Amicus Curiae Brief — City of Arlington v. Federal Communications Commission

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Nos. 11-1545 and 11-1547 EME SL |

Hn the Supreme Court of the Anited States

CITY OF ARLINGTON, TEXAS, ET AL., PETTTIONERS

v.

FEDERAL COMMUNICATIONS COMMISSION, ET AL.

CABLE, TELECOMMUNICATIONS, AND TECHNOLOGY

COMMITTEE OF THE NEW ORLEANS CITY COUNCIL,

PETITIONER

Vv.

FEDERAL COMMUNICATIONS COMMISSION, ET AL.

ON WRITS OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

BRIEF OF THE AMERICAN FARM BUREAU

FEDERATION, CHAMBER OF COMMERCE

OF THE UNITED STATES OF AMERICA,

NATIONAL ASSOCIATION OF HOME BUILDERS,

NFIB SMALL BUSINESS LEGAL CENTER,

NATIONAL MINING ASSOCIATION, AND

RETAIL LITIGATION CENTER

AS AMICI CURIAE IN SUPPORT OF PETITIONERS

ELLEN STEEN JOHN P. ELWOOD

DANIELLE QUIST Counsel of Record

AMERICAN FARM BUREAU JEREMY C. MARWELL

FEDERATION VINSON & ELKINS LLP

600 Maryland Ave. SW 2200 Pennsylvania Ave. NW,

Suite 1OOOW Suite 500 West

Washington, DC 20024 Washington, DC 20037

(202) 406-3618 (202) 639-6500

Counsel for American jelwood@velaw.com

Farm Bureau Federation Counsel for Amici Curiae

[Additional Counsel Listed on Inside Cover]

—————— ee

WILSON-EPES PRINTING CO., INC. — (202) 789-0096 — WasHmarTon, D. C. 20002

THOMAS J. WARD

AMY C. CHAI

NATIONAL ASSOCIATION OF

HOME BUILDERS

1201 15th Street, NW

Washington, DC 20005

(202) 266-8200

Counsel for National

Association of Home

Builders

KAREN R. HARNED

ELIZABETH MILITO

NFIB SMALL BUSINESS

LEGAL CENTER

1201 F. Street, NW

Suite 200

Washington, DC 20004

(202) 406-4443

Counsel for NFIB Small

Business Legal Center

DEBORAH R. WHITE

RETAIL LITIGATION

CENTER

1700 N. Moore Street

Suite 2250

Arlington, VA 22209

(703) 841-2300

Counsel for Retail

Litigation Center

ROBIN S. CONRAD

RACHEL L.. BRAND

NATIONAL CHAMBER

LITIGATION CENTER

1615 H Street, NW

Washington, DC 20063

(202) 463-5337

Counsel for Chamber of

Commerce of the United

States of America

KATIE SWEENEY

NATIONAL MINING

ASSOCIATION

101 Constitution Ave., NW

Suite 500 East

Washington, DC 20001

(202) 463-2600

Counsel for National Mining

Association

TABLE OF CONTENTS

Page

ID cnicsnenciindsinununintinenndmecnmaiiinieel II

Interest Of Amici Curiae ..............ccccsccsececcecsecsceeeeees 1

Summary Of Argument ..................cceececeseeeeeeceeceeeeeees 4

ITT itll rai sisal criciiabinsiapndipaibaliindinedeameniinites 6

iitinniccinidcceuiebnintininsdinaninmanianeniiiineniaennnes 7

I. De Novo Judicial Review Of Jurisdictional

Questions Is A Critical Safeguard Against

Agency Aggrandizement.......................cceeeee000 10

Il. Courts Can Draw Principled Distinctions

Between Jurisdictional And Non-

Jurisdictional Questions....................0ceeseeeeeeees 26

A. The Possibility Of Hard Cases Does Not

Justify Extending Chevron Deference

To Cases That Unquestionably Involve

Limits On Agency Jurisdiction ................. 28

B. Courts Can Rely On Traditional Tools

Of Statutory Interpretation In Identify-

ing Jurisdictional Issues. ........................+.. 30

C. Well Established Background Principles

Help Identify Jurisdictional Questions .... 34

TS ae oT ee EE eT ee Te te!

II

TABLE OF AUTHORITIES

Cases Page(s)

Adams Fruit Co. v. Barrett, 494 U.S. 638

IS rae a 21-22, 36

Am. Bar Ass'n v. FTC, 430 F.3d 457 (D.C.

year een alee 20—21, 29, 34-35

Am. Bus Ass’n v. Slater, 231 F.3d 1 (D.C.

EERE pees Arne ee ae ee 22-23, 29

Am. Library Ass'n v. FCC, 406 F.3d 689

aaa Saal 16, 17, 18, 36—37

Arbaugh v. Y&H Corp., 546 U.S. 500 (2006) .... 31, 32

Atascadero State Hosp. v. Scanlon, 473 U.S.

ISERIES e ee ae Roe ee Om 7

AT&T Corp. v. Iowa Utils. Bd., 525 U.S.

SEER oe nner won Pee eC rT 16, 33

Bowen v. Georgetown Univ. Hosp., 488 U.S.

UIE v ones Tae oe oe Dene aE 7, 29

Bowles v. Russell, 551 U.S. 205 (2007).............. 32-33

Chevron, U.S.A., Inc. v. Natural Resources

Defense Council, Inc., 467 U.S. 837 (1984)....... 4, 36

Collins v. Nat'l Transp. Safety Bd., 351

if f — (8. 2a RneeeEeD 35—36

Dolan v. U.S. Postal Serv., 546 U.S. 481

TEESE SI cae ence Oe A Oe ea ER TO TESTI 30

Dole v. United Steelworkers of Am., 494

|| ERECT EE Sc aed ne ee a 19-20

Ili

Cases—Cont. Page(s)

FCC v. Midwest Video Corp., 440 U.S. 689

UII indicated 16—17, 34

FDA v. Brown & Williamson Tobacco Corp.,

I a inn sccaccalaiietinieetchscaaeaaininedn 9, 36-37

Gregory v. Ashcroft, 501 U.S. 452 (1991) ............ 9, 34

Kontrick v. Ryan, 540 U.S. 443 (2004) .................... 30

La. Pub. Serv. Comm'n v. FCC, 476 U.S.

TT ica idnesdianiathebinlladeitinaaindbiidaidiaamatibaniiigin 7, 30, 31

Mingo Logan Coal Co. v. EPA, 850 F. Supp.

ye ERE a a ane 24-25

Miss. Power & Light Co. v. Miss. ex rel.

Moore, 487 U.S. 354 (1988) ............0...0.000.. 26—27, 29

Motor Vehicle Mfrs. Ass’n v. State Farm

Mut. Auto. Ins. Co., 463 U.S. 29 (1983)................ 37

Nat'l Treasury Employees Union v. Chertoff,

452 F.3d 839 (D.C. Cir. 2006) ................... 23-24, 35

P.R. Mar. Shipping Auth. v. Valley

Freight Sys., Inc., 856 F.2d 546 (3d

es 25-26, 33

Rapanos v. United States,

g's &, 7 = —_ aeeeneneeee 1, 11-12, 13—14, 33

Reed Elsevier, Inc. v. Muchnick, 130 S. Ct.

EERE ee reece eres ne er are 30-31, 32

Ry. Labor Execs.’ Ass’n v. Natl Mediation

Bd., 29 F.3d 655 (D.C. Cir. 1994) (en banc).... 27, 31

Smiley v. Citibank (S.D.), 517 U.S. 735

TEED .vsciwnisiptscecuininaineiniesebtiaiiinbaiennionianaainiaaanniiananuiniiaueintinbis 14

IV

Cases—Cont. Page(s)

Solid Waste Agency of N. Cook County v.

U.S. Army Corps of Engineers, 531 U.S.

SPITE nduiscninniupdnuidinaiieiddnabiabiaiansedades 12, 16, 33

United States v. Mead Corp., 533 U.S. 218

DIREC poner nee torn eee ve Se ee ne 8

United States v. Sw. Cable Co., 392 U.S.

TRESS aoe eee Seen OE 16, 17

Will v. Mich. Dep’t of State Police, 491 U.S.

| ERTIES a OnE ea nRe OE SCE TENE OE 7

Statutes and Regulations

America’s Commitment to Clean Water Act,

H.R. 5088, 111th Cong. §§ 4, 5 (2010) .................. 15

Clean Water Restoration Act, S.787, 111th

Sa aici 15

OO alae 20

a I i insiccenciccinenniseniennesiainicicinedean 20, 33

IT isi iescrsentineiininnaearitcildapiabbeamanninisbibiias 11

I aa 11, 24

ys tis ciicsteinscsocpsntniiniieaneeiidieigestadiinaiegiinn 24

i iin shciccininie eictinitialataiamandibiiiaddai 11

iii leielrienlstiiaiiniahaiindibiai 21

Paperwork Reduction Act of 1980, 44 U.S.C.

