Akm LLC v. Secretary of Labor, Dept. of Labor

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued January 20, 2012 Decided April 6, 2012

No. 11-1106

AKM LLC, DOING BUSINESS AS VOLKS CONSTRUCTORS,
PETITIONER

v.

SECRETARY OF LABOR, DEPARTMENT OF LABOR AND
OCCUPATIONAL SAFETY & HEALTH REVIEW COMMISSION,
RESPONDENTS

On Petition for Review of a Final Order of the
Occupational Safety & Health Review Commission

Arthur G. Sapper argued the cause for petitioner. On the
briefs was Michael S. Nadel.

Elizabeth Gaudio was on the brief for amicus curiae
National Federation of Independent Business Small Business
Legal Center in support of petitioner.

Heather R. Phillips, Attorney, U.S. Department of Labor,
argued the cause for respondent. With her on the brief were
Joseph M. Woodward, Associate Solicitor, and Robert W.
Aldrich, Attorney.

Before: HENDERSON, GARLAND, and BROWN, Circuit
Judges.
 2

Opinion for the Court filed by Circuit Judge BROWN.

Opinion concurring in the judgment filed by Circuit
Judge GARLAND.

Concurring opinion filed by Circuit Judge BROWN.

BROWN, Circuit Judge: OSHA cited and fined petitioner,
Volks Constructors, for failing to properly record certain
workplace injuries and for failing to properly maintain its
injury log between January 2002 and April 2006. OSHA
issued the citations in November 2006, which was, as Volks
points out, at least six months after the last unrecorded injury
occurred. Because “[n]o citation may be issued . . . after the
expiration of six months following the occurrence of any
violation,” 29 U.S.C. § 658(c), we agree with Volks that the
citations are untimely and should be vacated.

I

The Occupational Safety and Health Act (“OSH Act” or
“Act”) provides that “[e]ach employer shall make, keep and
preserve” records of workplace injuries and illnesses “as the
Secretary . . . may prescribe by regulation.” 29 U.S.C. §
657(c)(1). Pursuant to that delegated authority, the Secretary
has promulgated a set of regulations which require employers
to record information about work-related injuries and illnesses
in three ways. Employers must prepare an incident report and
a separate injury log “within seven (7) calendar days of
receiving information that a recordable injury or illness has
occurred,” 29 C.F.R. § 1904.29(b)(3), and must also prepare a
year-end summary report of all recordable injuries during the
calendar year, id. § 1904.32(a)(2). This year-end summary
must be certified by a “company executive.” Id. §
 3
1904.32(b)(3). The employer “must save” all of these
documents for five years from the end of the calendar year
those records cover. Id. § 1904.33(a).

On May 10, 2006, OSHA began an inspection of Volks
and discovered that Volks had not been diligent in completing
its logs, forms, and summaries between 2002 and early 2006.
Accordingly, on November 8, 2006, OSHA issued the set of
citations at issue in this case. OSHA fined Volks a total of
$13,300 for 67 violations of 29 C.F.R. § 1904.29(b)(2)—
incident report forms were incomplete, 102 violations of 29
C.F.R. § 1904.29(b)(3)—injuries were not entered in the log,
one violation of 29 C.F.R. § 1904.32(a)(1)—year-end reviews
were not conducted between 2002 and 2005, and one
violation of 29 C.F.R. § 1904.32(b)(3)—the wrong person
certified the year-end summary.1 The improperly recorded
injuries occurred between January 11, 2002 at the earliest and
April 22, 2006 at the latest. These dates are equivalent to a
maximum of 54 months before the issuance of the citation,
and a minimum of six months plus ten days before the
issuance of the citation. Volks was not cited for any violation
of the requirement in 29 C.F.R. § 1904.33(a) that it “save” the
forms and the log for five years.

Because the Act says that “[n]o citation may be issued . .
. after the expiration of six months following the occurrence
of any violation,” 29 U.S.C. § 658(c), and because the injuries
giving rise to recording failures took place more than six
months before the issuance of the citation, Volks moved to
dismiss these citations as untimely. After the OSHA ALJ

1
OSHA issued a fifth citation for failing to post the year-end
summary for a long enough time period in 2006, but this item was
unanimously vacated by the Occupational Safety and Health
Review Commission (OSHRC) and is not before this Court.
 4
affirmed the citations, Volks appealed to the Occupational
Safety and Health Review Commission (OSHRC). The
Secretary said all the violations for which Volks was cited are
“continuing violations” that prevent the statute of limitations
from expiring until the end of the five-year document
retention period in 29 C.F.R. § 1904.33(a). Therefore, the
Secretary argued, all of Volks’s violations, stretching as far
back as January of 2002, were still occurring on May 10,
2006 when the inspection began. The citations were issued
two days shy of six months later than that date, so the
Secretary argued they were timely. By a 2-1 vote, and over
the vigorous dissent of the minority Commissioner, the
Commission agreed with the Secretary and affirmed the
citations. AKM LLC, 23 BNA OSHC 1414 (No. 06-1990,
2011) (“Commission Decision”). This petition for review
followed.

II

The question in this case is whether the Act’s record-
keeping requirement, in conjunction with the five-year
regulatory retention period, permits OSHA to subvert the
Act’s six-month statute of limitations.

Because the Secretary of Labor has interpreted the Act
and her regulations to pretermit the Act’s statute of
limitations, we first determine whether we must defer to her
interpretation. Generally, the answer is yes so long as the
statutes and regulations in question are ambiguous and the
Secretary’s interpretations are reasonable. See Chevron,
U.S.A., Inc. v. Natural Res. Def. Council, 467 U.S. 837, 843
(1984); Christensen v. Harris Cnty., 529 U.S. 576, 588
(2000). This is so even if the Secretary’s interpretation arises
in an administrative adjudication rather than in a formal
rulemaking process. Martin v. OSHRC, 499 U.S. 144, 157
 5
(1991) (“[T]he Secretary’s litigating position before the
Commission is as much an exercise of delegated lawmaking
powers as is the Secretary’s promulgation of a workplace
health and safety standard.”); see Auer v. Robbins, 519 U.S.
452, 462 (1997) (holding that the Secretary’s interpretation of
regulations receives deference even if contained in a brief).

Since the method by which the Secretary’s interpretation
has been articulated in this case places it within the ambit of
our deference, the next question is whether the interpretation
of a statute of limitations is the type of question which
triggers our deference. We have recently suggested that, in at
least some circumstances, agency interpretations of statutes of
limitations do trigger Chevron deference. Intermountain Ins.
Serv. of Vail v. Comm’r, 650 F.3d 691, 707 (D.C. Cir. 2011).
Because we find this statute to be clear and the agency’s
interpretation unreasonable in any event, infra, we need not
and do not decide now that this case presents the same
circumstances as Intermountain or that deference to agency
interpretations of statutes of limitations is warranted as a rule.
Rather, we assume without deciding that Chevron deference
is available because the interpretation offered by the agency
here “cannot survive even with the aid of Chevron deference.”
Kennecott Utah Copper Corp. v. Dep’t of Interior, 88 F.3d
1191, 1210 (D.C. Cir. 1996).

