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Don’t Mess with Texas – The Supreme Court of the United States Reaffirms Deference to Administrative Tribunals

Posted in Administrative, Case Comments, Procedure
Ronald Podolny

In City of Arlington, Texas v. Federal Communications Commission, 569 U.S. (2013), the unanimous Supreme Court of the United States clarified the limits of judicial deference to administrative tribunals’ decisions. In doing so, it reaffirmed a conceptual rift between Canadian and American jurisprudence on the issue.

Background

At issue in Arlington was the provision of the Telecommunications Act of 1996 in which Congress required state and local governments to act on wireless “siting applications within a reasonable period of time after the request is duly filed”. “Siting applications” are applications by telecommunications networks to place towers and antennae within local zoning authorities’ jurisdiction. Such applications have frequently faced long delays. In July 2008, wireless service providers petitioned the Federal Communications Commission to clarify the meaning of the statutory requirement that zoning authorities act on siting requests “within a reasonable period of time”. The Commission issued a declaratory ruling finding that “unreasonable delays in the personal wireless service facility siting process have obstructed the provision of wireless services” and that such delays are unreasonable presumptively (but rebuttably) 90 days following the commencement of an application to place new antenna on an existing tower and 150 days following the commencement of any other application.

Some state and local governments opposed the adoption of this declaratory ruling on the ground that the Commission lacked the authority to interpret the ambiguous statutory provision at issue. Texas petitioned for a review of the declaratory ruling to the Court of Appeals for the Fifth Circuit. The Court of Appeals applied the framework established in Chevron U.S.A. Inc. v. Natural Resources Defence Council, Inc., 467 U.S. 837 (1984). The Chevron case mandates a deferential approach to judicial review of administrative tribunals’ decisions. It states that where a statute is silent or ambiguous with respect to a specific issue, “the question for the court is whether the agency’s answer is based on a permissible construction of the statute”. The Chevron approach is based on the presumption that to the extent Congress left ambiguity in a statute, it wished that ambiguity to be resolved first and foremost by the administrative agency entrusted to interpret that statute, rather than the courts. Relying on the Chevron precedent, the Court of Appeals approved the Federal Communications Commission’s interpretation of its statutory authority and affirmed the declaratory ruling. Texas appealed to the United States Supreme Court.

Writing for a unanimous court, Justice Scalia observed that the argument against Chevron deference rests on the assumption that administrative tribunals are only to be accorded deference when they interpret non-jurisdictional issues, but when faced with a question of their own jurisdiction, they are to be evaluated on a much stricter standard. Justice Scalia presented Texas’s argument as follows:

“The argument against deference rests on the premise that there exist two distinct classes of agency interpretations: Some interpretations – the big, important ones, presumably – define the agency’s ‘jurisdiction’. Others – humdrum, run-of-the-mill stuff – are simply applications of jurisdiction that the agency plainly has. That premise is false, because the distinction between ‘jurisdictional’ and ‘non-jurisdictional’ 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 Court noted that the distinction between jurisdictional and non-jurisdictional judicial review makes sense in respect of judicial decisions, but not administrative tribunal decisions. This is so because whether a court has decided correctly a particular question has different consequences from whether it had the power to decide the question at all. Because a court’s power to decide a case is independent of whether the decision was a correct one, even an erroneous judgment is entitled to res judicata effect. Thus, an incorrect but a jurisdictionally proper judicial decision is not ultra vires. This is not the case for administrative tribunals:

“Both [the tribunals’] power to act and how they are to act is authoritatively prescribed by Congress, so that when they act improperly, no less than when they act beyond their jurisdiction, what they do is ultra vires.

Thus, authoritatively stating that the distinction between ‘jurisdictional’ and ‘non-jurisdictional’ decisions does not exist in respect of administrative tribunals, the Supreme Court upheld the Federal Communications Commission’s ruling.”

Significance of the Decision

The decision is significant because it illustrates a real, although narrow, gap in the positions of the United States Supreme Court and the Supreme Court of Canada on this issue. In Information and Privacy Commissioner v. Alberta Teachers’ Association, [2011] 3 S.C.R. 654, the Supreme Court considered a judicial review of a decision of the Information and Privacy Commissioner concerning disclosure made by Alberta Teachers’ Association. The Alberta Teachers’ Association argued that the Commissioner had lost jurisdiction due to his failure to extend the period for the completion of his inquiry beyond the statutorily prescribed 90 days. In a majority opinion, Justice Rothstein reiterated the principle that “deference will usually result where a tribunal is interpreting its own statute or statutes closely connected to its function, with which it will have particular familiarity” (Dunsmuir v. New Brunswick, 2008 S.C.C. 9 at para. 54). This principle applies unless an interpretation of the tribunal’s home statute falls into one of the narrow categories to which a correctness standard applies, namely,

“constitutional questions, questions of law that are of essential importance to the legal system as a whole and that are outside the adjudicator’s expertise, … questions regarding the jurisdictional lines between two or more competing specialized tribunals and true questions of jurisdiction or vires” (citations admitted)

Rothstein J. observed that the principle that the category of “true questions of jurisdiction” should be interpreted narrowly, take on particular importance when the tribunal interprets the various statutes pursuant to which it operates. He further observed that the “true questions of jurisdiction” category has caused unnecessary confusion and increased the cost of litigation. He proposed to narrow the category further, thus:

“True questions of jurisdiction are narrow and will be exceptional. When considering a decision of an administrative tribunal interpreting or applying its home statute, it should be presumed that the appropriate standard of review is reasonableness. As long as the true question of jurisdiction category remains, a party seeking to invoke it must be required to demonstrate why the court should not review a tribunal’s interpretation of its home statute on the deferential standard of reasonableness.”

Two concurring opinions were authored in this case. Cromwell J. proposed that courts examine the legislative intent where a plausible argument is advanced that a tribunal must interpret a particular provision correctly rather than merely reasonably. To conduct such a “thorough examination” of the legislative intent, the courts will employ a variation of the pragmatic and functional test put forth in Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 S.C.R. 982. Finally, Binnie and Deschamps JJ. proposed a self-described “middle ground” approach that would see deference accorded to an administrative tribunal where the issue at hand relates “to the interpretation and application of its own statute, is within its expertise and does not raise issues of general legal importance”. Concurring opinions on standard of “issues of general legal importance” would permit courts to review a greater number of decisions on the correctness standard than the majority’s requirement of issues “of essential importance to the legal system as a whole”.

Thus, while in practice both courts continue to accord deference to the decisions of administrative tribunals, the United States Supreme Court does not recognize, as a matter of principle, the distinction between “jurisdictional” and “non-jurisdictional” issues under review. In contrast, the Supreme Court of Canada continues to reserve a circumscribed class of issues for greater judicial scrutiny. While the Canadian Supreme Court’s position is a more nuanced one that retains courts’ residual responsibility to ensure that matters of law, particularly on questions of high importance, are correctly decided, it fails to resolve the uncertainty surrounding the question of when it is, precisely, that an administrative tribunal loses the deference regularly accorded to it by a court. In making future decisions concerning judicial review, Canadian counsel will continue to grapple with this uncertainty. Conversely, the United States Supreme Court’s decision is doctrinally clear and internally consistent, at the expense, perhaps, of permitting administrative tribunals to decide matters incorrectly, even in matters of “essential importance,” and even in matters concerning their own jurisdiction.

Case Information

City of Arlington, Texas v. Federal Communications Commission, 569 U.S. (2013)

Docket: 11-1545

Date of Decision: May 20, 2013