It’s open season on patent trolls in Vermont.

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Whether you’re looking to join the legal profession or currently practicing law, you should read this book.

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These plaques are just kind of embarrassing.

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Last week I reported on the three cases in which the Solicitor General had filed invitation briefs that will be considered at the Justices’ June 6 Conference.  The Solicitor General has now filed four briefs in cases that will be considered the following week, at the Court’s June 13 Conference.  In those four briefs, the Solicitor General recommended that cert. be granted in one case but denied in three others:

Michigan v. Bay Mills Indian Community (filed May 14, 2013):  The federal Indian Gaming Regulatory Act allows Native American tribes in some circumstances to offer gaming, but only on “Indian lands.” At issue in this case is whether a federal court can enjoin a tribe from operating an illegal casino located off of “Indian lands” and whether sovereign immunity bars a state from going to federal court to enjoin a tribe from violating IGRA outside of Indian lands.

The Solicitor General urges the Court to deny certiorari, arguing that the decision below is correct; that the lower court’s decision does not present a question warranting review; and that the case is in any event not a good vehicle to resolve the parties’ dispute. 

Law v. Siegel (filed May 14, 2012):  The petitioner in this case, Stephen Law, filed a voluntary bankruptcy petition under Chapter 7 of the Bankruptcy Code in which he indicated that there were two liens on his house; pursuant to state law, he also claimed a “homestead exemption” of $75,000.  Because the sum of the liens and the homestead exemption exceeded the value of the house, the house could not be used to pay his other creditors.  However, after extensive litigation, the second lien was eventually deemed invalid – but only after respondent Alfred Siegel, who was appointed to serve as the trustee in the bankruptcy proceeding, and the estate incurred over $450,000 in legal fees.  Siegel then sought to recover some of those costs by imposing a “surcharge” on the homestead exemption, which effectively deprived Law of the $75,000 in value that he would have otherwise received.  The bankruptcy court allowed Siegel to do so, and both the Bankruptcy Appellate Panel and the Ninth Circuit affirmed that decision.  Law then filed a petition for certiorari asking the Supreme Court to review his case, and on December 3, 2012, the Court asked the Solicitor General to weigh in.

In his brief, the Solicitor General tells the Court that it should deny review.  He acknowledges that “in an appropriate case” the Court might want to grant cert. to resolve a question on which three courts of appeals are divided:  whether an “equitable surcharge” can be imposed to distribute to creditors property that the debtor should have included in the estate but did not.  However, the Solicitor General continues, Law’s case does not present that question; instead, it presents “the distinct question whether the bankruptcy court could properly withhold from the debtor the amount ($75,000) of his state-law homestead exemption as a sanction for the debtor’s vexatious and bad-faith litigation conduct, which constituted a fraud on the court and caused the estate to incur substantial litigation expenses it would not otherwise have borne.”  Law does not contend that there is a circuit split on that question, the Solicitor General emphasizes, and in any event withholding such an amount in these circumstances would fall within the bankruptcy court’s inherent authority.

Township of Mount Holly v. Mount Holly Gardens Citizens in Action (filed May 17, 2013):  In November 2011, the Court granted cert. in Magner v. Gallagher to decide two questions:  first, whether disparate impact claims – that is, claims alleging that a practice has a discriminatory effect on a protected class, even if it not based on a discriminatory purpose – can be brought for a violation of the Fair Housing Act; and, second, what test courts should use to analyze such claims.  However, before the Court could hear oral argument, the parties agreed to dismiss the case.

The Township of Mount Holly, New Jersey, is now asking the Court to consider the same questions presented by Magner, in a case that arises out of the town’s efforts to redevelop a housing development occupied primarily by low- and moderate-income minority families.  The respondents in the case, who were the plaintiffs in the lower court, filed a lawsuit in federal court in which they alleged that the town’s actions had a disproportionate impact on minorities.  The Third Circuit agreed with the plaintiffs that disparate impact claims are cognizable under the Fair Housing Act, and the town now seeks review of that decision.

The Solicitor General advises the Court that it should deny review.  First, he explains, the Department of Housing and Urban Development had recently promulgated new regulations addressing the questions presented in the case, and the lower courts should have a chance to implement that guidance.  Second, and in any event, he contends, the case is a bad vehicle in which to consider the questions presented because the case is interlocutory and the questions presented were not advanced below.

