Akm LLC v. Secretary of Labor, Dept. of Labor

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued January 20, 2012 Decided April 6, 2012

No. 11-1106

AKM LLC, DOING BUSINESS AS VOLKS CONSTRUCTORS,

PETITIONER

v.

SECRETARY OF LABOR, DEPARTMENT OF LABOR AND

OCCUPATIONAL SAFETY & HEALTH REVIEW COMMISSION,

RESPONDENTS

On Petition for Review of a Final Order of the

Occupational Safety & Health Review Commission

Arthur G. Sapper argued the cause for petitioner. On the

briefs was Michael S. Nadel.

Elizabeth Gaudio was on the brief for amicus curiae

National Federation of Independent Business Small Business

Legal Center in support of petitioner.

Heather R. Phillips, Attorney, U.S. Department of Labor,

argued the cause for respondent. With her on the brief were

Joseph M. Woodward, Associate Solicitor, and Robert W.

Aldrich, Attorney.

Before: HENDERSON, GARLAND, and BROWN, Circuit

Judges.

2

Opinion for the Court filed by Circuit Judge BROWN.

Opinion concurring in the judgment filed by Circuit

Judge GARLAND.

Concurring opinion filed by Circuit Judge BROWN.

BROWN, Circuit Judge: OSHA cited and fined petitioner,

Volks Constructors, for failing to properly record certain

workplace injuries and for failing to properly maintain its

injury log between January 2002 and April 2006. OSHA

issued the citations in November 2006, which was, as Volks

points out, at least six months after the last unrecorded injury

occurred. Because “[n]o citation may be issued . . . after the

expiration of six months following the occurrence of any

violation,” 29 U.S.C. § 658(c), we agree with Volks that the

citations are untimely and should be vacated.

I

The Occupational Safety and Health Act (“OSH Act” or

“Act”) provides that “[e]ach employer shall make, keep and

preserve” records of workplace injuries and illnesses “as the

Secretary . . . may prescribe by regulation.” 29 U.S.C. §

657(c)(1). Pursuant to that delegated authority, the Secretary

has promulgated a set of regulations which require employers

to record information about work-related injuries and illnesses

in three ways. Employers must prepare an incident report and

a separate injury log “within seven (7) calendar days of

receiving information that a recordable injury or illness has

occurred,” 29 C.F.R. § 1904.29(b)(3), and must also prepare a

year-end summary report of all recordable injuries during the

calendar year, id. § 1904.32(a)(2). This year-end summary

must be certified by a “company executive.” Id. §

3

1904.32(b)(3). The employer “must save” all of these

documents for five years from the end of the calendar year

those records cover. Id. § 1904.33(a).

On May 10, 2006, OSHA began an inspection of Volks

and discovered that Volks had not been diligent in completing

its logs, forms, and summaries between 2002 and early 2006.

Accordingly, on November 8, 2006, OSHA issued the set of

citations at issue in this case. OSHA fined Volks a total of

$13,300 for 67 violations of 29 C.F.R. § 1904.29(b)(2)—

incident report forms were incomplete, 102 violations of 29

C.F.R. § 1904.29(b)(3)—injuries were not entered in the log,

one violation of 29 C.F.R. § 1904.32(a)(1)—year-end reviews

were not conducted between 2002 and 2005, and one

violation of 29 C.F.R. § 1904.32(b)(3)—the wrong person

certified the year-end summary.1 The improperly recorded

injuries occurred between January 11, 2002 at the earliest and

April 22, 2006 at the latest. These dates are equivalent to a

maximum of 54 months before the issuance of the citation,

and a minimum of six months plus ten days before the

issuance of the citation. Volks was not cited for any violation

of the requirement in 29 C.F.R. § 1904.33(a) that it “save” the

forms and the log for five years.

Because the Act says that “[n]o citation may be issued . .

. after the expiration of six months following the occurrence

of any violation,” 29 U.S.C. § 658(c), and because the injuries

giving rise to recording failures took place more than six

months before the issuance of the citation, Volks moved to

dismiss these citations as untimely. After the OSHA ALJ

1

OSHA issued a fifth citation for failing to post the year-end

summary for a long enough time period in 2006, but this item was

unanimously vacated by the Occupational Safety and Health

Review Commission (OSHRC) and is not before this Court.

4

affirmed the citations, Volks appealed to the Occupational

Safety and Health Review Commission (OSHRC). The

Secretary said all the violations for which Volks was cited are

“continuing violations” that prevent the statute of limitations

from expiring until the end of the five-year document

retention period in 29 C.F.R. § 1904.33(a). Therefore, the

Secretary argued, all of Volks’s violations, stretching as far

back as January of 2002, were still occurring on May 10,

2006 when the inspection began. The citations were issued

two days shy of six months later than that date, so the

Secretary argued they were timely. By a 2-1 vote, and over

the vigorous dissent of the minority Commissioner, the

Commission agreed with the Secretary and affirmed the

citations. AKM LLC, 23 BNA OSHC 1414 (No. 06-1990,

2011) (“Commission Decision”). This petition for review

followed.

II

The question in this case is whether the Act’s record-

keeping requirement, in conjunction with the five-year

regulatory retention period, permits OSHA to subvert the

Act’s six-month statute of limitations.

Because the Secretary of Labor has interpreted the Act

and her regulations to pretermit the Act’s statute of

limitations, we first determine whether we must defer to her

interpretation. Generally, the answer is yes so long as the

statutes and regulations in question are ambiguous and the

Secretary’s interpretations are reasonable. See Chevron,

U.S.A., Inc. v. Natural Res. Def. Council, 467 U.S. 837, 843

(1984); Christensen v. Harris Cnty., 529 U.S. 576, 588

(2000). This is so even if the Secretary’s interpretation arises

in an administrative adjudication rather than in a formal

rulemaking process. Martin v. OSHRC, 499 U.S. 144, 157

5

(1991) (“[T]he Secretary’s litigating position before the

Commission is as much an exercise of delegated lawmaking

powers as is the Secretary’s promulgation of a workplace

health and safety standard.”); see Auer v. Robbins, 519 U.S.

452, 462 (1997) (holding that the Secretary’s interpretation of

regulations receives deference even if contained in a brief).

Since the method by which the Secretary’s interpretation

has been articulated in this case places it within the ambit of

our deference, the next question is whether the interpretation

of a statute of limitations is the type of question which

triggers our deference. We have recently suggested that, in at

least some circumstances, agency interpretations of statutes of

limitations do trigger Chevron deference. Intermountain Ins.

