Outfoxing Alaska Hunters: How Arbitrary and Capricious Review of Changing Regulatory Interpretations Can More Efficiently Police Agency Discretion

Article excerpt

The Supreme Court's 2009 decision in FCC v. Fox Television Stations, Inc. undermined the controversial Alaska Hunters doctrine by stating that the Administrative Procedure Act (APA) treats initial and subsequent agency actions in the same way. Applied to rulemaking, Fox would have the APA treat initial regulatory interpretations and subsequent revisions of those interpretations in the same way, in direct conflict with the Alaska Hunters doctrine's requirement of notice and comment for certain revisions.

At the same time that the Supreme Court undermined this restriction on agency discretion, the Court provided a possible replacement: substantive arbitrary and capricious review that can be applied to interpretive rulemaking. Using the arbitrary and capricious review in Fox, which requires (1) an explanation of why the agency changed, (2) a justification of why factors used in the previous interpretation were disregarded, and (3) an analysis on how reliance interests were considered, courts could police agency interpretive discretion by conducting a reasoned analysis of adjustments to regulatory interpretations.

INTRODUCTION

Every so often, an individual can change the course of American history with a speech. Some of history's most revered Americans inspired the country into action through sheer oratory mastery, ushering in historic reforms with mere words. Other times, a speech incites reform a little less directly: "Have you ever tried to get cow s*** out of a Prada purse? It's not so f***ing simple."1 Nicole Richie's comments at the 2003 Billboard Music Awards started a chain of events ending in the Supreme Court decision in FCC v. Fox Television Stations, Inc.,2 which might finally provide a sufficient framework for analyzing how government agencies can change policy. Sometimes, reform is accidental.

The Administrative Procedure Act3 (APA) provides the default standards and procedures used by agencies to implement statutes.4 It also establishes judicial review of agency action in order to restrain agency discretion and legitimize an otherwise constitutionally dubious "fourth branch" of government.5 In reviewing agency action, courts most often use the arbitrary and capricious standard,6 a standard that courts have interpreted and reinterpreted in often contradictory and confusing ways.7 This confusion has almost certainly encouraged the litigious nature of the modern administrative state.8 The confusion has also led to diverging U.S. courts of appeals' interpretations of administrative law doctrines, forcing agencies to choose between uniform administration of statutes and obedience to differing regional judicial doctrines.9

Additionally, ossification of rulemaking procedures further obstructs efficient administrative governance. First used by Professor E. Donald Elliott in 1990,10 "ossification" has become a common topic in the study of administrative law.11 The theory contends that rulemaking has become increasingly burdensome for agencies due to congressionally-imposed and judicially-fabricated procedures.12 The term analogizes the incremental increase of bureaucracy to the cellby- cell growth of bone tissue.13 Ossifying procedures include impact analyses14 and substantive requirements for agencies to address all contingencies and comments.15 Though each procedure and requirement has value by itself, most scholars agree that the general trend is leading towards an excessively bureaucratic system.16 More costly and timely procedures make rulemaking more inefficient and rigid, encouraging agencies to avoid traditional policy-making strategies, like notice-and-comment rulemaking, and to favor less transparent policy-making tools, such as guidance documents or caseby- case adjudication.17

The Alaska Hunters doctrine18 is one controversial example of an ossifying procedure. The doctrine, which the federal courts of appeals have not universally adopted,19 establishes that agencies can alter certain interpretations of regulations only through notice-andcomment procedures. …