Whistling in Chevronland: Why Department of Labor Interpretations of the Sarbanes-Oxley Act Whistleblower Provisions Do Not Deserve Judicial Deference

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If Chevron walked into an ABA conference, everyone would know who it was; no name badge required, no need for let’s-get-acquainted small talk (“What’s your holding?”).[1] Like Cher, Chevron circulates with mononymous renown, its reputation preceding it. Still, because this essay tackles Chevron’s application in a particular context, a short re-introduction is in order at the outset.

The question in Chevron[2] was whether the Environmental Protection Agency (EPA) permissibly interpreted “stationary source” in the Clean Air Act. The term could mean either a solitary pollution-emitting apparatus (say, a smokestack) or a single-sited cluster of them (say, a factory).[3] Which construction was “right” in the context of the EPA’s pollution control programs was perhaps unresolvable.[4]

The Court deferred to the meaning the agency gave the law because Congress had entrusted the administration of the Clean Air Act to the EPA, “stationary source” was capable of more than one meaning, and the EPA’s interpretation of the term was reasonable.[5] The muscle in Chevron was its holding that courts are to assume that statutory ambiguity exposes a congressional intent that an administering agency may resolve the ambiguity, so long as the agency’s construction is reasonable.[6]

Chevron deference creates a dichotomy in judicial approaches to statutory interpretation. On one hand, in cases involving administrative law, courts defer to reasonable agency interpretations unless they conflict with the law’s plain text.[7] On the other hand, in ordinary federal court disputes involving statutory claims, courts seek the correct or at least best meaning of ambiguous text.[8] A court will employ tools of construction and perhaps consider signposts such as congressional intent and legislative history. The construction on which the court settles maintains force as “the law” unless reversed on appeal, overruled, or abrogated.

This binary arrangement seems straightforward. The courts or the agency—one or the other—has the institutional authority to say what the law is.[9] Chevron has been described as “institutional law” in that it “assigns to the administration the conditionally authoritative task of interpreting ambiguous statutory law and accordingly orders courts to under-enforce it.”[10]

This essay addresses a snag in this binary approach illustrated by (but not exclusive to) Section 806 of the Sarbanes-Oxley Act,[11] which is one of several federal whistleblower laws. Substantively, § 806 prohibits covered employers from retaliating against employees for reporting corporate fraud. Procedurally, § 806 offers twin resolution paths. The complainant may choose to litigate his or her claim before an agency—the U.S. Department of Labor (DOL)—or in federal court. The fact that complainants may choose between the “Agency Track” and the “Court Track” upsets our otherwise neat binary arrangement. The law is co-administered and two-headed; a Siamese statute, if you will.

This essay argues that courts do not owe deference to DOL constructions of this statute. Part I details the § 806 framework. Part II discusses the justifications for deferring to statutory interpretation by agencies and summarizes court decisions on deference in § 806 cases. Part III summarizes Supreme Court and appellate court decisions on deference in this context. Part IV argues that courts should not defer to DOL interpretations of § 806.[12]

I. Section 806’s Dual Tracks

The complainant in each § 806 case must initially file any retaliation claim against the employer with the DOL.[13] He or she may then choose to litigate the claim entirely within the agency. If so, following discovery and a hearing, an administrative law judge (ALJ) will apply the statute to the claim, resolving statutory ambiguities as may be necessary, and issue a recommended order. The ALJ’s decision is then subject to review by the DOL’s Administrative Review Board (ARB),[14] which reviews questions of law de novo and issues the DOL’s final order.[15] Lastly, either party may seek review of that order in the appropriate circuit court of appeals. At this stage, the Solicitor of Labor, defending the ARB’s order, will solemnly apprise the court that it must defer to the ARB’s construction of § 806.[16] Chevron will be cited.[17]

Alternatively, the complainant may refile his or her § 806 claim in federal district court after a waiting period; this refiling is known as “kicking out.”[18] Kicking out the complaint terminates DOL involvement as the district court assumes the familiar role of applying a statute in a dispute between private parties. If a jury is demanded, the jury will act as factfinder; the court will instruct the jury on the law. Per § 806, the district court proceeding is de novo. If the DOL issued any findings between the initial filing of the complaint and the refiling in federal court, those findings become moot.[19]

On appeal of a district court’s judgment, the appellate court would ordinarily review questions of law de novo.[20] But that is not what happens in § 806 cases. Rather than exercise their right and duty to declare what the law means,[21] appellate courts consider how the ARB has construed § 806—not in the case before the court, since the complainant opted out of the agency proceedings, but in any prior ARB decision.[22] The appellate court will apply the ARB’s construction, if reasonable, even if the district court reasonably interpreted the law otherwise.