Serv. of Vail v. Comm’r, 650 F.3d 691, 707 (D.C. Cir. 2011).

Because we find this statute to be clear and the agency’s

interpretation unreasonable in any event, infra, we need not

and do not decide now that this case presents the same

circumstances as Intermountain or that deference to agency

interpretations of statutes of limitations is warranted as a rule.

Rather, we assume without deciding that Chevron deference

is available because the interpretation offered by the agency

here “cannot survive even with the aid of Chevron deference.”

Kennecott Utah Copper Corp. v. Dep’t of Interior, 88 F.3d

1191, 1210 (D.C. Cir. 1996).

III

We thus begin with the text of the statute. If Congress

has clearly expressed its will, our inquiry is at an end.

Chevron, 467 U.S. at 843. We think the statute is clear; the

citations are untimely.

The statute of limitations provides that “no citation may

be issued . . . after the expiration of six months following the

6

occurrence of any violation.” 29 U.S.C. § 658(c). Like the

Supreme Court, we think the word “occurrence” clearly refers

to a discrete antecedent event—something that “happened” or

“came to pass” “in the past.” Nat’l R.R. Passenger Corp. v.

Morgan, 536 U.S. 101, 109–10 & n.5 (2002) (citing

dictionaries); see Black’s Law Dictionary 1080 (6th ed. 1990)

(defining “occurrence” as “a coming or happening[;] [a]ny

incident or event”); Webster’s Third New Int’l Dictionary

1561 (1981) (defining “occurrence” as “something that takes

place” and noting that it is a term that “lacks much

connotational range” for which synonyms are “incident,

episode, [or] event”).2 In this case, every single violation for

which Volks was cited—failures to make and review

records—and every workplace injury which gave rise to those

unmet recording obligations were “incidents” and “events”

which “occurred” more than six months before the issuance of

the citations. As the dissenting Commissioner stated in this

case, “[b]y any common definition, there [was] no

‘occurrence,’ i.e., no discrete action, event, or incident, no

coming about, and no process of happening, within the

requisite six months.” Commission Decision, at *18

(Thompson, Comm’r, dissenting). We agree.

The Secretary does not offer any other definition of

“occurrence” but instead heroically attempts, as the dissenting

Commissioner put it, to “tie this straightforward issue into a

Gordian knot.” Id. at *17. The Secretary argues such

violations continue every day that an unmet record-keeping

obligation remains unsatisfied. Because the statute also

requires that “each employer shall make, keep and preserve”

2

The Secretary attempts to distinguish Morgan on the grounds that

it is a Title VII case, Resp’t Br. at 25, but the Court’s reasoning on

this point in Morgan did not rely on any peculiarity of Title VII.

536 U.S. at 109–10.

7

those records as the Secretary prescribes, 29 U.S.C. § 657(c),

and the Secretary has prescribed that work injuries be

recorded “within seven (7) calendar days” of an incident

report, 29 C.F.R. § 1904.29(b)(3), and those records be

retained for five years, id. § 1904.33(a), the Secretary

concludes the real statute of limitations for record-making

violations is the length of the agency’s record retention period

plus the limitations period Congress proposed—here, five

years beyond the six months stated in Section 658(c).

Despite the cloud of dust the Secretary kicks up in an

effort to lead us to her interpretation, the text and structure of

the Act reveal a quite different and quite clear congressional

intent that requires none of the strained inferences she urges

upon us. To the extent Congress delegated authority to the

Secretary to require employers to “make, keep and preserve,”

records in Section 657(c), it did so only within the ambit set

by the statutory scheme, including the limitations period in

Section 658(c)—which expressly applies to “any regulations

prescribed pursuant to this chapter,” such as those

promulgated pursuant to Section 657(c). 29 U.S.C. § 658(a).

On the one hand, employers must make records of workplace

injuries in whatever form the Secretary requires within the

time period established by the Secretary—here, seven days

after the injury. If they fail to do so, that is a violation.

Pursuant to Section 658(c), OSHA may cite employers for

violations within six months of the violation’s occurrence. If

an injury is reported on May 1, OSHA can cite an employer

for the failure to create a record beginning on May 8, and a

citation issued within the following six months, and only the

following six months, would be valid. On the other hand,

once an employer has made such a record, it must also retain

it for as long as the Secretary demands and in the forms the

Secretary requires—here, for five years. If it loses or destroys

a record before the end of that time period, that too is a

8

violation. Pursuant to Section 658(c), OSHA may cite

employers for violations within six months of a violation’s

occurrence, so for six months after the fifth year, and only for

those six months, OSHA can cite an employer for the loss or

destruction of a record. In this case, OSHA did not cite Volks

for the loss or destruction of a record it never made, as much

as the Secretary would now like to rely on that metaphysically

impossible failure on Volks’s part to extend the timeliness of

other citations. OSHA only cited Volks for the failure to

create a record, but it did so far too late.

The Secretary’s interpretation of these two provisions, by

contrast, has several flaws. First, it leaves little room for

Section 658(c), and we must be “hesitant to adopt an

interpretation of a congressional enactment which renders

superfluous another portion of that same law.” United States

v. Jicarilla Apache Nation, 131 S. Ct. 2313, 2330 (2011). At

best, the Secretary’s approach diminishes Section 658(c) to a

mere six-month addition to whatever retention/limitations

period she desires. We do not believe Congress expressly

established a statute of limitations only to implicitly

encourage the Secretary to ignore it. See Whitman v. Am.

Trucking Ass’ns, Inc., 531 U.S. 457, 468 (2001) (“Congress,

we have held, does not alter the fundamental details of a

regulatory scheme in vague terms or ancillary provisions—it

does not, one might say, hide elephants in mouseholes.”).

Second, the Secretary’s interpretation incorrectly assumes that

the obligation to maintain an existing record expands the

scope of an otherwise discrete obligation to make that record

in the first place. But the two obligations are distinct: one

cannot keep what never existed; a company cannot retain a

record it never created. See Bd. of Trs. of Leland Stanford Jr.