III

We thus begin with the text of the statute. If Congress
has clearly expressed its will, our inquiry is at an end.
Chevron, 467 U.S. at 843. We think the statute is clear; the
citations are untimely.

The statute of limitations provides that “no citation may
be issued . . . after the expiration of six months following the
 6
occurrence of any violation.” 29 U.S.C. § 658(c). Like the
Supreme Court, we think the word “occurrence” clearly refers
to a discrete antecedent event—something that “happened” or
“came to pass” “in the past.” Nat’l R.R. Passenger Corp. v.
Morgan, 536 U.S. 101, 109–10 & n.5 (2002) (citing
dictionaries); see Black’s Law Dictionary 1080 (6th ed. 1990)
(defining “occurrence” as “a coming or happening[;] [a]ny
incident or event”); Webster’s Third New Int’l Dictionary
1561 (1981) (defining “occurrence” as “something that takes
place” and noting that it is a term that “lacks much
connotational range” for which synonyms are “incident,
episode, [or] event”).2 In this case, every single violation for
which Volks was cited—failures to make and review
records—and every workplace injury which gave rise to those
unmet recording obligations were “incidents” and “events”
which “occurred” more than six months before the issuance of
the citations. As the dissenting Commissioner stated in this
case, “[b]y any common definition, there [was] no
‘occurrence,’ i.e., no discrete action, event, or incident, no
coming about, and no process of happening, within the
requisite six months.” Commission Decision, at *18
(Thompson, Comm’r, dissenting). We agree.

The Secretary does not offer any other definition of
“occurrence” but instead heroically attempts, as the dissenting
Commissioner put it, to “tie this straightforward issue into a
Gordian knot.” Id. at *17. The Secretary argues such
violations continue every day that an unmet record-keeping
obligation remains unsatisfied. Because the statute also
requires that “each employer shall make, keep and preserve”

2
The Secretary attempts to distinguish Morgan on the grounds that
it is a Title VII case, Resp’t Br. at 25, but the Court’s reasoning on
this point in Morgan did not rely on any peculiarity of Title VII.
536 U.S. at 109–10.
 7
those records as the Secretary prescribes, 29 U.S.C. § 657(c),
and the Secretary has prescribed that work injuries be
recorded “within seven (7) calendar days” of an incident
report, 29 C.F.R. § 1904.29(b)(3), and those records be
retained for five years, id. § 1904.33(a), the Secretary
concludes the real statute of limitations for record-making
violations is the length of the agency’s record retention period
plus the limitations period Congress proposed—here, five
years beyond the six months stated in Section 658(c).

Despite the cloud of dust the Secretary kicks up in an
effort to lead us to her interpretation, the text and structure of
the Act reveal a quite different and quite clear congressional
intent that requires none of the strained inferences she urges
upon us. To the extent Congress delegated authority to the
Secretary to require employers to “make, keep and preserve,”
records in Section 657(c), it did so only within the ambit set
by the statutory scheme, including the limitations period in
Section 658(c)—which expressly applies to “any regulations
prescribed pursuant to this chapter,” such as those
promulgated pursuant to Section 657(c). 29 U.S.C. § 658(a).
On the one hand, employers must make records of workplace
injuries in whatever form the Secretary requires within the
time period established by the Secretary—here, seven days
after the injury. If they fail to do so, that is a violation.
Pursuant to Section 658(c), OSHA may cite employers for
violations within six months of the violation’s occurrence. If
an injury is reported on May 1, OSHA can cite an employer
for the failure to create a record beginning on May 8, and a
citation issued within the following six months, and only the
following six months, would be valid. On the other hand,
once an employer has made such a record, it must also retain
it for as long as the Secretary demands and in the forms the
Secretary requires—here, for five years. If it loses or destroys
a record before the end of that time period, that too is a
 8
violation. Pursuant to Section 658(c), OSHA may cite
employers for violations within six months of a violation’s
occurrence, so for six months after the fifth year, and only for
those six months, OSHA can cite an employer for the loss or
destruction of a record. In this case, OSHA did not cite Volks
for the loss or destruction of a record it never made, as much
as the Secretary would now like to rely on that metaphysically
impossible failure on Volks’s part to extend the timeliness of
other citations. OSHA only cited Volks for the failure to
create a record, but it did so far too late.

The Secretary’s interpretation of these two provisions, by
contrast, has several flaws. First, it leaves little room for
Section 658(c), and we must be “hesitant to adopt an
interpretation of a congressional enactment which renders
superfluous another portion of that same law.” United States
v. Jicarilla Apache Nation, 131 S. Ct. 2313, 2330 (2011). At
best, the Secretary’s approach diminishes Section 658(c) to a
mere six-month addition to whatever retention/limitations
period she desires. We do not believe Congress expressly
established a statute of limitations only to implicitly
encourage the Secretary to ignore it. See Whitman v. Am.
Trucking Ass’ns, Inc., 531 U.S. 457, 468 (2001) (“Congress,
we have held, does not alter the fundamental details of a
regulatory scheme in vague terms or ancillary provisions—it
does not, one might say, hide elephants in mouseholes.”).
Second, the Secretary’s interpretation incorrectly assumes that
the obligation to maintain an existing record expands the
scope of an otherwise discrete obligation to make that record
in the first place. But the two obligations are distinct: one
cannot keep what never existed; a company cannot retain a
record it never created. See Bd. of Trs. of Leland Stanford Jr.
Univ. v. Roche Molecular Sys., Inc., 131 S. Ct. 2188, 2197
(2011) (noting that “retain” means “to hold or continue to
 9
hold in possession or use,” which in turn means “[y]ou cannot
retain something unless you already have it”).3

Third, the Secretary essentially asks us to conclude that
the mere authorization to issue regulations governing the
creation and preservation of records justifies an inference that
Congress intended violations of record-making requirements
to be treated as continuing violations. The Secretary’s
reasoning is not persuasive enough to overcome the “standard
rule” that the limitations period is triggered by the existence
of a complete cause of action, “[u]nless Congress has told us
otherwise in the legislation at issue.” See Bay Area Laundry
& Dry Cleaning Pension Trust Fund v. Ferbar Corp., 522
U.S. 192, 201 (1997); Cherosky v. Henderson, 330 F.3d 1243,
1248 (9th Cir. 2003) (“The Supreme Court has made clear . . .
that the application of the continuing violations doctrine
should be the exception, rather than the rule.”). Moreover, we
are especially skeptical of the Secretary’s inference when
Volks’s conduct is not even the sort of conduct we generally
view as giving rise to a continuing violation. As we have
held, continuing violations are those whose “character as a
violation did not become clear until [they] w[ere] repeated
during the limitations period, typically because it is only [the]
cumulative impact . . . that reveals [their] illegality.” Taylor
v. FDIC, 132 F.3d 753, 765 (D.C. Cir. 1997). The illegality
of Volks’s conduct would be immediately apparent to an
OSHA administrator. Without a clearer directive, we cannot
presume Congress intended to depart from the general rule.

