In the case of the Madison University (MU) student, Mark, a punishment is being imposed by the Student Disciplinary Board (SDB) for "conduct inappropriate for a student." the specific conduct involved, receiving a larger number of parking tickets, has never before been treated by the SDB as a violation of the student disciplinary rules now being invoked.
The first question is whether the SDB's decision should be reversed. MU is a federal institution and is in a state that has adopted the 1981 MSAPA (Model State Administrative Procedure Act). According to the decision in NLRB V. Bell Aerospace (416 U.S. 267 [1974]), agencies are generally free to use their own judgment in deciding whether to make new law by rule or by order, and their discretion in choosing one over the other is limited only by any special statutory requirements or agency rule or by the APA prohibition on any agency action that is an "abuse of discretion." As a rule, the federal courts do not find an abuse of discretion with respect to an agency's choice of lawmaking modality. In the MU case, therefore, the modality cannot be challenged, and in addition, the action was undertaken with the appropriate notice an comment procedures.
In deciding whether an abuse of discretion has occurred, certain elements are considered: 1) whether the case is one of first impression or turns on a prior case; 2) whether the new law represents an abrupt departure from well-established practice or merely attempts to fill a void in an unsettled area of the law; 3) the extent to which the party against whom the new law is applied relied on prior law; 4) the degree of the burden which a retroactive law imposes on a party; and 5) the statutory interest in applying the new law to the case at hand despite the reliance of the party on the old standard.
In Retail, Wholesale and Dept. Store Clerks Union v. NLRB (466 F.2d 380, 390 [D.C.Cir.1972]), the NLRB relied on one of its recent ...