United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued February 3, 2012 Decided April 3, 2012
No. 10-5385
NORTHERN AIR CARGO, ET AL.,
APPELLANTS
v.
UNITED STATES POSTAL SERVICE AND PENINSULA AIRWAYS,
INC.,
APPELLEES
Consolidated with 10-5402, 11-5149
Appeals from the United States District Court
for the District of Columbia
(No. 1:09-cv-02065)
Amy L. Brown argued the cause for appellants/cross-
appellees. With her on the briefs were Pierre H. Bergeron and
Jeremy W. Dutra.
Mitchell P. Zeff, Assistant U.S. Attorney, argued the cause
for appellee United States Postal Service. With him on the brief
were Ronald C. Machen, Jr., U.S. Attorney, R. Craig Lawrence,
Assistant U.S. Attorney, and Michael J. Elston, Chief Counsel,
United States Postal Service.
2
Christopher T. Handman argued the cause for
appellee/cross appellant Peninsula Airways, Inc. With him on
the briefs were Robert E. Cohn, Patrick R. Rizzi, and Mary
Helen Wimberly.
Before: SENTELLE, Chief Judge, SILBERMAN and
WILLIAMS, Senior Circuit Judges.
Opinion for the Court filed by Senior Circuit Judge
SILBERMAN.
Concurring opinion filed by Chief Judge SENTELLE.
SILBERMAN, Senior Circuit Judge. This case is a partial
primer as to how not to defend or adjudicate a challenge to
agency action in federal district court. The Postal Service
determined, in two informal adjudications, that Peninsula
Airways (“PenAir”) was qualified to carry (could be “tendered”)
“nonpriority bypass mail” on five Alaska routes. This awkward
term refers to types of freight – not ordinary mail – which are
carried by planes to small communities in that vast state that are
largely unreachable by surface transportation.1 Presumably, by
shipping such goods under the auspices of the Post Office, the
federal government defrays part of the cost. The word “bypass”
is used because the freight is never handled by the Post Office’s
processing facilities. The word “nonpriority” apparently refers
to a slower delivery time than “priority” mail, but since the
parties do not suggest a difference relevant for this case between
priority and nonpriority bypass mail, we will, henceforth, use
only “bypass mail” to refer to the types of freight at issue.
The Postal Service acted pursuant to the Rural Service
Improvement Act of 2002 (“the Act”), which permitted PenAir
1
It does not, however, include all large freight.
3
to enter the five routes as what is termed a “mainline bypass
mail carrier” (essentially those that fly large planes) only if it
met certain statutory conditions.
Three competing carriers, who presently divide the market,
sued twice to challenge the Postal Service’s determinations as
contrary to the Act. Although it initially issued an extraordinary
injunction preventing the tender to PenAir, the district court
ultimately concluded that the Postal Service’s position was
authorized. The three competing carriers appealed, and PenAir
cross-appealed part of the district court’s initial determination.
Contrary to the district court, we think that the three
relevant statutory sections are quite ambiguous – indeed one is
hopelessly so – and because we have no authoritative Postal
Service interpretations of the statute before us, we vacate the
district court’s judgment with instructions to remand to the
Postal Service.
I
The small towns involved in this case, Dillingham, King
Salmon, Aniak, McGrath and Unalakleet, can be accessed only
by plane or boat, and they depend on bypass mail for food,
hospital supplies, generators and other necessities. Although
small towns, these locations are called “hub points” from which
even smaller settlements are reached. All bypass mail sent to
them originates in either Anchorage or Fairbanks. The private
air carriers who deliver bypass mail are compensated by the
Postal Service (with Department of Transportation
involvement), depending on the type of aircraft the carrier
operates and the number of similar carriers serving the same
route. Carriers operating smaller planes whose payload capacity
is less than 7,500 pounds are termed “bush carriers.” Carriers
operating larger planes are called “mainline carriers” and they
4
receive slightly lower rates. Under the Postal Service’s
“equitable tender” practice, planes of each type get an equal
share of the relevant category of bypass mail (mainline or bush)
on each route. Thus, each market entrant dilutes the existing
carriers’ shares proportionately.
