holding that $9 million capital contribution from private parent corporation could be included in reserve fund because “Congress intended all reserve fund assets, regardless of their source, to factor into the Department’s calculations of excess cash reserves”
How later courts described this case
- holding that $9 million capital contribution from private parent corporation could be included in reserve fund because “Congress intended all reserve fund assets, regardless of their source, to factor into the Department’s calculations of excess cash reserves”
- holding that an amended complaint supersedes the 11 original and renders the original of no legal effect
- remanding to the agency for reconsideration of the plaintiffs claims because the agency’s actions were not supported by reasoned decision-making but declining to express any views as to the merits of the case
- habeas jurisdiction is lacking, and a civil rights action instead is 11 appropriate, “where a successful challenge to a prison condition will not necessarily shorten the 12 prisoner’s sentence”
Written by the judges who cited it.
The opinion
GINSBURG, Circuit Judge,
concurring in part and dissenting in part:
As the opinion for the court recounts, the Department of Education letter denying the PRHEAC’s request for a waiver of the excess reserve recovery requirement does not clearly explain how or even whether the Department considered the “macroeconomic” data submitted by the PRHEAC. The Department stated only generally that it had considered the material offered by the PRHEAC in support of its waiver request, which implies that in the Department’s view the statute either requires or allows it to consider such data. In its brief, however, the Department appears to have adopted a different position; it argues only that the statute does not require it to consider these macroeconomic factors, which implies that the Department could have but did not consider them. Finally, at oral argument, counsel for the Department stated flatly that when it denied the PRHEAC’s request, the Department had interpreted the statute as precluding it from considering macroeconomic factors; this implies that, contrary to the representation in its letter, the Department did not in fact consider the macroeconomic data that the PRHEAC had submitted.
As the Department has successively unveiled its three different stories over the course of making and defending the decision under review, the statutory basis upon which it approached the PRHEAC’s application and ultimately based its decision has become increasingly unclear-. The court ought, therefore, to remand the case to the agency for a clear and complete explanation of how it *854 interprets the statute and of how it reached its decision.
The court, however, does nothing so modest as to require the Secretary to interpret and apply the statute he has been charged with administering. Instead, the court undertakes to interpret the statute for him — in the first instance. Thus, the court in its wisdom holds both that “the [statute does not] preclude consideration of the factors PRHEAC presented ... in support of its application” and that “[t]he [statute] clearly do[es] not require then- consideration.” Court Op. at 852-853. So the statute, per the court, authorizes but does not require the Secretary to consider macroeconomic factors.
Inasmuch as the Department’s own interpretation of the statute is not apparent from the record before us, the court has no occasion, on its own initiative, preemptively to interpret the statute for the agency. Although the legislative history consulted by the court may be read to suggest that the agency should consider macroeconomic factors, the statute itself is not so clear that only one reading is possible. On the contrary, it seems to run in a considerably narrower channel, one in which “economic circumstances” refers only to matters endogenous to the program, and not to such exogenous matters as the economy of the Commonwealth. See 20 U.S.C. § 1072 (e)(3)(A)(ii) (directing the agency to consider whether “significant changes in the economic circumstances (such as a change in agency current cash reserves) or the loan insurance program render” the maximum allowable amount of reserves “inadequate for the continued functioning of the agency.”)
Where a statute that the agency has been entrusted to administer is ambiguous, it is the obligation and the province of the agency to interpret it in the first instance. Under Chevron, ambiguity functions as a delegation by the Congress to the agency, not to the court, to give the statute clearer definition. Our job is to assure only that the agency stays within the bounds of the “permissible.” See Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 842-43 , 104 S.Ct. 2778, 2781-82 , 81 L.Ed.2d 694 (1984). By instead interpreting the statute in the first instance, the court generously usurps a power that the Congress delegated to the Executive.
The court can properly do nothing more today than to remand this ease to the agency for a clear explanation of its interpretation of the statute it administers; if the case is again to come before us, we would then be able to review the Department’s interpretation with the deference it is due under Chevron. Insofar as the court instead substitutes its judgment for that of the agency, I respectfully dissent.