Univ. v. Roche Molecular Sys., Inc., 131 S. Ct. 2188, 2197

(2011) (noting that “retain” means “to hold or continue to

9

hold in possession or use,” which in turn means “[y]ou cannot

retain something unless you already have it”).3

Third, the Secretary essentially asks us to conclude that

the mere authorization to issue regulations governing the

creation and preservation of records justifies an inference that

Congress intended violations of record-making requirements

to be treated as continuing violations. The Secretary’s

reasoning is not persuasive enough to overcome the “standard

rule” that the limitations period is triggered by the existence

of a complete cause of action, “[u]nless Congress has told us

otherwise in the legislation at issue.” See Bay Area Laundry

& Dry Cleaning Pension Trust Fund v. Ferbar Corp., 522

U.S. 192, 201 (1997); Cherosky v. Henderson, 330 F.3d 1243,

1248 (9th Cir. 2003) (“The Supreme Court has made clear . . .

that the application of the continuing violations doctrine

should be the exception, rather than the rule.”). Moreover, we

are especially skeptical of the Secretary’s inference when

Volks’s conduct is not even the sort of conduct we generally

view as giving rise to a continuing violation. As we have

held, continuing violations are those whose “character as a

violation did not become clear until [they] w[ere] repeated

during the limitations period, typically because it is only [the]

cumulative impact . . . that reveals [their] illegality.” Taylor

v. FDIC, 132 F.3d 753, 765 (D.C. Cir. 1997). The illegality

of Volks’s conduct would be immediately apparent to an

OSHA administrator. Without a clearer directive, we cannot

presume Congress intended to depart from the general rule.

3

That OSHA did not cite Volks for a failure to retain injury records

when that is the only conduct for which the statute of limitations

would not have clearly expired suggests that OSHA had, at some

point, correctly understood that an unmade record cannot be said to

have not been retained and that an employer’s obligations with

respect to making and keeping records are distinct.

10

The Secretary’s interpretation also runs afoul of our

precedents. Her approach would stitch the retention and

creation obligations into one continuing obligation, but we

have stated in no uncertain terms that the “lingering effect of

an unlawful act is not itself an unlawful act,” Felter v.

Kempthorne, 473 F.3d 1255, 1260 (D.C. Cir. 2007), and that

the “mere failure to right a wrong . . . cannot be a continuing

wrong which tolls the statute of limitations,” for if it were,

“the exception would obliterate the rule,” Fitzgerald v.

Seamans, 553 F.2d 220, 230 (D.C. Cir. 1977). See also

Lorance v. AT&T Techs., Inc., 490 U.S. 900, 908 (1989) (“[A]

claim . . . wholly dependent on . . . conduct occurring well

outside the period of limitations . . . cannot [support] a

continuing violation.”); Local Lodge No. 1424 v. NLRB, 362

U.S. 411, 422 (1960) (holding that “a finding of violation

which is inescapably grounded on events predating the

limitations period” is untimely); Chalabi v. Hashemite

Kingdom of Jordan, 543 F.3d 725, 730 (D.C. Cir. 2008)

(concluding that an “ongoing failure to return . . . wrongfully

seized property” cannot toll the statute of limitations);

Kyriakopoulos v. George Washington Univ., 866 F.2d 438,

448 (D.C. Cir. 1989) (“Any . . . action that merely declines to

remedy [a] breach, so long as that action independently

breaches no [other provision], gives rise to no [separate]

action.”). The mere requirement to save a record cannot

possibly impose a continuing affirmative duty to correct past

failures to make the record in the first place.

It is telling that in order to find supportive circuit law, the

Secretary resorts to modifying a quotation which, properly

quoted, is perfectly consistent with our conclusion.4 The

4

The Secretary also relies on three inapposite cases. The first,

United States v. Cores, 356 U.S. 405, 408–09 (1958), addressed the

concept of continuing offenses for the purposes of venue and not

11

Secretary says, “this Court has previously found that a statute

of limitations will not operate to bar claims where the action

(or inaction) that constitutes the basis for a claim was ‘carried

forward by more recent actions [or inactions].’” Resp’t Br. at

39 (quoting Int’l Union, United Auto., Aerospace & Agric.

Implement Workers v. NLRB, 363 F.2d 702, 706–07 (D.C.

Cir. 1966). But that bracketed addition makes all the

difference, and is simply not present in the decision. While

we held that continued actions may extend the statute of

limitations, nothing in that case suggests that inaction has the

same effect, and this case is about inactions (hence the need

for the Secretary’s addition). In short, the Secretary’s

continuing violations theory would transform the failure to

right a past wrong into a reason not to start the limitations

clock—a result our precedents plainly proscribe.

Of course, where, for example, a company continues to

subject its employees to unsafe machines, Resp’t Br. at 26–

27, or continues to send its employees into dangerous

situations without appropriate training, Oral Arg. Recording

at 30:50, OSHA may be able to toll the statute of limitations

on a continuing violations theory since the dangers created by

the violations persist. But the Secretary’s argument here is

instead grounded on the faulty logic that the mere existence of

statutes of limitations, a distinction described as “obvious[],”

United States v. Reitmeyer, 356 F.3d 1313, 1323 (10th Cir. 2004)

(citing United States v. Toussie, 397 U.S. 112, 121 n.16 (1970)).

The second, Sierra Club v. Simkins Indus., Inc., 847 F.2d 1109,

1114–15 (4th Cir. 1988), discussed whether past conduct could give

rise to citizen suits under the Clean Air Act, but said nothing about

statutes of limitations. The last, Wilderness Soc’y v. Norton, 434

F.3d 584, 588 (D.C. Cir. 2006), held that an agency’s failure to act

constituted a continuing violation, but this was in the context of our

mandamus jurisdiction. Mandamus is altogether different than

ordinary rights of action, as we explained in that very case. Id.

12

a statutory provision authorizing her to require employers to

make and keep records, 29 U.S.C. § 657(c), creates a

continuing obligation that expands the statute of limitations.

In rejecting that argument, we express no opinion on whether

some other violations, if any, could, for some other reason, be

extended by the continuing violations concept. See Postow v.

OBA Fed. Savings & Loan Ass’n, 627 F.2d 1370, 1380 n.22

(D.C. Cir. 1980) (interpreting a statute of limitations to allow

for a continuing violations theory in some circumstances, but

not all, and suggesting the theory would in any event not

allow a violation to continue “indefinitely after the transaction

was consummated”). Instead, we simply conclude that the

statutory language in Section 657(c) which deals with record-

keeping is not authorization for OSHA to cite the employer

for a record-making violation more than six months after the

recording failure. See Chalabi, 543 F.3d at 730; Fitzgerald,

553 F.2d at 230.

Indeed, the Secretary’s interpretation has absurd

consequences in the context of the discrete record-making

failure in this case. Under her interpretation, the statute of

limitations Congress included in the Act could be expanded

ad infinitum if, for example, the Secretary promulgated a

regulation requiring that a record be kept of every violation

for as long as the Secretary would like to be able to bring an

action based on that violation. There is truly no end to such

madness. If the record retention regulation in this case

instead required, say, a thirty-year retention period, the

Secretary’s theory would allow her to cite Volks for the

original failure to record an injury thirty years after it

happened. Counsel for the Secretary readily conceded as

much at oral argument. Oral Arg. Recording at 23:22–25:30.

