ADMIN LAW OUTLINE

Intro; Administrative Procedure Act; Due Process APA: governs agency procedure and judicial review of agency action. Excluded from APA: POTUS Other government offices in legislative & judicial branches *6*

Citizens for Responsibility and Ethics in Washington v. Office of Administration (D.C. Cir. 2009) *8* SUBSTANTIAL INDEPENDENT AUTHORITY STANDARDFacts: CREW makes a FOIA request to the Office of Administration (Executive Office of the President) about missing emailsOA: we are not agent under FOIAISSUES: WHETHER THE OFFICE OF ADMINISTRATION IS AN AGENCY UNDER THE ACT.Rule: Whether the entity exercises substantial authority independent of the POTUS. substantial independent authority required to be anagency under FOIAHolding: OA is not an agency under FOIA, because it lacks substantial independent authority of the POTUS. Just operational and administrative support for the POTUS and his staff.Discussion: Soucie v. David (examples of substantial authority independent of POTUS) *9*FOIA Defines agencies separately from APA.FOIS explicitly recognizes executive office of the president as an agency.Court trying to safeguard info very close to President.Hidden Separation of powers case. Separation of Powers trumps the statute=in practice.Whats an agency? Importance of Separation of Powers **EXAM!!**

Executive Branch & Independent Agencies Executive Branch: 15 *11*, President appoints secretaries of agencies. Independent Agencies=Exist/operate outside the traditional executive branch departments. Agencies within agencies, commissions, boards, councils POTUS appoints head of independent agencies with advice and consent of Senate.

What are agencies susceptible to judicial intervention on due process: Fear Good governance (follow rules/makes it easier) Statutes tend to be notoriously ambiguous when they are promulgated. Too broad: self-aggrandization principle Too precise: constitutionally infirm. For purposes of passing statute in first place, it must be ambiguous. To get that compromise. Legislatures not the best suited to discuss difficult issues (i.e. scientific)=intentionally ambiguous.

Due process application: Due process applies to adjudications But not to rulemaking.

Adjudication (individual facts) v. rulemaking (mass of people) (exam boost)Adjudication:*deciding facts of the case before agency. (retrospective (look at the past), question of fact that was decided, backward looking. (individual facts, questions that come down to credibility/careful balancing)

Facts that concern individual=indicative of adjudication. The process an agency uses to formulate an order. Adjudication focuses on a particular party or parties and involves facts specific to the parties involved.Informal adjudication: APA divides all agency action into rulemaking and adjudication, informal agency action (when no clear procedure is followed) is often referred to as informal adjudication. Courts may require only those procedures specified in APA Section 555 for informal adjudication.Rulemaking:*establishing standard/policy on subject matter. (sometimes agencies can adjudicate through formal rulemaking)(generally prospective (looking forward)) (broad legislative facts)Informal Rulemaking: aka notice and comment rulemaking. Rulemaking conducted pursuant to the notice and comment procedures contained in APA Section 553.Formal Rulemaking: Rulemaking conducted pursuant to the formal adjudicatory procedures contained in APA Sections 556 and 557. Formal rulemaking is required only when an agency is required by statute to conduct rulemaking on the record after a statutorily required hearing.Individual can help guide those facts and inform those facts. Equal protection: people who are treating separately from others (considerations that can give rise to due process, esp. if small groups of people. Legislative facts/finding: large scale in nature. Broad applicability--indication of rulemaking.Action adjudication=>Interests at stake, does it fall within life, liberty and property?

Londoner v. Denver (1908) *227* ADJUDICATION (present tense/retrospective)Facts: Plaintiffs challenge a tax assessed against their real property by the city council over plaintiffs written objections, without affording them a hearing. Only applied to people whos lands were adjacent to the roads.=small number of people*critical fact*Rule: 14th amendment due process requires that, where the state legislature authorizes a subordinate body to levy taxes, the taxpayer should have an opportunity to be heard before the tax becomes irrevocably fixed. The taxpayer must have notice, either personal, by publication, or by a law fixing the time and place of the hearing.Holding: landowners had right to a hearing (opportunity to be heard)=denial of due process of law, assessment void.Rationale: writing is not enough. Hearing requirement not met by ps submission of their brief; due process required that they have the opportunity to support their allegations by argument and, if necessary, by proof. General due process concerns. Property interest protected by due process.Discussion: Adjudication applies to smaller groups of people. Legislatures that empowers subordinate body who to apply the tax has conferred adjudication powers to that subordinate body. Few constitutional restrictions on states power to assess, apportion and collect taxes. However, where the legislature authorizes a subordinate body to make a determination of the tax, due process of law guaranteed by the 14th requires that the taxpayer be afforded a hearing, of which he must have notice. The hearing requirement is not satisfied by the mere right to file objections.

Bi-Metallic Investment Co. v. State Board of Equalization (1915) *228* RULEMAKING (prospective)Facts: uniform increase---valuation of property tax by 40% in Denver.Bi-Metallic objects-- did not have a direct voice in decision making processimproper.Empowering legislation from State, Statutory authoritySubordinate body decides how that tax is levied=large group of people (everyone)ISSUE: DO ALL INDIVIDUALS HAVE A CONSTITUTIONAL RIGHT TO BE HEARD BEFORE A MATTER CAN BE DECIDED WHERE ALL LANDOWNERS ARE EQUALLY CONCERNED AND STAND ALIKE?Rule: Individuals do not have standing merely as members of the public at large or the general taxpayer population to challenge government action or imposition of taxes.Holding: not practical for everyone to have a direct voice. Where a rule of conduct applies to more than a few people, impracticable that everyone should have a direct voice in its adoption.Rationale: practical considerations. (paramount importance of understanding SCOTUS jurisprudence in admin law) there needs to be some limiting principle: cant have everyone argue matters if govt. is to operate. (especially regarding matters affecting the general population).Discussion: Discussion: Rulemaking=Setting of standard. General applicability, not targeted to small group of people, broader group of people.Londoner/Bimetallic distinction: due process does not require government provide a hearing before it takes action that adversely affects a class of individuals.Separation of powers: large group of people can vote the bums out--Redress through political process. But targeted people effected dont have same access to political process as a large group of people.Due Process does not apply to rulemaking because the understanding of court is that there is no constitutional necessity for it. Because entity is politically sensitive, also body of people affected by the regulation is large enough to avail of the political processes.

Goldberg v. Kelly (1970) *235*Facts: NY residents dependent on public assistancesSues state and state officialsprogram terminated w/out prior notice & hearing.Administrative process=7 steps.1) case worker makes initial determination, 2) discussion, 3) determination, unit supervisor, 4) unit supervisor has to agree with state official/social worker, 5) letter to recipient. 7 days to respond, 6) may respond and ask for higher official to review decision, 7) only after that does post aid stop, after flow of money and resources cut off to recipient. Only then evidentiary hearing entitled to occur before a state hearing officer. JUDICIAL REVIEW (5 occurs before aid is cut off)All of this before adjudication.ISSUE: DOES DUE PROCESS APPLY?Rule: The extent to which procedural due process must be afforded is influenced by the extent to which he may be condemned to suffer grievous loss. Due process required a pre-termination hearing prior to termination of welfare benefits.Due Process requirement of Goldberg:1) pre-termination hearing2) right to bring a counsel3) Neutral decision maker4) ability to have an oral hearing (face to face), face accuser and rebut evidence.Holding: when welfare is discontinued, only a pre-termination hearing provides the recipient with procedural due process. Due process applies here. 1) Evidentiary hearing before termination of aid. 2) pre-termination3) has to be before an impartial, neutral decision makerRationale: governmental interests are not overriding in the welfare context.Stakes too high for welfare recipient*needs to be fully informed so he can contest & rebut with evidence.Practical considerations: (equities of the case)*court feels bad for guy who lost welfare benefitsgrievous loss analysis.Discussion: If you cant establish life, liberty, property interest====courts can gloss right over it.If due process might be an issue, raise it. This is more bi-metallic.Only after aid stops is hearing possible.just because its drawn out does not mean its fair.Court is trying to emulate trial-separation of powers. Forcing state administrative agency to engage in adversarial trial type environment. Court inference, basic concepts of fairness. These people who suffer from grievous loss, ---State has interest: we dont want people defrauding the govt. Costs taypayers more money to provide rights to provide welfare benefits to those who are going to lose them. More time, money, resources===more crunch on the state.Goldberg and progeny welfare interest as property interest not liberty interest. Property interests now include social security benefits. HYPO: What would a crafty legislature do to foreclose property/due process requirements from welfare benefits. Say there is no entitlement to welfare. Can offer due process requirements.

Due Process; Statutory Requirements for Adjudication

Wisconsin v. Constantineau (1971) *246*Facts: WI statute forbids sale or gift of liquor to those who by excessive drinking are a danger to society.Police, without notice/hearing, posted a notice to all retail liquor stores that sales or gifts of liquor to appellee was forbidden for a year.Rule: Stigma plus test=loss of tangible government benefit + official stigmatizationHolding: posting stigmatizes/badge of disgrace---procedural due process requires notice and an opportunity to be heard. Rationale: where the state attaches a badge of infamy to the citizen, due process comes into play.Right to be heard before suffering grievous lossStigmatizing noticeharmful to appellees reputation in the community.Posting under the Wisconsin Act=Stigma/official branding of person was degrading. No process/chance to defend herself.Persons reputation is an interest entitled to protections of procedural due process.When a persons good name, reputation, honor, or integrity at stake because of what govt. is doing to him notice and opportunity to be heard is essential.Discussion: stigmatization must be contemporaneous with the deprivation of the tangible benefit.