3
That OSHA did not cite Volks for a failure to retain injury records
when that is the only conduct for which the statute of limitations
would not have clearly expired suggests that OSHA had, at some
point, correctly understood that an unmade record cannot be said to
have not been retained and that an employer’s obligations with
respect to making and keeping records are distinct.
 10
The Secretary’s interpretation also runs afoul of our
precedents. Her approach would stitch the retention and
creation obligations into one continuing obligation, but we
have stated in no uncertain terms that the “lingering effect of
an unlawful act is not itself an unlawful act,” Felter v.
Kempthorne, 473 F.3d 1255, 1260 (D.C. Cir. 2007), and that
the “mere failure to right a wrong . . . cannot be a continuing
wrong which tolls the statute of limitations,” for if it were,
“the exception would obliterate the rule,” Fitzgerald v.
Seamans, 553 F.2d 220, 230 (D.C. Cir. 1977). See also
Lorance v. AT&T Techs., Inc., 490 U.S. 900, 908 (1989) (“[A]
claim . . . wholly dependent on . . . conduct occurring well
outside the period of limitations . . . cannot [support] a
continuing violation.”); Local Lodge No. 1424 v. NLRB, 362
U.S. 411, 422 (1960) (holding that “a finding of violation
which is inescapably grounded on events predating the
limitations period” is untimely); Chalabi v. Hashemite
Kingdom of Jordan, 543 F.3d 725, 730 (D.C. Cir. 2008)
(concluding that an “ongoing failure to return . . . wrongfully
seized property” cannot toll the statute of limitations);
Kyriakopoulos v. George Washington Univ., 866 F.2d 438,
448 (D.C. Cir. 1989) (“Any . . . action that merely declines to
remedy [a] breach, so long as that action independently
breaches no [other provision], gives rise to no [separate]
action.”). The mere requirement to save a record cannot
possibly impose a continuing affirmative duty to correct past
failures to make the record in the first place.

It is telling that in order to find supportive circuit law, the
Secretary resorts to modifying a quotation which, properly
quoted, is perfectly consistent with our conclusion.4 The

4
The Secretary also relies on three inapposite cases. The first,
United States v. Cores, 356 U.S. 405, 408–09 (1958), addressed the
concept of continuing offenses for the purposes of venue and not
 11
Secretary says, “this Court has previously found that a statute
of limitations will not operate to bar claims where the action
(or inaction) that constitutes the basis for a claim was ‘carried
forward by more recent actions [or inactions].’” Resp’t Br. at
39 (quoting Int’l Union, United Auto., Aerospace & Agric.
Implement Workers v. NLRB, 363 F.2d 702, 706–07 (D.C.
Cir. 1966). But that bracketed addition makes all the
difference, and is simply not present in the decision. While
we held that continued actions may extend the statute of
limitations, nothing in that case suggests that inaction has the
same effect, and this case is about inactions (hence the need
for the Secretary’s addition). In short, the Secretary’s
continuing violations theory would transform the failure to
right a past wrong into a reason not to start the limitations
clock—a result our precedents plainly proscribe.

Of course, where, for example, a company continues to
subject its employees to unsafe machines, Resp’t Br. at 26–
27, or continues to send its employees into dangerous
situations without appropriate training, Oral Arg. Recording
at 30:50, OSHA may be able to toll the statute of limitations
on a continuing violations theory since the dangers created by
the violations persist. But the Secretary’s argument here is
instead grounded on the faulty logic that the mere existence of

statutes of limitations, a distinction described as “obvious[],”
United States v. Reitmeyer, 356 F.3d 1313, 1323 (10th Cir. 2004)
(citing United States v. Toussie, 397 U.S. 112, 121 n.16 (1970)).
The second, Sierra Club v. Simkins Indus., Inc., 847 F.2d 1109,
1114–15 (4th Cir. 1988), discussed whether past conduct could give
rise to citizen suits under the Clean Air Act, but said nothing about
statutes of limitations. The last, Wilderness Soc’y v. Norton, 434
F.3d 584, 588 (D.C. Cir. 2006), held that an agency’s failure to act
constituted a continuing violation, but this was in the context of our
mandamus jurisdiction. Mandamus is altogether different than
ordinary rights of action, as we explained in that very case. Id.
 12
a statutory provision authorizing her to require employers to
make and keep records, 29 U.S.C. § 657(c), creates a
continuing obligation that expands the statute of limitations.
In rejecting that argument, we express no opinion on whether
some other violations, if any, could, for some other reason, be
extended by the continuing violations concept. See Postow v.
OBA Fed. Savings & Loan Ass’n, 627 F.2d 1370, 1380 n.22
(D.C. Cir. 1980) (interpreting a statute of limitations to allow
for a continuing violations theory in some circumstances, but
not all, and suggesting the theory would in any event not
allow a violation to continue “indefinitely after the transaction
was consummated”). Instead, we simply conclude that the
statutory language in Section 657(c) which deals with record-
keeping is not authorization for OSHA to cite the employer
for a record-making violation more than six months after the
recording failure. See Chalabi, 543 F.3d at 730; Fitzgerald,
553 F.2d at 230.

Indeed, the Secretary’s interpretation has absurd
consequences in the context of the discrete record-making
failure in this case. Under her interpretation, the statute of
limitations Congress included in the Act could be expanded
ad infinitum if, for example, the Secretary promulgated a
regulation requiring that a record be kept of every violation
for as long as the Secretary would like to be able to bring an
action based on that violation. There is truly no end to such
madness. If the record retention regulation in this case
instead required, say, a thirty-year retention period, the
Secretary’s theory would allow her to cite Volks for the
original failure to record an injury thirty years after it
happened. Counsel for the Secretary readily conceded as
much at oral argument. Oral Arg. Recording at 23:22–25:30.
We cannot believe Congress intended or contemplated such a
result. Congress’s aim in creating OSHA was to improve the
safety of America’s workplaces. See 29 U.S.C. § 651(b).
 13
Congress evidently thought this goal would be served by
mandating that OSHA enforce record-making violations
swiftly or else forfeit the chance to do so, as reflected in its
requirement that citations not issue later than six months after
a violation.5 Cf. Mohasco Corp. v. Silver, 447 U.S. 807, 825
(1980) (“By choosing what are obviously quite short
deadlines, Congress clearly intended to encourage the prompt
[pursuit] of all charges . . . .”). Nothing in the statute suggests
Congress sought to endow this bureaucracy with the power to
hold a discrete record-making violation over employers for
years, and then cite the employer long after the opportunity to
actually improve the workplace has passed. “An
interpretation of a statute purporting to set a definite
limitation upon the time of bringing action, without saving
clauses, which would, nevertheless, leave defendants subject
indefinitely to actions for the wrong done, would, we think,
defeat its obvious purpose.” Reading Co. v. Koons, 271 U.S.
58, 65 (1926). It is not for us or the Secretary to unsettle
Congress’s chosen means of ensuring that outcome.