To enter the bypass mail market, carriers must apply to the
Postal Service for equitable tender of bypass mail on a particular
route. The Postal Service then determines whether the carrier
satisfies certain eligibility requirements. The Act places
particular limitations on a carrier’s eligibility for equitable
tender on routes that go from Anchorage or Fairbanks to hub
points. Ordinarily, the Postal Service can only tender bypass
mail on those routes to “existing mainline carriers” (essentially,
carriers who were certified and providing mainline bypass mail
service as of January 1, 2001). But under an exception at issue
here, the Postal Service can also tender to a “new 121 mainline
passenger carrier” if the new carrier provides substantial
passenger service and meets other requirements.2
Appellants Northern Air Cargo, Tatonduk Outfitters
Limited (Events Air Cargo), and Lynden Air Cargo are all
existing mainline carriers who have received equitable tender of
mainline bypass mail on some or all of the five routes from
Anchorage to the hubs of Dillingham, King Salmon, Aniak,
McGrath, and Unalakleet. Though appellants provide bypass
2
See 39 U.S.C. § 5402(a)(4) (defining “bush carrier”); id. §
5402(a)(11) (defining “equitable tender”); id. § 5402(a)(13) (defining
“mainline carrier”); id. § 5402(g)(4)(A) & (5) (identifying restrictions
on eligibility for equitable tender from Anchorage or Fairbanks to hub
points). A “121 passenger carrier” means a carrier that provides
scheduled passenger service pursuant to operating requirements under
part 121 of title 14, Code of Federal Regulations. Id. § 5402(a)(16) &
(23).
5
mail and other freight services on these routes several days a
week, none provide regular passenger service.
Until 2009, appellee PenAir served these five routes as a
bush carrier, primarily carrying passengers. Before 2001 – this
becomes controversial – PenAir also carried some bush bypass
mail on these routes. In July and August of 2009, after
upgrading its fleet to include larger planes, PenAir requested
equitable tender of mainline bypass mail on these routes as a
new 121 mainline passenger carrier. PenAir emphasized its
plans to provide daily passenger as well as cargo service, which
would make it the only regular provider of mainline passenger
service on the five routes. The Postal Service granted PenAir
equitable tender on all five routes in two letters written by the
Program Manager of Intra-Alaska Air Transportation Policy in
August and September 2009. The only explanation offered was
that “[h]aving reviewed the matter, we have concluded that your
letters describe service which would make you eligible for the
equitable tender you have requested in those markets.” In
August, PenAir began operating as a mainline carrier, and on
November 9, 2009, the Postal Service began tendering mainline
bypass mail to PenAir on the five routes.
Appellants sued the Postal Service, arguing before the
district court that the Postal Service had exceeded its statutory
authority. Under appellants’ reading of the Act, PenAir was
ineligible for equitable tender as a new mainline passenger
carrier because it was not a “new” carrier. Even if it were,
appellants argued, a “Prior Service and Capacity Requirement”
applied to PenAir and it had not been satisfied. That
requirement makes mainline carriers eligible for equitable tender
on a route only after they have provided the requisite “scheduled
service,” i.e., two noncontract flights within Alaska per week for
6
at least a year.3 PenAir intervened, and the parties cross-filed
motions for summary judgment. The district court ruled in part
for the Postal Service and PenAir, holding that the definition of
a “new” carrier was unambiguous and that PenAir qualified.
But the court also decided in part for appellants, holding that the
Prior Service and Capacity Requirement was also supposedly
unambiguous, applied to PenAir, and had not yet been satisfied.
To be sure, the district court criticized the Postal Service’s
explanation of its decision as a “vague assertion [which] fails to
reflect any deliberative process.” But, because the court thought
the statute susceptible of only one interpretation, it enjoined the
Postal Service from tendering mainline bypass mail to PenAir
until PenAir satisfied the Prior Service and Capacity
Requirement, in what it called a “final appealable Order.”
Accordingly, the Postal Service ceased tendering mainline
bypass mail to PenAir. Appellants appealed the “new” carrier
ruling, and PenAir, but not the Postal Service, conditionally
cross-appealed the Prior Service and Capacity Requirement
ruling.
PenAir resubmitted its request for equitable tender, arguing
that it had already satisfied the Prior Service and Capacity
Requirement by flying the requisite number of scheduled flights
for the thirteen months between August 2009 (when PenAir
started operating as a mainline carrier) and September 2010
(when the district judge entered its injunction). Appellants
objected that PenAir could not have possibly satisfied the
requirement. According to appellants, no service – passenger or
cargo – provided while PenAir received tender of bypass mail
3
See 39 U.S.C. § 5402(g)(1)(A)(iv). “Scheduled service” refers
to flights available to the general public based on a schedule published
in advance, and appears to include either passenger or cargo service.
