Changing the Rules

Basic Principle Agencies are bound by their own rules and adjudications until they change them They are free to change them, but must explain the reasons The reasons must meet the arbitrary and capricious or substantial evidence test

Civil v. Criminal Prosecutions Criminal courts may read the law differently than the agency

Estoppel Can the agency create situations through mistake or policy that do not follow the law, but are binding?

Agency Personnel Give the Wrong Advice Why should we care? Should the agency be bound? What problems would this cause? Unequal application of the law? Potential for corruption? What holding the agency bound improve advice? What is the alternative for the agency?

The Agency Acts Against the Law Same assumption - not binding First, there must be reliance to raise the issue This happened in the S&L cases The courts will look for another theory to support the agency's action In the S&L cases, the courts found that the agency created a contractual obligation, which was binding

Making the Case for Your Client Is this a rule that the agency can waive? Would allowing the exception create fairness issues? Allowing a benefits application to be filed late Allowing a competitive license or bid to be filed late What is the impact on the client? More slack in immigration, for example

Res Judicata - General Rules for Private Parties Same parties, same facts You are bound Issue preculusion - Same parties, same issue Bound on the issue

Res Judicata Policy issues An agency can be involved in thousands of cases around the US The same issue and parties can arise in different courts District judges have different abilities and politics What would be the impact of allowing res judicata?

Nonacquiescence The agency is bound by the decision in the district, or in the circuit if a circuit case The agency may disregard or relitigate the issue in other districts or circuits, even against the same parties, if there is jurisdiction Once the United States Supreme Court rules, the agency is bound What are the politics in deciding whether to appeal? When will the agency choose to not appeal? How should this affect their win-lose record?

Prospectivity and Retroactivity

Basic Principles Retroactive criminal laws are unconstitutional Retroactive civil laws are disfavored Congress must specifically intend retroactivity Can still be unconstitutional depending on what they affect Retroactive procedural rules are usually OK Reinterpretations of the law with retroactive effects are common

Adjudications Older cases No retroactive application Can only change the rule going forward Does not apply if there is no old rule New Cases More latitude for adjudications to retroactively change rules, but still disfavored NLRB does not want to make rules

Rules Intended to prospective only Congress can allow retrospective rules to correct problems Tax loopholes Less likely to be applied to innocent parties Can reaudit and the like Not applicable if there is no old rule Not applicable to changes in interpretation of the law

Primary and Secondary Primary retroactivity I cannot go back and say that you can no longer get paid for in office chemotheraphy and then ask for a refund for past payments Secondary retroactivity I can stop paying for in office chemo in the future and make your investment in your stand alone cancer center worthless

Bowen v. Georgetown University Hospital Feds change the way reimbursement is calculated on Medicare costs What was the retroactive effect of this rule? Did the court accept this? What if the "conditions of participation" say that you are subject to retrospective rule changes which require refunds? The court in a later case found that there could be changes in the way that base year calculations were done, even though these changed past bills