II. Deference and Its Justifications

A. Chevron’s Kin

Chevron, of course, is “not the alpha and the omega of Supreme Court agency-deference jurisprudence.”[23] The decision was not written on the proverbial blank slate.[24] Earlier cases had produced a common law of deference,[25] under which agencies were permitted to reasonably construe ambiguous statutory terms where Congress entrusted them to carry out federal programs.[26] However, the deference framework that developed was “never that simple” and “subject to override by a mélange of factors, with no clear metric for determining how much or when those factors weigh in the balance.”[27]

Of note is Skidmore v. Swift & Co.[28] The question there was whether the Fair Labor Standards Act (FLSA) required the employer to pay wages for waiting time. The Court observed that whether time is compensable is a question of fact[29] and that Congress assigned this factfinding responsibility to the courts. Yet the Court also recognized that the FLSA established an agency Administrator who had considerable experience in ascertaining the compensability of waiting time. Accordingly, although the Administrator did not preside like a court over individual employer-employee wage disputes, his opinions were entitled to due consideration by the courts.[30] Skidmore famously concluded that the degree of deference owed an agency “depend[s] upon the thoroughness evident in its consideration, the validity of its reasoning, its consistency with earlier and later pronouncements, and all those factors which give it power to persuade, if lacking power to control.”[31]

As some see it, Chevron’s unadorned formula, ambiguity (A) —> deference (D), freed courts from having to ascertain congressional intent on an agency-by-agency, statute-by-statute basis. But post-Chevron decisions altered the A —> D formula. Fifteen years on, United States v. Mead Corp.[32] held that Chevron deference is due only if Congress gave the agency the authority to make rules carrying the force of law and its determination was an exercise of that authority.[33] This added a prerequisite, an “x” factor, to the equation: x —> (A —> D).[34] Otherwise, the agency’s interpretation is entitled to respect only to the extent it has the power to persuade.[35]

Later, National Cable & Telecommunications Ass’n v. Brand X Internet Servs. (Brand X) presented the question whether, if a court had already settled on the meaning of a statutory term, an agency in an unrelated case down the road could embrace a different interpretation.[36] This might have seemed like a rhetorical question: once a court has spoken, how can a bureaucrat say the law means something else, unsettling precedent on which other courts and private parties may have relied? Yet Brand X held that Chevron deference was still owed to the agency’s interpretation. “[A]llowing a judicial precedent to foreclose an agency from interpreting an ambiguous statute . . . would allow a court’s interpretation to override an agency’s. Chevron’s premise is that it is for agencies, not courts, to fill statutory gaps.”[37] The Court reasoned that deference should not depend on the happenstance of whether the court’s or the agency’s interpretation came first.[38] One commentator points out that “This is a ‘WOW’ moment. Brand X is arguably the capstone of the Court’s Chevron evolution: it works a wholesale transfer of statutory interpretation authority from federal courts to agencies.”[39]

Lastly, but significantly, the Court has made clear that deference is not owed if “there may be reason to hesitate before concluding that Congress has intended . . . an implicit delegation” from Congress to the agency to fill in statutory gaps.[40] This exception has been applied where the issues are particularly important.[41] Nonetheless, if Chevron’s premise is that Congress implicitly intended an agency to resolve statutory ambiguities, indications refuting such an intent should always be considered—even in cases important only to the litigants.

Chevron and its kin allow an agency to change the previously decided-upon meaning of a statute—to alter the law when a reason for alteration it finds.[42] In contrast, stare decisis and other principles normally preclude a court from doing so, even if everyone thinks a prior ruling has become obsolete.[43] What to a court is durable and controlling precedent is, in the polished-terrazzo halls of a federal agency, something like putty.