Id. § 5402(a)(18).
7
could be counted toward the requirement, and ten of the thirteen
months should therefore have been excluded from calculations.4
And less than thirty days had elapsed since the district court’s
order, so the requirement could not have been satisfied in the
meantime. Appellants requested an opportunity to participate in
the process. The Postal Service apparently never responded,
although it did seek clarification from the district court as to
whether the injunction precluded the Postal Service from
crediting PenAir’s prior service.5 Instead it granted PenAir’s
request. Its only explanation was that “[t]he Postal Service has
validated that the Prior Service and Capacity Requirement . . .
has been met by PenAir. Additionally, PenAir satisfies the
definition of ‘new’ 121 mainline passenger carrier . . . based on
the Postal Service’s interpretation as well as the [district court’s]
decision.” The letters indicated that the Postal Service was
crediting all thirteen months in which PenAir provided
scheduled mainline passenger service on the five routes toward
the Prior Service and Capacity Requirement. On December 6,
2010, the Postal Service resumed tendering mainline bypass
mail to PenAir on the five routes.
Appellants again sued the Postal Service, claiming, as they
had before the Postal Service, that PenAir still had not satisfied
the Prior Service and Capacity Requirement. The district court
granted summary judgment to the Postal Service and PenAir,
4
For three of the thirteen months – between August 2009 and
November 2009 – PenAir was providing scheduled service as a
mainline carrier but had not yet received tender of bypass mail.
Appellants do not dispute that those three months can be counted
toward the Prior Service and Capacity Requirement.
5
The district court thereafter indicated that this issue was not
addressed by the injunction.
8
again finding the statutory language unambiguous. Appellants
also appeal this decision.
II
We encounter, at the outset, an ostensible jurisdictional
problem. PenAir asserts we have no authority to review the
district court’s determination, in its first decision, that PenAir
qualified as a new mainline carrier, which appellants appealed.
The district court, it is argued, should have remanded the case
after it determined that PenAir qualified as a new carrier but was
obliged to satisfy the Prior Service and Capacity Requirement,
so that the Postal Service could determine whether and how the
requirement was satisfied. It is axiomatic that a private party –
unlike the government – may not appeal a district court’s order
remanding to an agency because it is not final. N. Carolina
Fisheries Ass’n, Inc. v. Gutierrez, 550 F.3d 16, 19-20 (D.C. Cir.
2008). And under our precedent, if a district court should have
remanded – which, as we point out below, is certainly true here
– for jurisdictional purposes, we treat a private party’s appeal as
if the district court did remand. Cnty. of Los Angeles v. Shalala,
192 F.3d 1005, 1012 (D.C. Cir. 1999).
But whether the district court’s first decision – which it
unequivocally labeled a “final appealable Order” – was not
actually appealable is a red herring. That is so because we are
not merely faced with an appeal from that decision. The Postal
Service engaged in further proceedings after that decision to
determine whether the Prior Service and Capacity Requirement
had been met. The district court reviewed that determination,
and its second decision, upholding the Postal Service, was
unquestionably a final order; it, too, was appealed. The only
real question is whether we may consider the new carrier issue
in the second appeal, which is undeniably properly before us.
That is not a jurisdictional matter; it is only a prudential question
9
as to whether the argument was properly presented. To be sure,
appellants did not fully reiterate the new carrier argument in the
second proceeding before the district court. But they did, in a
footnote, remind the court that they still challenged PenAir’s
status as a new carrier, and that they had appealed that issue
(they certainly presented the argument to us in their brief).
Moreover, in PenAir’s motion before us to dismiss the first
appeal, it pointed out that appellants had “already filed a new
lawsuit challenging the Postal Service’s recent decision
following” the de facto remand, and that “[a]n appeal from that
decision will allow this court to review not only the new rulings
made in that remand proceeding, but also the rulings made by
the district court in its earlier decision.” PenAir further stated
that it “believes that judicial economy favors having all issues
– whether from the earlier action or the remand action now back
before the District Court – resolved in a single appeal.” Just so.
We agree with PenAir’s earlier (if inconsistent) position and,
therefore, take up the new carrier issue, as well as the other two.