I iii eediiecanicialesimiliindinil 19

a I aii casicaceeipeeienihiiaitipainiatiatiale 19

lates 16, 18

V

Statutes and Regulations—Cont. Page(s)

gS | 8 5 En Ee 18

I Ti iiccinipitetdnitntatgsptiddaenstananndieneenateies 18

le tT sini ccntnirndnimnniesismensenmmiblabeaiahadieiiiin 6

AT U.S.C. § 332(c)(7)(A)....eccececccececsesceceecesceeeeceseeee 6, 28

ee Oe iiincicsicnnniccnnmncinscnnianidninddiionnens 30

47 U.S.C. § 332(c)(7)(B) (a) .............. 6, 8, 21, 28, 30, 35

ee a nseisemesiteitapeniniitanl 6

47 U.S.C. § 332(c)(7)(B)() .................. 7, 22, 28, 29, 35

es Oy I Ci iccictinccceiccescsnscnsapincnniniine 25, 33

Se iy Oe I oricisccecttnstsnnitinssntermsddicinniisadnaaitiadansic 11

FELLATE 11

42 Fed. Reg. 37,122 (July 19, 1977).............0000000000.. 11

45 Fed. Reg. 33,290 (May 19, 1980)..........00.00000ee.. ll

Miscellaneous

Digital Broadcast Content Protection, 18

as ITED cciniinccnsiansnccinnnsadiniteisiientnanainnainnes 18

Ernest Gellhorn & Paul Verkuil, Controlling

Chevron-Based Delegations, 20 Cardozo L.

|, SES Ne Ne marr oee 28, 35, 36

Thomas W. Merrill & Kristin E. Hickman,

Chevron’s Domain, 89 Geo. L.J. 833 (2001) ......... 14

VI

Miscellaneous—Cont. Page(s)

Nathan Alexander Sales & Jonathan H. Adler,

The Rest Is Silence: Chevron Deference, Agen-

cy Jurisdiction, and Statutory Silences, 2009

U. Ill. L. Rev. 1497 (2009).............. 10, 27, 30, 32, 37

U.S. Envtl. Prot. Agency & U.S. Army Corps

of Eng’rs, Draft Guidance on Identifying Wa-

ters Protected by the Clean Water Act (Apr.

SITY siicaletadacebieahaaiabiththebenieiighaihaianieeainaiaenindaidabaliennanigsiatii 15

INTEREST OF AMICI CURIAE '

The American Farm Bureau Federation (“Farm

Bureau”) was formed in 1919 and is the largest non-

profit general farm organization in the United

States. Representing more than 6.2 million member

facilities in all 50 States and Puerto Rico, the Farm

Bureau maintains a membership that produces eve-

ry type of agricultural crop and commodity produced

in the United States. Its mission is to protect, pro-

mote, and represent the business, economic, social,

and educational interests of American farmers. To

that end, the Farm Bureau has regularly participat-

ed as amicus curiae in this Court in cases involving

the proper scope of federal regulation and jurisdic-

tional limits on the authority of federal administra-

tive agencies. Among other things, the Farm Bureau

participated as amicus curiae in Rapanos v. United

States, 547 U.S. 715 (2006), successfully urging the

Court to enforce the Clean Water Act’s statutory lim-

its on federal jurisdiction to regulate wetlands.

Founded in 1912, the Chamber of Commerce of

the United States of America (“Chamber”) is the

world’s largest business federation. The Chamber

represents 300,000 direct members and indirectly

represents an underlying membership of more than

! No counsel for a party authored this brief in whole or part,

and no counsel or party made a monetary contribution to fund

the preparation or submission of this brief. No person other

than the amici curiae, their members, and their counsel made

any monetary contribution to its preparation and submission.

The parties have consented to this filing.

(1)

2

three million businesses and professional organiza-

tions of every size, in every industry sector, and from

every region of the country. The Chamber repre-

sents the interests of its members in matters before

Congress, the Executive Branch, and the courts.

The Chamber regularly files amicus briefs in cases

that raise issues of vital concern to the Nation’s

business community, including cases addressing the

proper scope of federal regulation.

The National Association of Home Builders

(“NAHB”) is a Washington, D.C.-based trade associa-

tion whose mission is to enhance the climate for

housing and the building industry. Chief among

NAHB’s goals is providing and expanding opportuni-

ties for all people to have safe, decent, and affordable

housing. Founded in 1942, NAHB is a federation of

more than 800 state and local associations. About

one-third of NAHB’s more than 130,000 members

are home builders or remodelers, and its builder

members construct about 80 percent of all new

homes built each year in the United States. NAHB

frequently participates as a party litigant and ami-

cus curiae to safeguard the rights and interests of its

members.

The National Federation of Independent Busi-

ness Small Business Legal Center is a nonprofit,

public interest law firm established to provide legal

resources and be the voice for small businesses in

the nation’s courts through representation on issues

of public interest affecting small businesses. The

National Federation of Independent Business

(“NFIB”) is the nation’s leading small business asso-

ciation, representing members in Washington, D.C..,

3

and all 50 state capitals. Founded in 1943 as a non-

profit, nonpartisan organization, NFIB’s mission is

to promote and protect the right of its members to

own, operate and grow their businesses. NFIB rep-

resents 350,000 member businesses nationwide, and

its membership spans the spectrum of business op-

erations, ranging from sole proprietor enterprises to

firms with hundreds of employees. To fulfill its role

as the voice for small business, the NFIB Small

Business Legal Center frequently files amicus briefs

in cases that will affect small businesses.

The National Mining Association (“NMA”) is a

national trade association whose members produce

most of America’s coal, metals, and industrial and

agricultural minerals. Its membership also includes

manufacturers of mining and mineral processing

machinery and supplies, transporters, financial and

engineering firms, and other businesses involved in

the nation’s mining industries. NMA works with

Congress and federal and state regulatory officials to

provide information and analyses on public policies

of concern to its membership, and to promote policies

and practices that foster the efficient and environ-

mentally sound development and use of the country’s

mineral resources.

The Retail Litigation Center, Inc. (““RLC”) is a

public policy organization that identifies and engag-

es in legal proceedings affecting the retail industry.

The member entities whose interests RLC repre-

sents employ millions of people throughout the Unit-

ed States, provide goods and services to tens of mil-

lions more, and account for tens of billions of dollars

in annual sales. The RLC seeks to provide courts

q

with retail industry perspectives on significant legal

issues and to highlight the potential industry-wide

consequences of legal principles that may be deter-

mined in pending cases.

Amici have a substantial interest in this case be-

cause their members are subject to the jurisdiction of

federal administrative agencies in a wide range of

substantive areas. Collectively, amici represent

hundreds of thousands of U.S. businesses that have

extensive experience with agency efforts to expand

their jurisdiction beyond the authority delegated to

them by Congress. Independent judicial review has

long served as a critical bulwark for amicis mem-

bers against the unchecked expansion of federal reg-

ulation. Granting deference to administrative agen-

cies’ interpretations of the statutes that define their

jurisdiction would, in the view of amici and their

members, remove an essential guarantee of limited

government and democratic accountability.

SUMMARY OF ARGUMENT

At the heart of this case is the question whether

federal courts must defer, under Chevron, U.S.A.,

Inc. v. Natural Resources Defense Council, Inc., 467

U.S. 837 (1984), to administrative agencies’ interpre-

tation of their own jurisdiction. Expanding the scope

of “Chevron’s domain” to agency jurisdictional de-

terminations would have vast—and troubling—

implications for the administrative state.

Petitioners, respondents supporting petitioners,

and their other amici set forth compelling doctrinal

arguments why courts should not defer to agency in-

terpretations of their own jurisdiction. This brief

5

complements those arguments by demonstrating the

wide range of circumstances in which jurisdictional

questions have arisen, and the extraordinary legal

and economic significance of the issues presented.

Historically, de novo judicial review of agency asser-

tions of jurisdiction has served as an essential check

against agency aggrandizement of power. That safe-

guard not only protects regulated entities, but also

helps preserve the proper allocation of authority

within the federal government and the relationship

between the federal government and the States. Re-

gardless whether an agency assertion of jurisdiction

is warranted in a given case, jurisdictional questions

are sufficiently important to require courts to make

their own independent determination.