Board of Regents of State Colleges v. Roth (1972) *248*Facts: professor hired for a fixed term of one yearNotice when employment would start and endTerm completedInformed he would not be rehired the next year.No right to reemploymentRule: property interests trigger procedural due process.Holding: Roth did not have a property interest, not entitled to a hearing when they decided not to renew his K. No due process, no entitlement that a property interest would be created.Rationale: no harm to roths reputation, no stigma, state did not deprive him from getting another job.No limiting principle-- if we say there is a deprivation of a liberty interest when someone is simply not rehired and is free to find another job.No tenure/no formal K: but clearly implied promised of continued employment triggers due process.Here, Employer provided notice by a certain date.=adhered to notification requirements.Discussion: Court chipping away/retreat from Goldberg (high water mark of due process)

Perry v. Sindermann (1972) *253*Facts: professor employed at college for 4 successive years, series of one-year contractsLonger track recordUnofficial tenure policy no tenure system but faculty can feel he has permanent tenure as long as teaching services are satisfactory, cooperative attitude towards his co-workers and his superiors.Holding: grant of summary judgment against professor without fully exploring the issue was improper.Rationale: teachers public criticism of his superiors on matters of public concern may be constitutionally protected and may be an impermissible basis for termination of his job.policy gave him the idea that he had a property interest in employment.Implied contract inferred from employment patterns & unofficial tenure processDiscussion: Court goes beyond property interest, throws in liberty interest (free speech, defamation)Court applies interest based analysis (property interest=to job + liberty interest=free speech)To make due process claim (i.e. liberty/property interest)1) you have to make each claim independently. Two different veins of analysis.

Paul v. Davis (1976) *257*Facts: police alert local merchants of possible shopliftersSomeone on the list/posting sues: (Edwards Charles Davis III, photos + name)*arrested and arraigned on shoplifting charge.ISSUE: DID THE PETITIONER DEPRIVE THE RESPONDENT OF HIS LIBERTIES BY DESIGNATING HIM AS AN ACTIVE SHOPLIFTER?Rule: Reputation alone, apart from some more tangible interests such as employment is neither liberty nor property for Due Process purposes.Holding: No. KT law does not extend to the respondent any legal guarantee or present enjoyment of reputation which has been altered as a result of the Petitioners actions. The Respondent was not deprived of any liberty or property interests protected by the Due Process Clause.Rationale: reputation is not enough, you need some other tangible interest. (i.e. employment)No right previously held under state law that was taken away.Discussion: Stigma Plus Test=loss of some tangible govt. benefit that is not protected by due process + official stigmatization. (Constantineau and Paul)The posting of a mug shot in some stores does not deprive the Petitioner of any liberties. He is still free to go to those stores and shop. Also, the memo is not an official criminal record that would fall into the hands of future employers. So, the potential damage to his reputation is minimal.

Hypo: applying for govt. job, but does not get it.No property interest in job.Are SS disability benefits, same standard as welfare benefits?School teacher hired, provision/statute: you cant remove someone for cause unless they have been there for 2 years. 3 choices 1) thorough investigation that lasts another 14 months to determine what happened (interviews, normal investigatory activities to terminate this guy after 2) terminate him immediately for engaging in sex with student 3) terminate him without reason (i.e. ran out of money) Mathews v. Eldridge (1976) *266* *the case for Due Process, EXAM=3 part balancing test, fixate on the procedure!*Facts: Eldridge challenges constitutional validity of the administrative procedures established by the Secretary of Health Education and Welfare for establishing whether there exists a continuing disability entitling a recipient to social security disability benefits. Eldridge was notified his benefits would terminate w/out an opportunity for a prior hearing.ISSUE: DOES DUE PROCESS REQUIRE A PRETERMINATION HEARING BEFORE DISCONTINUING SSD BENEFITS?

BALANCING TEST: (whether agency procedures meet due process standards)1) private interests that will be affected by the official action2) risk of erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substantive procedural safeguards3) government interest including the function involved and the fiscal and administrative burdens the additional or substitute procedural requirement would entail.Holding: An evidentiary hearing is not required before Eldridges benefits are terminated. Present administrative procedures fully comport with due process.Rationale: a lot of process provided/built into the statuteDocumentary evidence (medical opinions/reports) makes this different from welfare.Private interest=SS disability, just because you lose it its not tied to welfare. Theres another societal safety net. Less risk of deprivation of rights, long delay cured by retroactive application.Government interest=conserve scarce fiscal and administrative resources.

HYPO: statutorily conferred property interest=entitled to certain stuff under a statutePrivate interest v. govt. interest1) Private interest of eldridge: person entitled, cant work/get a job, established at least for 1 calendar year he cant work. Without entitlement hes economically harmed.Similar to Goldberg: Govt. cut off benefits to needy individual based on a contested determination that individual was no longer eligible. Only pre-deprivation hearing was paper hearing, opportunity to submit evidence in writing Opportunity to obtain a post-deprivation oral evidentiary hearing a year after benefits stopped, retroactive payment of past benefits if post-deprivation hearing reveals hes eligible for benefits.2) additional or substantive procedural safeguards: 3) governmental interest: protecting public fisc, efficiencyPrivate interest so much more important than govt. interest---inherent fairnessrequires this tailored approach to satisfy loose standards of due process.

Cleveland Board of Education v. Loudermill (1985) *278*Facts: Education Board hires Loudermill as security guard.Lies on application---Dismissed because of dishonesty in job app.No opportunity to respond to charge/challenge dismissal.Post termination proceedingHolding: all the process that is due is provided by a pre-termination opportunity to respond, coupled with post-termination administrative procedures.Discussion: bitter (protections that existed in statute when you took the job) with the sweet approach (govt job that entitles you to due process protection)while statute may confer greater rights than provided by constitution, they cant trump constitution.

Hamdi v. Rumsfeld (2004) *282*Facts: unlawful enemy combatant, US citizen, Placed in military brig w/out ability to habeas corpus. He was us citizen, detained on us soil, engaged in treasonous acts against united states.Discussion: separation of powers, POTUS exercising war powers, Govt argument=*detention can be indefinite w/out any process until the war ends=law of war.*potus acted under congressional resolution AUMF=potus powers at maximum when acting under will of congress.Holding: due process demands US citizen detained as an enemy combatant citizen-detainee seeking to challenge classification must receive 1) notice of the factual basis for his classification, 2) fair opportunity to rebut the governments factual assertions before a 3) neutral decisionmaker. (citing Loudermill)Rationale: Matthews test applied1) hamdis private interest2) government interest: those who have fought with enemy dont return to battle against the US.3) risk of erroneous deprivation=detainees liberty interest is unacceptably high under the governments proposed rule, while some of the additional or substitute procedural safeguards---unwarranted in light of their limited probable value and the burdens they may impose on the military in such cases.Fundamental nature of a citizens right to be free from involuntary confinement by his own government without due process of law.Due Process provided some minimal rights to Hamdi (notice, opportunity to challenge/be before neutral decision maker)

Courts cannot review whether something is arbitrary of capricious if there are not procedures in place that lets court understand why agency came to its decision in the first place.

Citizens to Preserve Overton Park, Inc. v. Volpe (1971) *301*Facts: Proposed highway (6-lane) sever the zoo from the rest of the park.Statute: procedures/considerations before govt. builds highway going through park.Secretary of transportation approved plan to go through overton park.Citizens to preserve overton park sued secretary of transportation.Rule: APA Section 706 requires the court to decide: 1) whether the Secretary acted within the scope of his authority; 2) whether the choice made was arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law, and 3) whether the Secretarys action followed the necessary procedural requirements.Holding: Under the APA, there is no positive law that requires procedures for informal adjudications. For purposes of Article III review: agency must have some record and why it occurred. (might also include agency officials being available for testimony).Rationale: Informal adjudication not reviewable unless there was an administrative recordfacts why secretary came to his decision when he rendered his decision for purposes of article III review.Discussion: courts (separation of powers) remand, tell us why you did all this stuff so we can determine whether it was arbitrary or capricious.Two ways in which administration record can be supplemented:1) testimony from particular agency officials why they did certain things2) where administrative findings that were made at the same time as the decision, there must be a strong showing of bad faith or improper behavior before inquiry into the mental processes of administrative decisionmakers. (presumption: administration recordneed to exist, polices/practices to generate those things so court can make reasoned decisions, need record at the time of the decision, not afterwards)

STATUTORY PROCESS CASES

Pension Benefit Guaranty Corp. v. LTV Corp. (1990) *303*Facts: pbgc no longer covers pensionsLess than a year later, pbgc changes its mindRule: APA Section 706 prohibition against arbitrary and capricious decision-making by agencies should not be applied too broadly.ISSUE: WAS THE DECISION OF THE PBGC TO RESTORE CERTAIN PENSION PLANS UNDER SECTION 4047 OF ERISA arbitrary and capricious, or contrary to law, within the meaning of apa section: 706?Holding: No. The determination was lawfully made by informal adjudication, the minimal requirements for which are set forth under APA Section 555. Lower courts misconstrued meaning of APA Section 706 in holding that PBGCs restoration decision was arbitrary and capricious because decisionmaking process of informal adjudication lacked adequate procedural safeguards. At most, Overton Park suggested that the requirement that agency action not be arbitrary and capricious imposes a general procedural courts to evaluate the agencys rationale at the time of the decision. In this case, unlike in Overton Park, the court did not suggest that the administrative record was inadequate to enable the court did not suggest that the administrative record was inadequate to enable the court to fulfill its duties under Section 706.