We cannot believe Congress intended or contemplated such a

result. Congress’s aim in creating OSHA was to improve the

safety of America’s workplaces. See 29 U.S.C. § 651(b).

13

Congress evidently thought this goal would be served by

mandating that OSHA enforce record-making violations

swiftly or else forfeit the chance to do so, as reflected in its

requirement that citations not issue later than six months after

a violation.5 Cf. Mohasco Corp. v. Silver, 447 U.S. 807, 825

(1980) (“By choosing what are obviously quite short

deadlines, Congress clearly intended to encourage the prompt

[pursuit] of all charges . . . .”). Nothing in the statute suggests

Congress sought to endow this bureaucracy with the power to

hold a discrete record-making violation over employers for

years, and then cite the employer long after the opportunity to

actually improve the workplace has passed. “An

interpretation of a statute purporting to set a definite

limitation upon the time of bringing action, without saving

clauses, which would, nevertheless, leave defendants subject

indefinitely to actions for the wrong done, would, we think,

defeat its obvious purpose.” Reading Co. v. Koons, 271 U.S.

58, 65 (1926). It is not for us or the Secretary to unsettle

Congress’s chosen means of ensuring that outcome.

IV

The Act clearly renders the citations untimely, and the

Secretary’s argument to the contrary relies on an

interpretation that is neither natural nor consistent with our

precedents. The petition for review is granted and the

citations are vacated.

So ordered.

5

If the Secretary feels this limitations period is too short to allow

for the discovery of unsafe conditions or health effects which may

not become apparent for months or years into the future, she could

argue the statute should be read to incorporate a discovery rule, as

she had before the OSHA ALJ. But she did not press that argument

before the Commission, Commission Decision, at *6, or here.

GARLAND, Circuit Judge, concurring in the judgment:

Petitioner Volks Constructors raises three principal arguments

relating to its OSHA citations. First, Volks contends that the

Secretary’s interpretation of the OSH Act’s six-month statute of

limitations, 29 U.S.C. § 658(c), is not entitled to Chevron

deference. Second, it contends that, even if the Secretary were

entitled to deference, her interpretation of the statute as

authorizing citations for “continuing violations” is unreasonable.

Third, Volks argues that the regulations that OSHA cited it for

violating do not -- in any event -- impose continuing obligations

that may be continually violated.

Volks’ third argument suffices to resolve its petition

because, as the Court states, the Secretary’s regulations impose

upon employers “discrete” rather than continuing obligations to

make records. Court Op. at 8. I write to explain why those

regulations cannot reasonably be read otherwise, and hence why

the citations are untimely under the applicable statute of

limitations. This does not mean, however, that the statute could

not admit of a continuing violation theory under other

circumstances.

I

The OSH Act’s statute of limitations states: “No citation

may be issued under this section after the expiration of six

months following the occurrence of any violation.” 29 U.S.C.

§ 658(c). As the Court notes, the word “occurrence” refers to

something that “happened” in the past. Court Op. at 6 (citing

Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 109-10 &

n.5 (2002)). Here, the thing that “happened” was Volks’

“violation” of an obligation imposed by the OSHA regulations

specified in the citations. Under the statute, a violation can thus

consist not only of an act, but also of a failure to act: here,

Volks’ “failures to make and review records” as required by the

regulations. Court Op. at 6. Finally, I agree with my colleagues

that, in this case, “every single violation for which Volks was

2

cited . . . ‘occurred’ more than six months before the issuance of

the citations.” Id. This is why:

1. OSHA cited Volks for violating 29 C.F.R.

§ 1904.29(b)(2) and (b)(3), by failing to record employees’

work-related injuries and illnesses on the OSHA 300 log and

OSHA 301 incident report forms. See Citation at 15-20, 21-29

(Nov. 8, 2006). That regulation requires an employer to “enter

each recordable injury or illness on the OSHA 300 Log and 301

Incident Report within seven (7) calendar days of receiving

information that a recordable injury or illness has occurred.” 29

C.F.R. § 1904.29(b)(3). Volks contends that the seven days are

a “grace period,” at the end of which the violation “occur[s]” for

purposes of the six-month statute of limitations. Pet’r Br. 33-34.

Although the Secretary does not dispute that § 1904.29(b)(3)

creates a grace period, she maintains that Volks’ failures to

record “constituted continuing violations beginning with Volks’

initial failure to record . . . within seven days of learning of each

injury or illness,” and “then continu[ing] throughout the five-

year record retention period prescribed by the regulations,

which period had not elapsed as of the date of OSHA’s

inspection.” Resp’t Br. 16 (emphasis added).

The “five-year record retention period” referred to by the

Secretary undermines rather than supports her argument. The

regulation that prescribes that period, § 1904.33(a), requires an

employer to “save the OSHA 300 Log . . . and the OSHA 301

Incident Report forms for five (5) years following the end of the

calendar year that these records cover.” 29 C.F.R. § 1904.33(a)

(emphasis added). But the Secretary did not cite Volks for

violating § 1904.33(a) by failing to save those documents; she

cited it for violating §1904.29(b) by failing to record

information on them. Indeed, she does not contend that Volks

failed to “save” its logs and incident reports for five years or to

have them available during that period.

3

Nor is there anything in the language of § 1904.33(a) that

imposes a continuing obligation to update or correct those

documents after seven days. To the contrary, the very next

subsection of § 1904.33 makes clear that there is no continuous

updating requirement applicable to Volks. With respect to the

logs, § 1904.33(b) reads as follows:

Do I have to update the OSHA 300 Log during the

five-year storage period? Yes, during the storage

period, you must update your stored OSHA 300 Logs

to include newly discovered recordable injuries or

illnesses and to show any changes that have occurred

in the classification of previously recorded injuries and

illnesses.

29 C.F.R. § 1904.33(b)(1) (emphasis added). In other words,

the requirement to update a stored log does not obligate an

employer to constantly reexamine injuries and illnesses, but

rather is expressly limited to recording “newly discovered”

information. Hence, because the Secretary does not contend that

Volks discovered anything new after the seven-day period, the

updating requirement for logs has no application to Volks.1 The

1

The Secretary’s brief on this point is puzzling. It acknowledges

that employers are not “required to constantly re-examine injures and

illnesses during the five-year retention period.” Resp’t Br. 36.

