Last Friday the Supreme Court granted certiorari in City of Arlington v. FCC to decide whether courts should apply Chevron in reviewing a federal agency's determination of its own jurisdiction. Earlier this week Lee Beck of the Federal Regulations Advisor Blog provided readers with an excellent overview of the case here.
In his post, Lee noted the existence of an apparent conflict over the question presented in City of Arlington:
The United States Court of Appeals for the Fifth Circuit concluded that it must defer to the FCC’s interpretation of its own authority and that the FCC’s time frames were based on a permissible construction of the Telecommunications Act amendments and entitled to Chevron deference. In cases not related to the FCC, the Seventh Circuit and the Federal Circuit have taken the opposite position: on questions of agency authority / jurisdiction, the court must decide the issue de novo and grant no deference to the agency view.
Why not defer to an agency's determination of its own jurisdiction? The post explains, "Unlike the programmatic provisions that an agency administers, and necessarily interprets, jurisdiction to regulate or adjudicate is organic in nature – it is not a delegated function but Congress’ circumscription of the delegation."