chevron decision issued yesterday (City of Arlington v. FCC 569 U.S. __, slip op. No. 11-1545 (5/20/13)) with great interest.  And then I started wondering if it had any impact on the NAM v. NLRB case concerning the NLRB’s authority to require employers to exhibit posters about employees’ collective bargaining rights. 

In the Arlington v. FCC case, the majority (with Justice Scalia writing the decision and Justice Roberts strongly dissenting, joined by Justices Alito and Kennedy) said that courts had to defer, under Chevron, to the FCC’s determination that it had the jurisdiction or authority to interpret an ambiguous part of its statute.  The statute in question required state and local governments to act on wireless antennas siting applications “within a reasonable period of time.”  47 USC §332(c)(7)(B)(ii).  The FCC had promulgated a rule interpreting “reasonable” to mean 90 days for applications for new antennas on existing towers, and 150 days for all other applications.  The question was “whether a court must defer under Chevron to an agency’s interpretation of a statutory ambiguity that concerns the scope of the agency’s statutory authority (that is, jurisdiction).” 

 The majority found that there was no difference in Chevron treatment of “jurisdictional” questions and “run-of-the mill” applications of an agency’s governing statute.  Slip op. at 5.  The bottom line was:

judges should not waste their time in the mental acrobatics needed to decide whether an agency’s interpretation of 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.

Id. at 9.  The Court upheld the Fifth Circuit’s decision to grant Chevron deference to the FCC because the statutory grant of authority was ambiguous and the FCC’s interpretation of its authority was “a permissible construction of the statute.”  Id. at 4.  The ambiguity was found in  the “reasonable period” language in §332(c)(7)(B)(ii) and a “saving clause” that provided “that nothing in the [Communications] Act, except those limitations provided in §332(c)(7)(B) ‘shall limit or affect the authority of a State or local government’ over siting decisions.”  Id. at 2 (emphasis added).  The City of Arlington had argued that the “saving clause” took away the FCC’s authority to set specific time limits on siting decisions.  The Fifth Circuit had determined that the effect of the saving was ambiguous and that the FCC’s determination that it could impose specific time limitations was a “permissible construction of the statute.”  Id. at 4.

Although the DC Circuit’s decision in the NAM v. NLRB case is framed differently, I wonder if that court’s insistence on Section 8(c)’s limitations on the NLRB’s ability to require employers to post the NLRB’s words about collective bargaining rights isn’t really just a decision not to grant Chevron deference to the Board’s finding that it had the jurisdiction to require the poster.  As was true for the FCC, the NLRB has a broad grant of rulemaking power under §6; the NLRB has “the authority from time to time to make, amend, and rescind . . . such rules and regulations as may be necessary to carry out the provisions of this Act.”  §201 of the Communications Act gives the FCC the similar authority to “prescribe such rules and regulations as may be necessary in the public interest to carry out [its] provisions.”  Shouldn’t the NLRB’s interpretation of its statute in a regulation get the same deference test applied as was true for the FCC?  It can be argued that the DC Circuit just began with the wrong analysis.

Some might argue that the NAM v. NLRB case is very different because it is based on a First Amendment analysis, not a Chevron-type analysis.  But the DC Circuit was very careful to tie everything back to the statute in the form of the limits that §8(c) imposes on the NLRB, not really on the First Amendment.  The court’s conclusion states: “We therefore conclude that the Board’s rule violates § 8(c).”  Slip op. at 23.  Thus, the issue in that case really is whether or not §8(c) precluded the Board from issuing its rule (which was the issue the litigants focused on).  The Arlington v. FCC case says that if the Board’s statutory interpretation is permissible, the court should defer to the Board’s interpretation in the face of the ambiguity raised by the interplay of §8(c), the §7 rights the NLRA grants, and the broad §6 rulemaking authority.  Of course, a court could find that the Board’s interpretation is not permissible, but that is not what the DC Circuit did.  The court short-circuited the traditional Chevron analysis that the Arlington v. FCC case requires.

I think Lise's analysis has some really bite to it and will be interested to hear what readers think of her theory in the comments.



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The DC Circuit's opinion in NAM seems to me ridiculously overreaching -- it's hard to explain why, under the court's rationale, the requirement to post the "Employees must wash hands before returning to work" sign is constitutional. But wouldn't a defender of that decision say, in response to Prof. Gelertner's analysis, that the DC Circuit wasn't refusing to extend Chevron deference to the NLRB's interpretation of Section 8(c)? Rather, a defender might say, the DC Circuit was just saying that the NLRB's interpretation was inconsistent with the meaning of Section 8(c) as determined by traditional tools of statutory construction and thus that the interpretation failed Chevron step one. Certainly the DC Circuit doesn't say that they're refusing to apply Chevron deference because the 8(c) question is jurisdictional (the issue addressed in Arlington v. FCC). To be sure, they don't say they're applying Chevron deference, either (except w/r/t the statute of limitations question), but the opinion reads a lot like a Chevron-one opinion.

Posted by: Sam Bagenstos | May 21, 2013 6:22:41 PM

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