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Limits on Agency Discretion to Choose between Rulemaking and Adjudication: Reconsidering Patel V. Ins and Ford Motor Co. V. Ftc

19 Pages Posted: 6 Jun 2006  

William D. Araiza

Brooklyn Law School

Date Written: June 2006


This essay, a contribution to a symposium on "the most underrated administrative law case," offers as candidates for this title two Ninth Circuit cases, INS v. Patel and FTC v. Ford Motor. These two cases consider the limits of agencies' concededly broad discretion to proceed via adjudication as opposed to rulemaking. These cases are closely related - Patel applies a principle, which I call the "anticircumvention" principle, that Ford Motor then expands on. Patel's limits on agency procedural discretion fit neatly with the substantive rule that agencies may not ignore their own regulations. For this reason, Patel is correctly decided.

But Patel is underrated. Compared with Ford Motor, it is far less discussed by commentators and courts, and the principle it announces may suffer by association with Ford Motor's more aggressive - and ultimately incorrect - variant. Patel deserves more attention. By stating an exception to the general rule that agencies can choose between rulemaking and adjudication, Patel stakes out the limitations of that rule. In delineating the extent of agency discretion on an important issue, Patel makes a significant contribution, and thus qualifies as an underrated case.

For its part, Ford Motor's expansion of the anti-circumvention principle fails; thus, I do not argue that Ford Motor is underrated because it was correctly decided. However, the heavy criticism that commentators and courts have heaped on Ford Motor fails to recognize the case's usefulness. Ford Motor takes Patel's anticircumvention principle to its logical endpoint. In doing so it reveals its limits, and illustrates important truths about the role of procedure in administrative law. Its attempt to apply basic administrative law principles, while ultimately misfiring, does not warrant one-sided criticism. While incorrect, Ford Motor deserves more credit than it gets.

Ultimately, Patel and Ford Motor can be visualized as standing close to each other, but nevertheless on opposite sides of the line separating acceptable and unacceptable uses of agencies' discretion on the rulemaking/adjudication issue. If nothing else, the usefulness of these two cases in illuminating that line warrant more attention to both of them, and increased consideration of Patel as a correct statement of law.

Suggested Citation

Araiza, William D., Limits on Agency Discretion to Choose between Rulemaking and Adjudication: Reconsidering Patel V. Ins and Ford Motor Co. V. Ftc (June 2006). Loyola-LA Legal Studies Paper No. 2006-18. Available at SSRN: or

William D. Araiza (Contact Author)

Brooklyn Law School ( email )

250 Joralemon Street
Brooklyn, NY 11201
United States

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