B. The Justifications for Deference

An abundance of commentary addresses why courts owe (or don’t owe) deference to agency constructions of ambiguous statutes.[44] While an in-depth exploration of justifications is not needed here, a synopsis aids in understanding whether deference in § 806 cases is appropriate.[45]

1. Agency Expertise

Not surprisingly, Chevron cited agency expertise as a justification for its holding.[46] Technical issues predominated in the litigation. The oral argument, heavy on statutory minutiae, was tedious, if not tranquilizing.[47] Three Justices recused themselves. One can easily imagine the shrunken contingent of the remaining Justices in post-argument conference conceding the limitations on their ability to rightly define “stationary source.”[48]

Agency expertise is a time-honored and pragmatic justification for deference.[49] An agency’s “power to persuade” the courts, in the verbiage of Skidmore, surely correlates with its subject-matter proficiency and the complexity of the issue in dispute.[50] As a rule, the more technical the basis for an agency’s decision,[51] the more likely courts will defer.[52] Subject matter and real world expertise also favor deference,[53] as does an agency’s familiarity with the history and purpose of the legislation.[54] The Supreme Court has stated that “historical familiarity and policymaking expertise account in the first instance for the presumption that Congress delegates interpretive lawmaking power to the agency rather than the reviewing court.”[55]

Brand X accorded deference in part because it permits an agency to save a statute from ossification by revising “unwise judicial constructions of ambiguous results.”[56] Deference frees agencies to formulate, refine, and change policy unburdened by “static” judicial interpretations.[57] This may be less a justification for deference than an axiom—i.e., agencies receive latitude so that they have the leeway to modify the law. In any event, the save-from-ossification reasoning is also about agency expertise. On a forward-looking basis, as agencies confront scientific or technological changes, or new legislative or economic developments, they can incorporate the new information in implementing the statute Congress assigned them to administer.[58]

2. Separation of Powers

Separation of powers ideals and democratic principles also animated Chevron.[59] Chevron observed that, while agencies are not directly accountable to the people, the executive is.[60] Therefore, it is appropriate for the executive “to make policy choices and to resolve competing interests that Congress inadvertently or intentionally left to be resolved.”[61] “[F]rom a separation-of-powers perspective, absent some strong indication to the contrary, questions of what a statute means and how it is best implemented are for the Executive, not the Judiciary.”[62] Chevron deference thus imposes restraints on the judiciary that limit interference with the executive’s advancement of public policy.[63]

3. Additional Justifications

Chevron did not promote additional justifications for deference, but others have. Some have argued that deference will promote uniformity among the courts as to the meaning of a law. Without deference, courts may reach multiple and perhaps conflicting views of the meaning of a law. With deference, on the other hand, the courts more likely will coalesce around the meaning chosen by the agency.[64] This rationale was summarized in the government’s brief in Brand X. The brief urged the Supreme Court to overturn the Ninth Circuit’s decision (to not defer to the agency) because it would “subject a single agency decision to differing standards of review, thereby producing unseemly races to the courthouse, unnecessary conflicts in the circuits, and unfortunate situations in which (absent this Court’s review) the meaning of federal statutes would be dispositively determined for the entire Nation by lone three-judge panels.”[65]

Another justification is that deference might prod Congress to draft legislation more precisely. The fewer ambiguities a law contains, the less opportunity the executive branch will have to alter its meaning.[66] There appears to be a lack of empirical evidence that deference improves Congress’s drafting skills. In any event, legislative drafters may prefer ambiguous terms in the hope of producing a bill bland enough to pass.[67]

III. Deference and § 806

Why is the DOL involved in § 806 at all? Did Congress have a particular reason related to the prevention of securities fraud—the objective of the Sarbanes-Oxley Act—for assigning the DOL to handle claims of retaliation for reporting fraud? The short answer is no. The DOL lacks fluency in federal securities laws and regulations. The agency is not conversant in the types of fraudulent conduct (e.g., wire fraud) covered by § 806.[68] Nothing about the substance of the Sarbanes-Oxley Act would have led Congress to hand § 806 cases to the DOL.

