administrative law - siegel - spring 2003_4

8/20/2019 Administrative Law - Siegel - Spring 2003_4

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Professor Siegel Spring 2003

I. Intro/Overview

What are administrative agencies?

Administrative agencies are Congressionally created entities who receive a lawmaking charge fromCongress – their functions are diffuse, ranging from law making (legislative) to law enforcing

(executive) to legal adjudication (judicial)

Morrison

o what extent may Congress limit the executive!s "ower to control administrative heads (through

limitations on removal "ower)?

# Congress may restrict $residential removal "ower insofar as such restrictions do not im"edethe $resident in the "erformance of his constitutional duty (u"holding for cause termination

"rovision for inde"endent counsel)

o $res% constitutional duty& 'faithfully execute the laws

'ood cause removal sufficiently em"owers the $res% to monitor the *C!s

'faithful execution of the laws

o what extent may Congress interfere in the $res% control of administrative agencies consistent w+ the

se"aration of "owers?

# emoval "rovision neither constitutes

o Congressional retention of "ower nor

o -ndermines .xecutive from accom"lishing constitutionally assigned functions

NB he /orrison decision took a "ractical a""roach to the s"ecific role of the *C w+in the "olitical system%reater $res% "ower over the *C would stri" her of the a0ility to monitor "olitical officials w+in the

administration% *f Congress attem"ted to limit removal "ower over officials whose 'executive "ower was

more 'central to the functioning of the executive (Attorney eneral+1olicitor eneral etc%), the Ct would

rule otherwise%

What do Administrative Agencies do?

A. Rulemaing – agency "rocess for formulating, amending or re"ealing a rule (223)

Storer !"#$%& – administrative agency can 'adjudicate 0y 'rule#making # agency rule to 0ar licenses

to 4roadcasters who own 2 or more stations "ro"erly fulfills agency res"onsi0ility to "rovide a'hearing for license denials

'e(a)o – 'statutory 5 for a hearing does not "reclude administrative agencies from "articulari6ing

statutory standards through rulemaking "rocess (and 0arring 'an actual hearing)

Why can an administrative 'rule#make in what a""ears to 0e a deviation from their res"onsi0ility to "rovide an individuali6ed hearing?

# 1treamline agency administration of law – "ermits the agency to "ut the regulated "arties onnotice and avoid costly, time consuming adjudication

# Agency "ower to "rescri0e rules and regulations necessary or a""ro"riate to carry out the

"rovisions of the Act – trum"s hearing res"onsi0ility

# ulemaking gives content to vague Congressional delegation# Waiver "ossi0ility – agency could "rovide waiver to the rule in s"ecial circumstances

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B. A*+u*i)ation –agency "rocess for the formulation of an or*er – whole or "art of an agency final

dis"osition, ergo nearly all agency action is adjudicatory

,ol*-erg – 7ue $rocess "laces constraints on administrative agencies! "ower not to "rovide anadjudicatory hearing – 4.89. termination of a "ro"erty interest (welfare), an administrative agency

must "rovide an evidentiary hearing that includes

# right to confront+cross examine witnesses

# "ermission to retain counsel# written decision from decisionmaker chronicling rx!s and legal su0stantiation

NB 7ue $rocess is flexi0le – 'some 0enefits may 0e terminated without affording the reci"ient a

"retermination evidentiary hearing

Bureau)rati) Mo*el :uick and efficient 0ut decisionmakers lack discretion or a face

u*i)ial Mo*el – slow and costly with high level of discretion in decisionmaker

NB he tension 0etween the two models is recurrent – Storer/'e(a)o re"resent the 0ureaucratic

model at its finest while ,ol*-erg demonstrates there are instances where ue Pro)ess mandates

that admininistrative agencies em"loy pseu*o1u*i)ial "rocesses to make a determination%

;udicial eview of Administrative Action

II at are A*ministrative Agen)ies

A. Congress and the Administrative Agencies

Non*elegation idea that Congress may not relin:uish the legislative "ower vested w+in it 0y the

Constitution (Art


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7aus – 'only if there is an a0sence of standards "rovided 0y Congress such that there will is not

ascertaina0le on the face of the statute will im"ermissi0le delegation 0e found (u"holding delegation to

9ffice of $rice Administration the authority to control "rices where statute "rovides guidance 0y which

courts can measure whether the 9$A o0eyed the will of Congress)

Amalgamate* Meat 4utters – Congressional delegation to $resident to sta0ili6e "rices through 'orders

and regulations > necessary to avoid gross ine:uities is Const Why?