IV

The Act clearly renders the citations untimely, and the
Secretary’s argument to the contrary relies on an
interpretation that is neither natural nor consistent with our
precedents. The petition for review is granted and the
citations are vacated.
So ordered.

5
If the Secretary feels this limitations period is too short to allow
for the discovery of unsafe conditions or health effects which may
not become apparent for months or years into the future, she could
argue the statute should be read to incorporate a discovery rule, as
she had before the OSHA ALJ. But she did not press that argument
before the Commission, Commission Decision, at *6, or here.
 GARLAND, Circuit Judge, concurring in the judgment:
Petitioner Volks Constructors raises three principal arguments
relating to its OSHA citations. First, Volks contends that the
Secretary’s interpretation of the OSH Act’s six-month statute of
limitations, 29 U.S.C. § 658(c), is not entitled to Chevron
deference. Second, it contends that, even if the Secretary were
entitled to deference, her interpretation of the statute as
authorizing citations for “continuing violations” is unreasonable.
Third, Volks argues that the regulations that OSHA cited it for
violating do not -- in any event -- impose continuing obligations
that may be continually violated.

Volks’ third argument suffices to resolve its petition
because, as the Court states, the Secretary’s regulations impose
upon employers “discrete” rather than continuing obligations to
make records. Court Op. at 8. I write to explain why those
regulations cannot reasonably be read otherwise, and hence why
the citations are untimely under the applicable statute of
limitations. This does not mean, however, that the statute could
not admit of a continuing violation theory under other
circumstances.

I

The OSH Act’s statute of limitations states: “No citation
may be issued under this section after the expiration of six
months following the occurrence of any violation.” 29 U.S.C.
§ 658(c). As the Court notes, the word “occurrence” refers to
something that “happened” in the past. Court Op. at 6 (citing
Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 109-10 &
n.5 (2002)). Here, the thing that “happened” was Volks’
“violation” of an obligation imposed by the OSHA regulations
specified in the citations. Under the statute, a violation can thus
consist not only of an act, but also of a failure to act: here,
Volks’ “failures to make and review records” as required by the
regulations. Court Op. at 6. Finally, I agree with my colleagues
that, in this case, “every single violation for which Volks was
 2

cited . . . ‘occurred’ more than six months before the issuance of
the citations.” Id. This is why:

1. OSHA cited Volks for violating 29 C.F.R.
§ 1904.29(b)(2) and (b)(3), by failing to record employees’
work-related injuries and illnesses on the OSHA 300 log and
OSHA 301 incident report forms. See Citation at 15-20, 21-29
(Nov. 8, 2006). That regulation requires an employer to “enter
each recordable injury or illness on the OSHA 300 Log and 301
Incident Report within seven (7) calendar days of receiving
information that a recordable injury or illness has occurred.” 29
C.F.R. § 1904.29(b)(3). Volks contends that the seven days are
a “grace period,” at the end of which the violation “occur[s]” for
purposes of the six-month statute of limitations. Pet’r Br. 33-34.
Although the Secretary does not dispute that § 1904.29(b)(3)
creates a grace period, she maintains that Volks’ failures to
record “constituted continuing violations beginning with Volks’
initial failure to record . . . within seven days of learning of each
injury or illness,” and “then continu[ing] throughout the five-
year record retention period prescribed by the regulations,
which period had not elapsed as of the date of OSHA’s
inspection.” Resp’t Br. 16 (emphasis added).

The “five-year record retention period” referred to by the
Secretary undermines rather than supports her argument. The
regulation that prescribes that period, § 1904.33(a), requires an
employer to “save the OSHA 300 Log . . . and the OSHA 301
Incident Report forms for five (5) years following the end of the
calendar year that these records cover.” 29 C.F.R. § 1904.33(a)
(emphasis added). But the Secretary did not cite Volks for
violating § 1904.33(a) by failing to save those documents; she
cited it for violating §1904.29(b) by failing to record
information on them. Indeed, she does not contend that Volks
failed to “save” its logs and incident reports for five years or to
have them available during that period.
 3

Nor is there anything in the language of § 1904.33(a) that
imposes a continuing obligation to update or correct those
documents after seven days. To the contrary, the very next
subsection of § 1904.33 makes clear that there is no continuous
updating requirement applicable to Volks. With respect to the
logs, § 1904.33(b) reads as follows:

Do I have to update the OSHA 300 Log during the
five-year storage period? Yes, during the storage
period, you must update your stored OSHA 300 Logs
to include newly discovered recordable injuries or
illnesses and to show any changes that have occurred
in the classification of previously recorded injuries and
illnesses.

29 C.F.R. § 1904.33(b)(1) (emphasis added). In other words,
the requirement to update a stored log does not obligate an
employer to constantly reexamine injuries and illnesses, but
rather is expressly limited to recording “newly discovered”
information. Hence, because the Secretary does not contend that
Volks discovered anything new after the seven-day period, the
updating requirement for logs has no application to Volks.1 The

1
The Secretary’s brief on this point is puzzling. It acknowledges
that employers are not “required to constantly re-examine injures and
illnesses during the five-year retention period.” Resp’t Br. 36.
“Instead, the examination and assessment of illnesses and injuries
should usually take place only once, either within the seven-day grace
period found in § 1904.29(b)(3), or at any point thereafter as soon as
the employer realizes that it has failed to meet its ongoing recording
obligations.” Id. And yet, there is nothing in the record to suggest
that Volks “realized” after the passage of the seven-day period that it
had failed to record a recordable case. To the contrary, the parties
stipulated that “the date that Volks received information that a
recordable injury or illness occurred” was the date of the “injury or
illness” itself. Stipulations of the Parties ¶ 2.
 4

analysis with respect to the incident report forms can be even
briefer. Section 1904.33(b) expressly states: “You are not
required to update the OSHA 301 Incident Reports.” Id.
§ 1904.33(b)(3) (emphasis added).

