United States Court of Appeals for the Federal Circuit

policy as a valid interpretation of statutory terms. Russello v. United States, 464
U.S. 16, 23-24 (1983) Without referencing the statute’s evolution of legislative
history, the Board partially restored “rule or regulation” after Congress removed
the language. If Congress had intended to provide derivative statutory authority as
“law” for agency regulations mandatory under a statute, it could have narrowed
rather than eliminated the original language. It didn’t.
D. The Board erroneously added specificity for statutory language,
beyond that provided by Congress.
A related principle is that an agency may not interpret statutory language to
render provisions superfluous. Montclair v. Ramsdell, 107 U.S. 147, 152 (1883);
Boise Cascade Corp. v. EPA, 942 F.2d 1427, 1432 (9 th Cir. 1991) Relevant here,
when Congress includes a specific term in one section of a statute but omits it in
another section of the same Act, it should not be implied where it is excluded. AZ.
Elec. Power Co-op. v. U.S.,, 816 F.2d 1366, 1375 (9th Cir. 1987); see also West
Coast Truck Lines, Inc. v. Arcata Comty Recycling Ctr., 846 F.2d 1239, 1244 (9th
Cir. 1988), cert. denied, 488 U.S. 856 (1988)
Here Congress used the term “law, rule and regulation” seven times for
statutory language within §2302. See 5 U.S.C. §§2302(b)(l)(E), (6), (8)(A)(i),
(8)(B)(i), (9)(A), (12), (D)(5). It used the term “law” once, in §(8)(A)(i) -- the
same provision where more specific language with broader scope was used. The
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