# ime constraint on $res "ower to free6e "rices# istory of $res authority to free6e "rices

# @egislative istory contains sufficient ex"lication of "ur"oses (intelligi0le "rinci"le) of the

Act to guide the $res in his administration and allow the courts a reference to ensure adm%

o0eyance of congressional will (7aus8 6ampton&

# A$A now constrains all admin action w+in the 0ounds of the 7ue $rocess clause and

ar0itrary, ca"riciousness

# .x"licit "ronouncement not to single out s"ecific industries

# What a0out the $res delegation to council to administer the act?o edelegations are "ermissi0le – $res has removal "ower over agency, therefore, they

must fulfill his will

*s there any way that a Congressional delegation may 0e found to offend the "rinci"le of nondelegation?

itman 'degree of agency discretion > acce"ta0le varies according to the "ower congressionallyconferred – *

# *f Congress confers immense "owers to regulate the nat!l economy, the s"ecificity of its

instructions for management of that delegation must increase "ro"ortionately

# -"holding delegation to .$A to set "articulate matter levels 're:uisite to "rotect the "u0lichealth des"ite o0jections that this delegation is vague+unintelligi0le+im"ossi0le to define

standards

# Why does 1calia, the great textualist, acce"t delegation?

o 7iscretion inheres in all executive action – there will always 0e executive choice in

regard to im"lementation

'e Non1Aggran*i9ement Prin)iple: idea that the Constitution "rohi0its Congress from using thelegislative "ower to confer u"on itself+create "owers which the Constitution itself does not confer to

Congress

4a*a – Congress may not exercise legislative power outside the confines of 0icameralism and "resentment ex"licit in the Const%

# What is legislative "ower?

o Congressional action that has purpose or effe)t of altering te legal rigts8 *uties

an* relations of persons

he legislative veto where0y Congress retains the "ower, w+in a singular

ouse and w+out $res a""roval to override executive action is the exerciseof legislative "ower outside the confines of 0icameralism and "resentment

# Stevens – concurrence in itman suggested that the 1 Ct acknowledge that admin agenciesado"t legislation – -nder this realist standard, would agency rulemaking invaria0ly 0e in

tension w+ the "rinci"le that legislative power cannot 0e exercised w+out 4icam and $res%?o No – e(er)iser of power would 0e distinct (agency) , ergo the threat of

Congressional creation of "ower w+in itself that the Const does not confer does not

ariseo Plus, the agency action is 0ound 0y the delegation of Congress which itself must

conform to the nondelegation doctrine – thus there are structural im"ediments

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# ite !*issent& – s"irit of 4icam% and $res% are intact – for administrative action to occur,

Atty eneral (executive) must take action and the ouse and 1enate (legislative) must

a""rove –$ro0lem?

o ;egislative inaction+"assive affirmance is far different that legislative action+Active

Affirmance in traditional 4icameral legislation

Bowser Congress may not endow a )ongressional offi)er with e(e)utive powers to do so wouldallow Congress, through its agent, to retain "ower (executive) that the Constitution for0ids the legislative 0ranch to exercise

# ow does one recogni6e a 4ongressional offi)er?o Remova-ilit5 – *f Congress retains discretionary removal "owers over an official,

that official must 0e Congressional (Morrison – retention of removal "ower overe(e)utive offi)ials is unConst as violative of the se"aration of "owers

4ongress had 0road "ower to remove Com"troller for cause through +oint

resolution – act su0ject to 4icam and $res%

# ow does one recogni6e the e(er)ise of e(e)utive power

*inter"reting a law enacted 0y Congress to im"lement the Congressional

mandate&executive "ower

Com"troller eneral is inter"reting the 7eficit Control Act to "rovide

means of im"lementation&executive "ower

An e(e)utive offi)er is any "erson who exercises significan inter"retive

authority "ursuant to a "u0lic law

• Bu)le5 – an official exercising significant inter"retive authority

"ursuant to $u0lic @aw is su0ject to the "rovisions of thea""ointments clause (Congress cannot a""oint such an authority

0ecause to do so would run afoul of the se"aration of "owers

4entral Point of Non1Aggran*i9ement – Congress may not statutorily confer "ower to itself which theConstitution does not confer to them

# 4a*a – Const does not "ermit exercise of legislative "ower 0yt Congress w+out 4$, ergo

Congress cannot confer u"on itself the "ower to exercise legislative "ower w+out 4$

# Bowser – Const does not "ermit the Congress to execute the law it "asses, ergo Congresscannot confer u"on itself (through its agents) the "ower to execute the law

# Bu)le5 – Const does not "ermit Congress to a""oint executive officials, ergo Congress

cannot confer u"on itself the "ower to a""oint executive officials

ow can Congress )ontrol agency action lawfully?