III
We should note, preliminarily, that the Postal Service is
exempt from review under the Administrative Procedure Act,
but its actions are reviewable to determine whether it has acted
in excess of its statutory authority. Aid Ass’n for Lutherans v.
U.S. Postal Serv., 321 F.3d 1166, 1172-73 (D.C. Cir. 2003).
The new carrier dispute turns primarily on the interpretation
of 39 U.S.C. § 5402(a)(15), which defines a “new” carrier as,
inter alia, one that “began providing nonpriority bypass mail
service on a city pair route in the State of Alaska after January
1, 2001”(emphasis added). Although PenAir, as noted, operated
as a bush carrier on at least some of the relevant routes before
that date, it and the Postal Service assert that the term “bypass
mail service,” used in determining whether PenAir is a “new
10
121 mainline passenger carrier,” means only mainline bypass
mail service, not any bypass mail service. Of course, appellants
contend that the term refers to both mainline and bush bypass
mail service, and since PenAir carried bush bypass mail service
prior to 2001, it could not be considered “new.” It would appear
that, examining the language, either interpretation is plausible.
The second question, assuming PenAir qualifies as a new
carrier, is whether it is obliged to meet the Prior Service and
Capacity Requirement when it is the only carrier on a route
providing passenger service. That depends on the proper
interpretation of one of the most extraordinary pieces of
statutory language we have ever encountered. Ordinarily, under
the so-called “Incumbent Provision,” a new mainline passenger
carrier who seeks to enter a route where an existing mainline
carrier already provides passenger service is eligible for
equitable tender only if it meets the Prior Service and Capacity
Requirement and satisfies certain passenger carriage thresholds.
However, there is an exception – the wondrous paragraph
entitled “No Incumbent Provision” – at issue here. It states,
“Notwithstanding subparagraph (A) and paragraph (1)(B), a
new 121 mainline passenger carrier, otherwise qualified under
this subsection, may immediately receive equitable tender of
nonpriority mainline bypass mail to a hub point in the State of
Alaska if”: (1) “the carrier meets the requirements of
subparagraphs (A), (C), and (D) of paragraph (1) and subsection
(h)(2)(B)”; and (2) no mainline carrier currently provides
passenger service on the route.6 “Subparagraph (A)” refers to
the Incumbent Provision, and, by reference, the Prior Service
and Capacity Requirement.
6
39 U.S.C. § 5402(g)(5)(A) (“Incumbent Provision”); id. §
5402(g)(5)(C) (emphasis added) (“No Incumbent Provision”). As
noted, no other mainline carrier is providing passenger service.
11
Appellants argue with a straight face that the phrase “the
carrier meets the requirements of subparagraphs (A), (C), and
(D) of paragraph (1)” unambiguously makes the Prior Service
and Capacity Requirement applicable. Similarly, PenAir argues
that the contradictory earlier words “Notwithstanding
subparagraph (A)” clearly waive that requirement, and that the
phrase “immediately receive equitable tender” confirms that
Congress did not insist that carriers provide twelve months of
scheduled service before being eligible for equitable tender to
communities in need of passenger service. It should be
obvious, however, that the No Incumbent Provision is dreadfully
ambiguous, indeed, self-contradictory. It refers to a provision
– subparagraph (D) – that does not exist, and, more directly
relevant, it simultaneously exempts and imposes the Prior
Service and Capacity Requirement. The No Incumbent
Provision requires one to read out one clause in favor of another;
to claim that the section’s meaning is plain, as the opposing
carriers do, borders on the absurd.
The third issue, relevant only if the Prior Service and
Capacity Requirement applies, is whether Pen Air “ha[d]
provided scheduled service” for “at least [2] flights each week
. . . between 2 points within the State of Alaska for at least 12
consecutive months with aircraft . . . over 7,500 pounds payload
capacity before being selected as a carrier of nonpriority bypass
mail at the intra-Alaska mainline service mail rate” in December
2010.7 The precise question is whether the Postal Service can
count the ten consecutive months of scheduled service that
PenAir provided after the Postal Service initially selected
PenAir for equitable tender in November 2009, but before the
district court enjoined the carriage of bypass mail. Appellants
argue that the phrases “have provided scheduled service” and
“before nevertheless being selected” preclude the Postal Service
7
Id. § 5402(g)(1)(A)(iv) & (B).
