Choice of Procedure Flashcards
What is a nonlegislative rule?
An agency pronouncement that advises the public of the agency’s view on an issue.
1) No binding legal effect.
2) Does not require notice and comment.
What are the two big hallmarks of policy making through adjudication?
1) Retroactive
2) Legally binding only on one entity.
Can an agency enforce a requirement first promulgated in an earlier adjudicative proceeding?
Yes. Adjudications are a guide to action an agency may be expected to take in future cases. Wyman-Gordon
Who might be able to argue they lacked notice of a policy imposed through adjudication?
Regulated entities that engaged in the prohibited behavior prior to the agency announcing its new policy in an adjudication. I.e. cases of second impression. So if the agency creates a new policy through adjudication w/ retroactive effect, it cannot still go around and prosecute every regulated entity that was behaving similarly prior to the first adjudication and retroactively enforce the rule against them.
Can an agency limit adjudicatory rights conferred in its enabling statute via rulemaking?
Yes, at least if there are no material facts to be resolved in such a hearing. Think FCC’s rule limiting licenses and not providing hearings, even though statute said parties get full hearing before denial.
Can an agency issue a retroactive rule?
Only if Congress expressly gives it the power to do so.
Can an agency punish an entity for violating a regulation if the regulation is ambiguous?
If a regulated entity could identify “with ascertainable” certainty the standards of conduct the agency expects by reviewing the regulation and other public statements by the agency, then the entity has received fair notice that satisfies due process. Even so, an agency’s interpretation to the contrary can still be upheld by a court as reasonable.
What is an interpretive rule?
A statement issued by an agency to advise the public of the agency’s construction of the statutes and rules it administers.
What is a policy statement?
A statement issued by an agency to advise the public prospectively of the manner in which the agency proposes to exercise a discretionary power.
What notice is required for nonlegislative rules?
Must be published in the FR. Parties cannot be adversely affected by nonlegislative rules that are not published.
What is the “binding effects” test?
A test for distinguishing legislative/nonlegislative rules: does it impose a new duty or merely announce the intention to impose a new duty in the future?
Prospective only = non legislative.
Leaves agency discretion = non legislative.
What are the factors for determining whether a policy statement has the force of law?
1) Prospective?
2) Impose any rights or obligations?
3) Does it leave the agency and its decisionmakers free to exercise discretion in the future?
4) How does the agency characterize it?
5) Is it inconsistent with a prior rule
Is a rule legislative if it is binding only on the agency and its employees?
Yes.
What factors do courts consider when reviewing interpretive rules from an agency with the power to issue legislative rules?
1) Agency characterization. Minimal deference.
2) The source of the duty that the party is obligated to obey. Is the agency interpreting the statute or creating an entirely new duty? i.e. could the duty be enforced without the rule?
4) Does it effectively amend a prior legislative rule?
What were the