The main objection jurists have voiced about a

no-deference rule is a practical concern that courts

will have difficulty distinguishing jurisdictional from

non-jurisdictional questions. But the possibility of

close cases does not justify expanding Chevron defer-

ence, especially where, as here, the issue unques-

tionably involves the scope of agency jurisdiction. As

the court of appeals correctly recognized, this case

presents the threshold question of whether Congress

delegated authority to the Federal Communications

Commission (“FCC”) to interpret the statutory provi-

sion at issue—wholly apart from the question

whether the FCC’s interpretation of that provision

was a permissible one. No deference is due on that

threshold jurisdictional question.

Moreover, even as to the broader class of cases

that involve whether the agency used its interpretive

authority over a provision permissibly, line-drawing

6

concerns do not justify extending Chevron. Such

concerns are no more substantial than in other areas

where courts identify limits on jurisdiction. Courts

can draw on traditional tools of statutory interpreta-

tion and, in close cases, familiar background princi-

ples. Line-drawing concerns can also be expected to

diminish over time, because a no-deference rule will

give Congress a beneficial incentive to legislate

clearly in defining agency jurisdiction.

BACKGROUND

This case involves a dispute between local gov-

ernments and the FCC about the agency’s assertion

of jurisdiction under Section 332(c)(7) of the Tele-

communications Act, 47 U.S.C. § 332(c)(7), to regu-

late state and local land-use decisions about the

placement of wireless communications facilities.

Captioned “[p]reservation of local zoning authority,”

Section 332(c)(7) begins with a blanket reservation of

authority: “Except as provided in this paragraph,

nothing in this chapter shall limit or affect the au-

thority of a State or local government * * * over deci-

sions regarding the placement, construction, and

modification of personal wireless service facilities.”

Id. § 332(c)(7)(A). Subparagraph (B) then lists ex-

ceptions to the rule, requiring state and local gov-

ernments to (among other things): “act on any re-

quest for authorization to place, construct, or modify

personal wireless service facilities within a reasona-

ble period of time”; and not regulate “on the basis of

the environmental effects of radio frequency emis-

sions” to the extent such facilities comply with FCC

regulations. Id. § 332(c)(7)(B)(ii), (iv).

7

Section 332(c)(7)(B)(v) divides jurisdiction over

violations of subparagraphs (i)-{iv) between the FCC

and courts. Challenges to a state or local “final ac-

tion or failure to act” that is “inconsistent with * * *

subparagraph [(B)]” may be brought in a “court of

competent jurisdiction.” Jd. § 332(c)(7)(B)(v). But

persons aggrieved under the “radio frequency emis-

sion” restriction in subparagraph (iv) “may petition

the [FCC] for relief.” Jd.

ARGUMENT

As petitioners, respondents supporting petition-

ers, and their other amici explain, there are compel-

ling reasons why courts should not defer to agency

decisions about their own jurisdiction. A _ no-

deference rule follows from the core principle that an

agency “literally has no power to act * * * unless and

until Congress confers power upon it.” La. Pub.

Serv. Comm’n v. FCC, 476 U.S. 355, 374 (1986); ac-

cord Bowen v. Georgetown Univ. Hosp., 488 U.S. 204,

208 (1988). Also, because expanding federal jurisdic-

tion often intrudes into areas of traditional state au-

thority, recognizing agency authority based on ab-

sent or ambiguous statutory language violates the

rule that “if Congress intends to alter the ‘usual con-

stitutional balance between the States and the Fed-

eral Government, it must make its intention to do so

‘unmistakably clear in the language of the statute.’”

Will v. Mich. Dep’t of State Police, 491 U.S. 58, 65

(1989) (quoting Atascadero State Hosp. v. Scanlon,

473 U.S. 234, 242 (1985)). Agencies have no com-

parative expertise or advantage in interpreting ju-

risdictional statutes. To the contrary, there is a risk

that agency self-interest will cause them systemati-

8

cally to exaggerate the scope of their authority. This

Court has never held that agency jurisdictional in-

terpretations are entitled to deference, and a faithful

reading of its cases supports the contrary rule.

There are two principal types of jurisdictional in-

quiries: first, whether Congress has delegated inter-

pretive authority over a provision to an agency; and

second, whether the agency has used its interpretive

authority over a provision permissibly. This Court

has reviewed de novo whether Congress delegated

interpretative authority to an agency in the first in-

stance. See, e.g., United States vy. Mead Corp., 533

U.S. 218, 231-233 (2001). The court of appeals cor-

rectly identified that question but erred by affording

Chevron deference to the FCC’s view about whether

Congress had intended it, and not a court, to define a

“reasonable period of time” under Sec-

tion 332(c)(7)(B)(ii). That jurisdictional question is

analytically distinct from, and antecedent to, a range

of other jurisdictional questions involving whether

the agency’s interpretation is permissible, such as

whether the FCC’s interpretation of a “reasonable

period of time” to mean 90 or 150 days improperly

infringed state authority.

The argument against deference is strengthened

by understanding the variety of circumstances in

which jurisdictional questions have arisen, and the

tremendous legal and economic significance of the

issues presented. De novo judicial review serves as

an essential check against agency aggrandizement of

power. That constraint not only protects the inter-

ests of regulated entities, but also prevents federal

intrusion into areas of traditional state authority

9

and preserves the allocation of power within the fed-

eral government. Whether or not an agency’s asser-

tion of jurisdiction is ultimately appropriate in a giv-

en case, jurisdictional questions are sufficiently im-

portant to warrant independent determination by

courts.

The main objection jurists have expressed about

a no-deference rule is not theoretical or doctrinal,

but rather the practical concern that courts will have

difficulty distinguishing jurisdictional from non-

jurisdictional questions. But the possibility of close

cases does not justify expanding Chevron, especially

where—as here—an issue unquestionably concerns

agency jurisdiction, in the sense of a delegation of

interpretive authority. Moreover, as to jurisdictional

issues generally, line-drawing concerns are no more

substantial than in other areas where courts identify

jurisdictional questions. Courts can draw on tradi-

tional tools of statutory interpretation and, in close

cases, several familiar background principles.

Moreover, denying Chevron deference would give

Congress a salutary incentive to speak clearly about

agency jurisdiction, “assur[ing] that the legislature

has in fact faced, and intended to bring into issue,”

Gregory v. Ashcroft, 501 U.S. 452, 461 (1991) (inter-

nal quotation marks omitted), the implications of ex-

tending agency regulatory authority te an area.

Such a course would be consistent with the “common

sense” understanding that Congress is unlikely “to

delegate a policy decision of [great] economic and po-

litical magnitude to an administrative agency” with-

out saying so clearly. FDA v. Brown & Williamson

Tobacco Corp., 529 U.S. 120, 133 (2000). If Chevron

10

were applicable, Congress foreseeably would favor

vague jurisdictional statutes in the expectation of

using political pressure or oversight authority to af-

fect later agency decisionmaking. See Nathan Alex-

ander Sales & Jonathan H. Adler, The Rest Is Si-

lence: Chevron Deference, Agency Jurisdiction, and

Statutory Silences, 2009 U. Ill. L. Rev. 1497, 1545—

1546 (2009). Congress lacks similar mechanisms to

influence courts, increasing the risk and cost to Con-

gress of enacting vague statutes. Leaving jurisdic-

tional determinations to the independent judgment

of courts would thus provide Congress an incentive

to answer clearly the most basic of administrative-

law questions: whether it has delegated authority to

an agency to act in a particular area.

I. De Novo Judicial Review Of Jurisdictional

Questions Is A Critical Safeguard Against

Agency Aggrandizement

The examples discussed below illustrate that

agencies have frequently sought to expand their ju-

risdiction across a broad range of substantive areas,

and that jurisdictional questions often have extraor-

dinary practical, economic, and legal significance

that underscores the need for de novo judicial re-

view. By applying a less-searching standard of re-

view, Chevron deference would inevitably uphold

agency assertions of jurisdiction that lack a proper

statutory basis.

1. Jurisdiction to regulate the “waters of the

United States”

The longstanding—and ongoing—efforts by the

U.S. Army Corps of Engineers (“Corps”) and the U.S.

11

Environmental Protection Agency (“EPA”) to expand

their Clean Water Act jurisdiction to cover vast

swaths of land illustrates the consequences of agency

efforts to expand the sweep of their authority. Non-

deferential review by this Court has served as a crit-

ical check on an unprecedented expansion of federal

jurisdiction.