Rather, historically, when Congress included a discrete anti-retaliation provision within a larger regulatory program, it assigned the DOL to handle retaliation claims. For example, when drafting the Clean Air Act, Congress preferred a DOL forum for whistleblower claim resolution over the EPA. By the time Congress drafted the Sarbanes-Oxley Act in 2002, the DOL already had jurisdiction over many similar whistleblower protection provisions.[69] While the type of whistleblowing§ 806 protects is distinctive (i.e., reporting shareholder fraud), Congress followed its common practice of tasking the DOL to handle whistleblower claims.[70] There is no evidence that Congress considered the DOL uniquely capable to handle securities fraud whistleblower retaliation claims.

A. Supreme Court Decisions

The Supreme Court has twice considered federal financial whistleblower laws, although deference did not feature prominently in either case. The question in Lawson v. FMR, LLC was one of statutory interpretation: whether § 806 narrowly protects only employees of publicly traded companies or more broadly extends to workers of private companies that contract with publicly traded companies.[71] A Court majority favored the more expansive reading.[72] Because the Lawson plaintiffs chose the Court Track, the DOL had not issued its own decision on whether they qualified as covered employees.[73] Deference therefore was not an issue for the majority.

Not so with the dissent. The dissent found § 806 ambiguous but concluded that the DOL’s interpretation of the statute (in other cases) did not deserve Chevron deference.[74] The dissent reasoned that the DOL’s authority to investigate and adjudicate § 806 claims did not justify deference because the Sarbanes-Oxley Act did not delegate to the DOL any authority to make rules carrying the force of law.[75] Instead, the Act gave the SEC the power to make rules necessary to protect investigators. “[I]f any agency has the authority to resolve ambiguities in § [806] with the force of law, it is the SEC, not the [DOL].”[76]

The dissent approached the nub of the issue addressed in this essay:

That Congress did not intend for the Secretary [of Labor] to resolve ambiguities in the law is confirmed by § [806]’s mechanism for judicial review. The statute does not merely permit courts to review the Secretary’s final adjudicatory rulings under the Administrative Procedure Act’s deferential standard. It instead allows a claimant to bring an action in a federal district court, and allows district courts to adjudicate such actions de novo.[77]

The dissent concluded that “the muscular scheme of judicial review suggests that Congress would have wanted federal courts, and not the Secretary of Labor,” to have the ultimate power to resolve ambiguities in 806.[78] So far, no court has picked up on the dissent’s argument.

In Digital Realty & Trust, Inc. v. Somers[79] the Supreme Court resolved a circuit split on the meaning of “whistleblower” under the Dodd-Frank Act.[80] The Act defines a whistleblower as an employee who has reported wrongdoing to the SEC,[81] but some appellate courts had construed the law to cover employees who had not done so. Somers considered deference, albeit not to the DOL.[82] Pursuant to its rulemaking authority,[83] the SEC had issued a rule that the Dodd-Frank Act protects employees even if they did not report wrongdoing to the SEC.[84] The Court concluded, however, that the law means what it says: an individual is only protected if he or she reported wrongdoing to the SEC. Because the Court found that the statute was “clear and conclusive,” not ambiguous, the Court did not defer to the SEC’s conflicting construction.[85]

B. Appellate Court Decisions

Federal courts, as a general matter, unhesitatingly defer to DOL interpretations of § 806.[86] When plaintiffs kick out their cases to federal court, they metaphorically bring along a crate containing all DOL precedent for the court to sift through and apply in the (supposedly de novo) proceedings.

Consider how courts accommodate the DOL’s vacillating characterization of protected “whistleblowing.” The ARB held in 2008 that § 806 requires an employee’s report to “definitively and specifically” identify wrongdoing—not any old gripe will do. That construction of the law became known as the Platone standard.[87] After the 2008 elections brought a new administration (and new ARB members), the ARB changed course; its conclusion that § 806 does not require definitive and specific reports is known as the Sylvester standard.[88] Appellate courts by and large deferred to the Platone standard while it was “the law,” and they then accorded the same deference to the new Sylvester standard. This was true even if, in a Court Track case, the court was reviewing a federal district court’s judgment as opposed to (in an Agency Track case) a final order of the ARB.