Withrow v. Larkin (1975) *308*Facts: Examining board (state agency) investigates for alleged malfeasance of MI doctorConsequences: revocation of license.Board starts the investigation, same body that is making the adjudication.MI doctor: pre-termination hearing before board, but no opportunity to cross examine witnesses.ISSUE: Whether combo of investigative and adjuciation can create an unconstitutional risk of bias? Impermissible unconstitutional bias?Rule: combination of investigative and adjudicative functions (same agency) does not, without more, violate due process.Holding: procedure does not violate the APAdue process of law.Rationale: Without bad faith, current processes are considered to be ok.Practical considerations: agency, presumption of honesty and integrityAgency investigatedissued findings and conclusions asserting commission of certain acts and ultimately concluding there was PC to believe the appellee violated the statutes. The risk of bias and prejudgment was not intolerably high. Initial determination of PC and ultimate adjudication have different purposes.Extra Discussion: You need structural weakness/bias + something more (prior work history, or bad letter)

Nash v. Bowen (1989) *318*Facts: SSA judges deciding disability casesHHS protocols/guidelines to address backlog of over 100,000 cases.Alleged unlawful practices1) peer review program: directed office hearings/appeals to review decisions of ALJs outside of the usual appeals procedure.(because of the need for more accurate decisions/interdecisional inconsistency)2) monthly production quotas: requires ALJ to render a specified # of decisions per month.3) quality assurance system: control the # of ALJ decisions reversing previous state-level determinations declining to award benefits.Holding: whatever concerns there are about soundness of HHS practice regarding reversal rates. More appropriately addressed by congress or courts through the usual channels of judicial review in SS cases.Court upholds three programs

Judicial review of agency adjudicationsAdjudication (Londoner)Rulemaking (Bimetallic)Questions of adjudicative fact/legislative fact*legislative fact=broader interpretation (i.e. data, science, legislative determinations)*adjudicative fact=individual, smaller group of people, more narrow issue

Universal Camera Corp. v. NLRB (1951) *324* (SE test for review of agency factual conclusions in formal proceedings)ISSUE: for purposes of substantial evidence test, what sort of record does the agency have to look at for it to be sustained under the SE test.Holding: agency and court must consider the entire record (all facts and evidence), predated decisions, reviewing court needs to consider whether the boards decision is supported by substantial evidence.Takeaway: reviewing court is not barred from setting aside a board decision when it cannot conscientiously find that the evidence supporting that decision is substantial, WHEN VIEWED IN THE LIGHT THAT THE RECORD IN ITS ENTIRETY FURNISHES, INCLUDING THE BODY OF EVIDENCE OPPOSED TO THE BOARDS VIEW.Discussion: 706(2)(E) substantial evidence test: relevant evidence as a reasonable mind might accept as adequate to support a conclusion.*deferential to agency, odds against you if you are the plaintiff.If theres failure of procedure (normalcy), court may be able to step in.If its supported by substantial evidence, court cant step into shoes of agency.706 standards=highly deferential.AC (catch all standard): not supported by substantial evidenceRichardson v. Perales (1971) *329*Facts: truckdriver, claims hes disabled, entitled to disability benefits, provided evidence in front of ALJSSA provided report by doctor who had already examined truck driver, but was not physically there at hearingTruckdriver docs refutes evidence of docs not there.ISSUE: WHETHER DOCTORS WRITTEN REPORTS OF MEDICAL EXAMINATIONS THEY HAVE MADE OF A DISABILITY CLAIMANT IS SUBSTANTIAL EVIDENCE SUPPORTIVE OF A FINDING OF NONDISABILITY, WITHIN THE SSA 205(g) STANDARD, WHEN THE CLAIMANT OBJECTS TO THE ADMISSIBILITY OF THOSE REPORTS AND WHEN THE ONLY LIVE TESTIMONY IS PRESENTED BY HIS SIDE AND IS CONTRARY TO THE REPORTS.Holding: No. agency evidence is supported by substantial evidence.*reliable hearsay can constitute substantial evidence.Reliable hearsay: doctor/report based on data/science can be used as substantial evidence. ALJs have subpoena power to have witnesses appear. Truck driver did not subpoena to bring in witnesses---Discussion: In practice, SE less deferential than AC test.

556&557 questions wont be asked on exam!!***

ADAPSO v. Board of Governors of the Federal Reserve System (D.C. Cir. 1984) *337* FORMAL ADJUDICATION + INFORMAL RULEMAKINGFacts: ADAPSO challenges 706(2)(E) review. (substantial evidence standard)City Corp. wants 706(2)(E) for adjudication, AC for the informal rulemaking. Formal adjudication: allow city court to take part in data processing services.ISSUE: What is the standard of review for a commingled challenge of a formal adjudication + informal rule making.Holding: in commingled state, it doesnt really matter. Substantial evidence=Arbitrary & Capricious standards.Requirement of factual support for the substantial evidence test and the arbitrary or capricious test are one and the same.Substantial evidence test is a specific application of the AC test. Rules LegislativeNon legislative(statutes, congressional authorization)(interpretive rules, policy Statements, procedural rules)not legally enforceable against thepublic

APA=3 step process for adopting a rule=>notice and comment rulemaking1) issue notice of proposed rulemaking2) get comments on proposals from interested members of the public3) publish final rule with accompanying statements of its basis and purposeNational Petroleum Refiners Assn v. FTC (1974) *347*Facts: FTC imposes a rule prohibiting the sale of gasoline without posting the octane content of the gasoline.ISSUE: WHETHER THE COMMISSION HAS POWER UNDER STATUTE TO ISSUE LEGISLATIVE/SUBSTANTIVE RULE.Holding: Yes. Agency can engage in substantive rulemaking. Even though legislative history of section 5 and section 6(g) is ambiguous doesnt compel court to reach a different conclusionbroad view.Rationale: practical considerations--substantive rulemaking gives agency invaluable resource-saving flexibility in carrying out its task of regulating parties subject to its statutory mandate. More than merely expediting the agencys job, use of substantive rule-making yields significant benefits to those the agency regulates. Use of rule-making makes innovations in agency policy may actually be fairer to regulated parties than total reliance on case-by-case adjudication.

Heckler v. Campbell (1983) *355*Facts: secretary of HHS relies on published medical vocational guidelines to determine whether people are qualified to get SS benefits.Standard: 1) claimaints present job qualifications (specific to actual complaint/candidate)2) consider whether jobs exist in the national economy that a person having the claimants qualifications could perform.ISSUE: WHETHER THE PROMULGATED REGULATIONS EXCEEDED THE SECRETARYS STATUTORY AUTHORITY AND WHETHER THEY ARE ARBITRARY AND CAPRICIOUS.Holding: Secretarys use of medical-vocational guidelines does not conflict with the statute (Social Security Act), and is not arbitrary and capricious.Rationale: practical considerations. Published guidelines=uniformityTo require the secretary to relitigate the existence of jobs in the national economy at each hearing would needlessly hinder an already overburdened agency. Statute expressly entrusts Secretary with the responsibility for implementing a provision by regulation.

Bowen v. Yuckert (1987) *359*Facts: Yuckert applies for SS benefits, denied benefits. WA Dept. of Social and Health services---shes not disabled.Secretary of HHS---Five step process to determine whether a person is disabled:Mitigating factors: age, education, work experience.Holding: Language of the act + legislative history (ultimate goal of statute) support secretary of HHS discretion to require disability requirements to make a threshold showing that their medically determinable impairments are severe enough to satisfy the regulatory standards.Rationale: practical considerations-Uniformity and efficiency. Congress has conferred exceptionally broad authority to the Secretary to prescribe standards for applying certain sections of the Act.

Yetman v. Garvey (7th Cir. 2001) *364*Facts: FAA Age 60 rule=cant fly a plane if you are 6069 pilots approaching 60 or 60 wanted to be exempted from the rule.Scientific tests (FAA gauges) to determine whether they can safely fly a planeFAA determined no tests exist that can adequately meet the high standard necessary to render an approval for the age 60 rule. Pilots argument: we passed new technology test.FAA argument: flaws in the pilots testerror for the age 60 exemption panel to examine pilots scores in relation to pilots age 50-70--purpose of the test is to determine pilots absolute level of ability in relation to the total population of pilots. FAA does not grant exemptionHolding: agency is correct to dismiss the age 60 exemption panels reliance on the test.Rationale: weakness of pilots test---no evidence in research literature that enables FAA to establish a score/set of scores to identify when a pilot is incapable of safely operating an aircraft. No evidence test gives appropriate set of cognitive/psychomotor measures for making prediction. Limited empirical info that test can serve as clinical tool to adequately determine whether a pilot has brain damage..test loses predictive value when benchmark is taking the exam rather than getting a minimum score.

