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Chevron Deference to Banking Agency Interpretations - A Caveat
BY STEPHENS B. WOODROUGH

The concurring opinion by Judge Rogers in Rapaport v. OTS, 59 F.3d 212, 220 (D.C. Cir. 1995) contains an excellent discussion of applicability of seminal opinion of the US Supreme Court in Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 104 S. Ct. 2778, 81 L.Ed.2d 694 (1984) regarding agency deference to situations where more than one agency is charged with interpreting a given statute. Judge Rogers concludes that the references in the majority opinion of Rapaport (as well as in the opinion of Wachtel v. OTS, 982 F.2d 581, 585 (D.C. Cir. 1993) which indicate that the Chevron doctrine of agency deference is inapplicable to situations where multiple agencies are involved are nothing more than dictum. He makes a compelling case.

The decisions in Wachtel and Rapaport were not dependent upon the inapplicability of Chevron deference; the decisions in both cases would have been the same even if Chevron deference had been applied. Id. at 220. Further, the cases cited in Wachtel [all dealing with FOIA and APA which are interpreted by all agencies] are easily distinguishable from banking agency cases [dealing with FDIA and companion statutes interpreted by only banking agencies].

Circuits THAT recognize Chevron deference in banking cases
Simpson v. OTS, 29 F.3d 1418, 1425 (9th Cir. 1994)
Aiken v. OTS, 950 F.2d 1180, 1184 (5th Cir. 1992)

Circuits THAT DO NOT RECOGNIZE Chevron deference in banking cases
Wachtel v. OTS, 982 F.2d 581, 585 (D.C. Cir. 1993)
Rapaport v. OTS, 59 F.3d 212, 216 (D.C. Cir. 1995)

Circuits THAT strike a middle ground for Chevron deference in banking cases
1185 Ave. Of Americas Assocs. v. RTC, 22 F.3d 494, 497 (2nd Cir. 1994)

 

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Last revised: June 1, 2012.