Chapter 6

Part II

Does Closing Programs Require Rulemaking?

Why was there no requirement of notice and comment in Lincoln v. Vigil? Indian health service closed its pilot program

that provided care to disabled Indians Court said this was a classic agency choice of

how to deliver services and did not require a rule making because it did not change eligibility for benefits, only how they were distributed.

Making Rules through Adjudication

How is this like what common law courts do? How is agency control of the process at the

federal level different from a court? Why is the NLRB so affected by politics? Why might it want to make a rule through

adjudication rather than through notice and comment?

Why not just issue a guideline?

NLRB v. Wyman-Gordon

This is a controversial case - it is not exactly clear what the court was saying

NLRB says that Defendant has to give the union a list of employees because this was established as precedent in a previous adjudication

Why does the court reject that reasoning? Why did the court allow the order to stand? How does this undermine the court rejection of

this as rule?

NLRB v. Bell Aerospace

NLRB uses an adjudication to announce a definition of managerial employees for bargaining units

Court says this is OK Is there more latitude for a subsequent party to

challenge the ruling of an adjudication than a notice and comment rule?

Is this a reasonable limit on making rules through adjudication?

Can an adjudication overturn a notice and comment rule?

Rulemaking Petitions

APA 553(e) allows 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, or at least tie up the agency

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

WWHT, Inc. v. FCC

Pay TV wanted a rule to make cable carry their signal

Agency says you do not need it and that the court cannot review this denial of rulemaking

Court says it can review it, but only narrowly

Geller v. FCC

Request to the FCC to review cable TV policies in light of the revisions of the copyright act.

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

Agency had to reconsider if it refused for the wrong its reasons

Agency thought it did not have jurisdiction The Commissions reasons were found valid and

the case was dismissed

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?

Waivers of Rules

Why waive rules? What is the downside of waiving rules? Should a party be able to demand a waiver of a

rule that does not provide a waiver mechanism?

WAIT Radio v. FCC

Plaintiff sued to be exempted from the clear channel radio rules because new technology reduced interference

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

End of the Chapter