Comments on: Sex, Politics, and Admin Law http://www.concurringopinions.com/archives/2008/07/fine_for_fleeti.html The Law, the Universe, and Everything Sun, 22 Nov 2009 04:22:46 -0700 http://wordpress.org/?v=2.8.3 hourly 1 By: Frank http://www.concurringopinions.com/archives/2008/07/fine_for_fleeti.html/comment-page-1#comment-48217 Frank Tue, 22 Jul 2008 06:14:44 +0000 http://www.solove.org/archives/2008/07/sex-politics-and-admin-law.html#comment-48217 The theme of this post, as with recent ones on al-Marri and judicial opinions, is "my commenters is smarter than me" (as Ezra Klein might put it). I jumped the gun on this one--should have read the opinion rather than relying on the reporter's characterization of it. The theme of this post, as with recent ones on al-Marri and judicial opinions, is “my commenters is smarter than me” (as Ezra Klein might put it). I jumped the gun on this one–should have read the opinion rather than relying on the reporter’s characterization of it.

]]> By: Michael Froomkin http://www.concurringopinions.com/archives/2008/07/fine_for_fleeti.html/comment-page-1#comment-48216 Michael Froomkin Tue, 22 Jul 2008 04:06:30 +0000 http://www.solove.org/archives/2008/07/sex-politics-and-admin-law.html#comment-48216 Alaska Hunters is about a course of conduct by a regional bureau becoming a de facto then de jure amendment of a legislative rule, such that a new legislative rule is needed to overturn the course of conduct and return to the original rule. I think Alaska Hunters is weird from an APA (and bureaucratic) perspective, although equitable if we had a free hand. This case, however, is about something more traditional: Arizona Grocery -- an agency has to follow its own rules until (per State Farm) it changes them. Here the court found the agency had a rule, amended in 2001, and interpreted in a particular way in 2001-04. The court says that in '04, in this case, the agency suddenly changed its interpretation of its own rule. This, hornbooks assure us, could be done only by rulemaking, and none happened here. (In theory, the rulemaking could have maybe been via adjudication if the FCC both had and asserted that authority, but that's not what happened here. Similarly one might ask if a full legislative rule is needed, or if a mere interpretative rule would suffice. But again, the agency didn't do that.) The FCC claimed there was no inconsistency because prior decisions related only to dirty words, not pictures. The court didn't buy that distinction, and there seems nothing in the regs or subsequent decisions to say that it should. Or am I missing something? PS. Is it me, or is there some irony in one of the key precedents being the "Golden Globes" case? Alaska Hunters is about a course of conduct by a regional bureau becoming a de facto then de jure amendment of a legislative rule, such that a new legislative rule is needed to overturn the course of conduct and return to the original rule.

I think Alaska Hunters is weird from an APA (and bureaucratic) perspective, although equitable if we had a free hand.

This case, however, is about something more traditional: Arizona Grocery — an agency has to follow its own rules until (per State Farm) it changes them.

Here the court found the agency had a rule, amended in 2001, and interpreted in a particular way in 2001-04. The court says that in ‘04, in this case, the agency suddenly changed its interpretation of its own rule. This, hornbooks assure us, could be done only by rulemaking, and none happened here. (In theory, the rulemaking could have maybe been via adjudication if the FCC both had and asserted that authority, but that’s not what happened here. Similarly one might ask if a full legislative rule is needed, or if a mere interpretative rule would suffice. But again, the agency didn’t do that.)

The FCC claimed there was no inconsistency because prior decisions related only to dirty words, not pictures. The court didn’t buy that distinction, and there seems nothing in the regs or subsequent decisions to say that it should.

Or am I missing something?

PS. Is it me, or is there some irony in one of the key precedents being the “Golden Globes” case?

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