The Clean Water Act authorizes EPA and the

Corps to regulate the discharge of pollutants into

“navigable waters,” defined to mean “the waters of

the United States, including the territorial seas.” 33

U.S.C. §§ 1251, 1344, 1362(7). In 1977 and 1980, the

Corps and EPA promulgated regulations defining

“the waters of the United States” to include naviga-

ble and tidal waters, tributaries, certain wetlands,

impoundments, and other waters “the use, degrada-

tion or destruction of which could affect interstate or

foreign commerce.” 33 C.F.R. § 328.3(a)(3); 40 C.F.R.

§ 230.3(s)(3). The agencies interpreted this defini-

tion as coextensive with the reach of the Commerce

Clause, 42 Fed. Reg. 37,122, 37,144 n.2 (July 19,

1977), but initially acknowledged that many waters

fell outside the scope of that jurisdiction.?

The intervening decades, however, saw an “im-

mense expansion of federal regulation of land use

***under the Clean Water Act—without any

change in the governing statute.” Rapanos v. United

2 See 45 Fed. Reg. 33,290, 33,398 (May 19, 1980) (preamble)

(“{S}mall, isolated wet areas may not be waters of the United

States *** because *** their destruction or degradation

would not have any effect on interstate commerce.”).

12

States, 547 U.S. 715, 722 (2006) (plurality opinion).

This Court has rejected efforts by the Corps and

EPA to stretch their jurisdiction “beyond parody,”

id. at 734 (plurality opinion), seeking to regulate ev-

er-expanding tracts of land with increasingly tenu-

ous connections to “navigable waters.”

In Solid Waste Agency of Northern Cook County

v. U.S. Army Corps of Engineers, 531 U.S. 159 (2001)

(“SWANCC’”), this Court rejected the Corps’ asser-

tion of jurisdiction to regulate an abandoned sand

and gravel pit based on the presence of isolated “sea-

sonal ponds” used by migratory birds. The Court

noted that the Corps had originally taken a much

narrower view of its jurisdiction. Deference to the

agency's claim of jurisdiction was inappropriate, the

Court explained, because the agencies’ interpreta-

tion “invoke[d] the outer limits of Congress’ power”

and “alter[ed] the federal-state framework by per-

mitting federal encroachment upon a traditional

state power,” without a “clear indication that Con-

gress intended that result.” Id. at 172—174. Accord-

ingly, the Court held that “nonnavigable, isolated,

intrastate waters” that do not “actually abul[t] on a

navigable waterway” fall outside the agencies’ juris-

diction. Id. at 167, 172.

Unchastened by that defeat, the agencies devised

a different but equally expansive theory of jurisdic-

tion. Seeking to distinguish SWANCC as involving

only “isolated” waters, the Corps asserted jurisdic-

tion to regulate waters having any connection to nav-

igable waters. In particular, the agencies asserted

jurisdiction over “tributaries’—defined expansively

to include farm and flood control ditches, drain tiles,

13

storm drain systems, pipes, rainfall runoff, and de-

sert washes—that connected otherwise non-

jurisdictional areas to navigable waters. Regulation

of the tributaries was, in turn, the basis for asserting

jurisdiction over upland areas, on the theory that

water there was connected to navigable waters

through the hydrological cycle.

Rapanos emphatically rejected the agencies’

“‘Land is Waters’ approach to federal jurisdiction.”

547 U.S. at 734 (plurality opinion). The plurality ob-

served that over the preceding 30 years, the agencies

had “interpreted their jurisdiction over ‘the waters of

the United States’ to cover 270-to-300 million acres

of swampy lands in the United States—including

half of Alaska and an area the size of California in

the lower 48 States,” as well as “virtually any parcel

of land containing a channel or conduit * * * through

which rainwater or drainage may occasionally or in-

termittently flow.” Jd. at 722. That regulatory ex-

pansion had imposed tremendous costs on those who

found themselves in the path of the agencies’ expan-

sion: The plurality noted that the average permit

applicant spends “788 days and $271,596 in complet-

ing the process,” more than $1.7 billion each year is

spent nationwide obtaining wetlands permits, and

violations carry the threat of criminal liability and

civil fines. Jd. at 721.

In the plurality’s view, the agencies’ assertion of

jurisdiction could not be reconciled with the plain

meaning of the statute. Even if the statutory text

were ambiguous, the agencies’ interpretation would

be impermissible: The Corps “function[ing]} as a de

facto regulator of immense stretches of intrastate

14

land” would constitute an “unprecedented intrusion

into traditional] state authority” and would “stretc[h]

the outer limits of Congress’s commerce power.” Id.

at 738. Justice Kennedy likewise criticized the

Corps’ interpretation for “leav[ing] wide room for

regulation of drains, ditches, and streams remote

from any navigable-in-fact water,” id. at 781 (Ken-

nedy, J., concurring in judgment), and concluded

that waters fall within federal jurisdiction only if

they have a “significant nexus” to waters that are

navigable in fact or could reasonably be so made. Id.

at 782. Not all of the Justices agreed that the stat-

ute was clear on its face; the dissenters would have

granted Chevron deference to the Corps’ jurisdic-

tional interpretation. Jd. at 788 (Stevens, J., dis-

senting).*

Despite these defeats, the agencies appear unde-

terred in their efforts to expand their regulatory ju-

risdiction “without any change in the governing

statute.” Rapanos, 547 U.S. at 722 (plurality opin-

3 Given the sharp disagreement about whether the statuto-

ry text was unambiguous, the case may reflect the reality that

uncertainty about deference to jurisdictional questions has led

some courts to guard against aggrandizement “primarily by

exercising especially vigorous statutory interpretation at Chev-

ron’s step one when agencies press the limits of their authority,

not by creating an exception to Chevron deference.” Thomas W.

Merrill & Kristin E. Hickman, Chevron’s Domain, 89 Geo. L.J.

833, 911 (2001); Smiley v. Citibank (S.D.), 517 U.S. 735, 739

(1996) (finding it “difficult indeed to contend that *** [the

statute] [wa]s unambiguous with regard to the point at issue

here” given dissents in the court below and a split of authority

in the lower courts).

15

ion). Efforts to amend the CWA to expand its reach

beyond “navigable” waters failed in Congress. See,

e.g., America’s Commitment to Clean Water Act,

H.R. 5088, 111th Cong. §§ 4, 5 (2010); Clean Water

Restoration Act, S.787, 111th Cong. §§ 4, 5 (2009).

In April 2011, EPA and the Corps released draft

“guidance” to “clarify” how they will identify jurisdic-

tional “waters of the United States,” with the stated

intent to “increase” the “extent of waters over which

the agencies assert jurisdiction.”* Draft Guidance 3.

The draft guidance asserts jurisdiction over, among

other things, “[t]ributaries to traditional navigable

waters” and “[w]etlands adjacent to [such] jurisdic-

tional tributaries.” Jd. at 5. The draft guidance

treats wetlands as jurisdictional if they, “alone or in

combination with similarly situated lands in the re-

gion,” have a significant nexus to traditional naviga-

ble waters. Jd. at 23 (emphasis added). This “aggre-

gation” theory will have significant practical conse-

quences, allowing the agencies to assert jurisdiction

over lands that themselves lack a significant nexus

to navigable waters merely because they purportedly

have the necessary relationship when combined with

all other “similarly situated lands in the region.”

The ever-expanding assertion of federal authority

over lands in the guise of regulating “navigable wa-

ters” is perhaps the most stark illustration of the

dangers of giving decisive weight to agencies’ views

* See U.S. Envtl. Prot. Agency & U.S. Army Corps of

Eng’rs, Draft Guidance on Identifying Waters Protected by the

Clean Water Act (Apr. 2011), available at http://water.epa.gov/

lawsregs/guidance/wetlands/upload/wous_guidance_4-2011.pdf.

16

about the scope of their own jurisdiction—and in

particular, of the high federalism costs that such a

course would entail as federal agencies “impingfe]

o[n] the States’ traditional and primary power over

land and water use.” SWANCC, 531 U.S. at 174.

But fundamentally, it is only a single example of a

widespread phenomenon—that where agencies can

construe ambiguity to expand their jurisdiction, they

will do so.

2. The ‘ancillary jurisdiction” of the Federal

Communications Commission

This Court and lower courts have also closely

scrutinized expansions of the FCC’s “ancillary juris-

diction.” Title I of the Telecommunications Act of

1934 grants the FCC jurisdiction to regulate “all in-

terstate and foreign communication by wire or ra-

dio.” 47 U.S.C. § 152(a). This Court has recognized

that the Commission may exercise jurisdiction either

pursuant to express statutory authority, or pursuant

to its “ancillary jurisdiction.” AT&T Corp. v. Iowa

Utils. Bd., 525 U.S. 366, 380 (1999); United States v.