SEC v. Chenery Corp. (Chenery II) (1947) *371*Facts: Chenery I holding: reorganization order of the SEC could not be sustained on the grounds on which the agency acted. On remand, SEC reexamines problem and reaches the same result. (substantive decision in adjudicatory processagency explained reasons with clarity and thoroughness underlying basis of order.) This case examined whether the Commissions action was proper in light of the principles established in the Courts prior decision.Fundamental rule of administrative law: reviewing court: effect that reviewing court dealing with a determination or judgment which an administrative agency alone is authorized to make, must judge the appropriateness of such action solely by the grounds invoked by the agency.If those grounds are inadequate/improper, the court is powerless to affirm the administrative action by substituting what it considers to be a more adequate or proper basis. To do so would propel the court into the domain which Congress has set aside exclusively for the administrative agency. (separation of powers) Courts may review agency adjudications solely on the grounds invoked by the agency. If agency did not invoke grounds, court may not/cannot review that. (separation of powers)If the administrative action is to be tested by the basis upon which it purports to rest, that basis must be clear and understandable.Failure of the agency to anticipate problem and promulgate general rule, that does not mean the agency does not have power to perform statutory duty. To hold commissions have no alternative, would stultify the (agencies legislative function) administrative process. SCOTUS refuses to do so-deference to agency.Agencies cant always be expected to make prospective rules.Holding: Agencies have the discretion to announce substantive rules through adjudication.Discussion: legislative (article I) function delegated to executive branch (article ii) to perform. And article iii loathe to review that legislative function of the executive branch.Court needs the entire agency record=what decision means---- before the court can determine whether it is right or wrong.Constant tension between I, ii, iiiI. Congress (has conferred some of its authority to agencies to fulfill an article I function) Agencies in between article I and article II (executive agencies closer to article II) Commissions have more independence than agencies (POTUS appoints), terms, equal amount of seats on commission.II. ExecutiveIII. JudiciaryCourts hesitant/should not do that between executive and judiciary. Court views what agency does (II) through the APA (esp. 553 Rulemaking (b) + (c))Procedural: due processSubstantive review: is the rule appropriate (did congress explicitly give agency the authority to promulgate?) Max. More deference (chevron deference) Min. Less deference: i.e. agency interpreting statute w/out force of law (skidmore deference)Extra Discussion: Adjudications: retrospective and retroactive---present and the past Rulemaking by adjudication: it must have retroactive effect for adjudicated party. (present point lookingbackwards) but forward looking in its nature. Rules promulgated through rulemaking process (notice and comment 553 554 those are prospective forward looking)General belief: rulemaking preferred to adjudication. (case on page 349)

Bowen v. Georgetown University Hospital (1988) *381* (whether a reg may be retroactive)Facts: Medicare program: govt reimburses-medicare health care providersserve medicare beneficiaries.secretary wants to exclude wages paid by federal government hospitals from cost-limit schedule.Agency promulgated rule did not follow procedure, struck down. But the agency through 2nd round was properly promulgated (notice and comment rulemaking) indicates rule has a retroactive application.Secretarys argument: Medicare Act gives necessary authority to promulgate retroactive cost-limit rules. SCOTUS: applies to case by case adjudication. Retroactivity provided, but theres judicial reluctance, retroactive applied on adjudicatory basis to correct errors. Even if power is limited, judicial invalidation of a prospective rule is a unique occurrence that creates a heightened need and thus a justification, for retroactive curative rulemaking.ISSUE: Whether the secretary can use rulemaking to promulgate a rule that has a retroactive effect. medicare act authorizes retroactive rulemaking?Rule: agency cannot use the APA rulemaking process to issue a rule that has any retroactive effect except in the rare case in which Congress has explicitly authorized an agency to issue retroactive rules.Holding: Under Medicare Act secretary doesnt have authority to promulgate retroactive cost-limit rules.Rationale: axiomatic=administrative agencys power to promulgate legislative regulations is limited to the authority delegated by Congress. Retroactivity has to be expressly stated.Discussion:Canons of statutory construction= what does the statute state? Headings? What is the context of statute in broader legislative scheme? What is the congressional intent?Why might agency want retroactive? Takes long time for rules to take effect. Administration change? You have new POTUS who runs on particular decision.Retroactive application of rules desirable if its a fast paced environment. (i.e. tech)Agencies hamstrung from notice and comment rulemaking, easier to apply rules through adjudication.

APA Rulemaking Procedures

United States v. Florida East Coast Ry. Co. (1973) *389*Facts: two railroad companies want to set aside the incentive per diem rates established by the Interstate Commerce Commission in a rulemaking proceeding.APA Requirements to issue legislative rules:1) publish notice of the proposed rulemaking in the Fed Register2) offer all interested persons the opportunity to comment on the proposed rule AND3) publish the final rule in the Fed Register, with concise statement of the rules basis and purpose.Holding: in situation where the Commission was acting under the 1966 statutory rulemaking that congress conferred upon it, did not by its own force require the Commission either to hear oral testimony, to permit cross-exam of Commission witnesses, or to hear oral argument.Discussion: makes formal rulemaking extinct-Agencies engaged in informal rulemaking after this case.Formal can still exist if particular language in organic statute on the recordAgency can use aspects of formal rulemaking as it deems necessary.Formal rulemaking=trial like process (i.e. discovery, declinetime consuming and expensive)

EVOLUTION OF INFORMAL RULEMAKING Before Abbotts: rule has to be final, agency action that results in application of the rule== then it can be challenged in article II courts. Abbott labs case: Whether rule is ripe for review. New test to determine whether a rule is ripe for review: 1) issues raised by the petition for review are susceptible to judicial resolution prior to the application of the rule in an enforcement proceeding AND 2) the petitioner would be subject to hardship as a result of deferral of review.

Vermont Yankee Nuclear Power Corp. v. NRDC (1978) *396* INFORMAL RULEMAKINGFacts: Waste management wants review of EPAs regulations that establish informal procedures for administrative hearings---issuing corrective action under statute. Informal rulemaking: agency adopts certain indicia of formality beyond notice and comment would require. Agency did more than informal rulemaking---strong public interest (did in own discretion---cant review this) after mandatory adjudicatory hearing+ necessary review, commission grants Vermont yankee permit to build a nuclear power plant.NRDC Objecting to granting of operating license.ISSUE: WAS THE AGENCY REQUIRED TO CONDUCT FORMAL HEARINGS UNDER STATUTE?Holding: No. SCOTUS strikes down judicial imposition of more procedural requirements beyond APA review. limitation/maximum that agencies must do. Cant enforce more than the maximum the statute requires.Rationale: agencies are free to grant additional procedural rights in the exercise of their discretion (like here), but reviewing courts are generally not free to impose them if the agencies dont want to.Beyond APA, formulation of procedures left within the discretion of the agencieslegislative function conferred to agencies.-->administrative agencies more familiar than congress with the regulated industry, better position to design procedural rules adapted to peculiarities of the industry and the tasks of the involved agencies. Interdecisional decision making=interdecisional consistencyPost hoc rationalizations=beyond administrative scope of agencies, dangerous for courts to post hoc rationalize what an agency is doing. What was before agency at the time of decision (narrow scope that APA provides)Court can get involved in standard of review because thats judicial (i.e. substantial evidence/arbitrary and capricious)Agency regs---reasonable interpretation of an ambiguous statutory provision & not on face inconsistent w/requirement of due process.

Shell Oil Co. v. EPA (D.C. Cir. 1991) *403*Facts: Petitioners challenge substantive as well as procedural rules of EPAEPA failed to provide adequate notice, exceeded statutory authorityTwo rules:1) Mixture rule: classifies hazardous waste any mixture of a listed hazardous waste w/any other solid waste2) Derived-from rule: classifies any residue derived from the treatment of hazardous waste.Holding: 1) Notice was inadequate and the court employed logical outgrowth standard to apply that conclusion=was notice the logical outgrowth in the final rulemaking, under 553b.Comment by someone else (not agency) not sufficient basis to provide notice for agency to file If it is not foreseeable=not a logical outgrowth2) Regulated party comments cannot themselves offer adequate notice, and that challenging parties do not have to show they were prejudiced by lack of notice to bring a procedural action of that basis.Rationale: even if rules were anticipated, public comments are not adequate notice. Final rules are different from proposed rules. Agency failed to comply with notice and comment requirements, agency did not offer any persuasive evidence that possible objections to its final rules have been given sufficient consideration.

