Administrative Law - Fall 2001

§ 6.2 Required Rulemaking - 358

The remaining sections in this chapter have more pages than they do significant legal concepts.  We will condense these a bit by focusing on the core administrative law concepts and not the details of the specific cases.

§ 6.2.1 Federal Law - 358

These first two cases deal with situations where an agency wants to establish general guidelines but does not want to go through notice and comment rulemaking because of the political implications of its policies.  As we saw in the last section, guidelines do not work because they are not binding and the agency wants to establishing binding rules.  Another way to do this is the same way judges do - use cases (adjudications) to establish rules.

NLRB v. Wyman-Gordon Co. - 358

This case confusing cases deals with precedent value of adjudications.

NLRB made the employer provide the unions with a list of employees, saying that this was a rule established in a previous adjudication.

The employer argues that this is a rule of general applicability, and thus must be done through notice and comment rulemaking.

The court agreed, finding that an agency cannot use an adjudication to set rules of general applicability.

However, this case arose as part of an adjudication, in which the agency made specific findings to support the order.

Thus the court said that it was a valid order on its own, and that the citation to the previous adjudication had no legal significance because it was not necessary to justify the ruling.

The end result is that you can use adjudications to show what you are going to do in future adjudications, but the record of the adjudication must support the ruling.

Contrast this with using a rulemaking to limit the issues in future adjudications, where the rule substitutes for the record in the specific adjudications.

NLRB v. Bell Aerospace Co. - 363

NLRB did not have to use rulemaking to define managerial workers but could do it in an adjudication

The court found that an agency is not precluded from announcing new principles in an adjudicative proceedings, and the choice between rulemaking and adjudication initially lies within the agency's discretion.

The NLRB can say that this is what it plans to do in the adjudications and skip the rulemaking.

Why??

As with the previous case, the party gets to be heard and put on rebuttal evidence, and thus the record must support the decision.

Notes and Questions - 365

What is it about NLRB decisions that make the agency want to dodge rulemaking?

Using adjudications to set policy has limitations: the agency cannot use adjudications to overturn properly promulgated rules

The court can overturn the adjudication for abuse of discretion if the record does not support the ruling.

§ 6.2.2 State Law - 369

Once more we see states requiring more process than the feds

This represents a realistic view of the expertise and professionalism of state agencies, and an unrealistic distrust of state agencies.  The end result is often to reduce the effectiveness of state agencies.

Medgal v. Oregon State Board of Dental Examiners 370

Dentist loses his license for unprofessional conduct - defrauding an insurance company.

What was the fraud?

What would have happened if there had been a claim?

There is no specific rule on fraud, but the board uses the general unprofessional conduct provision.

Why did the dentist claim that the board could not rely on unprofessional conduct?

How did the Oregon court classify licensing laws?

How does this change the constitutional standard from that usually applied to agency actions? (BTW - this is a loony analysis, completely rejected elsewhere)

The key is probably that while the legislature did not require the dental board to promulgate rules to flesh out its powers, it required this of other agencies so the court says it meant for it to promulgate them

Wonder the BOME had to promulgate rules?

What is it about medicine and dentistry and pharmacy that justifies more agency flexibility?

Does the court hint that something closer to patient care might have not required the rulemaking?

Notes and Questions - 365

Oregon has narrowed Megdal and generally become unpredictable

1981 MSAPA requires the agencies to spell things out with rules

It also requires agencies to pass rules as soon as possible when it establishes new precedents in adjudications

Florida adopted a provision that required rulemaking and that took away the presumption that rules were valid, making the agency prove them if they come up in court

Great step forward - look how well Florida agencies worked during the election

8 - Problem

Should 175 parking tickets be considered "conduct inappropriate for a student" and justify suspension without prior notice that tickets were a violation of the policy?

§ 6.3  Rulemaking Petitions and Agency Agenda-Setting - 378

APA 553(e) and the 1981 MSAPA allow citizens to petition an agency to promulgate, amend, or repeal a rule.

This is particularly significant when the agency has promulgated a rule under one of the exceptions to notice and comment

The agency must explain why it does not act on such a petition

The problem is the same as with initiative and referendum - well organized or funded loonies can make law

WWHT, Inc. v. FCC - 379

Can the court order the agency to make a rule based on a citizen petition?

What was the petitioner asking for and what was its justification?

What did the agency say about the substance of the petition?

What about its reviewability by the courts?

Was review allowed?

What kind of review is it?

Geller v. FCC involved a request to the FCC to review cable TV policies in light of the revisions of the copyright act.

The agency refused

The court said unusual circumstance that call the rule or lack of one in question are grounds for asking the agency to reconsider

NAACP v. FPC said the agency had to reconsider if it was wrong in its reasons

Agency though it did not have jurisdiction

The Commissions reasons were found valid and the case was dismissed.

Notes and Questions - 381

More interesting in states with initiative and referendum - you can change the enabling act

5 - Existing rules

Should agencies do "look-back" analysis to see if any of their rules need updating?

6 - Congressional deadlines

Congress often requires elaborate rulemaking and then gives very little time to make the rule

What can the courts do?

Court can order the rule be made by x time, but what then?

§ 6.4 Waivers of Rules - 386

Should a party be able to demand a waiver of a rule that does not provide a waiver mechanism?

WAIT Radio v. FCC - 386

Plaintiff sued to be exempted from the clear channel radio rules

These allow strong signals and come with restrictions to prevent interference with other stations, like only broadcasting at night and in certain areas

Plaintiff claimed new technology justified an exemption from the rules, and the commission rejected the petition

The court kicked it back for better reasons - i.e., fix the record

The court observed that since the petitioner had to give specific facts and reasons supporting the petition, the agency needed to answer those

What might be valid grounds for refusing an exception?

On remand, the agency fixed the record and the court affirmed it.

Notes and Questions - 389

5 Risks of waivers

They undermine enforcement

Should third parties be able to contest waivers?

Does a waiver create a reviewable precedent that others with similar facts should also get a waiver?