permitting judicial review as “the only remaining path to judicial consideration of the substantive allegedly requiring suspension. The conclusion that a rule satisfies the requirements of section 19(b)(3)(C) must therefore also emanate from that statute. Indeed, the petitioners point us to no other supporting authority therefor. A non-suspension decision is thus “Commission action pursuant to” section 19(b)(3)(C) and we lack authority to review it. 18 validity” of agency regulations
How later courts described this case
- permitting judicial review as “the only remaining path to judicial consideration of the substantive allegedly requiring suspension. The conclusion that a rule satisfies the requirements of section 19(b)(3)(C) must therefore also emanate from that statute. Indeed, the petitioners point us to no other supporting authority therefor. A non-suspension decision is thus “Commission action pursuant to” section 19(b)(3)(C) and we lack authority to review it. 18 validity” of agency regulations
- distinguishing between "indirect attacks on the substantive validity of regulations initiated more than sixty days after their promulgation from like attacks on their procedural lineage”; "a petitioner’s contention that a regulation should be amended or rescinded because it conflicts with the statute from which its authority derives is reviewable outside of [the] statutory limitations period” that runs from the date of promulgation of the regulation
- reversing FLRA finding that challenge to FLRA regulations was time-barred because regulations were promulgated almost seven years earlier; court stated that “a party who possesses standing may challenge regulations directly on the ground that the issuing agency acted in excess of its statutory authority in promulgating them,” even after expiration of limitations period
- noting that a party against whom a regulation is applied could challenge that regulation as a “defense in an enforcement proceeding” or other “further agency action applying it” (internal quotation marks and alteration omitted)
Written by the judges who cited it.
The opinion
STARR, Circuit Judge,
concurring:
I concur in the judgment and in most of the court’s opinion. I am unable, however, fo agree with my colleagues that the union’s position in this court is the position advanced before the Authority. As a result, I am constrained not to join in Part 11(A)(2) of the court’s opinion.*
My reservations about this rather narrow aspect of the case can be briefly stated. The union proposed to the Authority a sweeping proposal that would have eliminated the pertinent regulations in their entirety and substituted in their place a wholly new regime. That regime, among other things, would have worked a dramatic alteration of one salient feature of the existing statutory structure, namely elimination of the discretion vested in the General Counsel to determine whether an unfair labor practice complaint would issue in this genre of cases.
Having been rebuffed by the Authority, the union, as was its prerogative, repaired to our court. But, as the discussion at pages 3-6 of the opinion indicates, the position advanced by the union here is quite different from that proposed to the Authority. Eschewing its earlier proposal to rework fundamentally the manner in which such cases are handled, the union stated before us, more modestly, that it desired only to eliminate the last sentence of the existing regulations. On its face, this position is considerably less sweeping than the wholesale assault embodied in the union’s position before the Authority.
As I read the statute, it is precisely such tactics that Congress intended to preclude. 5 U.S.C. § 7123 (c) (1982). Orderly administration of the agencies of government, embodied in the judge-made doctrine of ex *203 haustion and sanctioned by Congress in a variety of statutes, see, e.g., 29 U.S.C. § 160 (e) (1982), requires parties to formulate and present their positions before the agency. On appeal, it is too late in the day to overhaul an unsuccessful proposal advanced to the agency and attempt to wrap it in more modest, less provocative garb.
Laying the two proposals side by side, the differences between them are simply too manifest for me in conscience to conclude that the position advanced by the union in this court is the position advanced to the agency. That being the case, I am thus constrained to disagree with the analysis of my colleagues in this limited respect.
A continuing challenge for the lower courts, and especially our own tribunal, is to strike the appropriate balance between the roles of court and agency in the interpretation of statutes. The framework for striking the balance, I believe, was definitively laid down by the Supreme Court in Chevron U.S.A. Inc. v. NRDC, 467 U.S. 837 , 104 S.Ct. 2778 , 81 L.Ed.2d 694 (1984) and is further elucidated in INS v. Cardoza-Fonseca, — U.S. —, 107 S.Ct. 1207 , 94 L.Ed.2d 434 (1987). In my view, today's result and much of the court's analysis accurately articulates the operative standard and achieves the Chevron -mandated balance. For my part, I continue to believe that Chevron’s two-step interpretative process, which was reaffirmed in Cardoza-Fonseca , provides the polestar that is to guide us.