Portland Cement Assn v. Ruckelshaus (D.C. Cir. 1973) *409*Facts: EPApromulgates standards for new or modified Portland cement plans.Portland cement plans contributes to air pollution.ISSUE: WHETHER AGENCIES HAVE TO RELEASE DATA/BASIS FOR WHICH THEY ARE APPLYING THEIR METHODOLOGIES FOR THEIR RULES.Rule: agencies are required to disclose the data on which they rely in promulgating legislative rules.Holding: not agreeable with purpose of rule-making proceeding to promulgate rules on the basis of inadequate data, or on data that, to a critical degree is known only to the agency.Rationale: after agency gives required noticeinterested people should be given an opportunity to submit written data, views, or arguments (APA 553 (c) Rulemaking)Practical considerationsFairness, concepts behind due process

American Radio Relay League, Inc. v. FCC (D.C. Cir. 2008) *413*Facts: License amateur radio operators objects to 2 FCC orders---regulating the use of radio spectrumISSUE: WHETHER THE FCC FAILED TO SATISFY THE NOTICE AND COMMENT REQUIREMENTS OF THE APA BY 1) REDACTING STUDIES ON WHICH IT RELIED ON PROMULGATING THE RULE AND 2) FAILED TO PROVIDE A REASONED EXPLANATION FOR ITS CHOICE OF THE EXTRAPOLATION FACTOR FOR MEASUING ACCESS BPL EMISSIONS.Holding: remand, FCC has to make notice and comment of unredacted technical studies and data that it has employed in reaching its decisions and make it part of the rulemaking record.Studies upon which an agency relies in promulgating a rule must be made available during the rulemaking in order to give interested persons meaningful notice and an opportunity to comment.Rationale: Whole record has to be provided or the court cant get to it. You cant cherry pick data. Full disclosure is essential for meaningful participation.Why info should be provided: APA notice and comment requirements=technical studies and data that an agency relies on its rulemaking must be revealed for public evaluation. Staff reports should be disclosed so parties know what info the agency relied onto determine if there is erroneous info or where agency maybe drawing improper conclusions from it.Discussion: CONGRESS RULEMAKING---STATUES (BY FINDING LEGISLATIVE FACTS)ISSUES=BROADBAND, NUCLEAR WASTE, (CONGRESS NOT SUITABLE TO DECIDE AND DELEGATES THIS POWER T OTHE EXECUTIVE BRANCH)NOTICE AND COMMENT REQUIREMENT=CONGRESS WANTS EDUCATED PUBLIC TO PROVIDE MENAINING COMMENT TO KEEP AGENCIES ACCURATE AND FUNCTIONAL. United States v. Nova Scotia Food Products Corp. (2d Cir. 1977) *420*Facts: FDA issues reg to prevent botulism-TTS requirements on all species of fish.Nova Scotia (seller of smoked whitefish refuses to comply) Heating certain types of fish at high temps destroys product.Rule: APA Section 553 requires that agencies issue a concise general statement, which was inadequate in this case. When the basis for a proposed rule is a scientific decision, the scientific material believed to support the rule should be exposed to the view of interested parties for their comment.Holding: regulation was invalid. Commissioner failed to notify the interested parties of the scientific research upon which it was relying in its proposal; failed to address the Bureaus suggested alternative; and failed to answer the comment that the proposed TTS requirements would destroy whitefish.agency needs to respond to all significant comments.Discussion: this requirement reflects tradeoff between thoroughness and efficiency in the rulemaking process.Cons of requirement=consuming time and limited agency resources.

Motor Vehicle Manufacturers Assn of U.S., Inc. v. State Farm Mutual Auto. Insurance Co. (1983) *488*Facts: car accident death concerns NHTSA invokes rules and revocation.Agencys reasons for rescission:1) High Economic cost2) no one would use the seatbelts3) restraints might have an adverse effect on the public attitude toward safety.---ineffective regulation.Court applies 706(2)(a) of APA=agencys action set aside if found to be arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.ISSUE: WHETHER NHTSAS RESCISSION OF THE PASSIVE RESTRAINT REQUIREMENT OF STANDARD 208 WAS ARBITRARY AND CAPRICIOUS.Holding: Yes. Agency failed to present an adequate basis and explanation for rescinding the passive restraint requirement. Agency should have further considered the issue. Rationale: alternative-amend standardsAgency was too quick to dismiss the safety benefits of auto seatbelts.Agency should have looked at alternative way of achieving the objectives of the Act and adequate reasons should have been given for its abandonment. Failed to discuss airbag-only alternative.AC TEST/FACTORS (HARD LOOK STANDARD) *493* arbitrary and capricious standard is narrow Agency must examine relevant data and articulate a satisfactory explanation for its action including a rational connection between the facts found and the choice made. Some rational connection between facts and conclusion based on those facts. If you do that you are not acting A & C. Reviewing application=consider whether the decision was based on a consideration of the relevant factors and whether there has been a clear error of judgment. Findings of fact=clear error Reviewing court cant make up for deficiencies, you have to rely on what the agency says Agency rule would be A & C: if agency relied on factors which Congress has not intended it to consider, entirely failed to consider an important aspect of the problem, offered an explanation for its decision that runs counter to the evidence before the agency, or is so implausible that it could not be ascribed to a difference in view or the product of agency expertise. Discussion: court does more than identify glaring omission.Concurrence=reasonable basis, even though agencys basis is weak it is reasonable. Different leadership.Dissent=powerful tension on how hard look goes on A & C testFailure to consider relevant fact (airbags are still good) or particular consequence can lead to reveal violation of A & C standards.Seat belt component-closer towards shoes of the agency. Practical considerations (majority, concurrence and dissent)=separation of powers (ok for new secretary under new administration to make decisions).Rescission, amendment, modification of regulations----test is A & C

PRESIDENTIAL LIMITS IN RULEMAKING/BIAS IN RULEMAKING/EXCEPTIONS FROM RULEMAKING PROCESS/JR OF RULEMAKINGSierra Club v. Costle (D.C. Cir. 1981) *435*Facts: Informal rulemakingEPA revises regulationsstandards for governing emission control by coal burning power plants.Post comment period---EPA exparte communication with govt officials (president, executive branch)Environmental groups challenge standards ISSUE: Whether decision is A & C.2part test for overturning administrative rulemaking based on congressional pressure:1) Content of the pressure upon the secretary is designed to force him to decide upon factors not made relevant by Congress in the applicable statute.2) Secretarys determination must be affected by those extraneous considerations.If pressure from congress is consistent with statute (no big deal)But if you look at debate history/committee reports, the particular entity wanted something in the statute but didnt make it--- you get to step 2 of test.Was secretarys determination affected by extraneous considerations/did this actually affect what happened?Holding: EPA did not exceed its statutory authority under the Clean Air Act in promulgating the NSPS.Rationale: EPA working under clean air act (written by Congress), Basis notions of due processSeparation of powers=a judicially imposed blanket requirement that all post-comment period oral communications be docketed would---contravene our limited powers of review would stifle desirable experimentation in the area by Congress and the agenciesunnecessary for achieving the goal of an established, procedure-defined docket, to enable reviewing courts to fully evaluate the stated justification given by the agency for its final rule.EPA did not base rule on any information or data arising between the meeting between POTUS and EPA officials.Back off, dont overanalyze.

Association of National Advertisers v. FTC (D.C. Cir. 1979) *444*Facts: RulemakingAssn of National Advertisers want to stop the FTC Chairman from participating in pending rulemaking proceeding having to do with childrens advertising.Notice and commentFTC chairman should recuse himself from taking part in the childrens advertising inquiry.Rule: clear and convincing showing/standard that person alleged to have committed the bias has an unalterably closed mind on matters critical to the rulemaking. Extremely deferential test Demonstrate preordination (hell bent) to frustrate notice and comment process on its face (violates 553b & c)=sufficient bias to cause recusal.Rationale: chairmans remarks (discussion/advocacyCommissions jurisdiction over childrens advertising). Mere discussion of policy or advocacy on a legal questionnot enough to disqualify administrator. Legitimatee functions of policymakerinterchange and discussion of important issues. Dont have to be neutral and detached like judges.Discussion:Adjudicative v. legislative facts*legislative facts: helps court determine content of law and policy, exercise its judgment or discretion in determining what course of action to take. Important to predict future events & evaluating certain risks.Does not require hearing*adjudicative facts: hearing required.

JUDICIAL REVIEW OF RULEMAKING/JUDICIAL REVIEW OF AGENCY STATUTORY INTERPRETATIONSFCC v. Fox Television Stations, Inc. (2009) *499*Facts: Fox broadcasts*Cher-fuck em*Bono-FwordFCC changes its indecency policy from allowing a single fleeting use of expletive to no such exception.FCCs full Commission finds F-word to be indecent.*concerned about widespread use.*technology makes it easier to delete/bleep it out.Cant use itRule: HARD LOOK REVIEW/CHANGES IN AGENCY POLICY 3-PART TEST: *511*1) new policy allowed under statute2) good reasons for new policy3) agency believes its better, which the conscious change of course adequately indicates.Holding: FCCs new enforcement policy and order (broadcasts actionably incent) is not arbitrary or capricious.Rationale: Agency doesnt have to satisfy court that the reasons for the new policy are BETTER than reasons for old one.Enough:1) Commission acknowledged recent actions have broken new groundinconsistent prior Commission and staff action & explicitly disavowing them as no longer good law. (explanation for changing course)2) agencys reasons for expanding the scope of its enforcement activity were entirely rational. (no sense to draw a line between literal v. nonliteral use of offensive words.)Discussion: State farm applies arbitrary and capricious standard-rule, rule rescission, etc. State farm having to explain everything has been narrowed.Majority: special circumstances that merit state farm line of questioning are not present here.Dissent: those circumstances are here.*EXAM ALERT *502* factual and practical considerations.

NLRB v. Hearst Publications (1944) *520* (no longer good law, supplanted by Chevron)Hearst Publications, Inc. (Respondents), the publishers of four daily Los Angeles, California newspapers, refused to collectively bargain with a city union representing newsboys, claiming the it was not required to because the newsboys were not their employees within the meaning of the National Labor Relations Act (Act).Standard: deference if the 1) warrant in the record & 2) reasonable basis in law.Holding: Newsboys employees under acts meaning. Board found newsboys worked continuously and regularly, relied on earnings to support their families. Hours supervised, prescribed by publishers/agents. Record sustained boards findings and ample basis in the law for conclusion.Discussion: question is one of specific application of a broad statutory term---proceeding in which the agency administering the statute must determine it initially, the reviewing courts function is limited.

