-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. OtherPage: Previous 111 112 113 114 115 116 117 118 119 120 121 122 123 124 125 126 127 128 129 130 Next
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