-121-
op. p. 69. The majority then marches through the history of the
reenactments of section 882--both the great codifications of
1939, 1954, and 1986, and a minor amendment (having nothing to do
with the filing requirement) in 1966--before reaching its
conclusion that Congress “was mindful of the relevant judicial
interpretations and included within the reenacted text the
judiciary’s interpretation.” Majority op. p. 70.
I don’t agree that this is right formulation of the
legislative reenactment doctrine, at least when it is used to
invalidate, rather than uphold, a regulation. In a lengthy
discussion of the doctrine, the D.C. Circuit held:
The district court mistakenly relied on the
familiar notion that Congress is presumed to
be aware of administrative interpretations of
a statute or regulation when it adopts such
language in a statute. Though courts have
stated this general proposition, usually as a
defense to a later attack against the same
interpretation, no case has rested on this
presumption alone as a basis for holding that
the statute required that interpretation.* * *
AFL-CIO v. Brock, 835 F.2d 912, 916 n.6 (D.C. Cir. 1987).
Even if we wanted to be pioneers, I am quite leery of the
majority’s formulation. Elsewhere in Brock, the D.C. Circuit
summarized its understanding of the doctrine to require “express
congressional approval of an administrative interpretation if it
is to be viewed as statutorily mandated.” Id. at 915. Other
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