# 1tatutory $recision

# Agency 9versight

# Control Agency! 0udget

Statutor5 Pre)ision : techni:ue of legislative construction that allows Congress to more "recisely sha"e

the contours of administrative action 0y limiting agency discretion Why?# Congress wants to 0e certain "ower is exercised according to Congressional intention

# ivi*e* ,ov


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elane5 4lause – restricts 8A7 a""roval of any additive found to induce cancer, or found after tests which

are a""ro"riate for the evaluation of the safety of food additives, to induce cancer

Pu-li) 4iti9en – where Congress a""lies an extraordinarily rigid+"recise standard for administrativeim"lementation, no *e minimis exce"tion a""lies to that standard (holding the 87A wrongly a""roved two

color additives on the theory the carcinogenic effects of the additives was de minimis where Congress

ex"licitly announced that no carcinogenic additives were su0ject to a""roval)

# When might a de minimis exce"tion a""ly to a statutorily "recise delegation?

o *f examination of the entire statue demonstrated that allowing the exce"tion would

im"lement the EtrueF legislative design .g 1tatute 0ars carcinogenic agents 0ut also em"owers 87A to a""rove

medications for the treatment of disease – medication that was slightly

carcinogenic 0ut would save thousands of lives would likely 0e a""roved ona *e minimis e()eption

# ow else might an agency avoid the control Congress is attem"ting to exercise through

"recision?

o /ani"ulate statutory language (eg a""ro"riate)

o 90fuscate cause and effect – eg studies are inconclusive as to whether G is the direct

cx of cancer

ow can we characteri6e statutory "recision?

# Mi)romanagement – are there disadvantages to this a""roach?

o -ndermines the exercise of the e(pertise of the "articular agency

o Infle(i-le – "rohi0its agency from im"lementing "ragmatic solutions in their

regulatory field

o Paral59e*/=ro9en St*. – 7elaney Clause was enacted at a time when the

so"histication of science was una0le to cali0rate as closely the extent of risk certain

levels of carcinogens "osed – rigid std% inhi0its discretionary a""roval of 'safe

carcinogens

Are tere a*vantages to tis approa)>

o /ore clearly tracks "olitical accounta0ility theory – legislature designing the laws

that govern own 0ehavior

o 1im"lify+/ake "redicta0le outcomes

Oter 'ools of 4ongressional 4ontrol

# ,enerali9e* Statutes

# ;egislative Influen)e : attem"ts 0y legislatures to exercise "olitical influence overadministrative decisionmaking through suggestion

o Pills-ur5 – intervention 0y legislatures during +u*i)ial "roceedings is "articularly

unacce"ta0le (holding that 8C commissioners su0jected to Congressionalcommittee during an ongoing adjudication must recuse themselves) Why?

@egislators are citi6ens who share the right to ex"ress their o"inion in

legislative matters of admin > 0ut neither their citi6enshi" nor their "osition entitles them to intervene in judicial matters – this im"licates the

fair trial rights of the adjudicants

o ?olpe – administrative decisions initiated 0ased on the consideration or factors that

were irrelevant to the "rimary Congressional mandate cannot stand (if 1ec Hol"e!s

decision was the result of "oltical "ressures from Congressmen that were unrelated

to the statutory mandate ie politi)al -la)mail, then the decision may not stand)

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*f an administrator makes a decision 0ased on ex "arte contact, the decision

cannot 0e controlled 0y that suggestion

'e Presi*ent an* te A*ministrative Agen)ies

A""ointment and emoval of 9fficers

A""ointment

Bu)le5 !"#@%& – a""ointment of Offi)ers of te S (8ederal .lection Committee) 0y anyone 0esides the$res derogates the $res exclusive A""t $ower "ursuant to Art = I=

(holding committee – com"osed of Congressmen – election of 8.C mem0ers unconstitutional)

# ow does one determine who is an Offi)er of te S?o any a""ointee exercising signifi)ant autorit5 "ursuant to the laws of the -nited

1tates&9fficer of the -1

nfor)ement/A*+u*i)ative/ Rulemaing "owers of the 8.C& significant

authority under the laws >% 0ut

Investigative/Informative Power of 8.C&merely in aid of the legislative

function of the Congress

• 8unction that Congressional committees would "erform,

Congressional outsourcing

Morrison!"#CC& – a""arently the *nde"endent Counsel does not e(er)ise

signifi)ant autorit5 since he was a""ointed -5 te )ourts !Spe)ial

ivision& ow else can /orrison 0e distinguished? ask a0out this >

No 4ongressional attempt to aggran*i9e – though removal "ower was

limited, the executive (Atty eneral) still retained the "ower

NB 4uckley may also 0e read to u"hold the nonaggran*i9ement prin)iple – he Const does not "ermit

