Commercial Litigation and Arbitration

Administrative Agencies, Retroactive Rulings and Extent of Judicial Deference

From NetworkIP, LLC v. FCC, 2008 U.S. App. LEXIS 23264 (D.C. Cir. Nov. 7, 2008):

Though agencies are entitled to deference, they may not retroactively change the rules at will. Indeed, that "[e]lementary considerations of fairness dictate that individuals should have an opportunity to know what the law is and to conform their conduct accordingly" has been well-established for "centuries." Landgraf v. USI Film Products, Inc., 511 U.S 244, 265 (1994). Anything less ought not to be dignified with the title of law. [Footnote 5 The contrary notion of unknowable law is literally Orwellian.***] These "[t]raditional concepts of due process incorporated into administrative law preclude an agency from penalizing a private party for violating a rule without first providing adequate notice of the substance of the rule." ***

At the same time, however, agencies are authorized to make policy choices through adjudication, and giving a decision retroactive effect is "not necessarily fatal to its validity." SEC v. Chenery Corp., 332 U.S. 194, 203 (1947). After all, "[e]very case of first impression has a retroactive effect, whether the new principle is announced by a court or by an administrative agency." Id. And, as is common with comprehensive regulatory schemes, often "every loss that retroactive application . . . would inflict on [one party] is matched by an equal and opposite loss that non-retroactivity would inflict on [another]." ***

There are "two conflicting modes of judicial review to agency interpretations," with "[o]ne longstanding line of [our] cases allow[ing] agencies to apply new interpretations of regulations retroactively," while another requires "revers[ing] agency action where regulated parties do not have fair warning of the agency's interpretation of its regulations." Kieran Ringgenberg, Comment, United States v. Chrysler: The Conflict Between Fair Warning and Adjudicative Retroactivity in D.C. Circuit Administrative Law, 74 N.Y.U. L. Rev. 914, 916 (1999). ***

When to apply which line of cases has not been resolved definitively by our precedents.

Held, it doesn’t matter here: “We too leave for another day the question of how these two lines interplay, because under either one, [plaintiff]NET loses.”

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