Air Wisconsin Airlines Corp. v. Hoeper (filed May 17, 2013):  The Aviation and Transportation Security Act (ATSA) provides immunity for airlines and their employees from virtually all liability, including for state-law defamation claims.  However, this immunity does not extend to reports made “with actual knowledge that the disclosure was false, inaccurate, or misleading,” or with “reckless disregard as to the truth or falsity of that disclosure.”

This case stems from a report made by Air Wisconsin to the Transportation Safety Administration that the airline was concerned about the stability of one of its pilots, respondent William Hoeper.  Hoeper prevailed in a $1.4 million defamation lawsuit against the airline, and the Colorado Supreme Court upheld that verdict on appeal.  That court stated that it did not need to determine whether the airline’s statements were true or false.  Air Wisconsin then filed a cert. petition, asking the Court to address “[w]hether a court can deny ATSA immunity without deciding whether the airline’s report was false,” as well as whether “the First Amendment requires a reviewing court in a defamation case to make an independent examination of the record before affirming that a plaintiff met its burden of proving a statement was false.”

The Solicitor General’s brief recommends that cert. be granted with regard to the first question only – that is, whether a court can deny immunity under the ATSA without first deciding whether the airline’s report was false.  The Solicitor General states that the issue is not the subject of a conflict in the lower courts.  But he advises the Court that the analysis on which the court below relied to allow the airline to be held liable “may chill other air carriers from timely providing the government with critical information about threats to aviation safety.”

[Disclosure:  Goldstein & Russell, P.C., whose attorneys work for or contribute to this blog in various capacities, is among the counsel to the respondent in Air Wisconsin.]

[Correction:  An earlier version of this post misstated the Solicitor General's recommendation in the Bay Mills Indian Community case.]

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Heeeeeee’s baaaack. Everyone’s favorite Judge of the Day testified at his misconduct hearing.

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Tags: Abortion, Attorney Misconduct, Judge of the Day, Judge Wade H. McCree, Judge Wade Harper McCree, Judge Wade McCree, Judicial Misconduct, Legal Ethics, Michigan, Michigan Judicial Tenure Commission, Pregnancy / Paternity, Quote of the Day, Sixth Circuit, Wade H. McCree, Wade Harper McCree, Wade McCree

Coverage continues of Monday’s decision in City of Arlington v. FCC, in which the Court held by a vote of six to three that courts must apply Chevron deference to an agency’s interpretation of a statutory ambiguity concerning the scope of the agency’s statutory authority. Miriam Seifter breaks down the decision for this blog, while Jeremy P. Jacobs of Greenwire reports that the ruling “could be a boon” for the Environmental Protection Agency. In his column for Verdict, Vikram Amar considers the broader implications of the decision and concludes that “[o]nly time will tell whether the schism between the majority and the dissenters in Arlington portends bigger battles over Chevron deference, one of the main pillars of modern administrative law.”

Yesterday Sri Srinivasan, who currently serves as the Principal Deputy Solicitor General, was unanimously confirmed to fill a vacancy on the U.S. Court of Appeals for the D.C. Circuit. Coverage comes from Nina Totenberg at NPR, Richard Wolf of USA Today, and Michael Doyle of McClatchy — all of whom note that the D.C. Circuit has served as a stepping stone for several of the Court’s current Justices. Meanwhile, Ian Millhiser lists ten other potential Supreme Court nominees in a Democratic administration at Think Progress.

Yesterday Noel Canning, a Yakima, Washington, bottling company, filed its brief in National Labor Relations Board v. Noel Canning, in which the federal government is seeking review of the D.C. Circuit’s decision that the President’s recess appointments to the NLRB are unconstitutional. The company argues that the D.C. Circuit’s decision was correct, but that certiorari was nonetheless “appropriate.” Lyle covers the filing for this blog, while John Elwood has coverage for The Volokh Conspiracy.