Take Wiest v. Lynch.[89] The complainant pursued the Court Track, but the district court dismissed his claim because his evidence did not meet the requirements of Platone. However, in unrelated litigation, the ARB had just recently embraced the new Sylvester standard. The Third Circuit held that the district court should have opened the metaphorical crate of ARB precedent and applied the new standard.[90]

Nielsen v. AECOM Tech. Corp.[91] considered the same issue but justified deference under Skidmore. The district court had dismissed a § 806 claim based on circuit precedent adopting Platone. The Second Circuit reversed because the DOL in the meantime had repudiated that standard. The court declined to address whether Chevron deference was due, in part because the dissenting opinion in the Supreme Court’s Lawson case questioned whether the DOL has interpretive authority under § 806. Nonetheless, the court found the DOL’s new Sylvester standard persuasive.[92]

Rhinehimer v. U.S. Bancorp Investments, Inc. took yet another approach.[93] As had the Second Circuit in Nielsen, the Sixth Circuit rejected its own earlier embrace of the Platone standard while adopting Sylvester as persuasive.[94] The court went on to find the correct interpretation of § 806 based on the “text and design” of the law and the “well-established intent of Congress” for “a broad reading of the statute’s protections.”[95] These cases illustrate courts’ readiness to defer to the DOL in § 806 whistleblower cases without considering the fact that the district court had de novo jurisdiction to adjudicate the claim.

IV. Courts Do Not Owe Deference to DOL Interpretations of § 806

Deference is not due to DOL interpretations of § 806 or comparable whistleblower protection provisions.[96] The justifications for deference do not apply in this context, and pragmatic considerations make deference inappropriate.

A. The Dual-Headed Supervision of § 806 Refutes Any Fiction that Congress Delegated DOL Lawmaking Power

1. Who “Administers” § 806?

Chevron requires deference to an agency’s construction of a “statute which it administers.”[97] Does the DOL administer § 806 in the Chevron sense?[98]

On the one hand, a case can be made that it does. Since the early 1970s, Congress has used whistleblower protections as a means to accomplish the objectives of expansive regulatory programs, particularly in the environmental protection arena.[99] Congress began the tradition of assigning the DOL to handle these claims; courts became involved only on petitions for review of final DOL orders.

On the other hand, with its enactment in 2002, § 806 departed from tradition by including the kickout provision.[100] Congress empowered federal courts to hear and resolve § 806 cases de novo.[101] This overt alternative to agency adjudication undercuts a conclusion that the DOL is “the administrator” of § 806.[102]

Assume, for example, that Employer lays off two employees at the same time, purportedly for the same reason. They each file factually similar and legally identical claims, the validity of which hinges on the meaning of a term in § 806. Employee A keeps the case in the DOL process; practically speaking, it will take years before the ARB issues a final order on the claim. Employee B opts for the Court Track, and Employer soon files a dispositive motion, the outcome of which hinges on the resolution of the ambiguous text.

If deference to the DOL were required, a reasonable course for the federal court would be to stay Employee B’s case until the ARB chooses its construction of the ambiguous term in Employee A’s case. After all, assuming it is reasonable, that construction must govern the courts—if, of course, deference is due. Yet the very reason Congress provided the kickout provision was to permit complainants to escape the laggardly DOL process for resolving § 806 claims and obtain speedier justice,[103] so postponing federal court proceedings until the ARB gets around to interpreting the law would frustrate that goal. Instead, the federal district judge should review, interpret, and apply § 806 on a de novo basis. In short, it cannot be said that the DOL is “the administrator” of § 806 insofar as federal courts have equal authority to apply and interpret the law.

