GENERAL AMERICAN TRANSPORTATION CORPORATION, ET AL., PETITIONERS,
v.
INTERSTATE COMMERCE COMMISSION, UNITED STATES OF AMERICA, RESPONDENTS, LO SHIPPERS ACTION COMMITTEE, BALTIMORE AND OHIO CHICAGO TERMINAL RAILROAD CO., U.S. CLAY PRODUCERS TRAFFIC ASSOCIATION, INC., ASSOCIATION OF AMERICAN RAILROADS, CHEMICAL MANUFACTURERS ASSOCIATION, INTERVENORS; RAILWAY PROGRESS INSTITUTE COMMITTEE ON TANK CARS, PETITIONERS, V. INTERSTATE COMMERCE COMMISSION AND UNITED STATES OF AMERICA, RESPONDENTS, ASSOCIATION OF AMERICAN RAILROADS, BALTIMORE AND OHIO CHICAGO TERMINAL RAILROAD CO., ET AL., CHEMICAL MANUFACTURERS ASSOCIATION, MBF INDUSTRIES, INC., INTERVENORS; RAILWAY PROGRESS INSTITUTE COMMITTEE ON TANK CARS, ET AL., PETITIONERS, V. INTERSTATE COMMERCE COMMISSION AND UNITED STATES OF AMERICA, RESPONDENTS, ASSOCIATION OF AMERICAN RAILROADS, BALTIMORE AND OHIO CHICAGO TERMINAL RAILROAD CO., ET AL., INTERVENORS
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Before SILBERMAN, WILLIAMS and SENTELLE, Circuit Judges. ORDER
PER CURIAM.
Upon consideration of the petition for rehearing of petitioners and intervenors, filed May 26, 1989, it is
ORDERED, by the Court, that the petition is denied.
The suggestion for rehearing en banc of petitioners and intervenors has been circulated to the full Court. No member of the Court requested the taking of a vote thereon. Upon consideration of the foregoing, it is
ORDERED, by the Court en banc, that the suggestion is denied.
WALD, Chief Judge, and BUCKLEY, Circuit Judge, did not participate in this matter. . The National Labor Relations Board appears to have followed this course in many of its adjudicatory proceedings. See, e.g., General Cable Corp., 139 N.L.R.B. 1123 (1962); Deluxe Metal Furniture Co., 121 N.L.R.B. 995 (1958).
. It is unproductive, in most circumstances, to attempt to "classify a given proceeding as either adjudicatory or rulemaking. The line between the two is frequently a thin one and resolution of a given problem will rarely turn wholly on whether the proceeding is placed in one category or the other.” City of Chicago v. FPC, 458 F. 2d 731, 739 (D.C.Cir.1971), cert. denied, 405 U.S. 1074, 92 S.Ct. 1495, 31 L.Ed.2d 808 (1972).
But see Hoffman-LaRoche, Inc. v. Kleindienst, 478 F. 2d 1, 12-13 (3d Cir.1973) (character of proceeding — whether adjudicatory or rulemak-ing' — viewed critical given agency's failure to follow functional separation requirements of 5 U.S.C. § 554).
Here, of course, the characterization of the proceeding below is important, for it bears directly on the propriety of retroactive application of the new governing principle. "[R]etroactivity is not only permissible but standard” in the adjudicatory setting, Bowen v. Georgetown Univ. Hosp., — U.S. —, 109 S.Ct. 468, 478, 102 L.Ed.2d 493 (1988) (Scalia, J., concurring), but it is disfavored in rulemaking. See id. 109 S.Ct. at 471.
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Citator
Cited By
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Nat'l Broad. Co., Inc. v. Satellite Broad. Networks, Inc., 940 F.2d 1467 (11th Cir. 1991)
-
Am. Tel. & Tel. Co. v. Fed. Commc'ns Comm'n & United States, 978 F.2d 727 (D.C. Cir. 1992)
Authorities Cited (19 total)
- Sec. & Exch. Comm'n v. Chenery Corp., 332 U.S. 194 (U.S. 1947)
- Nat'l Labor Relations Bd. v. Bell Aerospace Co., 416 U.S. 267 (U.S. 1974)
- Nat'l Labor Relations Bd. v. Wyman-Gordon Co., 394 U.S. 759 (U.S. 1969)
- Bowen v. Georgetown Univ. Hosp., 488 U.S. 204 (U.S. 1988)
- City OF Chicago v. Fed. Power Comm'n, 458 F.2d 731 (D.C. Cir. 1971)
- Textile Workers Union of Am., AFL-CIO v. Moore of Bedford, Inc., 405 U.S. 1074 (U.S. 1972)
- Breedlove v. Texas, 405 U.S. 1074 (U.S. 1972)
- The Honorable Shirley Chisholm v. Fed. Commc'ns Comm'n & United States, 538 F.2d 349 (D.C. Cir. 1976)
- Hatch v. Fed. Energy Regulatory Comm'n, 654 F.2d 825 (D.C. Cir. 1981)
- Trans World Airlines, Inc. v. Day, 429 U.S. 890 (U.S. 1976)