Briefly:

• At NPR, Nina Totenberg reports on the Supreme Court Historical Society’s recent reenactment of Flood v. Kuhn, the unsuccessful challenge to baseball’s antitrust exemption by baseball player Curt Flood. Justice Sotomayor presided over the trial, with Pamela Karlan and Roy Englert serving as the advocates.
• At this blog, Tom collects remembrances of Evelyn Buggs, a longtime staff member of the Office of the Solicitor General who died yesterday.
• At View from the Wing, Eric M. Fraser discusses Northwest, Inc. v. Ginsberg, in which the Court granted cert. on Monday; at issue in the case is whether airline passengers who are removed from a “frequent flyer” entitlement list have a right under state law to sue the airline for alleged violation of a promise that they could continue to enjoy the benefits.

Disclosure: Goldstein & Russell, P.C., whose attorneys work for or contribute to this blog in various capacities, served as co-counsel to the petitioners in City of Arlington v. FCC.

If you have (or know of) a recent article or post that you would like to have included in the round-up, please send a link to roundup [at] scotusblog.com so that we can consider it.

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Staff attorneys are not immune to the layoffs sweeping the land. Here’s news of double-digit cuts at one firm.

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Tags: Biglaw, Layoffs, Staff Attorneys / Discovery Attorneys, Staff Layoffs, WilmerHale

* “Journalists should not be at legal risk for doing their jobs.” Thanks Obama, but AG Eric Holder was the one who kind of signed off on the James Rosen search warrant. [Open Channel / NBC News]

* The chief judge of the D.C. Circuit apologized for a lack of transparency in the James Rosen probe, and this is one of the least embarrassing things that happened this week. [Washington Post]

* Despite having “done nothing wrong,” embattled tax official Lois Lerner announced she’s been placed on administrative leave in light of recent events. I salute you, fellow WNE grad. [National Review]

* Watch out, patent trolls, because this proposed bill might actually be — gasp! — helpful. If enacted, the Patent Abuse Reduction Act’s goal is to help keep discovery costs down. [Hillicon Valley / The Hill]

* It’s a hell of a drug: for some lawyers, the sequester won’t be such a bad thing after all, because Coast Guard and Navy forces won’t be available to intercept 38 tons of cocaine. [Breaking Defense]

* Proskauer Rose’s ex-CFO, Elly Rosenthal, has cut down her $10 million suit against the firm to just one allegation. She claims the firm fired her solely for her diagnosis of breast cancer. [Am Law Daily]

* A third perpetrator emerged in the Berkeley bird beheading case, and he was just sentenced to two days in jail. Can you listen to BARBRI in a jail cell? I guess he’ll find out. [San Francisco Chronicle]

* The Boy Scouts of America will now admit openly gay youths into their ranks for the first time in the history of ever. You should probably “be prepared” for a flurry of litigation over this. [New York Times]

* A mistrial was declared in the penalty phase of the Jodi Arias murder trial. Ugh, come on with this, the Lifetime movie is already in post-production! How on earth are they going to work this in? [CNN]

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Evelyn Buggs, a longtime member of the staff of the Office of the Solicitor General, passed away today.  Here are the thoughts of several attorneys with whom she worked.

Chief Justice John Roberts, who served as Principal Deputy Solicitor General:

I was saddened to learn of Evelyn’s passing. She was my secretary when I worked in the Solicitor General’s Office, and she worked faithfully and tirelessly to serve the Department she cherished and the country she loved.

Associate Justice Elena Kagan, who served as Solicitor General:

Evelyn Buggs was a true public servant. In her kind, unassuming way, she was the glue that held the Solicitor General’s Office together. She never wanted any praise or recognition, yet she was always there when you needed something, always working behind the scenes, always helping someone. That was Evelyn’s gift to all of us—quietly keeping everything running smoothly, year after year. As so many others who have worked in the Solicitor General’s Office, I consider myself lucky to have known and worked with Evelyn. She will be deeply missed.

Solicitor General Donald Verrilli:

The Office of the Solicitor General has lost a treasured colleague and friend.  Our dear Evelyn Buggs has passed away, after a long illness.  Evelyn served in the Office for more than two decades.  No one was more devoted to the mission of the Office, and no one has contributed more over the years to its successful functioning.   Evelyn knew for some time that she would not survive her illness.  She asked that she be able to leave the Office as she entered it — quietly and without fanfare, focused on each day’s responsibilities, until she could work no more.  She stayed at her post until just ten days ago.  Her dedication, and the warmth of her smile, never flagged.  The dignity and courage she showed these past few months will be a continuing inspiration to all of us who were privileged to work with her during that time.