2. The Missing Mead “X Factor”

Section 806’s dual-headed structure also suggests that the statute lacks the Mead-required force-of-law “oomph.” Standing alone, the fact that the DOL adjudicates § 806 cases could indicate that Congress intended the DOL to issue determinations that carry the force of law.[104] Moreover, the proceedings are relatively elaborate and formal. Mead “recognized a very good indicator of delegation meriting Chevron treatment in express congressional authorizations to engage in the process of . . . adjudication that produces . . . rulings for which deference is claimed.”[105] The DOL gives “concrete meaning” to the provisions of § 806 “through a process of case-by-case adjudication.”[106]

But so do federal courts. If relatively formal agency proceedings aid the DOL in giving concrete meaning to § 806, even more formal federal court proceedings serve that function. For this reason, the establishment of dual adjudication tracks in § 806 indicates that Congress did not intend for the DOL to have plenary, or even primary, authority to resolve statutory ambiguities and, in turn, did not intend courts to defer to DOL interpretations.[107]

True, other federal laws assign responsibilities to agencies and courts. In the employment context, Skidmore provides a ready example. That case centered on the FLSA, which permits federal courts to resolve disputes between employees and employers; in those cases, judges say what the FLSA means,[108] while the DOL Wage and Hour Administrator also interprets the law,[109] not least in deciding whether the agency should seek to enjoin employers from violating the statute.[110] Brand X also involved a statute capable of federal court and agency (FCC) interpretation, depending on the context of the claim.

However, the provisions at issue in Skidmore and Brand X did not grant an agency and the courts de novo authority to adjudicate the very same claims. Section 806 assigns exactly the same roles in resolving retaliation claims to the DOL and the courts.[111] Unlike the FLSA, the statute does not divide authority; it grants coequal authority.

Finally, the DOL does not have substantive rulemaking authority under § 806 (or similar federal whistleblower laws), which further suggests that deference to the DOL is not warranted. The only DOL regulations relating to § 806 are procedural.[112] As the dissent in Lawson noted, the Sarbanes-Oxley Act empowered the SEC, not the DOL, to promulgate substantive rules.[113]

B. The DOL Lacks Deference-Worthy Expertise

As discussed, agency expertise generally favors deference. But the DOL does not have expertise that would warrant deference to its interpretations of § 806.[114]

As an overarching point, the core issue in retaliation cases—whether the employee was punished for reporting wrongdoing—is not a technical or esoteric one. It is a question of fact. Applying the law to the facts is the DOL’s bread and butter in Agency Track whistleblower cases. The ARB’s final, factual determinations whether retaliation occurred are reviewed on appeal under the substantial evidence standard. The same thing happens in a federal court proceeding. It does not take an expert to resolve § 806 claims.

Nor does it take DOL expertise to tease out the meaning of ambiguous statutory text. For example, a complainant must establish that he suffered an adverse action.[115] Section 806 makes it unlawful to “discharge, demote, suspend, threaten, harass, or in any other manner discriminate against an employee” for his protected conduct.[116] These are not terms of art. They pop up throughout the federal code, including in laws that do not involve the DOL. If these commonplace terms seem hazy, a federal district judge is as able as the ARB to resolve ambiguities.

Technical expertise is also not a basis for deference to the DOL. True, technical issues may arise in determining whether a wrongdoing report constitutes a protected form of whistleblowing. Whistleblower provisions often are embedded in regulatory programs that have technical components. Among them are several environmental laws,[117] as well as programs that regulate commercial atomic power,[118] aviation,[119] and surface[120] and rail[121] transportation. The federal agencies with relevant expertise in these areas are, in turn, the EPA, the Nuclear Regulatory Commission, the Federal Aviation Administration, and federal transportation agencies. The DOL does not develop technical know-how in these fields.[122]

Thus, while the Sarbanes-Oxley Act was designed to prevent shareholder fraud, and while § 806 protects employee reports of fraud, the DOL is not a storehouse of understanding on corporate fraud and has no insight in that field beyond that of a federal court. As the dissent in Lawson noted, corporate fraud is the SEC’s territory,[123] not the DOL’s—just as aviation safety is the FAA’s domain even though the DOL administers the aviation whistleblower protection provision.[124] In any event, corporate fraud aptitude is not required to resolve § 806 claims.[125]

Additional factors indicate that § 806 simply does not require agency expertise. First, the whistleblower laws assigned to the DOL are concise—usually contained in a single statutory subsection and covering no more than two or three pages. They are not intricate national programs requiring specialized agency knowhow.[126] Second, whistleblower claims are a minor aspect of the DOL’s affairs. Sometimes, Congress establishes an agency for the very purpose of overseeing a federal program, as with the Social Security Administration.[127] In that case, the overseeing agency will develop subject matter expertise. Congress did not establish the DOL to handle a complex, national, retaliation-prevention program.