Sw. Cable Co., 392 U.S. 157, 167 (1968). To regulate

under ancillary jurisdiction, two conditions must be

met: (1) the “subject of the regulation must be cov-

ered by the Commission’s general grant of jurisdic-

tion under Title I,” Am. Library Ass'n v. FCC, 406

F.3d 689, 692 (D.C. Cir. 2005) (“ALA”); and (2) the

subject of regulation must be “reasonably ancillary

to the effective performance of the Commission’s var-

ious responsibilities.” Sw. Cable, 392 U.S. at 178.

Courts have carefully policed the boundaries of

the FCC’s ancillary jurisdiction, ensuring that this

17

“somewhat amorphous” doctrine is appropriately

“constrained.” See ALA, 406 F.3d at 692. In FCC v.

Midwest Video Corp., 440 U.S. 689, 691 (1979), this

Court rejected a Commission rule that required ca-

ble television systems carrying broadcast signals and

having 3,500 or more subscribers to develop a 20-

channel capacity, make channels available for third-

party access, and furnish equipment for access pur-

poses. Because the Act prohibits treating broadcast-

ers as common carriers, this Court held the rule ex-

ceeded the Commission’s ancillary jurisdiction be-

cause it sought to impose common-carrier obligations

on cable television systems. While recognizing that

the statutory bar on treating broadcasters as com-

mon carriers did not expressly extend to cable sys-

tems, the Court explained that it would apply the

Act’s provisions governing broadcasting, because

otherwise “the Commission’s jurisdiction under [Ti-

tle I] would be unbounded.” Id. at 706. The Court

distinguished other circumstances in which a “lack

of congressional guidance” might otherwise “le[a]d

us to defer ** * to the Commission’s judgment,” id.

at 708, concluding from the “strong [statutory] indi-

cations” (such as the prohibition on treating broad-

casters as common carriers) that the Commission’s

authority “was to be sharply delimited.” Id.

Lower courts have taken a similarly skeptical ap-

proach. ALA, for instance, addressed an FCC man-

date that equipment manufacturers include digital

broadcast copy protection features (a “broadcast

flag”) that would prevent digital television equip-

ment from redistributing a completed broadcast. 406

F.3d at 691. The Commission’s explicit jurisdictional

18

grant, however, extends only to “interstate and for-

eign communication by wire or radio” (47 U.S.C.

§ 152(a)) and “apparatus” that are “incidental to * * *

transmission,” id. § 153(40), (59). While recognizing

that its assertion of jurisdiction departed from its

historical practice (Digital Broadcast Content Protec-

tion, 18 F.C.C.R. 23,550, 23,566 (2003)), the FCC in-

voked its ancillary jurisdiction to regulate apparatus

even when they were not receiving a broadcast

transmission.

The court of appeals held that the FCC had ex-

ceeded its ancillary jurisdiction because there was

“no statutory foundation for the broadcast flag rules,

and consequently the rules are ancillary to nothing.”

406 F.3d at 692. This statutory text, the D.C. Cir-

cuit explained, did not give the FCC “general juris-

diction” over devices “that can be used for receipt of

wire or radio communication when those devices are

not engaged in the process of radio or wire transmis-

sion.” 406 F.3d at 700. The court expressly rejected

the FCC’s “self-serving invocation of Chevron [defer-

ence]” on the ground that Congress had not delegat-

ed authority to regulate in the areas at issue. Id. at

699, 705. As a result, the court refused to construe

ancillary jurisdiction “in a manner that imposes no

meaningful limits on the scope of the FCC’s general

jurisdictional grant.” Jd. at 703. The court noted

that in “seven decades of its existence, the FCC has

never before asserted such sweeping authority,” and

indeed “in the past [had] *** informed Congress

that it lacked any such authority.” Jd. at 691.

19

3. Office of Management and Budget jurisdiction

to review and reject agency rulemaking under

the Paperwork Reduction Act

Agency aggrandizement of jurisdiction does not

always involve an expansion of obligations for regu-

lated entities. In Dole v. United Steelworkers of

America, 494 U.S. 26 (1990), for example, the White

House Office of Management and Budget (“OMB”)

asserted jurisdiction to review and remand a De-

partment of Labor hazard communication regulation

that would have required employers to inform em-

ployees about the hazards of chemicals used in the

workplace. Jd. at 28-30. OMB concluded certain

aspects of the agency’s rule were unnecessary to pro-

tect employees and remanded it for changes. Id. at

30—31. This Court rejected OMB’s assertion of juris-

diction to review and remand the rule under the Pa-

perwork Reduction Act of 1980, 44 U.S.C. § 3501 et

seq., which authorizes review of rules that involve an

agencys “information collection request[s].” 494

U.S. at 33 (citing 44 U.S.C. § 3507(a)(2)). In the

Court’s view, the statute only authorized OMB to re-

view rules that require collection of information by

the government (e.g., tax forms, Medicare forms,

compliance reports, and tax records), and distin-

guished the hazard disclosure rules, which required

disclosure of information to a third party. The Court

expressly “decline[d] to defer to OMB’s interpreta-

tion” of the statute. 494 U.S. at 42 & n.10.

In dissent, Justice White and Chief Justice

Rehnquist criticized the majority for not deferring to

OMB’s interpretation under Chevron. 494 U.S. at

43—44 (White, J., dissenting). They pointedly ques-

20

tioned the majority’s conclusion that the statute was

unambiguous, noting that the majority opinion took

“10 pages, including a review of numerous statutory

provisions and legislative history” to support its view

that the statute was facially clear. Id. at 43. See

generally note 3, supra.

4. Federal Trade Commission jurisdiction to

regulate lawyers as “financial institution/s]”

Although the federalism costs of agency aggran-

dizement have been particularly acute in the envi-

ronmental context, see pp. 10-16, supra, regulatory

expansion in other areas has infringed on matters

historically regulated by States. In American Bar

Association v. FTC, 430 F.3d 457, 465, 471 (2005)

(“ABA”), the D.C. Circuit, recognizing that “regula-

tion of the practice of law is traditionally the prov-

ince of the states,” rejected efforts by the Federal

Trade Commission (“FTC”) to regulate attorneys en-

gaged in the practice of law as “financial institu-

tion[s]” under the Gramm-Leach-Bliley Financial

Modernization Act. That Act authorizes the FTC to

promulgate regulations “with respect to financial in-

stitutions * * * subject to [its] jurisdiction under sec-

tion 6805,” 15 U.S.C. §§ 6801(a), 6804(a)(1), to safe-

guard the privacy of their customers.

The FTC maintained that attorneys engaged in

the practice of law were subject to the Act’s require-

ments, emphasizing that nothing in the Act explicit-

ly prohibited it from regulating attorneys. The D.C.

Circuit sharply rejected that position, explaining

that “if we were to presume a delegation of power

from the absence of an express withholding of such

21

power, agencies would enjoy virtually limitless he-

gemony.” 430 F.3d at 468 (internal quotation marks

omitted). The court perceived no ambiguity suffi-

cient to justify reaching Chevron step 2, finding no

indication in the statute that Congress intended to

regulate the profession of law. Id. at 469. In the al-

ternative, the court concluded that the agency’s in-

terpretation was unreasonable under Chevron step

2, in part because regulation of the practice of law

has been “the province of the states * * * throughout

the history of the country.” Jd. at 471-472. The

court refused to uphold a regulation that would so

“alter the usual constitutional balance between the

States and the Federal Government” absent a clear

congressional statement that it intended do so. Id.

(internal quotation marks omitted).

5. Department of Transportation jurisdiction to

authorize money damages as a remedy for vio-

lations of the Americans with Disabilities Act

Agency attempts to expand jurisdiction can affect

not only the federal-state balance, but also the divi-

sion of authority between the branches of govern-

ment. That principle is illustrated by the case at

bar, in which the FCC has asserted jurisdiction to

define a term (“a reasonable period of time”) that

will establish a rule of decision to a type of challenge

that Congress has provided will be resolved in court.

47 U.S.C. § 332(c)(7)(B)(v). Compare Pet. App. 43a

(FCC’s interpretation would “guide courts’ determi-

nations of disputes under [Section 332(c)(7)(B)(ii)]”),

with Adams Fruit Co. v. Barrett, 494 U.S. 638, 649

(1990) (affording no deference where “Congress has

expressly established the Judiciary and not the

22

fagency] as the adjudicator of private rights of action

arising under the statute”).

American Bus Association v. Slater, 231 F.3d 1

(2000), provides another example. There, the D.C.