Former Solicitor General Gregory Garre:

Evelyn’s passing is an enormous loss for the Office of the Solicitor General, and a personal tragedy for all of us who were blessed to have known her and worked with her.  Evelyn was not only a great asset to the Office of the Solicitor General and Department of Justice whose excellent work was indispensable to the ability of the Office to function and meets its many demands.  But she exuded a calmness, strength, and positive attitude that rubbed off everyone around her.

Every day — for decades — she came to work at the Office of the Solicitor General and, with a quiet force, made those around her better public servants and better people just by the example she set.

It is difficult to think of the Office without her, and her warm smile.  I will always be grateful to her for her kindness, dedication, and friendship.

Former Solicitor General Paul Clement:

Evelyn Buggs was the very model of a public servant. She was professional and dedicated to the work of the office beyond measure and was a source of strength and inspiration to her colleagues.  She will be greatly missed.

Former Solicitor General Seth Waxman:

Evelyn Buggs was among the gentlest and kindest people I’ve ever had the privilege to know. I hope her memory will be a blessing for the many colleagues whose lives she touched so sweetly.

Former Acting Solicitor General Neal Katyal:

Evelyn was, without a doubt, the most selfless colleague with whom I have ever worked.  Never once did I hear “I need X, or I need Y.”  Instead it was always — at every turn — about the good of the Office.  Even when she was deeply ill, she made the long commute from Baltimore to OSG every day, which had to be physically demanding in ways few of us can understand. She was classy, quietly capable, and much beloved.

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Two attorneys come up with fantastic problems and need some good advice to fix them.

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A Washington State business joined the Obama administration on Thursday in urging the Supreme Court to clarify when presidents can constitutionally fill government vacancies when the Senate is taking a recess, but asked the Court to rule in a way that would definitely scuttle the specific appointments that are at issue in the case.  The brief by Noel Canning, a soft-drink bottling company in Yakima, can be read here.

Last month, the administration and the National Labor Relations Board challenged in the Court a ruling in January by the D.C. Circuit that struck down President Obama’s 2012 appointments to the Board.  That filing argued that the decision “would dramatically curtail” the president’s appointments power.  The case is NLRB v. Noel Canning (docket 12-1281).

It is too late in the current Term for the Court to decide the case, but there does appear to be time for the Justices to make up their minds about granting review before the summer recess, scheduling it for hearing and decision in the Term that starts in October.  There has been no doubt that the Justices would eventually take on the dispute, which would lead the Court into a fundamental inquiry about constitutional meaning.

The administration wants the Court to rule that a president can fill a vacant government post with a temporary appointee when the Senate takes a recess, even if that is amid an annual session, and can make such an appointment at those times no matter when the vacancy arose.   The Circuit Court, however, ruled that a recess appointment can only be made when the Senate has taken a recess between its annual sessions, and the president can only fill a vacancy that actually arose during that kind of recess.

Noel Canning agreed Thursday that the Court should rule on those issues.  But, it argued, even if the Court were to rule in the president’s favor on those two points, the appointments President Obama made to the NLRB would be unconstitutional because he made them when the Senate was meeting every three days, so there was no recess of any kind at the time.

Thus, the company’s lawyers urged the Court to add a third issue to its review of the case: “Whether the President’s recess-appointment power may be exercised when the Senate is convening every three days in pro forma sessions.”   That would restrict presidential options even further, because the Senate could make itself available — in a technical sense — by coming in every third day, even if it did no significant legislating in such a meeting, and thus keep the president from making any temporary appointments during those intervals.

The three temporary appointments that President Obama made to the NLRB in January of last year would still be invalid, the brief in opposition argued, even if the Court were to rule in favor of the government on the two points raised in the administration’s petition.

The two issues posed by the administration, the new brief said, “do not encompass the core issue of whether the President may make ‘recess’ appointments where, as here, the Senate is convening ‘sessions’ every three days.”   Only by answering that added question, the brief contended, will the Court actually address the legality of the NLRB appointments.