In sum, even if a stand-alone provision with language like
that in § 1904.29(b)(3) could be read to create an obligation that
continues after a grace period,2 § 1904.29(b)(3) does not stand
alone. Instead, it is followed by another provision -- specifically
addressed to “retention and updating” -- that makes clear that
Volks did not have a continuing obligation to update its logs and
incident reports. See 29 C.F.R. § 1904.33. Accordingly, Volks’
violations occurred by the end of the relevant seven-day periods,
and the Secretary had no more than six months thereafter to file
her citations.3

2
Cf. United States v. George, 625 F.3d 1124, 1131 (9th Cir. 2010)
(holding that the registration provision of the Sex Offender
Registration and Notification Act, which requires a sex offender to
update the relevant sex offender registry “not later than 3 business
days after each change of name, residence, employment, or student
status,” 42 U.S.C. § 16913(c), creates a “continuing offense” for
purposes of the Ex Post Facto Clause), vacated on other grounds,
2012 WL 718297 (9th Cir. Mar. 7, 2012).
3
For this reason, the Commission’s comparison between an
inaccurate entry on an OSHA 300 log and the existence of a condition
that does not comply with a safety standard is inapt. See Commission
Decision at *3-5. As discussed above, the recording regulations make
clear that the company’s recording obligation occurs at a particular
time. By contrast, as discussed below in Part II, OSHA’s safety
standards impose abatement obligations that continue until the unsafe
conditions are corrected. Those obligations are categorical and not
bound to any particular time. See, e.g., 29 C.F.R. § 1910.212(a)(1)
(providing that “machine guarding shall be provided to protect the
operator and other employees in the machine area from hazards”).
 5

2. OSHA also cited Volks for violating 29 C.F.R.
§ 1904.32(a)(1) and (b)(3), by failing (i) to review the OSHA
300 log at the end of each relevant calendar year and correct any
identified deficiencies, and (ii) to have a company executive
certify that the annual summary was correct and complete. See
Citation at 29, 30. The Secretary maintains that these violations,
like those considered above, “constituted continuing violations
for the entirety of the five-year retention period.” Resp’t Br. 16-
17.

Section 1904.32(a) provides:

At the end of each calendar year, you must: (1) Review
the OSHA 300 Log to verify that the entries are
complete and accurate, and correct any deficiencies
identified; (2) Create an annual summary of injuries
and illnesses recorded on the OSHA 300 Log; [and] (3)
Certify the summary . . . .

29 C.F.R. § 1904.32(a) (emphasis added). Another subsection
provides that the certification must be made by a company
executive. Id. § 1904.32(b)(3). This regulation does not contain
a grace period, and it mentions no date regarding the obligations
to review, create, and certify other than “the end of each
calendar year.” Accordingly, on its face the regulation indicates
that a violation occurs only once -- when there is a failure to
fulfill a listed obligation at the end of a year.

Moreover, Volks’ citation for failing to review the OSHA
300 log makes clear that the Secretary did not charge the
company with a continuing violation. That citation states: “At
the end of each calendar year, the employer did not review the
OSHA Log to verify that the entries were complete and
accurate, and correct any deficiencies identified.” Citation at 29
(emphasis added). In light of the introductory clause, it is
 6

unreasonable to read this citation as charging a continuing
violation; rather, in accordance with the regulation, it makes
clear that the obligation occurred at the end of the relevant year.
Although the citation for failing to have a company executive
certify the annual summary does not contain the same
introductory clause, it is based on the same regulatory provision,
which imposes an obligation “[a]t the end of each calendar
year.” 29 C.F.R. § 1904.32(a).

Once again, the “five-year record retention period” offers
no support for the Secretary’s continuing violation theory. As
it does with respect to the log and incident report forms, the
record retention regulation requires a covered employer to
“save” the annual summary for five years. Id. § 1904.33(a).
The Secretary did not cite Volks for failing to save the
summaries, and there is no suggestion that Volks failed in that
regard. Nor did the Secretary cite Volks for failing to create
annual summaries, as is also required “[a]t the end of each
calendar year.” Id. § 1904.32(a)(2). Indeed, the citation
effectively concedes that Volks did so.4 Instead, Volks was
cited for two failures that necessarily had to have taken place
before or at the time the annual summary was created. A self-
evident purpose of requiring review of the OSHA 300 log at the
end of the year, id. § 1904.32(a)(1), is to ensure the accuracy of
the annual summary that is based on that log, see id.
§ 1904.32(a)(2). And the company executive’s certification of
the accuracy of the annual summary, required by
§ 1904.32(b)(3), must be made directly on the annual summary
form itself. See OSHA Form 300A.

4
The citation states that certification was made by Volks’ Human
Resources/Safety Manager rather than a company executive. Citation
at 30. Certification is made on the annual summary itself. See OSHA
Form 300A, available at http://www.osha.gov/recordkeeping/
RKforms.html.
 7

Accordingly, to make even a colorable claim that Volks’
violations were continuing, the regulation would have to require
Volks not just to save the annual report, but to update it during
the five-year record retention period. But the question of
whether there is such an updating requirement is asked and
answered by the OSHA regulation itself: “Do I have to update
the annual summary? No, you are not required to update the
annual summary, but you may do so if you wish.” 29 C.F.R.
§ 1904.33(b)(2).

3. In sum, it is clear that the obligations imposed by
§ 1904.29(b)(2) and (b)(3) must be satisfied by the end of that
regulation’s seven-day grace period, while the obligations
imposed by § 1904.32(a)(1) and (b)(3) must be satisfied at the
end of the relevant year. Those obligations do not continue
thereafter. Hence, for purposes of 29 U.S.C. § 658(c),
“violation[s]” of these regulations “occur[]” at those dates and
do not continue. And, as § 658(c) requires, “no citation may be
issued . . . after the expiration of six months following the
occurrence of any [such] violation.”5

5
The Secretary’s repeated references to two provisions of the
OSH Act do not advance her claim that Volks can be cited for
continuing violations in this case. Section 657(c)(1) provides that
“[e]ach employer shall make, keep and preserve . . . such records
regarding his activities . . . as the Secretary . . . may prescribe by
regulation.” 29 U.S.C. § 657(c)(1). Section 657(c)(2) provides that
“the Secretary . . . shall prescribe regulations requiring employers to
maintain accurate records of, and to make periodic reports on, work-
related deaths, injuries and illnesses.” Id. § 657(c)(2). But Volks was
not cited for violating statutes that authorize the prescription of
regulations. Rather, it was charged with violating specific regulations
that the Secretary actually did prescribe. As discussed in the text,
those regulations do not impose continuing obligations.
 8

II

None of this is to say, as the petitioner suggests in its
opening brief, that a statute of limitations like § 658(c) can never
admit of a continuing violation for a failure to act. To the
contrary, where a regulation (or statute) imposes a continuing
obligation to act, a party can continue to violate it until that
obligation is satisfied, and the statute of limitations will not
begin to run until it does.