12
from counting any scheduled service – passenger or cargo – that
PenAir provided after it was “selected”; in other words, after it
received the disputed tender in November 2009. PenAir and the
Postal Service counter that “before being selected” refers to the
Postal Service’s second December 2010 selection of PenAir for
equitable tender. So long as PenAir provided twelve
consecutive months of scheduled service before then, the
requirement is satisfied. Again, either interpretation of that
language is plausible.
Opposing counsel also heroically, if unpersuasively,
present all sorts of structural and policy arguments to show that
the statute can only be interpreted in accordance with their
respective positions. We do not think it is at all necessary to
recount those arguments.8 Suffice it to say that they hardly
establish a plain meaning of the statutory sections. Nor are we
faced with the necessity of deciding, in the first instance, what
the statute meant.
****
The government argues in the alternative that the Postal
Service’s interpretation of all the disputed language is entitled
to deference, preferably under Chevron, U.S.A., Inc. v. Natural
Resources Defense Council, Inc., 467 U.S. 837 (1984), but at
least under United States v. Mead Corp., 533 U.S. 218 (2001).
The difficulty with the government’s argument is that the Postal
Service never actually advanced any interpretation, let alone an
authoritative one. As we noted, the two informal adjudication
letters were simply conclusory; no attempt was made to parse or
reconcile the ambiguous statutory language. At oral argument,
faced with judicial concerns about the lack of an agency
8
They do show that prominent law firms, let loose, can do an
exhaustive job trying to turn a statutory sow’s ear into a silk purse.
13
interpretation, government counsel (for the first time) pointed to
a December 2010 declaration by a “network operations
specialist” introduced in the federal district court, which
repeated the conclusory statements in the letter (as well as
adding an irrelevancy).9
Although, as we have observed, the Postal Service is
exempt from APA review, that only means, essentially, that
procedural restraints placed on agencies by that statute, which
went beyond pre-existing administrative law requirements, do
not apply. Long before passage of the APA, the Supreme Court
had held in the seminal case of SEC v. Chenery, 318 U.S. 80
(1943), that agency action – in that case apparently an informal
adjudication – can be upheld only on the basis of a
contemporaneous justification by the agency itself, not post hoc
explanation of counsel.10 And we have held that that proposition
applies to statutory interpretations. See, e.g., City of Kansas
City v. Dep’t of Hous. & Urban Dev., 923 F.2d 188, 192 (D.C.
9
One might have thought government counsel would have
forthrightly conceded that the Postal Service failed to advance an
interpretation of the statutory language.
10
In Women Involved in Farm Economics v. United States
Department of Agriculture, 876 F.2d 994, 998-99 (D.C. Cir. 1989), we
held that an APA exception exempting rules on public benefits from
553(c), the statement of basis and purpose requirement of rulemaking,
meant that an agency could justify such a rule first when challenged
in litigation. That, however, was a highly specific exemption specific
to 553, not, as here, a general exemption from the APA; we think it
clear that the former applies more strongly. Additionally, a rule’s
purpose is, in a sense, self-evident, whereas an unexplained decision
in an informal adjudication based on an ambiguous statute is another
matter. Congress would have to specifically excuse an agency from
providing the Chenery-required contemporaneous explanation to
clearly allow post hoc explanations by counsel in such a situation.
14
Cir. 1991). As Chevron held, the reconciliation of statutory
ambiguity is itself laden with policy implications. 467 U.S. at
844-45.
Although the U.S. Attorney’s Office, defending the Postal
Service, has offered an interpretation of at least two of the three
disputed sections of the Act, we are not willing to accept those
as authoritative Postal Service statutory interpretations; that
would be quite inconsistent with Chenery’s teaching. And it is
unnecessary to decide whether the Postal Service could have
successfully submitted an authoritative interpretation after it was
sued, because it has not done so even to date. As should be
apparent from what we have said, we think the proper course is
to direct the district court to remand to the Postal Service to gain
authoritative and careful interpretations of the disputed
provisions.
We do not believe, however, that the decisions of the Postal
Service should be vacated. The appropriateness of vacating an
inadequately explained agency action depends on whether (1)
the agency’s decision is so deficient as to raise serious doubts
whether the agency can adequately justify its decision at all; and
(2) vacatur would be seriously disruptive or costly. Allied-
Signal, Inc. v. U.S. Nuclear Regulatory Comm’n, 988 F.2d 146,
150-51 (D.C. Cir. 1993).
