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- SUPREME COURT OF THE UNITED STATES
- --------
- Nos. 90-1419 and 90-1769
- --------
- NATIONAL RAILROAD PASSENGER CORPORATION,
- et al., PETITIONERS
- 90-1419 v.
- BOSTON AND MAINE CORPORATION et al.
-
- INTERSTATE COMMERCE COMMISSION AND
- UNITED STATES, PETITIONERS
- 90-1769 v.
- BOSTON AND MAINE CORPORATION et al.
- on writs of certiorari to the united states court of
- appeals for the district of columbia circuit
- [March 25, 1992]
-
- Justice White, with whom Justice Blackmun and
- Justice Thomas join, dissenting.
- The majority opinion proceeds from the well-established
- principle that courts should defer to permissible agency
- interpretations of ambiguous legislation. Chevron U.S.A.
- Inc. v. Natural Resources Defense Council, Inc., 467 U. S.
- 837, 843 (1984); Pauley v. Bethenergy Mines, Inc., 501 U. S.
- ___, ___ (1991). I have no quarrel with that general
- proposition. I do, however, object to its invocation to justify
- the majority's deference, not to an agency interpretation of
- a statute, but to the post hoc rationalization of government
- lawyers attempting to explain a gap in the reasoning and
- factfinding of the Interstate Commerce Commission (ICC or
- Commission). Motor Vehicle Mfrs. Assn. of United States,
- Inc. v. State Farm Mut. Automobile Ins. Co., 463 U. S. 29,
- 50 (1983).
- Section 402(d) of the Rail Passenger Service Act (RPSA),
- codified at 45 U. S. C. 562(d), provides that Amtrak may
- apply to the ICC for an order directing the conveyance of
- another railroad's property if Amtrak can meet two condi-
- tions: Amtrak and the other railroad must be unable to
- agree upon terms for sale of the property, and the property
- must be ``required for intercity rail passenger service.'' If
- these conditions are met, ``the need of [Amtrak] for the
- property shall be deemed to be established,'' and the other
- railroad will be able to retain its property only if it can
- rebut the strong presumption of Amtrak's need. Ibid.
- Because conferring upon Amtrak the presumption of need
- will determine the outcome of most disputes under this
- section, the two conditions that Amtrak must establish to
- receive the benefit of the presumption assume particular
- importance. However, in the present case, the ICC failed
- to address one of these factors. Although the Commission
- determined that the parties had been unable to come to
- terms for sale of the disputed property, see App. to Pet. for
- Cert. in No. 90-1419, pp. 130a-131a, it neither interpreted
- nor applied the second condition, that the property be
- ``required for intercity rail passenger service.'' Instead,
- after rejecting respondent's argument that Amtrak could
- restore Montrealer service by obtaining trackage rights or
- an easement, the ICC simply concluded that ``Amtrak has
- demonstrated sufficient reason to justify acquisition of
- ownership of the line.'' Id., at 43a.
- The majority acknowledges that ``the ICC's opinion is not
- explicit in all of its details,'' see ante, at 9, but nevertheless
- concludes that the Commission's reading of the statute is
- entitled to deference because it ``gave effect to the statutory
- presumption of Amtrak's `need' for the track, and in so
- doing implemented and interpreted the statute in a manner
- that comports with its words and structure.'' Ibid. But this
- begs the question of what showing Amtrak must make to
- establish that the track is ``required'' so that Amtrak may
- therefore obtain the benefit of the presumption of need.
- The simple fact is that the ICC never addressed this point,
- and therefore failed to construe a key portion of the statute.
- The omission is particularly significant because this is the
- first case treating Amtrak's condemnation powers under
- 402(d) of the Act; it will guide future adjudications.
- Rather than acknowledging the ICC's omission and
- remanding for clarification and factfinding, the majority
- relies on the Government's argument that the Commission
- must have interpreted the word ``required'' as meaning
- ``useful or appropriate.'' Ibid. But this interpretation was
- not developed by the ICC during its administrative proceed-
- ings. Indeed, the explanation was not even proposed in the
- Commission's argument to the Court of Appeals. This ICC
- definition of ``required'' debuted in the Commission's briefs
- before this Court. It is nothing more than a creation of
- appellate counsel, concocted to fill the gaps in the Commis-
- sion's analysis. ``The short-and sufficient-answer to [this]
- submission is that the courts may not accept appellate
- counsel's post hoc rationalizations for agency action. . . . It
- is well established that an agency's action must be upheld,
- if at all, on the basis articulated by the agency itself.''
- Motor Vehicle Mfrs. Assn., supra, at 50 (emphasis added),
- citing Burlington Truck Lines, Inc. v. United States, 371
- U. S. 156, 168 (1962); SEC v. Chenery Corp., 332 U. S. 194,
- 196-197 (1947); American Textile Mfrs. Institute, Inc. v.
- Donovan, 452 U. S. 490, 539 (1981). Therefore, the majori-
- ty is simply wrong in asserting that, even though ``the ICC
- did not in so many words articulate its interpretation of the
- word `required,''' the Court may nevertheless defer to the
- Commission's decision. See ante, at 11 (emphasis added).
- Because of the gap in the ICC's interpretation of the
- statute, ``[t]here are no findings and no analysis here to
- justify the choice made, no indication of the basis on which
- the Commission exercised its expert discretion.'' Burlington
- Truck Lines, Inc., supra, at 167. The majority concludes,
- again based on the agency's presumed interpretation of the
- statute, that the Commission was not obligated to make
- specific findings as to whether the property was ``required
- for intercity rail passenger service.'' See ante, at 12. This
- magnifies the ICC's mistake; an administrative ``agency
- must make findings that support its decision, and those
- findings must be supported by substantial evidence.''
- Burlington Truck Lines, Inc., 371 U. S., at 168.
- Deferring to a federal agency's construction of the
- legislation that it is charged with administering is one
- thing. But deferring to inferences derived from reading
- between the lines of an agency decision or excerpted from
- the brief of a government lawyer is another matter entirely.
- ``For the courts to substitute their or counsel's discretion for
- that of the Commission is incompatible with the orderly
- functioning of the process of judicial review.'' Id., at 169.
- Because the ICC has failed to provide a clear, authoritative
- construction of ``required for intercity rail passenger
- service,'' we should return this case to the Commission so
- that the agency can do its job properly. But we should not
- strain the Chevron principle by deferring to what we
- imagine an agency had in mind when it applied a statute.
- Therefore, I respectfully dissent.
-