“Instead, the examination and assessment of illnesses and injuries

should usually take place only once, either within the seven-day grace

period found in § 1904.29(b)(3), or at any point thereafter as soon as

the employer realizes that it has failed to meet its ongoing recording

obligations.” Id. And yet, there is nothing in the record to suggest

that Volks “realized” after the passage of the seven-day period that it

had failed to record a recordable case. To the contrary, the parties

stipulated that “the date that Volks received information that a

recordable injury or illness occurred” was the date of the “injury or

illness” itself. Stipulations of the Parties ¶ 2.

4

analysis with respect to the incident report forms can be even

briefer. Section 1904.33(b) expressly states: “You are not

required to update the OSHA 301 Incident Reports.” Id.

§ 1904.33(b)(3) (emphasis added).

In sum, even if a stand-alone provision with language like

that in § 1904.29(b)(3) could be read to create an obligation that

continues after a grace period,2 § 1904.29(b)(3) does not stand

alone. Instead, it is followed by another provision -- specifically

addressed to “retention and updating” -- that makes clear that

Volks did not have a continuing obligation to update its logs and

incident reports. See 29 C.F.R. § 1904.33. Accordingly, Volks’

violations occurred by the end of the relevant seven-day periods,

and the Secretary had no more than six months thereafter to file

her citations.3

2

Cf. United States v. George, 625 F.3d 1124, 1131 (9th Cir. 2010)

(holding that the registration provision of the Sex Offender

Registration and Notification Act, which requires a sex offender to

update the relevant sex offender registry “not later than 3 business

days after each change of name, residence, employment, or student

status,” 42 U.S.C. § 16913(c), creates a “continuing offense” for

purposes of the Ex Post Facto Clause), vacated on other grounds,

2012 WL 718297 (9th Cir. Mar. 7, 2012).

3

For this reason, the Commission’s comparison between an

inaccurate entry on an OSHA 300 log and the existence of a condition

that does not comply with a safety standard is inapt. See Commission

Decision at *3-5. As discussed above, the recording regulations make

clear that the company’s recording obligation occurs at a particular

time. By contrast, as discussed below in Part II, OSHA’s safety

standards impose abatement obligations that continue until the unsafe

conditions are corrected. Those obligations are categorical and not

bound to any particular time. See, e.g., 29 C.F.R. § 1910.212(a)(1)

(providing that “machine guarding shall be provided to protect the

operator and other employees in the machine area from hazards”).

5

2. OSHA also cited Volks for violating 29 C.F.R.

§ 1904.32(a)(1) and (b)(3), by failing (i) to review the OSHA

300 log at the end of each relevant calendar year and correct any

identified deficiencies, and (ii) to have a company executive

certify that the annual summary was correct and complete. See

Citation at 29, 30. The Secretary maintains that these violations,

like those considered above, “constituted continuing violations

for the entirety of the five-year retention period.” Resp’t Br. 16-

17.

Section 1904.32(a) provides:

At the end of each calendar year, you must: (1) Review

the OSHA 300 Log to verify that the entries are

complete and accurate, and correct any deficiencies

identified; (2) Create an annual summary of injuries

and illnesses recorded on the OSHA 300 Log; [and] (3)

Certify the summary . . . .

29 C.F.R. § 1904.32(a) (emphasis added). Another subsection

provides that the certification must be made by a company

executive. Id. § 1904.32(b)(3). This regulation does not contain

a grace period, and it mentions no date regarding the obligations

to review, create, and certify other than “the end of each

calendar year.” Accordingly, on its face the regulation indicates

that a violation occurs only once -- when there is a failure to

fulfill a listed obligation at the end of a year.

Moreover, Volks’ citation for failing to review the OSHA

300 log makes clear that the Secretary did not charge the

company with a continuing violation. That citation states: “At

the end of each calendar year, the employer did not review the

OSHA Log to verify that the entries were complete and

accurate, and correct any deficiencies identified.” Citation at 29

(emphasis added). In light of the introductory clause, it is

6

unreasonable to read this citation as charging a continuing

violation; rather, in accordance with the regulation, it makes

clear that the obligation occurred at the end of the relevant year.

Although the citation for failing to have a company executive

certify the annual summary does not contain the same

introductory clause, it is based on the same regulatory provision,

which imposes an obligation “[a]t the end of each calendar

year.” 29 C.F.R. § 1904.32(a).

Once again, the “five-year record retention period” offers

no support for the Secretary’s continuing violation theory. As

it does with respect to the log and incident report forms, the

record retention regulation requires a covered employer to

“save” the annual summary for five years. Id. § 1904.33(a).

The Secretary did not cite Volks for failing to save the

summaries, and there is no suggestion that Volks failed in that

regard. Nor did the Secretary cite Volks for failing to create

annual summaries, as is also required “[a]t the end of each

calendar year.” Id. § 1904.32(a)(2). Indeed, the citation

effectively concedes that Volks did so.4 Instead, Volks was

cited for two failures that necessarily had to have taken place

before or at the time the annual summary was created. A self-

evident purpose of requiring review of the OSHA 300 log at the

end of the year, id. § 1904.32(a)(1), is to ensure the accuracy of

the annual summary that is based on that log, see id.

§ 1904.32(a)(2). And the company executive’s certification of

the accuracy of the annual summary, required by

§ 1904.32(b)(3), must be made directly on the annual summary

form itself. See OSHA Form 300A.

4

The citation states that certification was made by Volks’ Human

Resources/Safety Manager rather than a company executive. Citation

at 30. Certification is made on the annual summary itself. See OSHA

Form 300A, available at http://www.osha.gov/recordkeeping/

RKforms.html.

7

Accordingly, to make even a colorable claim that Volks’

violations were continuing, the regulation would have to require

Volks not just to save the annual report, but to update it during

the five-year record retention period. But the question of

whether there is such an updating requirement is asked and

answered by the OSHA regulation itself: “Do I have to update

the annual summary? No, you are not required to update the

annual summary, but you may do so if you wish.” 29 C.F.R.

§ 1904.33(b)(2).