Circuit held that the Department of Transportation

(“DOT”) lacked authority to promulgate a rule au-

thorizing money damages against bus companies for

violations of the Americans with Disabilities Act

(“ADA”). The ADA authorizes DOT to promulgate

rules about the accessibility of large inter-city buses.

42 U.S.C. § 12186. DOT promulgated a rule that not

only set accessibility standards (e.g., boarding assis-

tance and wheelchair lifts), but required bus compa-

nies to pay monetary compensation to passengers for

violations. 231 F.3d at 3. The D.C. Circuit held that

Congress had clearly precluded DOT from authoriz-

ing a money damages scheme. The court relied in

part on a statutory provision authorizing the Attor-

ney General to bring a civil action for money damag-

es—a provision that, in the court’s view, made clear

that money damages could only be “awarded by a

court” through a civil action. Id. at 5. Judge Sentel-

le wrote separately, pointedly rejecting the agency’s

argument that “the absence of a statutory grant of

power is itself an ambiguity that calls for Chevron

deference.” Jd. at 8 (Sentelle, J., concurring). He

emphasized that “a statutory silence on the granting

of a power is a denial of that power to the agency,”

and thus “a statute that is completely silent on the

question of whether it confers a power does not vest

the agency with the discretion to determine the

scope of that power.” Id. at 8—~9. In Judge Sentelle’s

view, it would have “ma[de] a mockery of Chevron” to

23

suggest that deferential step 2 review is implicated

by Congress's “failure to deny a power to an agency.”

Id. at 9.

6. Department of Homeland Security authority

to modify the jurisdiction and authority of the

Federal Labor Relations Authority

Agency attempts to expand jurisdiction also have

implications for the division of authority within the

federal administrative state. National Treasury

Employees Union v. Chertoff, 452 F.3d 839, 866 (D.C.

Cir. 2006) (‘NTEU”), for instance, involved regula-

tions promulgated by the Department of Homeland

Security (“DHS”) and Office of Personnel Manage-

ment establishing a human resources system for

DHS. Among other things, the DHS regulations

sought to channel certain labor disputes involving

DHS employees to the Federal Labor Relations Au-

thority (“FLRA”). The DHS regulations would have

required the FLRA—an independent agency with

statutory jurisdiction to adjudicate certain federal

employee claims and labor disputes—to defer to find-

ings of fact and interpretations of law made by the

Homeland Security Labor Relations Board

(“HSLRB”), and would have authorized the HSLRB

to assume jurisdiction over any dispute if it deter-

mined that the matter affected homeland security.

The D.C. Circuit declined to defer to DHS’s inter-

pretation of its statutory authority. The court re-

jected the agency’s theory that courts should “pre-

sume a delegation of power” simply because Con-

gress had not explicitly “with[e]ld * * * such power”

from the agency—a result the court explained would

24

give agencies “virtually limitless hegemony.” 452

F.3d at 866 (internal quotation marks omitted).

Further, the agency’s interpretation of the statute

“would allow [DHS] to overtake any agency to

achieve its own ends.” Jd. The DHS regulations, the

court observed, purported to impose a “novel proce-

dural scheme” on the FLRA, “even though nothing in

the [Act] authorizes DHS to regulate the work of the

Authority or alter its statutory jurisdiction.” Id. at

865. The rule sought to conscript FLRA into review-

ing a group of cases DHS had selected, and to rede-

fine the FLRA’s statutory role. Id. at 865-866.

7. EPA authority to withdraw specification of

discharge sites after the Army Corps has is-

sued a Clean Water Act permit

The need for de novo judicial review of jurisdic-

tion to preserve the division of authority among

agencies is likewise apparent in the Clean Water Act

context. Section 404 of the Act vests the Corps with

authority to issue permits for discharges into navi-

gable waters. 33 U.S.C. § 1344. Congress, however,

granted EPA a limited veto authority, empowering

EPA to “prohibit * * * [,], deny or restrict” the speci-

fication of a disposal site (“including the withdrawal

of specification”) “whenever” EPA determines dis-

charge will have certain adverse environmental ef-

fects. Jd. § 1344(c). In Mingo Logan Coal Co. v.

EPA, 850 F. Supp. 2d 133 (D.D.C. 2012), the court

rejected EPA’s asserted authority to withdraw a dis-

posal-site specification after the Corps had issued a

permit. EPA argued that its “withdrawal” had the

legal effect of invalidating the discharge permit,

even while conceding the statute vested authority to

25

grant and revoke permits in the Corps (which had

declined EPA’s request to revoke the permit). Jd. at

142. The court refused to afford Chevron deference,

in part because of the statute’s “clear scheme of

shared responsibility.” Jd. at 145-146. The court

held the statute did not clearly grant EPA the au-

thority to revoke a permit, and the agency's reading

was in any event unreasonable, impinging on the

Corps’ permitting authority. Jd. at 152—153.

8. Interstate Commerce Commission regulation

of container transportation wholly inside a

private terminal facility, based on statutory

authority to regulate shipments “on a public

highway”

The practical consequences of extending Chevron

deference are clearest where courts have “deferred”

to agency interpretations even while expressing

doubts that the interpretation is permissible. Those

cases illustrate that according deference is often out-

come-determinative and can result in courts validat-

ing assertions of jurisdiction that are dubious at

best. P.R. Maritime Shipping Authority v. Valley

Freight Systems, Inc., 856 F.2d 546 (3d Cir. 1988),

for instance, involved the jurisdiction of the Inter-

state Commerce Commission (“ICC”) to regulate

“transportation by motor carrier * * * to the extent

that passengers, property, or both, are transported

by motor carrier * ** on a public highway.” Id. at

551 (quoting 49 U.S.C. § 10521 (1982)). The agency

maintained that transportation that occurred wholly

within a privately controlled terminal facility was

subject to a tariff that applied only to shipments un-

der ICC jurisdiction. The shipper argued the tariff

26

did not apply because the shipments were not “on a

public highway.”

The court felt itself obliged to grant Chevron def-

erence to the agency's interpretation and to uphold

its decision to treat such shipments as being “on a

public highway.” 856 F.2d at 552. Chevron defer-

ence, the court believed, is “fully applicable to an

agency's interpretation of its own jurisdiction.” Id.

The court noted its reservations about the curious

result that a private facility was “a public highway,”

emphasizing that “one might reasonably prefer [the

shipper’s] reading of the ‘on a public highway’ re-

quirement” to what it delicately termed “the Com-

mission’s less-than-literal interpretation.” Id.

x «© & *& *

As the above examples ilustrate, agencies have

attempted to expand their jurisdiction in a wide

range of contexts. Agency aggrandizement can raise

federalism concerns by intruding on areas of tradi-

tional state competence and can distort the alloca-

tion of authority within the Executive Branch or be-

tween agencies and courts. Because jurisdictional

questions often involve categorical assertions of au-

thority to act in a particular sphere, they can have

tremendous practical and financial significance that

warrants subjecting them to non-deferential review.

Il. Courts Can Draw Principled Distinctions

Between Jurisdictional And Non-

Jurisdictional Questions

Justice Scalia’s concurring opinion in Mississippi

Power & Light Co. v. Mississippi ex rel. Moore, 487

27

U.S. 354, 377-81 (1988), articulates what some

courts and commentators view as “the most compel-

ling objection” to a no-deference rule for jurisdiction-

al interpretations. See Sales & Adler, 2009 U. Ill. L.

Rev. at 1555; see also Ry. Labor Execs.’ Ass’n v. Nat'l

Mediation Bd., 29 F.3d 655, 676-677 (D.C. Cir. 1994)

(en banc) (Williams, J., dissenting). That opinion

stated, “there is no discernible line between an agen-

cys exceeding its authority and an agency’s exceed-

ing authorized application of its authority.” Miss.

Power, 487 U.S. at 381 (Scalia, J., concurring in

judgment). This line-drawing concern rests not on

an affirmative theoretical defense of Chevron defer-

ence. Rather, the claim is “prudentialist” and “hangs

by [the] empirical thread” that it is “impossible (or

prohibitively difficult) to identify a jurisdictional

question as jurisdictional.” Sales & Adler, 2009 U.

Ill. L. Rev. at 1508.

There are, however, compelling reasons to be-

lieve that courts can draw principled and consistent

distinctions between statutes that address an agen-

cy’s jurisdiction and those that do not. The possibil-

ity of “hard cases” does not justify extending Chevron

deference to circumstances—like here—that unques-

tionably involve limits an agency's jurisdiction. In

closer cases, courts have recourse to traditional tools

of statutory construction, and a body of case law

drawing similar lines in the context of courts’ sub-

ject-matter jurisdiction. Finally, courts can rely on

several familiar norms to identify jurisdictional

questions.