The DOL’s familiarity with labor markets and statistics does not lend it mastery to resolve ambiguities in whistleblower laws.[128] Section 806 is unlike the complex laws the DOL does administer, such as the FLSA, which established a Wage and Hour Administrator.[129] Nor can a claim be made that the DOL is the right forum to resolve federal labor disputes; Congress long ago dispersed that authority.[130] Not surprisingly, federal appellate decisions do not cite expertise as a reason to accord Chevron deference to DOL interpretations of § 806.[131]

It is true that bureaucratic pockets within the DOL develop a specialized level of “whistleblower law” comprehension. OSHA investigates § 806 claims and claims under about two dozen similar federal laws, under the supervision of a national director of whistleblower programs and regional whistleblower staff.[132] DOL ALJs, too, may over time become proficient in applying whistleblower statutes in concrete cases, given that retaliation claims make up a sizeable portion of their dockets. Repetition nonetheless does not make ALJs relatively more competent than federal judges to resolve statutory ambiguities.[133]

In fact, the DOL does not hold itself out as possessing an inherent capability to interpret whistleblower laws. ALJs and the ARB often look to court interpretations of terms commonly used in anti-discrimination and labor laws, such as Title VII of the Civil Rights Act[134] and the National Labor Relations Act.[135] Also, the DOL cannot claim to be better qualified than courts to construe general law terms, such as punitive damages and limitations provisions, simply because those terms appear in whistleblower laws.[136] “Some interpretive issues may fall more naturally into a judge’s bailiwick.”[137]

Moreover, Congress has not given the DOL authority over all federal whistleblower laws. Federal courts have jurisdiction over whistleblower claims under the Dodd-Frank Act[138] and False Claims Act.[139] And thDOL has a limited role in adjudicating claims under the whistleblower provision of the Occupational Safety and Health Act, Section 11(c),[140] which are by far the most common type of whistleblower claim that the DOL receives.[141] Section 11(c) does not create a private right of action, and there are no administrative claims for the DOL to adjudicate.[142] For all these reasons, the DOL cannot claim any § 806 expertise.

C. No Separation of Powers Concerns

Some judges, including those on the Chevron Court, and scholars posit that deference to the executive honors the Constitution’s separation of powers framework. One scholar argues that deference is a “soft constitutional norm” that encourages the judiciary to exercise restraint and to avoid dictating outcomes in policy-laden areas.[143]

These significant, if lofty, ideals do not justify deference to the DOL in construing § 806. Congress explicitly gave the DOL and the courts the authority independently to adjudicate claims. Opting for the Court Track excludes the DOL from further considering a claim. Section 806 grants equal power to two branches, so courts have no reason to restrain themselves from deciding what the law means.

D. Pragmatic Concerns Counsel Against Deference to DOL Interpretations of § 806

Pragmatic justifications are relevant to the role of judicial deference. When an agency pursues policies based on “judgments about the way the real world works,” deference is owed for the very practical reason that the agency is “better equipped” to make such judgments.[144] But as demonstrated above, the DOL cannot claim that it is better equipped than a federal court to interpret and apply § 806. In fact, pragmatic concerns counsel against deference.

1. Impracticality in Federal Litigation

Requiring a federal district court to scour the corpus of DOL caselaw before settling on the meaning of § 806’s terms seems a peculiar imposition. It is one thing to expect a court to weigh an agency’s interpretation of a statutory term on a petition for review, as is the case when a court of appeals reviews an ARB’s final order at the conclusion of an Agency Track case. In that setting, the reviewing court considers the ARB’s explicit interpretation of a particular term, with the benefit of the agency’s reasoning, in the fact-specific context of the case at hand.

