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Price v. Philip Morris12/15/2005
r other industry members to conduct themselves in the same manner. The FTC's observation that adjudication could be used to announce "a substantive principle or standard of conduct having general application" suggests that a consent order may serve as authorization for nonparties to the order to follow its directives.
The United States Supreme Court has considered the role of adjudication as a means of establishing agency policy. Bell Aerospace involved a dispute between an employer and a union over the proper classification of certain buyers within the company's purchasing procurement department. Bell Aerospace, 416 U.S. at 269, 40 L.Ed. 2d at 140, 94 S.Ct. at 1759. The National Labor Relations Board (NLRB) determined that the buyers were not managerial employees and, therefore, were entitled to the protections of the National Labor Relations Act. Bell Aerospace, 416 U.S. at 288-89, 40 L.Ed. 2d at 150-51, 94 S.Ct. at 1768-69. The Court of Appeals held, inter alia, that although the NLRB was not precluded from determining that some buyers or all buyers were not managerial employees, it could not do so without invoking its rulemaking procedures under the National Labor Relations Act. Bell Aerospace, 416 U.S. at 290, 40 L.Ed. 2d at 152, 94 S.Ct. at 1770. The Supreme Court reversed in part, disagreeing with this portion of the appellate court's holding. Bell Aerospace, 416 U.S. at 294, 40 L.Ed. 2d at 154, 94 S.Ct. at 1771-72.
As noted above, PMUSA cites Bell Aerospace for the proposition that " ` djudicated cases may and do ... serve as vehicles for the formulation of agency policies, which are applied and announced therein.' " Bell Aerospace, 416 U.S. at 294, 40 L.Ed. 2d at 153-54, 94 S.Ct. at 1771, quoting Wyman-Gordon, 394 U.S. at 765, 22 L.Ed. 2d at 714-15, 89 S.Ct. at 1429. The Supreme Court also stated in that case that the NLRB was "not precluded from announcing new principles in an adjudicative proceeding and that the choice between rulemaking and adjudication lies in the first instance within the [NLRB's] discretion." Bell Aerospace, 416 U.S. at 294, 40 L.Ed. 2d at 154, 94 S.Ct. at 1771.
Bell Aerospace, therefore, offers some support for PMUSA's contention that the 1971 and 1995 consent orders could be the source of specific authorization for the conduct described therein. The Court in Bell Aerospace, however, emphasized the importance of a regulatory agency to have the ability to make case-by-case determinations when the question is such that it would be of marginal utility to announce a generalized standard for an entire industry. Bell Aerospace, 416 U.S. at 294, 40 L.Ed. 2d at 154, 94 S.Ct. at 1771-72. Thus, the Court observed, " `an administrative agency must be equipped to act either by general rule or by individual order. To insist upon one form of action to the exclusion of the other is to exalt form over necessity.' " (Emphasis omitted.) Bell Aerospace, 416 U.S. at 293, 40 L.Ed. 2d at 153, 94 S.Ct. at 1771, quoting Chenery, 332 U.S. at 202, 91 L.Ed. at 2002, 67 S.Ct. at 1580. Bell Aerospace, however, offers little support for PMUSA's contention that the 1971 and 1995 consent orders resolving disputes between the FTC and individual tobacco companies should be deemed by this court to specifically authorize PMUSA or other cigarette manufacturers to follow the directives contained in the orders.
PMUSA also points to numerous documents in the record that, it contends, reveal that the FTC itself considers the resolution of adjudicated cases, either by judgment or by consent order to constitute "regulatory activity." See, e.g., Federal Trade Commission, Report to Congress Pursuant to the Public Health Cigarette Smoking Act, at 13-14 (December 31, 1971) (describing
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