Chevron Deference and Jurisdictional Questions

Should a federal agency receive Chevron deference for its interpretation of a statute of limitations governing violations of the statute it enforces? In AKM LLC v. Secretary of Labor the U.S. Court of Appeals for the D.C. Circuit denied an attempt by the Occupational Safety and Health Commission to fine an employer for failing to properly record workplace injuries. Specifically, the D.C. Circuit rejected OSHA’s effort to interpret the company’s failure as a continuing violation so as to avoid the applicable statute of limitations. Insofar as the statute of limitations as ambiguous, OSHA argued, its interpretation should receive Chevron deference. Finding the statute clear, the Court ruled against OSHA without resolving the Chevron question.

While the court did not decide the Chevron question presented by AKM, one membe of the panel, Judge Janice Rogers Brown, made her position clear. In a separate concurrence, she explained why the application of Chevron deference would have been inappropriate. According to Judge Brown, courts have been too quick to defer to agency interpretations without considering whether the precise question at issue is the sort to which Chevron should apply.

Too often, we reflexively defer whenever an administrative agency claims statutory ambiguity, but this is not our charge. See Ala. Educ. Ass’n v. Chao, 455 F.3d 386, 392–93 (D.C. Cir. 2006). Resolving disputes over statutory meaning is ordinarily the province of the courts, and the exception to this rule—deference—is not something to which an agency is entitled simply by virtue of its being an agency that has expressed an interpretation in the proper form. What makes an agency’s interpretation of a provision special is that Congress has manifested its intent that the agency’s interpretation of that provision be special. It is by Congress’s “delegation of authority to the agency to elucidate a specific provision of the statute” that an agency’s interpretation is deserving of the court’s deference.

In the course of her concurrence, Judge Brown noted that Chevron deference should not apply to jurisdictional questions.

I see no reason a court should have to defer to an agency’s interpretation of ambiguities in a provision setting out the court’s own jurisdiction to review that agency’s action. As the Ninth Circuit explained, “[w]hile we ordinarily give great weight to the interpretation of the agency charged with enforcement of the statute we are construing, that deference does not extend to the question of judicial review, a matter within the peculiar expertise of the courts.” Love v. Thomas, 858 F.2d 1347, 1352 n.9 (9th Cir. 1988). This much seems clear.

But deferring to an agency’s interpretation of its own jurisdiction without some clear indication from Congress that it has delegated jurisdiction-defining authority to the agency can raise the same separation-of-powers, expertise, and agency trust concerns. We have come to infer delegation by mere statutory ambiguity, . . . but when it comes to jurisdiction, more should be required.

This is the position Nathan Sales and I laid out in our article, “The Rest Is Silence: Chevron Deference, Agency Jurisdiction, and Statutory Silences,” 2009 U. Ill. L. Rev. 101 (2009). It is one thing to presume Congress delegated a degree of policy-making discretion to agencies, but quite another to conclude Congress granted an agency the authority to determine the scope of its own authority. Similarly, insofar as statutes of limitations are just that, limitations on agency power, it should not be presumed that Congress would want agencies to determine how such limitations should apply.