What the Court needs to do, the brief went on, is to invalidate not only those appointments, but nullify every decision that the NLRB has made since those appointees took their seats on January 4, 2012.

Noting that the government’s petition had argued that the D.C. Circuit’s ruling would make illegal “hundreds of recess appointments” made by many presidents, the Noel Canning brief said that the Court could avoid a wider impact for a ruling limiting presidential appointments by confining a decision to the one issue it suggested should be added to the case.

If the Court were concerned “about the consequences” of paring down the recess appointment power, it said, the Justices could simply rule that these three NLRB appointments were illegal because they were made when the Senate was holding a routine session every three days.

Arguing that that would be the narrowest way to decide this particular case, the Noel Canning filing said that it would be appropriate to keep the issue narrow because President Obama’s January 2012 appointments were absolutely unique in the nation’s history.  “It appears that, since the founding, no President has previously attempted to make recess appointments during a break in the Senate’s session of less than three days,” the brief said.

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* Congratulations to Sri Srinivasan on his unanimous confirmation to the D.C. Circuit. Fun Fact: Sri Srinivasan played high school basketball on the same team as Danny Manning. No joke there, it’s just a random fun fact I know about him. [USA Today] * Should health care cover sex for people with disabilities? Sure, but…

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Tags: Aparajita Lath, Brian McCarthy, Connecticut, Defamation, DIsney, Education / Schools, India, Kirkland & Ellis, Latham & Watkins, Law Schools, Lucasfilm, Non-Sequiturs, Patricia A. Martone, Patricia Martone, Politics, Roy Cho, Silver Golub & Teitell, Skadden, Skadden Arps, Sri Srinivasan, Times Publishing House, Zachary Cohn

This Girls Gone Wild mogul has some rather choice words for the jurors who convicted him.

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Oh no he didn’t! Watch Justice Scalia ladle out the sauce to Chief Justice Roberts.

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Tags: Administrative Law, Antonin Scalia, Benchslap, Benchslaps, Chevron, Chevron deference, Constitutional Interpretation, Constitutional Law, Federal Government, John G. Roberts Jr., John Roberts, Politics, Righteous Indignation, SCOTUS, Supreme Court, Tamara Tabo

At its May 30, 2013 Conference, the Court will consider petitions seeking review of issues such as the constitutionality of restrictions on “gruesome” imagery in a public forum, a ban on an individual’s access to a public roadway through a military installation, a self-defense claim by a member of the armed forces in a combat zone, and the predominance requirement for class certification.

This edition of “Petitions to watch” features petitions raising issues that Tom has determined to have a reasonable chance of being granted, although we post them here without consideration of whether they present appropriate vehicles in which to decide those issues.  Our policy is to include and disclose all cases in which Goldstein & Russell, P.C., whose attorneys work for or contribute to this blog in various capacities, represents either a party or an amicus in the case, with the exception of the rare cases in which Goldstein & Russell represents the respondent(s) but does not appear on the briefs in the case.

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It has been over a month since my last update in this area and the last 6 weeks have been the fastest in this area ever.

• Alabama’s constitutional amendment SB 4, complete with restriction on full faith and credit to any court decision in another state that uses international or foreign law, cleared its final legislative hurdle on May 20 and will go to Alabama voters in 2014.
• Florida’s two efforts (HB 351 and SB 58) appeared posed for passage but were unable to clear the Senate before adjournment
• Missouri’s version (SB 267) cleared the House May 8 and is awaiting a decision by that state’s governor to sign or veto the measure.
• North Carolina’s House approved a version, limited to family law cases, on May 16
• Oklahoma adopted a ban after its original version, approved in 2010, was struck down federal courts. This new version, HB 1060 amends and creates a new civil procedure statute that bans the use by courts of international or foreign law, while avoiding using the word “sharia”.
• Texas’s SB 1639 which is limited to a ban on court use of international/foreign law in family law (divorce, marriage, parent-child relationship) was approved by the Senate Business & Commerce Committee on April 15.
• Washington State enacted a new, never before seen, version. SB 5797 provides a general statement of legislative support for specialties courts, such as drug courts, veterans courts, and the like. A House floor amendment adopted April 12, however, was used as a vehicle for a limited international/foreign law ban. Amendment 179  and Amendment 180 provide “No therapeutic or specialty court may be established specifically for the purpose of applying foreign law, including foreign criminal, civil, or religious law, that is otherwise not requ ired by treaty”. The amended version was signed into law may 15.