In a de novo federal court proceeding, however, if DOL precedent governs, the court (and counsel) would need to master ARB precedent in case an ARB decision, at some point in the past, defined an ambiguous term relevant to the litigation. Jury instructions about the law might need to be rewritten each time the ARB resolves equivocal statutory language. A trial court’s failure to apply (or even notice) a statutory gloss the ARB adopted could be ground for reversal.[145] Because federal courts are at least as equipped at the DOL to properly read § 806, they should not be regarded as lesser, secondary authorities on the meaning of the law.

2. Inconsistent Application of § 806

Skidmore accorded deference to the DOL in part because it believed agency and court interpretations of the FLSA should be uniform.[146] Some posit that agency interpretations should prevail over a court’s (rather than vice versa) because deference will produce the happy result of court coalescence around the agency’s single interpretation. Without deference, different federal circuit courts might read § 806 in conflicting ways.

Flaws in the coalescence hypothesis are apparent. Deference will not promote uniformity when courts disagree about whether 1) a provision is ambiguous, 2) the agency’s determination has the “effect of law” per Mead, or 3) the agency’s interpretation is reasonable. The one way to assure uniformity—aside from Congress clarifying the law by amendment—is to percolate conflicts up to the Supreme Court. Lawson made the Court’s interpretation of § 806 the uniform “law of the land.” Deference had nothing to do with it.

Another barrier to coalescence is that the ARB has no commitment to stare decisis. Whatever courts decide, the ARB may change its mind. Political change in the executive branch leads to new, sometimes partisan ARB membership. Newly formed ARBs may be prone to quickly jettisoning “politically incorrect” decisions of the previous administration. Courts may coalesce around an interpretation, only then to coalesce around a different one. For example, perhaps the DOL’s current Sylvester interpretation of § 806 is correct. Maybe Platone better respects the statute. Or perhaps the ARB has not yet found the best interpretation of the law on this point. A new interpretation may surface as the DOL reshapes the living, breathing law.[147] Coalescence, if any, will always be temporary and comes at the expense of finality.

3. Inconsistency with Other Employment Laws

In applying whistleblower statutes, the ARB may determine for any number of reasons to depart from the accepted meaning of terms routinely used in employment statutes. In United Turbines v. DOL, for example, the Second Circuit reviewed the ARB’s interpretation of the term “discharge.”[148] That word is not a term of art and in fact appears in many federal statutes (rather unlike the term “stationary source”). The ARB decided that a “discharge” can include situations where the employer did not actually discharge the worker but erroneously believed the worker resigned. Positing (without any illumination of the point) that the ARB “has a significant expertise in handling whistleblower claims,” the Second Circuit deferred to this outlier interpretation, even as the court observed that the ARB’s “reading does not mirror the definition that we have applied to similar terms in other employment laws.”[149]

In that instance, deference did not bring uniformity to the law. Deference by each of the other circuits to this odd interpretation might achieve uniformity within the narrow arena of § 806 cases (at least until the ARB changes its mind), but surely that is too modest a judicial goal. Uniformity in the broader arena of federal employment laws would benefit employers and employees alike. If the courts commonly believe discharge carries its usual meaning, allowing the DOL to part ways with the commonly accepted usage brings divergence.[150] Except where the specific language in a statute calls for another interpretation, discharge should mean roughly the same thing for all employment laws.[151]

Finally, courts may foster uniformity by refusing to defer to the ARB. For example, the ARB once took it upon itself to apply a novel test for determining the liability of employers in harassment cases. This effort met a quick demise in the Fifth Circuit, which held that the DOL had no business—even in administering a law assigned to the agency—departing from the national understanding of workplace harassment liability.[152]

V. Conclusion

Perhaps statute-by-statute analysis of Chevron’s application is unwieldy. Yet the Supreme Court has made clear that there is more to the deference analysis than Chevron suggested. The Court sometimes finds reasons not to defer to agency interpretations of ambiguous statutory provisions, including where the matter at hand is simply too weighty to allow the agency to have the final word or where other factors counsel against deference. For the reasons outlined above, DOL interpretations of § 806 do not deserve deference. Federal courts should discontinue their habit of routinely affording deference and reclaim their authority to say what the law is.