Skidmore v. Swift & Co. (1944) *526* (catch all deference=lowest of the deferences)Facts: packing plant employees sue company--overtime, liquidated damages, attorneys feesOvertime=only get paid when they are on call (alarm)Only if something happened=>paidISSUE: Are they employees under FLSA when they are working OT?Holding: Nothing in the Fair Labor Standards Act/Statue or SCOTUS decisions prevent waiting time from being considered working time.What degree of formality did agency do? Labor Dept. Administrator===bulletin endeavors---suggest standards and examples to guide in particular situations.Deference standard=(things that inform courts analysis)1) thoroughness evident in its consideration,2) the validity of its reasoning, 3) its consistency with earlier and later pronouncements, and 4) all those factors which give it power to persuade, if lacking power to control.*can the agency persuade the court? Does the court agree with the agency?(In practice: De novo review cloaked in deference)BOTH AGENCY AJDUCATIONS AND RULE MAKING (COMES DOWN TO INTERPRETATION)DISCUSSION: POLICY BULLETIN (NOT SPEAKING WITH FORCE OF LAW, MORE OF A POLICY CONSIDERATION, NOT A SUBSTANTIVE RULE)

Chevron U.S.A. Inc. v. National Resources Defense Council, Inc. (1984) *535*---bright line rule (help cure inter-decisional inconsistencies)Facts: EPA uses general rulemaking authority to define an unclear statutory term sourcePlant-wide definition of the term stationary source.Permit system: you cant build X until you achieve outcome Y. (granting of permits)NRDC upsetEPA arguments=1) definitional issue not squarely addressed in either the statute or its legislative historyinconsistent with explicit language of statuteRule: 1) has congress spoken on issue or is it silent?courts interpret (whether congress has spoken on the issue)=applying traditional tools of statutory construction.2) if statute is silent/ambiguous--- is agency interpretation reasonable/based on permissible construction of the statute? *court has to defer to agency A REASONABLE CONSTRUCTIONHolding: Congress did not have a specific intention---EPA has a reasonable explanationregs serve environmental objectionsdeference.The judiciary is the final authority on issues of statutory construction and must reject administrative constructions which are contrary to clear congressional intent. If a court, employing TRADITIONAL TOOLS OF STATUTORY CONSTRUCTION ascertains that Congress had an intention on the precise question at issue, that intention is the law and must be given effect.Rationale:Justifications for doctrine of strong judicial deference for agency legal interpretations: congressional delegation, superior agency expertise, greater democratic accountability of the executive branch, inter-decisional consistency.Silence is intentional/statute=construed as intentional authority/delegation of power to the agency (that can be implicit or explicit)*administrator shall promulgate/adjudicate=explicit authorizationAgency appropriate/expertise to fill in the gaps. *Technical/scientific/societal/practical considerations.Separation of powers=not courts role, to step into the shoes of agencies once it engages in reasonable statutory interpretation of delegated gaps.EXAM ALERTPractical considerations important!!=policy considerations=bottom of page 541

JR OF AGENCY STATUTORY INTERPRETATIONS/JR OF AGENCY INTERPRETATIONS OF RULESChevron Counter-Revolution

Christensen v. Harris County (2000) *614*Facts: group of county sheriffs agree to accept compensatory time instead of cash for working overtime.County looks for way to reduce accumulated compensatory timewrites US Depart of Labors Wage and Hour DivisionCounty implements policy after getting opinion letter from dept. of labor---employees supervisor sets a max # of compensatory hours that may be accumulated.Agency interpretation of its organic statute=opinion letter (section 207(o)(5))Solicitor general writes an amicus brief to SCOTUS (others who signed=Solicitor of Labor=this wage and hour division letter is really important).Government argues for Chevron deferenceRule: only agency interpretations advanced in formats that carry the force of law are eligible for Chevron deferenceHolding: FLSA does not prohibit the county from adopting its policy---forcing employees to utilize their compensatory time.Rationale: opinion letter is not a formal adjudication or notice and comment rulemakingNo pronouncement of interpretation of a statute with enough force of law to get us to Chevron so lesser step of Skidmore applies. Insufficient formality.Statute is silent on compensatory time.---Harris county can force employees to use comp time.Discussion:Not formal adjudication and not notice and comment rulemakingAgencies interpretation of a statue to determine its own jurisdiction, is also subject to chevron deference as long as it meets the chevron and mead standard.Third requirement to Chevron (prerequisite to application of Chevron deference)=Step zero, you have to pass this to get to Chevron=If it doesnt carry the force of law, Chevron Def. doesnt apply.Skidmore--------------------------force of law--------------------------------Chevron (agency interpretation of statute)(persuasive/some deference)or notice/ comment rulemaking on its face*look at congressional intent

United States v. Mead Corp. (2001) *621*Facts: US Customs Service rules on tariff classificationRuling letters set tariff classifications for particular importsMead reclassified=subject to tariff of 4.0%ISSUE: WHETHER A TARIFF CLASSIFICATION RULING BY THE US CUSTOMS SERVICE DESERVES JUDICIAL DEFERENCE?Holding: administrative implementation of a particular statutory provision qualifies for Chevron deference when it appears that Congress delegated authority to the agency generally to make rules carrying the force of law, and that the agency interpretation claiming deference was promulgated in the exercise of that authorityDelegation of authority: agencys power to engage in adjudication or notice and comment rulemaking or by some other indication of a comparable congressional intent.Customs ruling does not carry the force of law. Skidmore applies, not Chevron.Rationale: no indication Congress intended the tariff ruling letters carry the force of law.Reasons to deny chevron deference:*authorization for classification rulings, and Customs practice in making them, far removed fromNotice and comment rulemaking process, any other circumstances reasonably suggesting Congress everThought of classification rulings as deserving the deference claimed for them here.*face of statute, terms of the congressional delegation give no indication that congress meant to delegateAuthority to Customs to issue classification rulings with the force of law.Discussion:Policy interpretation or informal adjudication hereChristensen: whether pronouncement is with the force of law. If its not, you are not entitled to chevron=holdingMead: did congress give agency a ruling to carry the force of law.Did agency exercise that authority in adopting the rule at issue?Theres needs to be a legislative rule!!! Indication: Doesnt require notice and comment rulemaking=congress did not intend agency to promulgate with force of law=page 388Have to connect statute to actual authority given to the agency----in an authoritative manner. If you get a cut=you dont get to chevron, but skidmore.

REVIEWABILITY OF AGENCY ACTIONS AND INTERACTIONS (details important)

National Cable & Telecomm. Assn v. Brand X Internet Services (2005) *634*Facts: FCC issues order---rulemaking---wants to classify cable companies that offer broadband internet service as info service, not telecommunications servicenot subject to mandatory Title II common carrier reg.ISSUE: WHETHER FCC ORDER IS LAWFUL INTERPRETATION OF THE COMMUNICATIONS ACT UNDER CHEVRON AND APA. WHETHER CHEVRON SHOULD BE APPLIED TO FCCS INTERPRETATION OF TELECOMMUNICATIONS SERVICE.courts interpretation of a statute trumps agencys under stare decisis, only if the prior court holding determined a statutes clear meaning. (statute unambiguously requires the courts construction).Holding: FCC order is lawful. Chevron applies.Rationale: statute did not unambiguously resolve the matter, FCC interpretation was reasonable, gave reasoned explanation supporting policy. Stare decisis trumps agency interpretation otherwise entitled to chevron def. only if the prior court decision holds that its construction follows from the unambiguous terms of the statute (no gaps for agency to fill)---leaves no room for agency discretion/displaces a conflicting agency construction.EXAM ALERT!!* explaining why chevron is important on page 637De Novomore def. (w/in reason)Skidmore ------[ ------ChevronChristensen/MeadStep O

Auer/Seminole Rock

Gonzales v. Oregon (2006) *647* (parroting regulation)Facts: State of Oregon (doc, pharmacist, some terminally ill patients) challenge AGs interpretive rule (that using drugs for doc-assisted suicide violates CSA)ISSUE: WHETHER THE AGS INTERPRETIVE RULE (USING CONTROLLED SUBSTANCES TO ASSIST SUICIDE IS NOT A LEGIT MEDICAL PURPOSE) IS VALID UNDER THE CSA.Rule: agency does not acquire special authority to interpret its own words when instead of using its expertise and experience to formulate a regulation, it has elected merely to paraphrase the statutory language.(Skidmore standard applied---relevant regulation merely reiterating statutory language)Holding: CSA does not give the AG authority to issue the interpretive rule as a statement with the force of law. CSA does not prohibit physician-assisted suicide.Interpretive Rule does not consider scheduling substances---not issued after the required procedures for rules regarding scheduling, so it cannot fall under the AGs control authority.Rationale: An administrative rule may get substantial deference if it interprets the issuing agencys own ambiguous regulation. An interpretation of an ambiguous statute may also get substantial deference.Chevron deference is warranted only when it appears congress delegated authority to the agency generally to make rules carrying the force of law.Force of law=comes from ChristensenAgency interpretation claiming =Mead partOtherwise, interpretation entitled to respectonly to the extent it has the power to persuade.

HYPO:Statute is ambiguousReg is ambiguousMemo interprets both *interpretation of statute (skidmore deference)

Reg is ambiguous-chevron *you can run auer analysis*statute: skidmore Because it doesnt satisfy Christensen/mead/step o

REVIEWABILITY APA=basic presumption of Judicial Review.APA Section 701(a)APAs other judicial review provisions apply except to the extent that 1) statutes preclude judicial review; or2) agency action is committed to agency discretion by law.