3. In sum, it is clear that the obligations imposed by

§ 1904.29(b)(2) and (b)(3) must be satisfied by the end of that

regulation’s seven-day grace period, while the obligations

imposed by § 1904.32(a)(1) and (b)(3) must be satisfied at the

end of the relevant year. Those obligations do not continue

thereafter. Hence, for purposes of 29 U.S.C. § 658(c),

“violation[s]” of these regulations “occur[]” at those dates and

do not continue. And, as § 658(c) requires, “no citation may be

issued . . . after the expiration of six months following the

occurrence of any [such] violation.”5

5

The Secretary’s repeated references to two provisions of the

OSH Act do not advance her claim that Volks can be cited for

continuing violations in this case. Section 657(c)(1) provides that

“[e]ach employer shall make, keep and preserve . . . such records

regarding his activities . . . as the Secretary . . . may prescribe by

regulation.” 29 U.S.C. § 657(c)(1). Section 657(c)(2) provides that

“the Secretary . . . shall prescribe regulations requiring employers to

maintain accurate records of, and to make periodic reports on, work-

related deaths, injuries and illnesses.” Id. § 657(c)(2). But Volks was

not cited for violating statutes that authorize the prescription of

regulations. Rather, it was charged with violating specific regulations

that the Secretary actually did prescribe. As discussed in the text,

those regulations do not impose continuing obligations.

8

II

None of this is to say, as the petitioner suggests in its

opening brief, that a statute of limitations like § 658(c) can never

admit of a continuing violation for a failure to act. To the

contrary, where a regulation (or statute) imposes a continuing

obligation to act, a party can continue to violate it until that

obligation is satisfied, and the statute of limitations will not

begin to run until it does.

As the Court notes, OSHA’s record retention regulation

imposes such a continuing obligation: an employer “must save

the OSHA 300 Log, . . . the annual summary, and the OSHA

301 Incident Report forms for five (5) years.” 29 C.F.R.

§ 1904.33(a); see Court Op. at 7-8, 9 n.3. If the employer “loses

or destroys a record before the end of that time period, that . . .

is a violation.” Court Op. at 7-8. Indeed, even if the company

simply does not have the record during that period -- whether

because it was lost or destroyed or for any other reason, known

or unknown -- that too is a violation of the obligation to retain

the records for five years. Accordingly, OSHA may cite an

employer for such a violation “for six months after the fifth

year.” Id. at 8.

Similarly, if an employer fails in its regulatory obligation to

provide “machine guarding . . . to protect the operator and other

employees in the machine area from hazards,” 29 C.F.R.

§ 1910.212(a)(1), a citation remains timely more than six

months after the first unguarded day, because each day a

machine is unguarded there is a continuing violation -- a

continuing “occurrence.” See Court Op. at 11. Likewise, as

Volks itself acknowledges, OSHA regulations requiring

employers to train their employees impose continuing

obligations that an employer can continue to violate, at least as

long as the employee is in the workplace and exposed to danger.

9

Oral Arg. Recording at 30:50; see Court Op. at 11. Hence, an

employer can violate the asbestos training requirement, which

requires that it provide training to employees who are exposed

to specified concentrations of asbestos “prior to or at the time of

initial assignment,” 29 C.F.R. § 1910.1001(j)(7), long after the

time of that initial assignment.

This court has read statutes of limitations similar to § 658(c)

as allowing for continuing violations in other contexts as well.

At issue in Postow v. OBA Federal Savings & Loan Ass’n, 627

F.2d 1370 (D.C. Cir. 1980), for example, was the Consumer

Credit Protection Act’s statute of limitations, which provides

that an action must be brought “within one year from the date of

the occurrence of the violation” of the Act, 15 U.S.C. § 1640(e).

The statutory provision allegedly violated required lenders to

make certain disclosures “before the credit is extended.” 627

F.2d at 1374 (quoting 15 U.S.C. § 1639(b) (1976)). Although

we concluded that credit was “extended” when the defendant

bank became obligated to make a loan and the plaintiff

borrowers paid a stand-by fee, we held that “the nondisclosure

violation [w]as a continuing one” that first occurred when the

bank became obligated but continued until the borrowers were

given the required disclosures at settlement. Id. at 1380.6

6

Similarly, in Wilderness Society v. Norton we indicated that the

plaintiff’s suit against the National Park Service (NPS) for failing to

perform statutorily mandated wilderness reviews was not time-barred

by the six-year statute of limitations for “‘every civil action

commenced against the United States,’” notwithstanding that the

plaintiff brought its claim more than six years after NPS had failed to

meet its statutory deadline to perform such reviews. 434 F.3d 584,

588-89 (D.C. Cir. 2006) (quoting 28 U.S.C. § 2401(a)). This was so,

we said, because NPS was “in continuous violation of its statutory

obligations.” Id. at 588. Although we did regard the plaintiff’s

statutory claims as comparable to mandamus, see Court Op. at 11 n.4,

what mattered was that the plaintiff did “not complain about what the

10

Also significant are a number of appellate decisions holding

that the registration provision of the Sex Offender Registration

and Notification Act creates a “continuing offense” for purposes

of the Ex Post Facto Clause. See, e.g., United States v.

Clements, 655 F.3d 1028, 1029 (9th Cir. 2011). That provision

requires a sex offender to update the relevant sex offender

registry “not later than 3 business days after each change of

name, residence, employment, or student status,” 42 U.S.C.

§ 16913(c). See also United States v. Edelkind, 525 F.3d 388,

393 (5th Cir. 2008) (holding that the willful failure to pay child

support is a continuing offense for purposes of the statute of

limitations).

These regulatory and statutory violations cannot be

distinguished from the ones before us on the ground that they

involve repeated acts rather than continuing failures to act.

They do not. Instead, they are distinguishable because in each

case it is reasonable to read the provision at issue as imposing a

continuing obligation. Here, by contrast, such a reading is

simply implausible.

III

An “agency is entitled to . . . deference when it adopts a

reasonable interpretation of regulations it has put in force.”

Federal Express Corp. v. Holowecki, 552 U.S. 389, 397 (2008).

In this case, however, the Secretary’s contention -- that the

regulations that Volks was cited for violating support a

“continuing violation” theory -- is not reasonable. Accordingly,

agency ha[d] done but rather about what the agency ha[d] yet to do.”

434 F.3d at 589 (internal quotation marks omitted). And what the

agency had “yet to do” was to meet a statutory deadline that had long

since passed. See id.

11

because none of the challenged citations were issued within six

months “following the occurrence of any violation,” 29 U.S.C.

§ 658(c), I agree with my colleagues that the petition for review

should be granted and the citations vacated.

BROWN, Circuit Judge, concurring: The law tends to

snowball. A statement becomes a holding, a holding becomes

a precedent, a precedent becomes a doctrine, and soon enough

we’re bowled over at the foot of a mountain, on our backs and

covered in snow. So it is with our deference doctrines.