List of bills below the fold

Monday’s opinion in City of Arlington v. FCC is surely destined for administrative law textbooks.  One reason is that the Court at last resolved a longstanding dispute in the field: whether agencies are eligible for deference under Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc. when interpreting the scope of their own so-called “jurisdiction.”  The answer is yes; as Justice Scalia’s majority opinion explains, the distinction between jurisdictional questions and non-jurisdictional interpretations is “a mirage.”  The decision is also a bonanza for other significant administrative-law debates.  It provides another chapter in the disagreement between Justices Scalia and Breyer over the virtues of rules versus standards in determining deference; it includes an interesting sidebar between the majority and the dissent regarding federal agencies’ accumulation of legislative, executive, and judicial power; and it features a vigorous dissent by the Chief Justice regarding “the danger posed by the growing power of the administrative state,” which now entails “hundreds of federal agencies poking into every nook and cranny of daily life.”

Opinion author in red. Dissenting Justices in grey.

The practical effect of Arlington, in contrast, is not clearly so momentous – and not nearly as significant as a decision ruling the opposite way would have been.  Making the deference framework unavailable for supposedly jurisdictional questions might well have unraveled Chevron, which has become administrative law bedrock.  The Solicitor General expressed this fear at oral argument, telling the Court that to deny deference to “jurisdictional” questions would open a “Pandora’s box,” because jurisdictional questions cannot coherently be distinguished from other interpretive questions.  But allowing the Chevron framework to apply to such questions does not portend the same sea-change.  Arlington does not eliminate all judicial latitude in resolving the “Step Zero” question – that is, the question whether Chevron applies at all – and it does nothing to diminish the considerable leeway courts have when actually applying Chevron.

As I described in an earlier post, this case originated as a dispute over the FCC’s authority to define the “reasonable period of time” within which local governments must, under the Federal Communications Act, rule on siting applications for wireless service facilities.  In a declaratory ruling, the FCC concluded that it had authority to interpret the phrase and went on to define the periods that would be deemed reasonable.  When the City of Arlington, Texas challenged the FCC’s ruling in the Fifth Circuit, the court held as an initial matter that Chevron’s framework applies even to questions of an agency’s “statutory jurisdiction.”  The court then deferred to the FCC’s conclusion that it possessed the requisite authority, and further ruled that the prescribed periods were permissible constructions of the Act.  The Supreme Court granted certiorari only on the first question presented, which has divided the courts of appeals: whether “a court should apply Chevron to review an agency’s determination of its own jurisdiction.”

The city’s lead argument, echoed ultimately by the Chief Justice’s dissenting opinion, was that allowing deference on “jurisdictional” questions offends the constitutional structure.  Agencies have no power to act unless Congress grants them authority, the argument goes, and it is the judiciary’s role to determine whether Congress has granted the requisite authority.  The government’s response marshaled past precedent, governing principles, and practicality – in particular, that there is no coherent way to separate jurisdictional questions from others.  Oral argument focused significantly on the puzzle of cordoning off “jurisdictional” questions from other questions of agency interpretation.  (My recap of the oral argument is here.)

That line-drawing difficulty animates the Court’s opinion in Arlington.  Articulating for the majority a position he has long espoused, Justice Scalia began by explaining that “the distinction between ‘jurisdictional’ and ‘nonjurisdictional’ interpretations is a mirage.  No matter how it is framed, the question a court faces when confronted with an agency’s interpretation of a statute it administers is always, simply, whether the agency has stayed within the bounds of its statutory authority.”  The purported jurisdictional distinction is “an empty distraction,” Justice Scalia explained, because “every new application of a broad statutory term can be reframed as a questionable extension of the agency’s jurisdiction.”  Yet illusory as the distinction might be, the Court emphasized, it could have serious consequences: “Make no mistake—the ultimate target here is Chevron itself.”  If the city’s view prevailed, litigants would “play the ‘jurisdictional’ card in every case,” and the ultimate result would be to shift numerous interpretive decisions, even “archetypal Chevron questions,” from agencies to courts.