Here, we think it at least likely – in light of the deference
we owe to the Postal Service’s interpretations of the Act – that
on remand, the Postal Service will be able to advance reasonable
interpretations of the provisions at issue. Although the Postal
Service acted through informal adjudication which, under Mead,
is not presumptively entitled to Chevron deference, the Postal
Service does enjoy broad authority to issue regulations and, of
even more importance in indicating that Congress expressed
particular trust in the Postal Service, is the exemption Congress
15
granted from the APA. That means to us that if the Postal
Service were to offer on remand an authoritative interpretation
of the disputed provisions, that interpretation would be entitled
to Chevron deference. And it is because we perceive that such
an interpretation supporting the determination to tender bypass
mail to PenAir is probably achievable that we decline to direct
the district court to vacate the Postal Service’s determination.
The record also suggests that the price of vacating the
Postal Service’s equitable tender of the five routes to PenAir in
the interim could be high. Though PenAir is one of many
nonpriority bypass mail carriers on the five routes, on several it
is the only carrier of priority mail. The Postal Service estimates
that if PenAir no longer received equitable tender of bypass mail
on these routes, the costs of priority mail rate transportation
would increase by at least 40%. The record further indicates
that PenAir can afford to be the lone provider of regular daily
passenger service on the five routes only as long as it receives
revenues from carrying bypass mail. Under these
circumstances, vacatur is unwarranted.
From our discussion, it should be apparent that we disagree
with the district court’s disposition of this dispute. The district
court should have remanded the case, at the outset, to the Postal
Service for a complete and authoritative agency interpretation of
the statute because it is quite obviously ambiguous. See City of
Kansas City, 923 F.2d at 192; Ayuda, Inc. v. Thornburgh, 880
F.2d 1325, 1343 (D.C. Cir. 1989). As the district court noted,
the agency’s decision, although applying the statute, lacked any
careful analysis or explanation. Such an explanation is needed
to satisfy Chenery (and, as an interpretation, to merit Chevron
deference). Indeed, even if the court was correct in concluding
the statute was not ambiguous as to the new carrier issue and the
applicability of the Prior Service and Capacity Requirement,
remand, as we have observed, would have been called for so the
16
agency could determine whether the Prior Service and Capacity
Requirement was met. It was quite anomalous to issue an
injunction. When a district court reverses agency action and
determines that the agency acted unlawfully, ordinarily the
appropriate course is simply to identify a legal error and then
remand to the agency, because the role of the district court in
such situations is to act as an appellate tribunal. See, e.g., PPG
Indus., Inc. v. United States, 52 F.3d 363, 365 (D.C. Cir. 1995).
In this case, the district court’s injunction caused considerable
confusion; appellants initially, if unsuccessfully, claimed that
the Postal Service’s second determination was in contempt.
So ordered.
SENTELLE, Chief Judge, concurring: I fully concur in the
judgment of the court, and in the reasoning in the opinion that
supports that judgment. I do not join the last paragraph, which
I think gratuitously addresses questions not before us and
proceeds from a misapprehension of law. First, whatever
question there was as to the district court’s first disposition is
now moot. The second disposition has intervened, and it is the
consequence of that disposition that we must now address. See
Maj. Op. at 8-9. I therefore do not join the court’s comments on
that first disposition. Secondly, in that paragraph, the court
states, “The district court should have remanded the case, at the
outset, to the Postal Service for an agency interpretation of the
statute because it is quite obviously ambiguous . . . .” Maj. Op.
at 15. This reasoning seems to presuppose that the court cannot
construe an ambiguous statute in an agency case but must
always remand for the agency’s interpretation in the first
instance. I know of no such rule of law. The Chevron principle,
arising from Chevron, U.S.A. Inc. v. Natural Resources Defense
Council Inc., 467 U.S. 837 (1984), compels us to accept
reasonable agency interpretations of ambiguous statutes where
the agency has made such an interpretation. I know of nothing
in Chevron or its progeny that renders courts impotent to
perform their traditional function of statutory interpretation
where the agency has not entered an interpretation.
For these combined reasons, I respectfully decline to concur
in the last paragraph of the court’s opinion. I reaffirm that I join
the judgment and the balance of the opinion.