As the Court notes, OSHA’s record retention regulation
imposes such a continuing obligation: an employer “must save
the OSHA 300 Log, . . . the annual summary, and the OSHA
301 Incident Report forms for five (5) years.” 29 C.F.R.
§ 1904.33(a); see Court Op. at 7-8, 9 n.3. If the employer “loses
or destroys a record before the end of that time period, that . . .
is a violation.” Court Op. at 7-8. Indeed, even if the company
simply does not have the record during that period -- whether
because it was lost or destroyed or for any other reason, known
or unknown -- that too is a violation of the obligation to retain
the records for five years. Accordingly, OSHA may cite an
employer for such a violation “for six months after the fifth
year.” Id. at 8.

Similarly, if an employer fails in its regulatory obligation to
provide “machine guarding . . . to protect the operator and other
employees in the machine area from hazards,” 29 C.F.R.
§ 1910.212(a)(1), a citation remains timely more than six
months after the first unguarded day, because each day a
machine is unguarded there is a continuing violation -- a
continuing “occurrence.” See Court Op. at 11. Likewise, as
Volks itself acknowledges, OSHA regulations requiring
employers to train their employees impose continuing
obligations that an employer can continue to violate, at least as
long as the employee is in the workplace and exposed to danger.
 9

Oral Arg. Recording at 30:50; see Court Op. at 11. Hence, an
employer can violate the asbestos training requirement, which
requires that it provide training to employees who are exposed
to specified concentrations of asbestos “prior to or at the time of
initial assignment,” 29 C.F.R. § 1910.1001(j)(7), long after the
time of that initial assignment.

This court has read statutes of limitations similar to § 658(c)
as allowing for continuing violations in other contexts as well.
At issue in Postow v. OBA Federal Savings & Loan Ass’n, 627
F.2d 1370 (D.C. Cir. 1980), for example, was the Consumer
Credit Protection Act’s statute of limitations, which provides
that an action must be brought “within one year from the date of
the occurrence of the violation” of the Act, 15 U.S.C. § 1640(e).
The statutory provision allegedly violated required lenders to
make certain disclosures “before the credit is extended.” 627
F.2d at 1374 (quoting 15 U.S.C. § 1639(b) (1976)). Although
we concluded that credit was “extended” when the defendant
bank became obligated to make a loan and the plaintiff
borrowers paid a stand-by fee, we held that “the nondisclosure
violation [w]as a continuing one” that first occurred when the
bank became obligated but continued until the borrowers were
given the required disclosures at settlement. Id. at 1380.6

6
Similarly, in Wilderness Society v. Norton we indicated that the
plaintiff’s suit against the National Park Service (NPS) for failing to
perform statutorily mandated wilderness reviews was not time-barred
by the six-year statute of limitations for “‘every civil action
commenced against the United States,’” notwithstanding that the
plaintiff brought its claim more than six years after NPS had failed to
meet its statutory deadline to perform such reviews. 434 F.3d 584,
588-89 (D.C. Cir. 2006) (quoting 28 U.S.C. § 2401(a)). This was so,
we said, because NPS was “in continuous violation of its statutory
obligations.” Id. at 588. Although we did regard the plaintiff’s
statutory claims as comparable to mandamus, see Court Op. at 11 n.4,
what mattered was that the plaintiff did “not complain about what the
 10

Also significant are a number of appellate decisions holding
that the registration provision of the Sex Offender Registration
and Notification Act creates a “continuing offense” for purposes
of the Ex Post Facto Clause. See, e.g., United States v.
Clements, 655 F.3d 1028, 1029 (9th Cir. 2011). That provision
requires a sex offender to update the relevant sex offender
registry “not later than 3 business days after each change of
name, residence, employment, or student status,” 42 U.S.C.
§ 16913(c). See also United States v. Edelkind, 525 F.3d 388,
393 (5th Cir. 2008) (holding that the willful failure to pay child
support is a continuing offense for purposes of the statute of
limitations).

These regulatory and statutory violations cannot be
distinguished from the ones before us on the ground that they
involve repeated acts rather than continuing failures to act.
They do not. Instead, they are distinguishable because in each
case it is reasonable to read the provision at issue as imposing a
continuing obligation. Here, by contrast, such a reading is
simply implausible.

III

An “agency is entitled to . . . deference when it adopts a
reasonable interpretation of regulations it has put in force.”
Federal Express Corp. v. Holowecki, 552 U.S. 389, 397 (2008).
In this case, however, the Secretary’s contention -- that the
regulations that Volks was cited for violating support a
“continuing violation” theory -- is not reasonable. Accordingly,

agency ha[d] done but rather about what the agency ha[d] yet to do.”
434 F.3d at 589 (internal quotation marks omitted). And what the
agency had “yet to do” was to meet a statutory deadline that had long
since passed. See id.
 11

because none of the challenged citations were issued within six
months “following the occurrence of any violation,” 29 U.S.C.
§ 658(c), I agree with my colleagues that the petition for review
should be granted and the citations vacated.
 BROWN, Circuit Judge, concurring: The law tends to
snowball. A statement becomes a holding, a holding becomes
a precedent, a precedent becomes a doctrine, and soon enough
we’re bowled over at the foot of a mountain, on our backs and
covered in snow. So it is with our deference doctrines.
Starting from a statement made in the Chevron decision—in
which the Justices’ own papers confirm the Supreme Court
“did not mean to do anything dramatic,” Cass R. Sunstein,
Chevron Step Zero, 92 Va. L. Rev. 187, 188 (2006)—we have
come to a place where an agency asks us with a straight face
to defer to its interpretation of a statute of limitations: a
simple, legislatively-imposed time limit on its own
prosecutorial authority. As the Court’s opinion today points
out, we still have not decided whether such a statutory
provision is deserving of Chevron deference. See Court Op.
at 5; Intermountain Ins. Serv. of Vail v. Comm’r, 650 F.3d
691, 707 (D.C. Cir. 2011) (noting that “this circuit has yet to
decide whether or under what circumstances to give Chevron
deference to agency interpretations of statutes of limitations”
and only conferring such deference “at least in the context of
this case”—a “complex administrative system for assessing
tax deficiencies and . . . expert interpretation of technical
statutory language”).1 When we do finally decide that
question, I urge us to pay closer attention to first principles.

