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from like attacks on their procedural lineage”; "a petitioner’s contention that a regulation should be amended or rescinded because it conflicts with the statute from which its authority derives is reviewable outside of [the] statutory limitations period” that runs from the date of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
D.H. GINSBURG, Circuit Judge,
concurring:
I concur in the court’s opinion except as noted in the final paragraph below. I write separately in order to address the two concerns raised in Judge Starr’s concurring opinion.
First, like Judge Starr, I am troubled by the difference between the proposal the Union originally submitted to the FLRA and the somewhat narrower proposal that the Union has brought before this court. One aspect of the original proposal appeared to give unions the option of requiring the General Counsel to issue unfair labor practice complaints in cases involving negotiability disputes. The proposal before this court differs substantively insofar as it leaves the General Counsel that option.
The FLRA rejected the original proposal not because of the obligation it put upon the General Counsel, however, but for a different reason — one of statutory construction — that necessarily extends to the proposal before this court. It is abundantly clear from the opinion below and from the briefs in this court that the FLRA’s interpretation of the Act would require the rejection of the Union’s revised, narrower proposal.
Therefore, albeit only after some hesitation, I join the court in reaching the merits of this case. My hesitation reflects my concern that union counsel in other cases will misinterpret our decision. Notwithstanding our indulgence of this appeal, counsel should not in any way entertain the notion of bringing new improved proposals on appeal in future cases.
Second, I note my shared concern with the reservation Judge Starr has about the interpretation of Chevron and Cardoza-Fonseca. Because any doubts about the proper understanding of those decisions do not affect the outcome of this case, however, I find it unnecessary to resolve them.