Starting from a statement made in the Chevron decision—in

which the Justices’ own papers confirm the Supreme Court

“did not mean to do anything dramatic,” Cass R. Sunstein,

Chevron Step Zero, 92 Va. L. Rev. 187, 188 (2006)—we have

come to a place where an agency asks us with a straight face

to defer to its interpretation of a statute of limitations: a

simple, legislatively-imposed time limit on its own

prosecutorial authority. As the Court’s opinion today points

out, we still have not decided whether such a statutory

provision is deserving of Chevron deference. See Court Op.

at 5; Intermountain Ins. Serv. of Vail v. Comm’r, 650 F.3d

691, 707 (D.C. Cir. 2011) (noting that “this circuit has yet to

decide whether or under what circumstances to give Chevron

deference to agency interpretations of statutes of limitations”

and only conferring such deference “at least in the context of

this case”—a “complex administrative system for assessing

tax deficiencies and . . . expert interpretation of technical

statutory language”).1 When we do finally decide that

question, I urge us to pay closer attention to first principles.

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

1

We have deferred to an agency’s interpretation of the tolling of a

limitations period contained in its own regulations. Alldata Corp.

v. NLRB, 245 F.3d 803, 807 (D.C. Cir. 2001). But no question of

statutory interpretation was presented in that case, and

consequently, the deference owed to an agency’s interpretation of a

statutory statute of limitations was not discussed.

2

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. Chevron, 467 U.S. at

843–44; see also United States v. Mead Corp., 533 U.S. 218,

226–27 (2001). As the Supreme Court explained in Chevron,

courts defer

whenever decision as to the meaning or reach

of a statute has involved reconciling

conflicting policies, and [when] a full

understanding of the force of the statutory

policy in the given situation has depended

upon more than ordinary knowledge respecting

the matters subjected to agency regulations. . . .

If [the agency’s] choice represents a reasonable

accommodation of conflicting policies that

were committed to the agency’s care by the

statute, we should not disturb it unless it

appears from the statute or its legislative

history that the accommodation is not one that

Congress would have sanctioned.

Chevron, 467 U.S. at 844–45; see also id. at 866 (“When a

challenge to an agency construction of a statutory provision,

fairly conceptualized, really centers on the wisdom of the

agency’s policy . . . the challenge must fail. In such a case,

federal judges—who have no constituency—have a duty to

respect legitimate policy choices made by those who do.”).

3

When determining whether or not Congress has intended

an agency to make an interpretive choice, we might look to

whether that interpretive choice would involve making such a

monumental policy choice that, although the agency may be

expert, separation-of-powers considerations mean “there may

be reason to hesitate before concluding that Congress has

intended such an implicit delegation.” FDA v. Brown &

Williamson Tobacco Corp., 529 U.S. 120, 159 (2000)

(withholding deference); see also Gonzales v. Oregon, 546

U.S. 243, 262, 267–68 (withholding deference for fear of

“unrestrained” agency power in an area which is “the subject

of an earnest and profound debate” and which requires policy

judgments best reserved to legislatures). On the other hand, if

the interpretive question neither requires an agency’s

expertise nor “involve[s] reconciling conflicting policies,” we

may conclude that Congress has delegated nothing to the

agency. Chevron, 467 U.S. at 844; see Stephen Breyer,

Judicial Review of Questions of Law and Policy, 38 ADMIN.

L. REV. 363, 368–69 (1986) (discussing agency expertise as a

justification for deference).

Finally, we can also infer delegation or its absence by

asking if “the particular question [is] one that the agency or

the court is more likely to answer correctly,” or whether the

question “concern[s] common law or constitutional law, or . .

. matters of agency administration,” or whether “the agency

can be trusted to give a properly balanced answer” rather than

use the interpretive opportunity to “expand [its] power beyond

the authority that Congress gave [it].” Breyer, supra, at 370–

71; see also Thomas W. Merrill & Kristin E. Hickman,

Chevron’s Domain, 89 GEO. L.J. 833, 912–13 (2001)

(similarly suggesting that courts ask first “whether Congress

would want the particular question about the scope of agency

authority to be resolved” by deference and that “if the court

4

concludes that Congress would not want the agency to be the

primary interpreter,” it should not defer).

For example, 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, see Chevron, 467 U.S. at 743, but

when it comes to jurisdiction, more should be required. After

all, “one of this court’s principal functions [is] to ensure that

[an agency] exercises power only within the channels

intended by Congress, especially [when making such a

determination] involves no special administrative expertise

that a court does not possess.” FedEx Home Delivery v.

NLRB, 563 F.3d 492, 496 (D.C. Cir. 2009); see also Am. Civil

Liberties Union v. FCC, 823 F.2d 1554, 1567 n.32 (D.C. Cir.

1987) (“[I]t seems highly unlikely that a responsible Congress

would implicitly delegate to an agency the power to define the

scope of its own power.”). It is for this reason that, when

“general principles of the law” are to be applied to undisputed

jurisdictional facts, “we need not accord the [agency’s]

decision that special credence which we normally show

merely because it represents the agency’s considered

5

judgment.” N. Am. Van Lines, Inc. v. NLRB, 869 F.2d 596,

598 (D.C. Cir. 1989).2

That we may have “generally” deferred to an agency’s

interpretation of its own jurisdiction in the past, see, e.g.,

UPS, Inc. v. NLRB, 92 F.3d 1221, 1226 (D.C. Cir. 1996)

(“[W]e have previously concluded that we should generally

defer to an agency’s interpretation of the statute that defines

its jurisdiction.”), does not make it right as a rule. That the

Supreme Court may have likewise indicated a willingness to

defer, see, e.g., CFTC v. Schor, 478 U.S. 833, 844–45 (1986);

Mississippi Power & Light Co. v. Mississippi ex rel. Moore,

487 U.S. 354, 380–82 (1988) (Scalia, J., concurring), only

shows how far we have strayed from our role. See id. at 386–

87 (Brennan, J., dissenting) (rejecting deference because

“agencies do not ‘administer’ statutes confining the scope of

their jurisdiction, and such statutes are not ‘entrusted’ to

agencies[,] [n]or do the normal reasons for agency deference

apply”). And, in fact, even in Schor, the Court did not simply

infer a delegation to the agency. Instead, the Court was

careful to note that there was more—“abundant evidence that

Congress both contemplated and authorized the CFTC’s

assertion of jurisdiction” and that “Congress intended to vest

in the CFTC the power to define the scope” of its jurisdiction.

478 U.S. at 847, 842; see also Rapanos v. United States, 547

U.S. 715, 739 (2006) (citing Chevron but finding the

jurisdictional provision clearly contrary to the agency’s

interpretation).

