admin law question Forum

[risingamerican_2l]

studying for admin law exam--quick question for admin folks. How does the APA deal with statutes jointly administered by different federal agencies? For example, if you want to challenge a reg under the APA, could you argue that the agency that issued the reg is not entitled to Chevron deference because another agency jointly administers the statute (ie, before agency issue the reg, it needs to consult with the other agency that jointly administers the statute?

[law-school-hacker]

Hi there, is this a real hypo or something that you thought of on your own? I ask because my sense is that the question is quite theoretical. Chevron deference wouldn't disappear just because you have one more agency involved. But in practice, I can't think of an instance where a particular federal statute empowered two agencies to promulgate rules as to the same specific statute.

There is sometimes joint authority for enforcing a particular Act, which is itself made up of several individual statutes, and those individual statutes are usually split up and any one belongs only to a single agency. For instance, there is joint DOJ and SEC authority to enforce the FCPA (Foreign Corrupt Practices Act) as a whole. But individual statutes are assigned only to one agency or the other. Criminal jurisdiction goes to DOJ, and civil jurisdiction goes to SEC on this. They have recently come up with reports clarifying the scope of the FCPA. Any rules promulgated fall entirely under the authority of one agency or the other.

Does that help?

[kalvano]

No, there is no Chevron deference if the statute is interpreted by multiple agencies. It's one of five instances:

1. Litigating positions for the first time
2. Positions articulated for the first time in briefs
3. Not entitled to deference insofar as the agency is acting as a prosecutor
4. Not if interpreting a statute that is enforced by many agencies
5. Not if interpreting the APA

[risingamerican_2l]

Thanks. Found this on Westlaw:

This case is analogous to those decisions of ours that have declined to defer to an agency's interpretation of a statute when more than one agency is granted authority to interpret the same statute. See, e.g., Rapaport v. U.S. Dept. of Treasury, 59 F.3d 212, 216-17 (D.C.Cir.1995), cert. denied, 516 U.S. 1073, 116 S.Ct. 775, 133 L.Ed.2d 727 (1996); Benavides v. U.S. Bureau of Prisons, 995 F.2d 269, 272 n.2 (D.C.Cir.1993); Professional Reactor Operator Soc. v. U.S. NRC, 939 F.2d 1047, 1051 (D.C.Cir.1991). In such cases, it cannot be said that Congress implicitly delegated to one agency authority to reconcile ambiguities or to fill gaps, because more than one agency will independently interpret the statute.2 Similarly, here both the Secretary and the Board have been delegated authority under two sequential provisions of § 610(a). To determine their respective authority, the whole section must be interpreted. Therefore, insofar as they assert conflicting interpretations as to who has power to make the final decision on Ms. Salleh's discharge, we cannot defer to either.

Salleh v. Christopher, 85 F.3d 689, 692 (D.C. Cir. 1996)

I guess then, that if two agencies interpret the same statute and they interpret it differently, then no Chevron deference for either (the court will issue an interpretation).