Chapter 6
Part II
Does Closing Programs Require
Rulemaking?
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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