Primary jurisdiction: what entity should be deciding this issue.

Johnson v. Robison (1974) *665*Facts: appellee=Robison-conscientious objectorfiles an application for educational assistance after he completed 2 years of alternative civilian service.Appellant=veterans administration & administrator of veterans affairs denies application for veterans educational benefits.Rule: questions of law surrounding proceedings that arise under the constitution does not bar judicial consideration of constitutional claims.Holding: Veterans Administrations allocating more educational benefits for combat veterans than conscientious objectors is consistent with the US Constitution.Giving different benefits for uniformed veterans and conscientious objectors does not violate equal protection or the free exercise clause.Discussion: Canon of Constitutional avoidance=when the court has a choice of interpreting one interpretation that implicates the constitution and the other does not, canon counsels avoidance-adopt non-constitutional interpretation.Claim is attacking the statute..Robison is not challenging the Administrators decision but rather Congress decision to create a statutory class that does not include I-O conscientious objectors who performed alternative civilian service among those entitled to benefits.

Califano v. Sanders (1977) *667*When constitutional questions are unsuited to resolution in administrative hearing proceduresaccess to the courts is essential to the decision of such questions.*court might read a statute as precluding judicial review of constitutional claims if congresss intent to foreclose review is manifested by clear and convincing evidence.

Block v. Community Nutrition Instituted (1984) *668* (statutory silence does NOT counsel judicial review)Facts: intense competition in milk production Act passed to controlauthorizes Secretary to issue milk marketing orders that set the min. prices that handler have to pay producers.Secretary of Agriculture issues milk market order.3 individual consumers of dairy products (handler, nonprofit) argue the order regulating the price of reconstituted milk made in uneconomical for handlers to process.Goal=market stabilityRule: Whether and to what extent a particular statute preclude judicial review is determined not only from its express language, but from the structure of its statutory scheme, its legislative history, and the nature of the administrative action involved. ISSUE: CAN THE DAIRY PRODUCT CONSUMERS GET JUDICIAL REVIEW OF MILK MARKET ORDERS ISSUED BY THE SECRETARY UNDDER THE AUTHORITY OF THE ACT?Holding: No. Clear from the act that Congress did not intend to strip the judiciary of all of its authority to review the Secretarys orders. Congress intent to limit judicial review of market orders to handlers and producers, Consumers not included.Rationale: letting consumer sue the Secretary would severely disrupt the complex and delicate administrative scheme. Would also make it convenient for handlers to evade the statutory requirement that they first exhaust their administrative remedies. Discussion:Presumption favoring judicial review of administration actionmay be overcome by specific language or specific legislative history that is a reliable indicator of congressional intent. inferred from contemporaneous judicial construction barring review and congressional acquiescence or from collective import of legislative and judicial history behind a statute. Overcome by inferences of intent drawn from the statutory scheme as a whole. Express preclusion=BowenImplied preclusion of judicial review: courts shall review only=stuff that congress intends to be reviewed.Abbott Laboratories v. Gardner (1967)Presumption in favor of reviewability of agency action can be rebutted by a showing of clear and Convincing evidence of a contrary legislative intent.Five sources of clear and convincing evidence: 1) specific statutory language, 2) specific legislativeHistory, 3) contemporaneous judicial construction followed by congressional acquiescence, 4) theCollective import of the legislative and judicial history of the statute, and 5) inferences of intent drawnFrom the statutory scheme as a whole.

Bowen v. Michigan Academy of Family Physicians (1986) *673* (statutory silence counsels judicial review)Facts: MI academy challenges validity of statute: authorizing the payment of benefits in different amounts for similar physicians services.Secretary argues statute allow for review.Rule: Court begins with strong presumption that Congress intends judicial review of administrative action. Presumption cannot be overcome without persuasive reason to believe that such was the purpose of Congress.Holding: careful analysis of statutory provisions and legislative history of Section 1395ff-Congress intended to bar judicial review only of determinations of the amount of benefits to be awarded under Part B. review of legislative history of SSA Section 405(h) and Code Section: 1395iiCongress intended to foreclose review only of amount determinations.Rationale: Court looks at congress intent (committees of both Houses of Congress endorsed, committee on the judiciary of the house of rep agreed that Congress ordinarily intends that there be judicial review)Discussion: take the deference part of it=Whether statute conveys jurisdictionPlain meaning (plain text), structure of the statute, context of the statute, what is the overall statutory intent, legislative history. *is this plain meaning consistent with the structure of the statute/what congress intended it to do.

Citizens to Preserve Overton Park, Inc. v. Volpe (1971) *680*Secretarys argument: not reviewable under 5 USC 701a(2)Holding: no indication congress sought to prohibit judicial review---no showing of clear and convincing evidence of a legislative intent to restrict access to judicial review.Law to apply thereexemption for action committed to agency discretion is not applicable.There needs to be law to apply, if theres no law to apply: no intelligible standard=non delegation doctrine.6/18/14 Timing of Judicial Review; Standing to Obtain Review

Webster v. Doe (1988) *689*Facts: great employee fired shortly after he tells a CIA security officer that he is gay. CIA director follows NSA act: security of US to terminate the employee.He sues the CIA director for violating 102(c) of the NSA Act. ISSUE: WHETHER THE CIA DIRECTORS TERMINATION DETERMINATION UNDER 102(c) IS JUDICIALLY REVIEWABLE.Rule: Under APA 701(a)(2), even when Congress has not affirmatively precluded judicial oversight, review is not to be had if the statute is drawn so that a court would have no meaningful standard against which to judge the agencys exercise of discretion. (Heckler v. Chaney) However, there is a heightened standard for congressional intent with respect to precluding constitutional claims: clear congressional intent must be demonstrated.Holding: language of Section 102(c) + overall structure of NSA strongly suggests implementation committed to agency discretion by law. Congress intended to give Director discretion to fire employees---701(a)(2) precludes judicial review of these employment decisions under the APA. Decisions of the CIA director to fire an employee are committed to the Directors unreviewable discretion within the meaning of APA 702(2)(A). Even though judicial review is precluded, 102(c) does not preclude consideration of colorable constitutional claims. (District Court may review constitutional claim based on individual discharge) *There is Reviewability of the final action, but not under the APA*Rationale: standard exudes deference to the DirectorForeclose application of any meaningful judicial standard of review.Directors responsibility to protect intel sources and methods from unauthorized disclosure.Agencys efficacy, nations security, depend on reliability and trustworthiness of the agencys employees.Side noteShall deem=can exude deference.Discussion: 701(a)(1) explicitly identifies a statute (statutes preclude judicial review) Act of congress/the text of the statute is the first place you look. Courts will then take a look at structure of the statute (where does this fall in placement of statute AND also the context (ultimate goal) of the statute) 701(a)(2) explicitly identifies agency determination committed to agency discretion by law. (BROADER) If its an adjudication (adjudicative facts= particularized in nature, looking backwards) Legislative facts (bigger questions committed to law) When the decision is vested in discretion by law, test=whether there is no meaningful standard!!!

Lincoln v. Vigil (1993) *702*Facts: Program helps out handicapped Indian children in the Southwest (one city, one state initially)Indian Health Service wanted to reallocatenationwide effort to help such children.Service decides to cancel its regional program to create a national programTest: courts cant review when the statute is drawn in a way that the court does not have a meaningful standard against which to judge the agencys exercise of discretion.Test for 701(a)(2) IS NO MEANINGFUL STANDARD!!!*Holding: Services decision to discontinue the program committed to agency discretion by lawNot subject to judicial review under APA Section 702(a)(2)Services exercise of that discretion is not subject to the notice-and-comment rulemaking requirements imposed by Section 553. Rationale: allocation of funds from a lump-sum appropriation is committed to agency discretion.Agency has to be able to change circumstances and meet statutory responsibilities.Practical considerationsagency better equipped than courts to deal with many variables involved in ordering its priorities.Factors that inform whether there is a standard: Judicial hesitation to get involved in executive function allocation of funds from a lump-sum appropriation is committed to agency discretion. (dont look at legislative history)Discussion: Constitutional claims are allowed, remand to the courts.Under 701(a)(2) discretion but for different reasons than Webster.Court trying to achieve interdecisional decisionmaking (context/framework to determine what is reviewable and what isnt)

Dunlop v. Bachowski (1975) *707*Facts: allegations of invalid election, Exhausted remedies with union, writes to DOL to report violationSecretary of Labor decides not to bring a civil action against the unionTest: courts review should be confined to examination of the reasons statement, and the determination whether the statement, without more, evinces that the Secretarys decision is so irrational as to constitute the decision arbitrary and capricious.Holding: Court of Appeals=reviewable under A & CSCOTUS*theres jurisdiction under statute to review*secretarys decision not to sue is not excepted from judicial review1) if statute relies on special knowledge and discretion of the Secretary for the determination of both the probable violation and the probable effect, reviewing court is not authorized to substitute its judgment for the decision of the Secretary not to bring suit2) therefore, to enable the reviewing court intelligently to review the Secretarys determination, Secretary must provide the court and complaining witness-- copies of a statement of reasons supporting his determination.Rationale: Not the courts job to step in the shoes of the administrator

