‘City of Arlington’ Ruling Won’t Have Major Significance, Attorneys Say

The U.S. Supreme Court’s Arlington ruling won’t have as strong an effect on court challenges to the authority of government agencies as expected, said several former FCC attorneys at an FCBA event on administrative law Wednesday. Last month’s ruling (CD May 24 p1) that government agencies should receive deference from courts in interpreting ambiguous laws about their own jurisdiction “won’t have the seismic significance some people give it,” said Wilmer Hale attorney Jonathan Nuecterlein. He was formerly an FCC deputy general counsel and recently named FTC general counsel. While the ruling ostensibly expands the authority of agencies like the FCC, determined courts will be able to work around it, he said. “When courts want to second-guess agencies’ interpretation of their jurisdiction, they're going to."

The FCC has said Arlington bolsters the commission’s case in the net neutrality challenge by Verizon in the U.S. Court of Appeals for the D.C. Circuit. However, the D.C. Circuit has long treated agency jurisdiction in a manner consistent with the Arlington ruling, said Wiltshire Grannis attorney Chris Wright, also a former FCC general counsel. The Supreme Court’s new interpretation of Chevron deference under Arlington “may have less effect than people think it will,” he said.

Wright also said Arlington could lead to agencies expanding their authority. “It doesn’t take a terribly crafty lawyer to look at all the provisions in the Communications Act and come up with all sorts of things that the commission might do that aren’t in the act,” he said. “If you're a public interest group, this might be the time to think of something you want the commission to do that’s not in the act -- maybe you'll win, maybe not."

The attorneys who represented both sides in Arlington -- U.S. Solicitor General Donald Verrilli for the commission and Tom Goldstein of Goldstein and Russell for the plaintiff -- discussed some of the action behind the scenes of the landmark case. Verrilli said his defense was based on the principle of “'Meade’ is all you need.” He was referring to U.S. v. Meade Corp, a previous case on Chevron deference in which a dissent by Justice Antonin Scalia made points similar to Scalia’s majority opinion in Arlington. Goldstein, who runs the popular SCOTUSblog, said he believes Arlington was influenced by a political struggle within the court, in which conservatives like Chief Justice John Roberts -- who dissented in Arlington -- are eager to limit the power of federal agencies while left-leaning justices oppose them. “Inside the court right now there’s a war going on about administrative law, but it’s really about the Obama administration’s agencies,” said Goldstein. He said when it became clear that Scalia was leaning toward a ruling that would expand Chevron deference, the left-leaning justices “ran as fast in that direction as they could."

Roberts’ dissent in the case indicates a desire to take on federal agencies, said Paul Verkuil, chair of the Administrative Conference of the U.S., calling Roberts’ dissent “the most important part of the case.” He predicted this would be borne out as the courts see an increasing amount of rule challenges in coming years, related to the implementation of the Affordable Care Act and the Dodd-Frank Wall Street Reform and Consumer Protection Act. That might make the expansion of the Chevron doctrine in Arlington “not really the point anymore,” Verkuil said.