2

In N. Am. Van Lines, we did still afford “some deference” to the

agency’s “conclusions drawn from the factual setting” of the

particular case, 869 F.2d at 599, but the Secretary did not rely on

any such particular conclusions in this case. Far from it, the

Secretary made a bright-line textual argument which, if accepted,

would govern the timeliness of citations in every future case.

6

Agency interpretations of statutes of limitations like the

one at issue in this case are similarly poor candidates for

deference. In general, statutes of limitations are not the sort

of technical provisions requiring or even benefiting from an

agency’s special expertise. Rather, much like many

jurisdictional provisions, these are texts with which courts are

intimately familiar, as we interpret and apply them every day.

Nor do statutes of limitations generally suggest any policies

that have been left by Congress for an agency to reconcile.

Cf. Mississippi Power & Light Co., 487 U.S. at 386–87

(Brennan, J., dissenting) (making the same points regarding

jurisdictional statutes). Surely some may, see Intermountain,

650 F.3d at 694, 707, but many do not.

Finally, and perhaps most compellingly, statutes of

limitations are designed to constrain the government’s

enforcement authority and to promote finality, repose, and the

efficient and prompt administration of justice. John R. Sand

& Gravel Co. v. United States, 552 U.S. 130, 133 (2008)

(“Some statutes of limitations . . . seek not so much to protect

a defendant’s case-specific interest in timeliness as to achieve

a broader system-related goal, such as facilitating the

administration of claims, limiting the scope of a governmental

waiver of sovereign immunity, or promoting judicial

efficiency.”); Carter v. Wash. Metro Area Transit Auth., 764

F.2d 854, 857 (D.C. Cir. 1985) (“[F]inality of outcome,

regardless of the merits of the claim, is exactly the purpose of

the statute of limitations that the legislature has enacted.”).

On the one hand, the “obvious purpose” of statutes of

limitations is to tell citizens and businesses when they no

longer have to fear finding the government at their front door

demanding satisfaction, Reading Co. v. Koons, 271 U.S. 58,

65 (1926), and on the other, statutes of limitations encourage

government to act swiftly to enforce order and punish

offenses. They are thus different than the ordinary authority-

7

setting statutes which populate the administrative state and

which routinely receive deference. All limits are not created

equal. To say that the limits of a broad delegation of

authority are discerned only at the outer bounds of judicial

review surely does not mean that narrow and specific

limitations on agency authority are similarly difficult to

define. Statutes of limitations—being constraints on agency

power—are qualitatively different than grants of plenary

power. A statute of limitations uniquely limits when an

agency may act—even within otherwise lawful bounds.

Because an agency’s interpretation of such a statute could

permit it to escape these particularly important constraints,

statutes of limitations exemplify the sort of question to which

an agency cannot “be trusted to give a properly balanced

answer” and about which we should be especially vigilant.

Breyer, supra, at 371; see Mississippi Power & Light Co., 487

U.S. at 387 (Brennan, J., dissenting) (expressing reluctance to

apply Chevron to jurisdictional statutes because such statutes

“manifest[] an unwillingness to give the agency the freedom

to define the scope of its own power”); Ernest Gellhorn &

Paul Verkuil, Controlling Chevron-Based Delegations, 20

CARDOZO L. REV. 989, 1008–09 (1999) (noting that

“[n]othing is more important to an agency than the scope of

its regulatory authority” and that “agency self-interest may

cloud its judgment”); see generally Timothy K. Armstrong,

Chevron Deference and Agency Self-Interest, 13 CORNELL

J.L. & PUB. POL’Y 203 (2004) (explaining why interpretations

advancing agencies’ financial and jurisdictional self-interest

have been and should be viewed skeptically by courts).

We once took some of these concerns to heart. In 3M

Co. v. Browner, 17 F.3d 1453 (D.C. Cir. 1994), we did not

hesitate to disregard an agency’s interpretation of a general

statute of limitations on federal civil penalties. To be sure,

8

courts have repeatedly held that “[w]hen a statute is

administered by more than one agency, a particular agency’s

interpretation is not entitled to Chevron deference,” Proffitt v.

FDIC, 200 F.3d 855, 860 (D.C. Cir. 2000), but in 3M, we did

not rely exclusively on this rationale. Instead, we said we

“[could not] agree with [the agency] that our interpretation of

[the statute of limitations] ought to be influenced by [the

agency’s] particular difficulties in enforcing” its own

statutory responsibilities, and we rejected arguments turning

on the agency’s scarce resources and needs for prioritization

as “more appropriate for a congressional oversight hearing”

than for meriting deference in this Court. Id. at 1461. We

were rightly troubled by the notion of being asked by an

agency to expand that agency’s enforcement authority when

Congress had evidently not seen fit to do so.

Similarly, some of our sister Circuits have also declined

to defer to agencies’ interpretations of statutes of limitations,

even those contained in the statutes the agency administers,

because statutes of limitations are “not a matter within the

particular expertise of the [agency]” and are “clearly legal

issue[s] that courts are better equipped to handle.” Bamidele

v. INS, 99 F.3d 557, 561 (3d Cir. 1996) (quoting Dion v. Sec’y

of Health & Human Servs., 823 F.2d 669, 673 (1st Cir.

1987)); Lynch v. Lyng, 872 F.2d 718, 724 (6th Cir. 1989)

(“[T]he amount of weight accorded an agency interpretation

diminishes further when the interpretation does not require

special knowledge within the agency’s field of technical

expertise.”). Other circuits have nonetheless afforded

deference on this subject when the statute of limitations is not

general, like in 3M, but specific to the agency. See Asika v.

Ashcroft, 362 F.3d 264, 271 n.8 (4th Cir. 2004) (rejecting

Bamidele); Interamericas Investments v. Bd. of Governors,

111 F.3d 376, 382 (5th Cir. 1997); Capital Tel. Co. v. FCC,

777 F.2d 868, 871 (2d Cir. 1985) (per curiam).

9

Confronted with a statute of limitations that does not

involve the sort of intricacies that motivated us to reject

Bamidele in “the context of” Intermountain, 650 F.3d at 707,

I would find any ambiguities to be ours to resolve and not the

agency’s. Our narrower disposition of this case, instead

assuming without deciding that Chevron applies, should not

be read as foreclosing a future panel of this Court from

tackling anew the deference owed to agency interpretations of

statutes of limitations, even those reached and conveyed in the

proper form. When that time comes, I hope this Court will

carefully consider why and when we are meant to defer before

we endow an agency’s mere invocation of Chevron with

talismanic authority. We must steadfastly guard our

prerogative to “say what the law is,” Marbury v. Madison, 5

U.S. (1 Cranch) 137, 177 (1803), and resist the reflex of

deference.