-122-
appellate courts have likewise been careful in limiting the
doctrine:
! “Mere reenactment is insufficient. It must also
appear that Congress expressed approval of the
agency interpretation. That is to say, the
doctrine applies when Congress indicates not only
an awareness of the administrative view, but also
takes an affirmative step to ratify it.” Isaacs
v. Bowen, 865 F.2d 468, 473 (2d Cir. 1989);
! “When the congressional discussion preceding
reenactment makes no reference to the * * *
regulation, and there is no other evidence to
suggest that Congress was even aware of the * * *
interpretive position[,] ‘we consider the * * *
reenactment to be without significance.’”* * *
Am. Bankers Ins. Grp. v. United States, 408
F.3d 1328, 1335-36 (11th Cir. 2005) (quoting
Am. Online v. United States, 64 Fed. Cl. 571, 580-
581 (2005)).
See also Peoples Fed. Sav. & Loan Association. of Sidney v.
Commissioner, 948 F.2d 289, 302 (9th Cir. 1991) (doctrine is
“most useful in situations where there is some indication that
Congress noted or considered the regulations in effect at the
time of its action”).
The majority’s reliance on legislative reenactment should
have ended when it could find no affirmative evidence that
Congress knew of any of the Fourth Circuit or BTA cases that it
describes. The legislative history that the majority quotes and
summarizes features only vague references to “existing law.”
Majority op. p. 73.
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