Congress to a""oint 9fficers of the -1 itself, ergo Congress cannot confer u"on itself the "ower to a""oint9fficers of the -1

NRA Politi)al ?i)tor5 =un* # Congress may not a""oint nonvoting mem-ers to =4 Why? # 1uch

mem0er may still e(er)ise signifi)ant autorit5 within the 8.C – continuing fear of aggrandi6ement

emoval

6umpre5

o *s the )ara)ter of the office focused on legislative+judicial action?

hese :uestions "rovide no +u*i)iall5 managea-le stan*ar*s to determine

when Congress may limit the "ower of the $resident to remove officers >

Morrison – Congress can "lace removal restrictions on executive officers so long as the do not impe*e te

Pres a-ilit5 to perform is 4onstitutional *ut5

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# wo ste" in:uiry to determine whether removal restriction would im"ede the $res in

"erformance of his constitutional duty

o *s a Const duty of the $resident im"licated 0y the officer!s "osition?

illog-5 (Politi)al 4ief1 Pres "ossesses limited Const duties # those for

which there is no judicial review) vs S)alia (unitar5 e(e)utive1 Pres

"ossesses 0road "owers to faitfull5 e(e)ute te laws)

• Which understanding of the $res Constitutional powers oneado"ts dictates the in:uiry >

o Would removal limitation act as an im"ediment on the $res a0ility to 'faithfully

execute the constitutional duty im"licated?

*f one ado"ts the unitar5 e(e)utive theory, chances increase that removal

restriction im"edes $res

*f one ado"ts illog-5 theory, chances are slighter that removal restriction

im"edes the $res#

# *t is "er se unconstitutional for Congress to "lace a removal restriction on a prin)ipal officer

# *t is "er se constitutional for Congress to "lace a removal restriction on an inferior officer

ow does one determine if an officer is inferior>

# *s the officer su0ject to removal a higher exec 0ranch official (*nd Counsel is remova0le 0ythe Atty eneral >)

# Are the *uties of the officer limite* (*nd Coun only has one s"eciali6ed duty)# *s the tenure of the officer limite*

# *s the +uris*i)tion of the officer limite* (*nd Counsel only "rosecutes certain federal

officials?

*s there any "ro0lem w+ em"owering the 4ourts to appoint the *nde"endent Counsel?

# Art ** ex"licitly em"owers Congress to vest 0y law the a""ointment of inferior officers, as

they think "ro"er, in the $res alone, in te 4ourts of ;aw or the eads of 7e"artments

o 1till Congress!s choice of who will appoint inferior offi)ers is limited 0y the

doctrine of in)ongruit5

What is an in)ongruit5?

•When the functions of the a""ointing 0ody are somehowinconsistent with the "ower to a""oint >

o *n this case, )ourts are es"ecially ex"ert to choose a

$rosecutor

*s there any Art *** "ro0lem with allowing the )ourts to define the jurisdiction of the inde"endent counsel?

# Jormally the courts may only decide )ases or )ontroversies

o As long as )ourts *is)retionar5 power to define the "owers of the inferior officers

ss an in)i*ent to power to appoint8 then se"aration of "owers issue does not arise

Poli)5 4ontrol

$residential Authority

7oungstown Steel – $res order to 1ecretary of Commerce to sei6e steel mill for "ur"oses of conducting

Lorean War efficiently is unConst Why?

# 8ramework of 7oungstown – ;ustice ;ackson!s concurring o"inion holding that the $res

lacked the "ower to order the sei6ureo 7oes a Congressional statute ex"licitly em"ower the $residential order?

*f yes, then the only constraint on the $res action is the non*elegation

*o)trine

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• 7id Congress, in delegating the "ower to make the order, "rovide

an intelligi-le prin)iple !S)e)ter& to guide the $res in his

admin of the statute?o 7oes a Congressional statute ex"licitly "rohi0it the $res order?