Heckler v. Chaney (1985) *713* (the law: agency discretion under 701(a)2 failure to act or decision not to enact in enforcement action)Facts: prison inmates facing the death penalty by legal injection petition FDA*use of approved drugs for capitol punishment violates the Federal Food, Drug and Cosmetic Act*asks FDA take enforcement action to prevent violations.FDA refuses the request.ISSUE: WHETHER FDA HAS VIOLATED APA IN NOT LIMITING THESE UNAPPROVED USES OF APPROVED DRUGS.Rule: agencys decision not to take enforcement action should be presumed immune from judicial review under Section 701(a)(2)Whether Congress has provided law to apply if it has indicated an intent to circumscribe (define/limit/confine) agency enforcement discretion and has provided meaningful standards for defining the limits of that discretion=there is law to apply under 701 (a)(2)courts may require the agency to follow the law. If Congress has not indicated an intent to circumscribe agency enforcement discretion and provided meaningful standards for defining the limits of that discretion, then agencys refusal to institute proceedings is a decision committed to agency discretion by law within the meaning of the section.Holding: when an agency decides not to take enforcement actionthats immune from judicial review under Section 701(a)(2). FDAs decision not to take enforcement actions is not subject to judicial review under the APA. Rationale: reasons why its unsuitable for the judiciary to review agency decisions when they refuse to enforce: agency must determine whether a violation has occurred, where agency resources are best spent, whether the agency is likely to succeed if it acts, whether particular enforcement action requested best fits the agencys overall policies, whether agency has enough resources to act. Agency better equipped to deal with many variables involved in determining priorities. Generally, courts defer to agencys construction of the statute it is charged with implementing and to the procedures it adopts for implementing that statute.Footnote 4: circumstances where agency has consciously and expressly adopted a general policy that is so extreme as to amount to an abdication of its statutory responsibilities.extreme -indication decisions are not committed to agency discretion.Separation of powers *717*Discussion: Presumption: courts cant review a decision by an agency not to act.Presumption exists, but it can be overcome when theres extreme agency behavior. Presumptions rebuttable/Presumption of unreviewability of agency inaction can be rebutted by legislative rule that couples the language of command with a justiciable standard.

American Horse Protection Association, Inc. v. Lyng (D.C. Cir. 1987) *721*Facts: Practice of deliberating injuring show horses to improve performance.Congress wants to end this through Horse Protection Act*forbids the showing or selling of sored horses.Before filing suit, association petitioned secretary Holding: agencys refusal to initiate a rulemaking response to the petition for rulemaking was arbitrary and capricious because the agency had not complied with the duty to engage in reasoned decision making.Rationale: Refusal to institute rulemaking proceedings distinguishable from other sorts of nonenforcement decisions*less frequent*more apt to legal as opposed to factual analysis*subject to special formalities (including public explanation)*lesser burden on agency HYPO/Discussion:Hard look review (fox television modifies hard look)How would fox tv modify the state farm test for A &C hard look review as its applied to agency inaction to engage in rulemaking after a 553 e request and a 553 e response has been provided.*fox standard: change is better*not making regs is a better move and that is sufficient.*less penetrating, more profound=deference to agency

THE TIMING OF JUDICIAL REVIEWFINAL AGENCY ACTIONFranklin v. Massachusetts (1992) *728*Facts: Statute requires Secretary of Commerce to do population analysis every 10 years.Secretary has to deliver report to POTUSPOTUS issues a statement showing the # of people in each state1990 census/reapportionment---MA loses a seat in the House.MA challenges method used for counting federal employees serving overseas.ISSUE: WHETHER THE FINAL ACTION BEING CHALLENGED IS THAT OF AN AGENCY SUCH THAT THE FEDERAL COURTS MAY EXERCISE THEIR POWERS OF REVIEW UNDER THE APA.Test to determine when an agency action is final: whether its impact is sufficiently direct and immediate and has a direct effect onday-to-day business.Agency action is not final if it is only the ruling of a subordinate official, or tentative rather than indicia of finality.Holding: final action is that of the POTUS, President is not an agency under APA. Therefore, no final agency action can be reviewed under the APA standards. APA only applies to agencies, President is not an agency. Rationale: Section 2a of apportionment statute does not expressly require POTUS transmit an agencys report directly to Congress. Secretarys report (tentative recommendation, not final/binding, no direct consequences reapportionment. Separation of powers.POTUS role is not ceremonial/ministerial.Prez actions can still be reviewed for constitutionality but they are not reviewable for abuse of discretion under the APA

Dalton v. Specter(1994) *731*Facts: Prez wants to close the PA navy shipyardRespondents want to stop DOD Secretary from executing 1) procedural/substantive violations2) improper criteria to place certain info in the record until after the close of public hearings, closed meetings with Navy.Holding: judicial review is not available. Agency action is not final.Actions of the Secretary and the Commission cannot be reviewed under the APA because they are not final agency actions. Actions of the President cannot be reviewed under the APA because he is not an agency under the Act.Rationale: Reports submitted by the Secretary and the Commission is not final action under 704 because there is no direct consequence of the base closings.The action that will directly affect the military bases is taken by the POTUS, when he submits his certification of approval to Congress.Secretary and Commissions reports are more like a tentative recommendation than a final and binding determination.-----Ruling of subordinate official, not final and therefore not subject to review.

HYPO: after 45 days, commission may render a final determination (ultimate approval, not just a recommendation).

Bennett v. Spear (1997) *736* 5 US Code 704 (THE CASE for finality)Facts: ESA requires Secretary of the Interior to promulgate regulations listing species that are threatened or endangered under specified criteriabiological opinion (reasonable and prudent alternatives)Klamath project (irrigation project)Changing landscape of effected region*Service violated section 7 of the ESA*did not consider economic impact of ranchersRule: Two conditions must be satisfied for agency action to be final1) action must mark the consummation of the agencys decisionmaking process AND(cant be merely tentative or interlocutory nature)2) action must be one by which rights or obligations have been determined OR from which legal consequences will flow.(two ways of preventing Bennett from being satisfied)Holding: action is final and reviewable Petitioners have standing to get review.Rationale: this case distinguished from franklin and Dalton, which was purely advisory & in no way affected the legal rights of the relevant factors. Here, the biological opiniondirect and appreciable legal consequences.

Ripeness Conserves judicial resources for problems that are real and present or imminent Separation of powers

Abbott Laboratories v. Gardner (1967) *742* (cite when you want to claim jurisdiction and get in front of reviewing court)Facts: 1962 Congress amends Federal Food, Drug, and Cosmetic Act: requires prescription drug manufacturers to print the established name of the drug prominently---Challenge to labeling regimeISSUE: Whether congress by act, intended to prevent pre-enforcement review of reg.Rule: Pre-enforcement review is appropriate where not prohibited by the text of the Act itself, nor inconsistent with the legislative intent behind the Act. There is an actual case or controversy where there has been a final agency decision and withholding judicial consideration will result in hardship to the parties.Holding: Issues presented is ripe for review.Regulation is final agency action under APARationale: *744* results of noncompliance.take away: THERES PRESUMPTION OF judicial REVIEW for pre-enforcment regulations subject to a 2 part test.discussion: this case OPENs the DOOR TO PRE-ENFOREMENT REVIEW OF RULEMAKINGESTABLISHES PRESUMPTION OF JUDICIAL REVIEW. (LOOK AT STATUTE THAT PROBHIITS SUCH PRE-ENFORCEMENT REVIEW)RIPENESS RATIONALE ON PAGE *744*1) fitness of the ISSUES FOR JUDICIAL DECISION & Impact of the regulations sufficiently direct and immediate2) HARDSHIP TO THE PARTIES OF WITHHOLDING COURT CONSIDERATION. If you are in catch 22 situation (i.e. you have to comply at great expense or you dont comply at your business being shut down or getting criminal and civil penalties) penalties severe, very costly), case is ripe. Significant hardship on the regulated public, are you creating a choice of very costly compliance or very costly noncompliance.6/23/14 Standing to Obtain Review; Congressional Power to Delegate PolicymakingToilet Goods Assn, Inc. v. Gardner (1967) *746*Facts: pre-enforcement review=APA review under 702 standardNotice of proposed rulemaking, notice and comment Notice of final ruleCommissioner of Food and drugs exercised power to delegate by Secretary under statuteCommissioner has power to suspend certification service---continue suspension until adequate corrective action has been takenNot empowerment but discretionary determination whether there is a triggering eventToilet Groups Assn seek declaratory and injunctive relief against the Secretary and Commissioner*certain regulations the commissioner promulgated exceeded his statutory authority under the Act.TEST FOR RIPENESS: 1) Whether the issues tendered are appropriate for judicial resolution2) assess the hardship to the parties if judicial relief is denied at that stage.Holding: Toilet Group Assn and regulation did not satisfy the 2nd part of the testhardship of deferring review. Rationale: Pre-enforcement review not precluded under the act, but on ripeness grounds. Petitioners were merely speculating as to the difficulty that would take place if the Commissioner chose to act pursuant to the regulation, which he had not yet done.Appropriateness of judicial resolution is outweighed by other considerations. Regulation serves notice only---Commissioner may under certain circumstances order inspection of certain facilities and datafurther certification of additives may be refused to those who decline to permit a duly authorized inspection until they have complied in that regard.Need to get to----whether the statute justified the regulatory promulgation. But at this juncture---court has no idea whether or when such an inspection will be ordered and what reasons the commissioner will give to justify his order.test for ripeness-how adequately the court can deal with the legal issue and the degree and nature of the regulations present effect.-->the regulation here/impact of the administrative action can not be said to be felt immediately by those subject to it in conducting their day to day affairs.Practical consideratio