The majority opinion’s final section, responding to the dissent, clarifies the disagreement between them – and its limits.  All agree, the Court says, that under the Court’s decision in United States v. Mead, Chevron applies only if the agency has “received congressional authority to determine the particular matter at issue in the particular manner adopted.”  Where the majority and dissent differ, Justice Scalia explains, is that the majority accepts “the theorem that the whole includes all of its parts” – that a general conferral of rulemaking authority validates rules for all of the matters the agency is charged with administering.  Thus, to the extent there was dispute over the necessary breadth of a congressional grant of authority for purposes of clearing Step Zero, the majority indicates that a general grant suffices.  According to the Court, the dissent’s contrary insistence on a provision-by-provision search for congressional authority – even where an agency has issued a rule under a “broad grant of rulemaking authority” – proposes “a massive revision of our Chevron jurisprudence.”

For Justice Scalia and the majority, the dissent’s desired “revision” is particularly problematic because it would “render the binding effect of agency rules unpredictable and destroy the whole stabilizing purpose of Chevron.”  Justice Scalia, after all, has long viewed Chevron as rule-based, providing Congress with a “stable background rule” against which to legislate.  This is why Justice Scalia has long criticized Mead, which he described at the time as an “avulsive change” that would replace Chevron’s predictability with “th’ ol’ totality of the circumstances” test.  Echoing those words in Arlington, Justice Scalia warned that the dissent’s “open-ended hunt for congressional intent,” would leave thirteen courts of appeals to apply “a totality of the circumstances test.”  “The excessive agency power that the dissent fears,” Justice Scalia wrote, “would be replaced by chaos.”

The majority’s concluding explanation of why the FCC ultimately prevails also raises a more technical intrigue regarding the application of Mead.  (Readers weary of administrative law arcana may want to skip to the next paragraph.)  The Court rules that “it suffices to decide this case that the preconditions” to Chevron are satisfied because [1] “Congress has unambiguously vested the FCC with general authority to administer the Communications Act through rulemaking and adjudication,” and [2] “the agency interpretation at issue was promulgated in exercise of that authority.”  At first blush, this is just a (simpler) restatement of Mead’s emphasis on form; a leading understanding of Mead is that it created a dichotomy (or at least an anomaly) based on the type of procedure at issue, wherein “formal” procedures are all but guaranteed Chevron’s application, while the myriad types of informal agency procedures might be reviewed under Chevron, depending on an array of circumstances.  The wrinkle here is that the FCC actually didn’t use notice-and-comment rulemaking or formal adjudication.  Instead, it issued a declaratory ruling, which technically belongs in the large bin of agency action known as informal adjudication.  To be sure, as the Fifth Circuit noted, the “informal” process here bore many of the hallmarks of more formal processes; for example, the FCC published advance notice in the Federal Register and accepted and considered comments.  That said, by stating so sparely that the Commission’s use of its general rulemaking or adjudication authority was all that was necessary to satisfy Chevron’s preconditions, without any further discussion of what other factors allowed the informal procedure at issue to satisfy Mead, the Court may have subtly (and only marginally) undermined Mead’s tilt against “informal” procedures.

Justice Breyer issued a brief concurrence, joined by no other Justices.  He reiterated and updated his longstanding view that deciding whether a deferential framework is warranted must rest on a wide array of factors – that the inquiry is one of standards, not rules.  Although concurring in the judgment and concurring in the opinion in part, Justice Breyer’s opinion resonates substantially with the dissent: he agrees that the courts must decide de novo “whether Congress has delegated to an agency the authority to provide an interpretation that carries the force of law,” and he would answer that question through a wide-ranging inquiry into congressional intent.

