Principles of Federal Appropriations Law - US Government ...

Chapter 3
Agency Regulations and Administrative Discretion
B-286800, Feb. 21, 2001 (finding that a Department of Defense
interpretation of its regulation deserves great weight, that the agency’s
interpretation of its regulations was reasonable, and viewing as
significant the fact that the agency was consistent in its interpretation).
B-286661, Jan. 19, 2001 (declining to apply principle of deference to a
Department of Energy statutory interpretation because it was not
based on a reasonable interpretation of the statute).
B-286026, June 12, 2001 (applying Chevron deference to Office of
Personnel Management’s guidance on the Government Employees
Training Act).
B-285066.2, Aug. 9, 2000 (applying Chevron deference to Department of
Housing and Urban Development’s interpretation of the Operation Safe
Home appropriation as making funds available for gun buybacks).
In the past, an agency’s litigating position was not accorded any deference
unless that position was also expressed in the regulations, rulings, or
administrative practice of the agency. Bowen v. Georgetown University
Hospital, 488 U.S. 204, 212 (1988). Some recent cases, however, have given
some deference to an agency’s statutory interpretation developed only in
the course of litigation. For example, in Brown v. United States, 327 F.3d
1198 (D.C. Cir. 2003), the court did not reach the question of whether an
agency’s statutory interpretation developed in the course of litigation was
due Chevron deference, holding that the interpretation prevailed under
Skidmore. See also Vernazza v. SEC, 327 F.3d 851 (9 th Cir. 2003) (agency’s
statutory interpretation advanced in enforcement action is not entitled to
Chevron deference, but is entitled to Skidmore deference); Chao v. Russell
P. Le Frois Builder, Inc., 291 F.3d 219 (2 nd Cir. 2002) (holding that the
Secretary of Labor’s statutory interpretation set forth only in litigation was
not due Chevron deference, but merited Skidmore deference).
The deference principle does not apply to an agency’s interpretation of a
statute that is not part of its program or enabling legislation or is a statute
of general applicability. See Adams v. SEC, 287 F.3d 183 (D.C. Cir. 2002);
Contractor’s Sand & Gravel v. Federal Mine Safety & Health
Commission, 199 F.3d 1335 (D.C. Cir. 2000); Association of Civilian
Technicians v. Federal Labor Relations Authority, 200 F.3d 590 (9 th Cir.
2000).
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