28

A. The Possibility Of Hard Cases Does Not

Justify Extending Chevron Deference To

Cases That Unquestionably Involve Lim-

its On Agency Jurisdiction

The possibility of hard cases cannot justify ex-

tending Chevron deference to issues that unques-

tionably involve agency jurisdiction.

This case provides a compelling example. As the

court of appeals correctly recognized, the threshold

question is whether Congress delegated authority to

the FCC to act at all to define the meaning of the

phrase “a reasonable period of time” in Sec-

tion 332(c)(7)(B)(ii). The statute provides clear tex-

tual indications that it addresses, and serves to lim-

it, the FCC’s authority to act. First, Sec-

tion 332(c)(7)(A) effects a blanket reservation of “au-

thority” to state and local governments to act in an

area of traditional state authority—land use. 47

U.S.C. § 332(c)(7)(A). This reservation of rights con-

stitutes an express restraint on federal jurisdiction

in the area, and thus FCC’s authority to act.5 Sec-

tion 332(c)(7)(B)(v) grants jurisdiction to courts to

adjudicate alleged violations of subparagraph (ii)

(the “reasonable period of time” requirement), leav-

5 The fact that the subject-matter (zoning decisions) is an

area well outside the core content of the Communications Act

also supports treating the question as jurisdictional. See Ern-

est Gellhorn & Paul Verkuil, Controlling Chevron-Based Dele-

gations, 20 Cardozo L. Rev. 989, 1011 (1999) (“The first criteri-

on for determining whether Chevron deference should apply is

whether the questioned jurisdiction is within the agency's core

regulatory assignment.”).

29

ing the FCC with jurisdiction over a different and

narrower class of cases involving the effects of radio

frequency emissions. Jd. § 332(c)(7)(B)(v). Where, as

here, the threshold question is whether Congress

has delegated authority to the agency to act at all,

courts need not draw the distinction, discussed in

the Mississippi Power concurrence, between an

agency’s “authorized application of its authority” and

the agency “exceeding its authority.” 487 U.S. at 381

(Scalia, J., concurring in judgment).

The consequences of affording deference to asser-

tions of jurisdiction are significant—indeed, defer-

ence is often dispositive. See p. 25, supra. So it was

here: The court of appeals upheld the FCC’s asser-

tion of authority on the basis that the statute did not

unambiguously preclude the FCC from implement-

ing the provisions at issue, in essence applying a de-

fault rule in favor of jurisdiction. That approach is

difficult to square with the “axiomatic” rule that

agencies are “limited to the authority delegated by

Congress.” Bowen, 488 U.S. at 208. “{I]f [courts]

were to presume a delegation of power from the ab-

sence of an express withholding of such power, agen-

cies would enjoy virtually limitless hegemony.”

ABA, 430 F.3d at 468; accord Am. Bus Ass’n, 231

F.3d at 8 (Sentelle, J., concurring) (“as this Court

persistently has recognized, a statutory silence on

the granting of a power is a denial of that power to

the agency’).

30

B. Courts Can Rely On Traditional Tools Of

Statutory Interpretation In Identifying

Jurisdictional Issues

Because “an agency literally has no power to act

*** unless and until Congress confers power upon

it” through legislation, La. Pub. Serv. Comm’n, 476

U.S. at 374, the task of identifying jurisdictional

questions is ultimately one of statutory construction.

As in the above analysis of § 332(c)(7)(B), courts are

guided in that effort by traditional tools of interpre-

tation, under which “[i]nterpretation of a word or

phrase depends upon reading the whole statutory

text, considering the purpose and context of the

statute, and consulting any precedents or authorities

that inform the analysis.” Dolan v. U.S. Postal

Serv., 546 U.S. 481, 486 (2006).

Courts use these tools to identify Congress’s ex-

pressed intent about whether a statute involves an

agency's jurisdiction—e.g., the agencys “power to

act” in a particular sphere, or power to regulate a

class of persons or entities. Cf. Kontrick v. Ryan,

540 U.S. 443, 455 (2004) (jurisdiction refers to “a

court’s adjudicatory authority”—i.e., “prescriptions

delineating the classes of cases * * * and the persons”

implicating that authority). This interpretive exer-

cise often yields a clear result. See Sales & Adler,

2009 U. Ill. L. Rev. at 1555-1556 (identifying catego-

ries of cases “it will be quite easy for courts to classi-

fy as jurisdictional”). As noted above, the court of

appeals had little difficulty distinguishing between

the two different kinds of statutory questions pre-

sented here: first, whether the FCC had authority at

all to address what constitutes “a reasonable period

31

of time” under § 332(c)(7)(B)(ii); and second, whether

the 90- and 150-day periods exceeded the FCC’s au-

thority.

Courts routinely engage in a similar line-drawing

exercise in defining the jurisdiction of lower federal

courts. See Reed Elsevier, Inc. v. Muchnick, 130

S. Ct. 1237, 1244-1245 (2010); Arbaugh v. Y&H

Corp., 546 U.S. 500, 510 (2006). A series of recent

cases has helped to bring clarity and structure to the

distinction between jurisdictional and _ non-

jurisdictional statutes. Arbaugh, 546 U.S. at 510—

511. The principles courts apply in that context pro-

vide guidance for identifying limits on the jurisdic-

tion of federal administrative agencies. See, e.g., Ry.

Labor Execs., 29 F.3d at 676 (Williams, J., dissent-

ing) (in addressing whether a jurisdictional issue af-

fected the reviewability of agency action, observing

that “courts commonly classify issues as relating to

the ‘jurisdiction’ of Article [III courts, and make con-

sequences turn on the classification”).

There are, to be sure, important differences be-

tween courts’ subject-matter jurisdiction and the ju-

risdiction of administrative agencies. Those differ-

ences preclude adopting here the clear-statement

rule from Arbaugh, 546 U.S. at 515-516. But these

6 Under Arbaugh, courts will treat an issue as jurisdictional

“tijf the Legislature clearly states that a threshold limitation on

a statute’s scope shall count as jurisdictional,” but not “when

Congress does not rank a statutory limitation on coverage as

jurisdictional.” 546 U.S. at 515. Because this rule treats am-

biguous statutes as non-jurisdictional, importing it to the Chev-

ron context would greatly expand the scope of issues for which

32

cases are nonetheless instructive on whether courts

can draw principled and consistent distinctions be-

tween jurisdictional and non-jurisdictional statutes.

This Court recently addressed the distinction be-

tween jurisdictional and non-jurisdictional require-

ments in Reed Elsevier. The Court considered a

number of different factors in interpreting the stat-

ute at issue. It focused “principally on [an] examina-

tion of the text of [the statute],” addressing whether

it “clearly stat[es]” that a requirement “count|s] as

jurisdictional.” 130 S. Ct. at 1244 (internal quota-

tion marks omitted). As part of that inquiry, the

Court first considered whether anything in “prior

* * * cases” showed that the requirement “imposed a

jurisdictional limit.” Id. Second, it asked whether

the statute’s “text and structure * ** demonstrate

that Congress ‘rank[ed]’ th[e] requirement as juris-

dictional.” Jd. (quoting Arbaugh, 546 U.S. at 513—

516). The Court asked whether the provision was

“located in a [statutory] provision ‘separate’ from

*** [the] jurisdiction-granting section,” but did not

suggest that factor was determinative. Jd. (quoting

Arbaugh, 546 U.S. at 514-515). And the Court con-

sidered generally whether the requirement “could

*** fairly be read to ‘speak in jurisdictional terms

or in any way refer to * * * jurisdiction.” Id. (quot-

ing Arbaugh, 546 U.S. at 515).

agencies receive deference. Allowing agencies to define their

jurisdiction based on ambiguous statutes would be at odds with

the rule that agencies have only the authority specifically vest-

ed in them by Congress. La. Pub. Serv. Comm'n, 476 U.S. at

374; Sales & Adler, 2009 U. Ill. L. Rev. at 1534—-1535.

33

Bowles v. Russell, 551 U.S. 205 (2007), gave close

attention to how a provision has historically been

treated. “Bowles stands for the proposition that con-

text, including this Court’s interpretation of similar

provisions in many years past, is relevant to whether

a statute ranks a requirement as jurisdictional.”

Reed Elsevier, 130 S. Ct. at 1247-1248. Bowles ana-

lyzed not only the statute at issue, but also how

courts had historically treated the “type of limita-

tion” as found in other statutes. Jd. at 1248; Bowles,

551 U.S. at 208-210.

In many cases, application of these interpretive

tools will provide a clear indication that a question

involves agency “jurisdiction’"—in some cases be-

cause Congress or courts have explicitly so specified.

