§ 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
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.
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
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
Why did the dentist claim that the board could not rely on unprofessional
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
Does the court hint that something closer to patient care might have not required
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
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?
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