The dissenting opinion, authored by the Chief Justice and joined by Justices Kennedy and Alito, inveighs forcefully against the modern accretion of administrative power.  The dissent links the accumulation of “a potent brew of executive, legislative, and judicial power” within agencies to the Framers’ fears of tyranny; emphasizes the vastness and continued growth of the administrative state (including more than fifty new agencies in the last fifteen years); and notes that agencies enjoy practical independence, even from the President (on this last point, the dissent cites scholarly works by both Justices Kagan and Breyer).  All of this sets the background for the dissent’s framing of the question at issue: “whether the authority of administrative agencies should be augmented even further . . . to decide when Congress has given them the power” to resolve statutory questions.  The dissent, of course, would answer no; under both Marbury v. Madison and the Administrative Procedure Act, in the dissent’s view, it is the courts that must decide whether Congress has delegated authority to agencies.  And the “appropriate question,” the dissent says, is more searching than the majority’s general inquiry; courts must ask “whether the delegation covers the ‘specific provision’ and ‘particular question’ before the court.”  Where the majority sees the dissent as advocating a judicial power grab, the dissent laments the abdication of the duty to “ensure” that each branch of government remains “confine[d] . . . to its proper role.”

In the end, as I’ve suggested, Arlington may end up being remembered most for its high-level commentary on the role of agencies in the constitutional structure.  As for practical effect, the decision is more significant for what it did not hold than for what it did.  Had the Court ruled that “jurisdictional” questions cannot receive deferential review, the Solicitor General might have been right in fearing Chevron’s unraveling.  In contrast, the Court’s ruling that agencies are eligible for deference on questions that implicate their statutory authority will leave unchanged judicial practice in most circuits.  Moreover, even with Arlington in place, courts will continue to possess leeway – at all of Chevron’s Steps—in determining whether deference is warranted.

The decision in Plain English

Nearly thirty years ago, in a case called Chevron U.S.A. Inc. v. Natural Resources Defense Council, the Court outlined a test for reviewing an agency’s interpretation of a statute.  In the first step of the test, a court determines whether Congress’s intent is clear from the text of the statute.  If so, it does not need to go any further; all that matters is what Congress intended.  But if the statute is not clear or does not address the question at issue, the court defers to the agency’s interpretation of the statute – even if it does not necessarily agree with the agency – as long as it is a reasonable one.  Before Monday’s decision in City of Arlington v. FCC, there was a long-running dispute over whether courts should, using the Chevron framework, also defer to an agency’s interpretation of the scope of its own “jurisdiction” – that is, its authority under the statute.  The Court in Arlington rejects the notion that questions regarding an agency’s “jurisdiction” are somehow special, reasoning that all agency interpretations implicate, and cannot exceed, an agency’s statutory authority.  Accordingly, the Court ruled that an agency’s interpretation regarding the scope of its statutory authority, like other agency interpretations, is examined under the Chevron framework.

Disclosure: Goldstein & Russell, P.C., whose attorneys work for or contribute to this blog in various capacities, served as co-counsel to the petitioners in these cases.

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At this blog, Lyle Denniston discusses nine pending cert. petitions regarding new EPA rules on greenhouse gases and observes that the petitions “could either turn into one of the biggest regulatory cases the Court has had in years, or could go nowhere because of the argument that the Supreme Court has already all but resolved the dispute.” Also at this blog, Amy Howe discusses the prospect that Burnside v. Walters, in which the Court recently granted cert. to address the interpretation of 28 U.S.C. § 1915, which allows indigent plaintiffs to file their lawsuits in forma pauperis, could return to the Sixth Circuit without a ruling on the merits by the Supreme Court.

Briefly:

• At the Constitutional Accountability Center’s Text & History Blog, David H. Gans discusses data reflecting high voter turnout by African Americans in recent elections and argues that such data is a reason to “celebrate, not gut” Section 5 of the Voting Rights Act, the constitutionality of which the Court is currently considering in Shelby County v. Holder.
• At HuffPost Live (video), Mike Sacks moderates a panel discussion on Monday’s cert. grant in Town of Greece v. Galloway, in which the Court will consider whether a legislative prayer practice violates the Establishment Clause notwithstanding the absence of discrimination in the selection of prayer-givers or forbidden exploitation of the prayer opportunity.

Disclosure: Goldstein & Russell, P.C., whose attorneys work for or contribute to this blog in various capacities, is among the counsel to Representative F. James Sensenbrenner et al., who filed an amicus brief in support of the respondent in Shelby County v. Holder.

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