For instance, ABA addressed whether attorneys en-

gaged in the practice of law were “financial institu-

tions subject to thf{e] [FTC's] jurisdiction” within the

meaning of 15 U.S.C. § 6804(a)(1). 430 F.3d at 459.

Similarly, Valley Freight involved the question

whether shipments were subject to a tariff based on

the ICC’s “‘jurisdiction over transportation by motor

carrier *** on a public highway.” 856 F.2d at 551

(quoting 49 U.S.C. § 10521 (1982)). This Court has

repeatedly characterized the Clean Water Act’s ref-

erence to “waters of the United States” as defining

the regulatory “jurisdiction of the Corps.” SWANCC,

531 U.S. at 168-171; accord Rapanos, 547 U.S. at

731 (plurality opinion) (the Clean Water Act “author-

izes federal jurisdiction only over ‘waters’”). And

courts have defined the scope of FCC regulatory au-

thority under its “ancillary jurisdiction.” See, e.g.,

34

AT&T Corp., 525 U.S. at 380; Midwest Video, 440

U.S. at 697.

C. Well Established Background Principles

Help Identify Jurisdictional Questions

Where the statutory text, case law, and historical

context do not provide an immediate answer, courts

can also look to several familiar principles in identi-

fying jurisdictional questions.

First, jurisdiction is often implicated where an

agency seeks to regulate in a way that affects the

balance of authority between the federal government

and the states—particularly where the agency is un-

able to cite clear statutory authorization for its ac-

tions. As reflected in this Court’s clear-statement

cases, Congress is presumed to be aware of, and not

“readily interfere” with, the “usual constitutional

balance between the States and the Federal Gov-

ernment.” Gregory, 501 U.S. at 460-461 (internal

quotation marks omitted). It follows that when leg-

islating in areas of traditional state authority, Con-

gress will take care to limit federal agency jurisdic-

tion to safeguard state interests.

Such concerns are highlighted in this case, where

the FCC sought to regulate state and local land-use

determinations despite an express reservation of

rights over such decisions. They were also present

in SWANCC, where the Corps’ claim of federal juris-

diction to regulate wetlands “alterfed] the federal-

state framework” and “invoke[d] the outer limits of

Congress’ power” without a “clear indication that

Congress intended that result.” 531 U.S. at 172-—

173. The D.C. Circuit in ABA rejected the FTC’s at-

35

tempt to regulate attorneys engaged in the practice

of law “with no other basis than the observation that

the [statute] did not provide for an exemption” for

attorneys. 430 F.3d at 468. The court emphasized

that “[t]he states have regulated the practice of law

throughout the history of the country,” and declined

to extend federal law “into [that] are[a] of State sov-

ereignty” “unless the language of the federal law

compels the intrusion.” Id. at 471.

Second, and for similar reasons, jurisdictional

questions are likely to arise where a statute divides

authority between two agencies, or between an agen-

cy and the courts. This case implicates the latter

concern, with the FCC asserting authority to define

what constitutes “a reasonable period of time” under

§ 332(c)(7)(B)(ii)—a~=s question Congress’ directed

would be decided by the courts. 47 U.S.C.

§ 332(c)(7)(B)(v). Lower courts have frequently de-

clined to grant Chevron deference where agencies

share administrative authority. See Collins v. Natl

Transp. Safety Bd., 351 F.3d 1246, 1253 (D.C. Cir.

2003) (surveying cases); Gellhorn & Verkuil, 20

Cardozo L. Rev. at 1017 (“[T]he usual presumption is

that Congress does not intend to divide regulatory

responsibility among two or more agencies.”). This

can occur not only for “generic statutes that apply to

dozens of agencies,” such as the Federal Advisory

Committee Act, the Privacy Act, or the Administra-

tive Procedure Act, but also for statutes such as the

Federal Deposit Insurance Act, where a smaller

group of agencies have specialized enforcement au-

thority that potentially overlaps, creating risks of

inconsistency or uncertainty. 351 F.3d at 1252-

36

1253. Similarly, DHS’s assertion of authority to

modify the adjudicatory powers of the Federal Labor

Relations Authority raised questions of DHS’s statu-

tory jurisdiction. NTEU, 452 F.3d at 866. Declining

to extend deference where Congress has divided au-

thority between agencies or between an agency and

the courts aligns with Chevron’s teaching that an

agency is only entitled to deference over a statute

that it is charged with administering. Chevron, 467

U.S. at 843; Adams Fruit, 494 U.S. at 649.

Third, jurisdictional issues are more likely to

arise where an agency asserts a novel authority fol-

lowing long inaction or an affirmative disclaimer of

authority. An agency’s longstanding view that it

lacks authority to regulate may reflect an accurate

understanding of the enacting Congress’s intent. Or,

where Congress has amended an agency’s organic

statute over the years against the background of an

agency disclaiming authority to regulate in an area,

there may be scant reason to believe that Congress

intended the agency to have jurisdiction in that area.

Cf. Gellhorn & Verkuil, 20 Cardozo L. Rev. at 1012

(“{I]f the agency has not previously regulated the

product or service, or asserted the power to do so,

then there seems to be little basis for assuming that

Congress would have wanted courts to defer to agen-

cy interpretations.”).

This Court discussed these principles in Brown &

Williamson, holding that Congress had “precluded

the FDA from asserting jurisdiction to regulate to-

bacco products.” 529 U.S. at 126. The Court ad-

dressed at length the history of “the FDA’s disavowal

of jurisdiction”—i.e., the agency’s “consistent and re-

37

peated statements that it lacked [such] authority,”

and the fact that FDA had taken that position “since

the agency’s inception.” TJd. at 144-146. And in

ALA, the D.C. Circuit emphasized that the FCC’s as-

sertion of authority to impose “broadcast flag” re-

quirements broke with 70 years of practice and con-

tradicted the Commission’s prior statements to Con-

gress that it lacked such authority. 406 F.3d at 691,

703. To be sure, not all shifts in policy implicate

questions about agency jurisdiction. See, e.g., Motor

Vehicle Mfrs. Ass’n v. State Farm Mut. Auto. Ins. Co.,

463 U.S. 29 (1983). But “[t}he fact that an agency

suddenly makes a choice it previously thought it le-

gally could not make, when coupled with other fac-

tors, is a sign that the action may be jurisdictional.”

Sales & Adler, 2009 U. Ill. L. Rev. at 1560.

x *Ǥ & * *

In sum, federal courts can identify statutes af-

fecting an agency’s jurisdiction in a principled and

consistent way. The possibility of some close cases

provides no justification to extend Chevron defer-

ence, especially where—as here—the statute in-

volves the clearly-jurisdictional threshold question of

whether Congress delegated authority for the agency

to act at all.

38

CONCLUSION

The Court should vacate the judgment below and

remand for further proceedings.

Respectfully submitted.

ELLEN STEEN

DANIELLE QUIST

AMERICAN FARM BUREAU

FEDERATION

600 Maryland Ave. SW

Suite 1OOOW

Washington, DC 20024

(202) 406-3618

Counsel for American

Farm Bureau Federation

THOMAS J. WARD

AMY C. CHAI

NATIONAL ASSOCIATION

OF HOME BUILDERS

1201 15th Street, NW

Washington, DC 20005

(202) 266-8200

Counsel for National

Association of Home

Builders

JOHN P. ELWOOD

Counsel of Record

JEREMY C. MARWELL

VINSON & ELKINS LLP

2200 Pennsylvania Ave.

NW, Suite 500 West

Washington, DC 20037

(202) 639-6500

jelwood@velaw.com

Counsel for Amici Curiae

ROBIN S. CONRAD

RACHEL L. BRAND

NATIONAL CHAMBER

LITIGATION CENTER

1615 H Street, NW

Washington, DC 20063

(202) 463-5337

Counsel for Chamber of

Commerce of the United

States of America

KAREN R. HARNED

ELIZABETH MILITO

NFIB SMALL BUSINESS

LEGAL CENTER

1201 F.. Street, NW

Suite 200

Washington, DC 20004

(202) 406-4443

Counsel for NFIB Small

Business Legal Center

DEBORAH R. WHITE

RETAIL LITIGATION

CENTER

1700 N. Moore Street

Suite 2250

Arlington, VA 22209

(703) 841-2300

Counsel for Retail

Litigation Center

NOVEMBER 2012

39

KATIE SWEENEY

NATIONAL MINING

ASSOCIATION

101 Constitution Ave.,

NW, Suite 500 East

Washington, DC 20001

(202) 463-2600

Counsel for National

Mining Association