by Richard Rothfelder, Partner, Rothfelder and Falick
Once again, controversial national events have application to the billboard industry, in this case on billboard administrative rules. In particular, on April 18th, a Federal District Judge ruled that the mask mandate rules imposed by the U.S. Center on Disease Control (“CDC”) were invalid due to the administrative agency’s failure to follow the checks and balances required under the Federal Administrative Procedures Act for the proper passage of such rules.
The ruling by U.S. District Judge Kathryn Kimball Mizelle, an appointee of President Donald Trump, came in a lawsuit filed last year in Tampa, Florida, by a group called the Health Freedom Defense Fund. Judge Mizelle said the CDC had exceeded its authority with the mandate, had not sought public comment, and did not adequately explain its decisions. A U.S. administration official said while the agencies were assessing potential next steps, the court’s decision meant CDC’s public transportation masking order was no longer in effect. The administration could still opt to appeal the order or seek an emergency delay in the order’s enforcement, but for the time being, the “TSA will not enforce its Security Directives and Emergency Amendment requiring mask use on public transportation and transportation hubs at this time,” the official said in a statement.
Of course, this latest example of the Government taking the shorter cut to implementation of its policies than the one required by the law is not limited to the Biden Administration. Numerous courts reached similar decisions against the Trump Administration over executive orders on travel bans, construction of the Wall, and immigration restrictions. In each case, the Courts ruled that the implementation of valid agency policies must follow the notice, hearing, comment, and other checks and balances required for the passage of valid administrative rules under the Federal Administrative Procedures Act.
The Texas Appellate Courts have made similar rulings to overreaching on billboard rules by the Texas Department of Transportation (“TxDOT”). In John Gannon, Inc. vs TxDOT, the Austin Court of Appeals held last year that a memorandum or “Guidance” issued by the TxDOT Director of Right of Way in 2017 on the procedures for the relocation and compensation of billboards displaced by its highway projects violated the Texas Administrative Procedures Act (“APA”). Among those mandated procedures was the requirement that the billboard owner agree in an executed quitclaim deed on the cost of his condemned billboard before the commissioners’ hearing, or forfeit his rights to relocation permits for the sign. And, in the process of imposing these new procedures, TxDOT and its Director failed to provide the public notice, hearing, publication, and other checks and balances required for the proper passage of administrative rules under the APA. Thus, the Guidance is subject to invalidation under the APA.
These national policy controversies once again demonstrate that reasonable minds can differ over the correctness of such policies. Most of us can agree, however, that whatever policies are imposed by the Government ought to be implemented by following the checks and balances required by the law.
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