Too often, we reflexively defer whenever an
administrative agency claims statutory ambiguity, but this is
not our charge. See Ala. Educ. Ass’n v. Chao, 455 F.3d 386,
392–93 (D.C. Cir. 2006). Resolving disputes over statutory
meaning is ordinarily the province of the courts, and the

1
We have deferred to an agency’s interpretation of the tolling of a
limitations period contained in its own regulations. Alldata Corp.
v. NLRB, 245 F.3d 803, 807 (D.C. Cir. 2001). But no question of
statutory interpretation was presented in that case, and
consequently, the deference owed to an agency’s interpretation of a
statutory statute of limitations was not discussed.
 2
exception to this rule—deference—is not something to which
an agency is entitled simply by virtue of its being an agency
that has expressed an interpretation in the proper form. What
makes an agency’s interpretation of a provision special is that
Congress has manifested its intent that the agency’s
interpretation of that provision be special. It is by Congress’s
“delegation of authority to the agency to elucidate a specific
provision of the statute” that an agency’s interpretation is
deserving of the court’s deference. Chevron, 467 U.S. at
843–44; see also United States v. Mead Corp., 533 U.S. 218,
226–27 (2001). As the Supreme Court explained in Chevron,
courts defer

whenever decision as to the meaning or reach
of a statute has involved reconciling
conflicting policies, and [when] a full
understanding of the force of the statutory
policy in the given situation has depended
upon more than ordinary knowledge respecting
the matters subjected to agency regulations. . . .
If [the agency’s] choice represents a reasonable
accommodation of conflicting policies that
were committed to the agency’s care by the
statute, we should not disturb it unless it
appears from the statute or its legislative
history that the accommodation is not one that
Congress would have sanctioned.

Chevron, 467 U.S. at 844–45; see also id. at 866 (“When a
challenge to an agency construction of a statutory provision,
fairly conceptualized, really centers on the wisdom of the
agency’s policy . . . the challenge must fail. In such a case,
federal judges—who have no constituency—have a duty to
respect legitimate policy choices made by those who do.”).
 3
When determining whether or not Congress has intended
an agency to make an interpretive choice, we might look to
whether that interpretive choice would involve making such a
monumental policy choice that, although the agency may be
expert, separation-of-powers considerations mean “there may
be reason to hesitate before concluding that Congress has
intended such an implicit delegation.” FDA v. Brown &
Williamson Tobacco Corp., 529 U.S. 120, 159 (2000)
(withholding deference); see also Gonzales v. Oregon, 546
U.S. 243, 262, 267–68 (withholding deference for fear of
“unrestrained” agency power in an area which is “the subject
of an earnest and profound debate” and which requires policy
judgments best reserved to legislatures). On the other hand, if
the interpretive question neither requires an agency’s
expertise nor “involve[s] reconciling conflicting policies,” we
may conclude that Congress has delegated nothing to the
agency. Chevron, 467 U.S. at 844; see Stephen Breyer,
Judicial Review of Questions of Law and Policy, 38 ADMIN.
L. REV. 363, 368–69 (1986) (discussing agency expertise as a
justification for deference).

Finally, we can also infer delegation or its absence by
asking if “the particular question [is] one that the agency or
the court is more likely to answer correctly,” or whether the
question “concern[s] common law or constitutional law, or . .
. matters of agency administration,” or whether “the agency
can be trusted to give a properly balanced answer” rather than
use the interpretive opportunity to “expand [its] power beyond
the authority that Congress gave [it].” Breyer, supra, at 370–
71; see also Thomas W. Merrill & Kristin E. Hickman,
Chevron’s Domain, 89 GEO. L.J. 833, 912–13 (2001)
(similarly suggesting that courts ask first “whether Congress
would want the particular question about the scope of agency
authority to be resolved” by deference and that “if the court
 4
concludes that Congress would not want the agency to be the
primary interpreter,” it should not defer).

For example, I see no reason a court should have to defer
to an agency’s interpretation of ambiguities in a provision
setting out the court’s own jurisdiction to review that
agency’s action. As the Ninth Circuit explained, “[w]hile we
ordinarily give great weight to the interpretation of the agency
charged with enforcement of the statute we are construing,
that deference does not extend to the question of judicial
review, a matter within the peculiar expertise of the courts.”
Love v. Thomas, 858 F.2d 1347, 1352 n.9 (9th Cir. 1988).
This much seems clear.

But deferring to an agency’s interpretation of its own
jurisdiction without some clear indication from Congress that
it has delegated jurisdiction-defining authority to the agency
can raise the same separation-of-powers, expertise, and
agency trust concerns. We have come to infer delegation by
mere statutory ambiguity, see Chevron, 467 U.S. at 743, but
when it comes to jurisdiction, more should be required. After
all, “one of this court’s principal functions [is] to ensure that
[an agency] exercises power only within the channels
intended by Congress, especially [when making such a
determination] involves no special administrative expertise
that a court does not possess.” FedEx Home Delivery v.
NLRB, 563 F.3d 492, 496 (D.C. Cir. 2009); see also Am. Civil
Liberties Union v. FCC, 823 F.2d 1554, 1567 n.32 (D.C. Cir.
1987) (“[I]t seems highly unlikely that a responsible Congress
would implicitly delegate to an agency the power to define the
scope of its own power.”). It is for this reason that, when
“general principles of the law” are to be applied to undisputed
jurisdictional facts, “we need not accord the [agency’s]
decision that special credence which we normally show
merely because it represents the agency’s considered
 5
judgment.” N. Am. Van Lines, Inc. v. NLRB, 869 F.2d 596,
598 (D.C. Cir. 1989).2

That we may have “generally” deferred to an agency’s
interpretation of its own jurisdiction in the past, see, e.g.,
UPS, Inc. v. NLRB, 92 F.3d 1221, 1226 (D.C. Cir. 1996)
(“[W]e have previously concluded that we should generally
defer to an agency’s interpretation of the statute that defines
its jurisdiction.”), does not make it right as a rule. That the
Supreme Court may have likewise indicated a willingness to
defer, see, e.g., CFTC v. Schor, 478 U.S. 833, 844–45 (1986);
Mississippi Power & Light Co. v. Mississippi ex rel. Moore,
487 U.S. 354, 380–82 (1988) (Scalia, J., concurring), only
shows how far we have strayed from our role. See id. at 386–
87 (Brennan, J., dissenting) (rejecting deference because
“agencies do not ‘administer’ statutes confining the scope of
their jurisdiction, and such statutes are not ‘entrusted’ to
agencies[,] [n]or do the normal reasons for agency deference
apply”). And, in fact, even in Schor, the Court did not simply
infer a delegation to the agency. Instead, the Court was
careful to note that there was more—“abundant evidence that
Congress both contemplated and authorized the CFTC’s
assertion of jurisdiction” and that “Congress intended to vest
in the CFTC the power to define the scope” of its jurisdiction.
478 U.S. at 847, 842; see also Rapanos v. United States, 547
U.S. 715, 739 (2006) (citing Chevron but finding the
jurisdictional provision clearly contrary to the agency’s
interpretation).

