holding that an agency “seeking to repeal or modify a legislative rule promulgated by means of notice and comment rulemaking is obligated to undertake similar proce- dures to accomplish such modification or repeal . . . . [U]ntil it amends or repeals a valid legislative rule or regulation, an agency is bound by such a rule or regulation.”
How later courts described this case
- holding that an agency “seeking to repeal or modify a legislative rule promulgated by means of notice and comment rulemaking is obligated to undertake similar proce- dures to accomplish such modification or repeal . . . . [U]ntil it amends or repeals a valid legislative rule or regulation, an agency is bound by such a rule or regulation.”
- stating that to repeal or modify regulation, agency must do so through rulemaking rather than adjudication
- suggesting that rule established by rule-making procedures can be modified or altered only by rulemaking procedures
- "Perhaps there are situations in which we would be justified in looking beyond the defect of inconsistency [with the APA's notice-and-comment procedure], to affirm an adjudication on the ground that its result was mandated by statute and that the conflicting rule was simply unlawful."
Written by the judges who cited it.
The opinion
SCALIA, Circuit Judge,
concurring:
I concur with the court’s disposition, and write separately only to note that our holding does not hinge upon the lawfulness of the agency’s stay regulations.
In my view, the statutory provision that an arbitrator’s award “shall be final and binding” “[i]f no exception ... is filed [within thirty days]” clearly implies that the award will not be final and binding if an exception is filed within that period. The FLRA regulations based upon the contrary assumption seem to me to fall into the category of improving upon the statute rather than applying it. It is unnecessary to decide, however, whether those regulations would be sustainable as representing a contemporaneous and longstanding agency interpretation that is barely permissible under the language of the statute. For even if they turn out to be invalid, that invalidity has not yet been pronounced by any court. They remain effective, and thus remain an authoritative agency expression of the interpretation of law that underlies them. That being so, an agency adjudication inconsistent with that interpretation of law cannot normally stand.
I do not think it to be true, as counsel for the FLRA was in effect urging, that an agency is free to take inconsistent positions so long as one of the two is unlawful. It is the agency’s responsibility to behave in a rational (and hence reasonably consistent) fashion; and the wrong of inconsistency is not righted by the further wrong that one of the inconsistencies is in addition unlawful. The agency could of course be upheld in the present case if the adjudication had the effect of eliminating the prior pronouncement instead of conflicting with it. But while an adjudication can overrule an earlier adjudication, the Administrative Procedure Act clearly provides that a rule can only be repealed by rulemaking. 5 U.S.C. §§ 551 (5), 553 (1982). See, e.g., Consumer Energy Council of America v. FERC, 673 F.2d 425 , 445-46 (D.C.Cir.1982), aff’d mem., 463 U.S. 1216 , 103 S.Ct. 3556 , 77 L.Ed.2d 1402 (1983).
Perhaps there are situations in which we would be justified in looking beyond the defect of inconsistency, to affirm an adjudication on the ground that its result was mandated by statute and that the conflicting rule was simply unlawful. But that is surely not the ordinary course, since it fosters neither judicial efficiency nor orderly and predictable agency process. There are no special circumstances to justify a departure from the ordinary course here. Indeed, the agency’s abandonment of the rulemaking originally designed to conform its regulations to what it now says are the requirements of the statute makes it particularly appropriate that we insist upon orderly administration and decline to be accomplices in an obviously unnecessary rescission of a rule through adjudication rather than rulemaking.