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I'm taking admin next week, so if you want to make this into a thread where we can ask admin questions, go for it. But here's the Q:

Can agencies make rules through informal adjudications? I'm thinking of a statute that says an agency can make rules, but doesn't say how it's supposed to be made. Under Chenery II, the agency would get to pick between N&C and informal adjudication for making the rules, right? I.e., the agency could promulgate a rule via an "order" if it went through informal adjudication.

olive16 wrote:I'm taking admin next week, so if you want to make this into a thread where we can ask admin questions, go for it. But here's the Q:

Can agencies make rules through informal adjudications? I'm thinking of a statute that says an agency can make rules, but doesn't say how it's supposed to be made. Under Chenery II, the agency would get to pick between N&C and informal adjudication for making the rules, right? I.e., the agency could promulgate a rule via an "order" if it went through informal adjudication.

Don't conflate rulemaking with informal adjudication. A rulemaking is general (binding on the everyone) and operates prospectively. Section 553 requires (for informal rulemaking) rules to be promulgated after notice and comment. An adjudication is specific (binding on the parties) and operates retrospectively. Informal adjudication just requires the minimum of section 555 and due process.

Chenery II stands for the proposition that agencies are not bound to promulgate rules when considering an adjudication of the merits of a particular case. If a rule has been promulgated, the agency is bound, but if no rules are on point, it is free to adjudicate independently. But you'd need parties to the adjudication and an actual case to work with. This means that if the agency wants the rule to be binding on parties going forward, it should promulgate a rule to that effect. The agency has a practical reason to prefer proceeding through rulemaking because agency rules get Chevron deference whereas an informal adjudication finding probably only gets Skidmore deference.

Nelson wrote:Don't conflate rulemaking with informal adjudication....

Ty, this clears things up a lot.

I agree that "rulemaking" per § 553 and "informal adjudication" are different things and they require different procedures. But, to OP's question, I believe informal adjudication is indeed another way that agencies can make "rules," if by "rule" you mean create law that is binding on regulated entities. Informal adjudications are legally binding enforcements of a statute. And while it is true that adjudications are retrospective, how an agency decides an adjudication with regard to the parties before it says something about how it interprets a statute and how the agency is likely to adjudicate a similar claim in the future.

Do you all mean to be talking about formal adjudications? There are some agencies (like the NLRB) that create rules almost solely by conducting formal adjudications because they get to skirt the N&C process and avoid OIRA review. I can't think of an agency that relies extensively on informal adjudication in the same way, though.

Swimp wrote:Do you all mean to be talking about formal adjudications? There are some agencies (like the NLRB) that create rules almost solely by conducting formal adjudications because they get to skirt the N&C process and avoid OIRA review. I can't think of an agency that relies extensively on informal adjudication in the same way, though.

Asylum and other immigration claims are handled through informal adjudication. See n.6 in:

http://scholarship.law.duke.edu/cgi/vie ... ontext=dlj

Redamon1 wrote:

Swimp wrote:Do you all mean to be talking about formal adjudications? There are some agencies (like the NLRB) that create rules almost solely by conducting formal adjudications because they get to skirt the N&C process and avoid OIRA review. I can't think of an agency that relies extensively on informal adjudication in the same way, though.

Asylum and other immigration claims are handled through informal adjudication. See n.6 in:

http://scholarship.law.duke.edu/cgi/vie ... ontext=dlj

I doubt those decisions are binding on parties beyond the parties at issue