2
In N. Am. Van Lines, we did still afford “some deference” to the
agency’s “conclusions drawn from the factual setting” of the
particular case, 869 F.2d at 599, but the Secretary did not rely on
any such particular conclusions in this case. Far from it, the
Secretary made a bright-line textual argument which, if accepted,
would govern the timeliness of citations in every future case.
 6
Agency interpretations of statutes of limitations like the
one at issue in this case are similarly poor candidates for
deference. In general, statutes of limitations are not the sort
of technical provisions requiring or even benefiting from an
agency’s special expertise. Rather, much like many
jurisdictional provisions, these are texts with which courts are
intimately familiar, as we interpret and apply them every day.
Nor do statutes of limitations generally suggest any policies
that have been left by Congress for an agency to reconcile.
Cf. Mississippi Power & Light Co., 487 U.S. at 386–87
(Brennan, J., dissenting) (making the same points regarding
jurisdictional statutes). Surely some may, see Intermountain,
650 F.3d at 694, 707, but many do not.

Finally, and perhaps most compellingly, statutes of
limitations are designed to constrain the government’s
enforcement authority and to promote finality, repose, and the
efficient and prompt administration of justice. John R. Sand
& Gravel Co. v. United States, 552 U.S. 130, 133 (2008)
(“Some statutes of limitations . . . seek not so much to protect
a defendant’s case-specific interest in timeliness as to achieve
a broader system-related goal, such as facilitating the
administration of claims, limiting the scope of a governmental
waiver of sovereign immunity, or promoting judicial
efficiency.”); Carter v. Wash. Metro Area Transit Auth., 764
F.2d 854, 857 (D.C. Cir. 1985) (“[F]inality of outcome,
regardless of the merits of the claim, is exactly the purpose of
the statute of limitations that the legislature has enacted.”).
On the one hand, the “obvious purpose” of statutes of
limitations is to tell citizens and businesses when they no
longer have to fear finding the government at their front door
demanding satisfaction, Reading Co. v. Koons, 271 U.S. 58,
65 (1926), and on the other, statutes of limitations encourage
government to act swiftly to enforce order and punish
offenses. They are thus different than the ordinary authority-
 7
setting statutes which populate the administrative state and
which routinely receive deference. All limits are not created
equal. To say that the limits of a broad delegation of
authority are discerned only at the outer bounds of judicial
review surely does not mean that narrow and specific
limitations on agency authority are similarly difficult to
define. Statutes of limitations—being constraints on agency
power—are qualitatively different than grants of plenary
power. A statute of limitations uniquely limits when an
agency may act—even within otherwise lawful bounds.

Because an agency’s interpretation of such a statute could
permit it to escape these particularly important constraints,
statutes of limitations exemplify the sort of question to which
an agency cannot “be trusted to give a properly balanced
answer” and about which we should be especially vigilant.
Breyer, supra, at 371; see Mississippi Power & Light Co., 487
U.S. at 387 (Brennan, J., dissenting) (expressing reluctance to
apply Chevron to jurisdictional statutes because such statutes
“manifest[] an unwillingness to give the agency the freedom
to define the scope of its own power”); Ernest Gellhorn &
Paul Verkuil, Controlling Chevron-Based Delegations, 20
CARDOZO L. REV. 989, 1008–09 (1999) (noting that
“[n]othing is more important to an agency than the scope of
its regulatory authority” and that “agency self-interest may
cloud its judgment”); see generally Timothy K. Armstrong,
Chevron Deference and Agency Self-Interest, 13 CORNELL
J.L. & PUB. POL’Y 203 (2004) (explaining why interpretations
advancing agencies’ financial and jurisdictional self-interest
have been and should be viewed skeptically by courts).

We once took some of these concerns to heart. In 3M
Co. v. Browner, 17 F.3d 1453 (D.C. Cir. 1994), we did not
hesitate to disregard an agency’s interpretation of a general
statute of limitations on federal civil penalties. To be sure,
 8
courts have repeatedly held that “[w]hen a statute is
administered by more than one agency, a particular agency’s
interpretation is not entitled to Chevron deference,” Proffitt v.
FDIC, 200 F.3d 855, 860 (D.C. Cir. 2000), but in 3M, we did
not rely exclusively on this rationale. Instead, we said we
“[could not] agree with [the agency] that our interpretation of
[the statute of limitations] ought to be influenced by [the
agency’s] particular difficulties in enforcing” its own
statutory responsibilities, and we rejected arguments turning
on the agency’s scarce resources and needs for prioritization
as “more appropriate for a congressional oversight hearing”
than for meriting deference in this Court. Id. at 1461. We
were rightly troubled by the notion of being asked by an
agency to expand that agency’s enforcement authority when
Congress had evidently not seen fit to do so.

Similarly, some of our sister Circuits have also declined
to defer to agencies’ interpretations of statutes of limitations,
even those contained in the statutes the agency administers,
because statutes of limitations are “not a matter within the
particular expertise of the [agency]” and are “clearly legal
issue[s] that courts are better equipped to handle.” Bamidele
v. INS, 99 F.3d 557, 561 (3d Cir. 1996) (quoting Dion v. Sec’y
of Health & Human Servs., 823 F.2d 669, 673 (1st Cir.
1987)); Lynch v. Lyng, 872 F.2d 718, 724 (6th Cir. 1989)
(“[T]he amount of weight accorded an agency interpretation
diminishes further when the interpretation does not require
special knowledge within the agency’s field of technical
expertise.”). Other circuits have nonetheless afforded
deference on this subject when the statute of limitations is not
general, like in 3M, but specific to the agency. See Asika v.
Ashcroft, 362 F.3d 264, 271 n.8 (4th Cir. 2004) (rejecting
Bamidele); Interamericas Investments v. Bd. of Governors,
111 F.3d 376, 382 (5th Cir. 1997); Capital Tel. Co. v. FCC,
777 F.2d 868, 871 (2d Cir. 1985) (per curiam).
 9
Confronted with a statute of limitations that does not
involve the sort of intricacies that motivated us to reject
Bamidele in “the context of” Intermountain, 650 F.3d at 707,
I would find any ambiguities to be ours to resolve and not the
agency’s. Our narrower disposition of this case, instead
assuming without deciding that Chevron applies, should not
be read as foreclosing a future panel of this Court from
tackling anew the deference owed to agency interpretations of
statutes of limitations, even those reached and conveyed in the
proper form. When that time comes, I hope this Court will
carefully consider why and when we are meant to defer before
we endow an agency’s mere invocation of Chevron with
talismanic authority. We must steadfastly guard our
prerogative to “say what the law is,” Marbury v. Madison, 5
U.S. (1 Cranch) 137, 177 (1803), and resist the reflex of
deference.