*f yes, then the $res may not make the order > unless the proi-ition

impe*es te Pres in te performan)e of is )onstitutional *ut5

!Morrison aggran*i9ement>>>&• his :uestion heavily de"ends on the whether one ado"ts the

politi)al )ief or the unitar5 e(e)utive model – chances of

im"ediment on $res ecercise of his Const duty increase if theunitary executive theory a""lies

o *s there neither a Congressional "rohi0ition nor a Congressional grant of the "ower

exercised? *f yes, then the $res "ower to act must 0e inherent

• Constitutional – foreign affairs etc%

o ames D Moore – $res has authority to waive claims

against the *ranian ov!t nationali6ation of -1 ca"ital

through foreign affairs "ower o Neagle – official ordered to "rotect a 1u"reme Ct% ;ustice

"ursuant to executive order lawfully does so as within theinherent executive auth to faithfully execute the laws

• istorical $ractice – as the $res traditionally exercised the "ower

considered?

o amesDMoore –$res traditionally has controlled claims

against foreign nations

7oungstown ;essons

# $res order must 0e lawful

# $res cannot order admin official to refrain from a)tion reEuire* -5 law !statute 1 Fen*ell&

# $res may exercise "ower of persuasion if administrator has *is)retion to a)t

# Admin official has no legal *ut5 to heed the attem"ted persuasion of the $res, unless the

statute com"els admin officer to do so (eg act creating foreign affairs and War 7e"t "lacedadmin head directly accounta0le to $res)

# $res may not step into te soes of the admin official ($res "ossesses removal power over

"rosecutor 0ut no more – ewels of te Prin)ess of Orange)

What if an agency head!s justification for a ruling adverse to a "arty is that the Pres or*ere* teagen) ea* to so rule?

# *nsufficient justification – agency act mus 0e justified 0y the *elegation of )ongressional

aut (eg 8CC act adverse to "articular communications com"any must 0e justified 0y '"u0licconvenience, necessity >)

What if the agency head!s justification was w+in the statutory delegation 0ut her true motivation

was com"liance with an e(e)utive or*er>

# OF – w+in $res "owers to "ersuade the agency head to act w+in the discretion Congress "rovided

.xecutive 9rders

ow significantly may the $res )ontrol administrative agencies through his "ower to "ronounce e(e)utive

or*ers?

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# he limits of the $res "ower to )ontrol admin agencies through the "ronouncement ofe(e)utive or*ers are defined 0y Congress! constitutional delegations to the agency to act i%e%

As long as the statutory "ower Congress wields over the agency does not impe*e te Pres in

te performan)e of is 4onstitutional *ut5, the $res may not override the ex"ressauthori6ations 0y Congress

nvironmental efense =un* –

# $res may delegate his authority, through executive order, to any administrative agent)onfirme* 0y the 1enate ("ermitting delegation to 9/4 head as administrator of 4Banal5sis state&

# Administrative agent may not, su0ject to $res order, force the agency to diso0ey its statutory

mandate ("rohi0iting the 9/4 from *ela5ing te a*option of environmental st*. tat

ma*e PA late for statutor5 *ea*line&

# e(e)utive or*er to all agencies to a0ide 0y cost 0enefit analysis "rinci"les in the

"romulgation of all rules and regulations to te e(tent permitte* -5 law is w+in the $res

"ower to )ontrol admin agencieso 'o te e(tent permitte* -5 law – ensures that agencies w+ s"ecific Congressional

order not to consider C4 analysis are not su0ject to the executive order i%e%a)nowle*ges tat *ire)t statutor5 autori9ation -5 4ongress ma5 not -e

overri**en troug e(e)utive or*er

Agencies are only to a""ly C4 analysis w/in te *is)retion te

)ongressional autori9ation permits

o What if an administrative head declines to do C4 analysis?

Administrative head has no legal *ut5 to a0ide the e(e)utive or*er, agency

head!s legal duty is to fulfill the statutory delegation

• $res, however, has power of removal – creates *e fa)to *ut5 in

agency head

• .xce"tion – Admin head must a0ide an executive order if it is

within the core "owers (8oreign Affairs+Javy) of the $res

o What if the $res directs an in*epen*ent agen)5 to follow his executive order?

In*epen*ent agen)5 has no legal *ut5 O no *e fa)to *ut5 (since removal

of inde"endent agency head is usually for goo* )ause and refusal to o0ey

the $res, even if lawful, does no constitute goo* )ause for removal) *f the law com"elled in* agen)5 o0eyance or allowed removal to follow

$res order, in* agen)5 would merely 0e a title w+out content

o *s it violative of the se"aration of "owers for Congress to "lace removal restrictions

on an e(e)utive offi)er (inde"endent) who may then diso0ey $res order w+out

disci"line?

As long as the such a restriction does not impe*e te e(e)utive in te

performan)e of is 4onst *ut5, the "ower to diso0ey as an incident of theremoval restri)tion, is "ermissi0le

$res can still wield su0stantial "olitical influence over inde"endent agencies

– lawfully so long as she is attem"ting to influence action w/in te

*is)retion of te in* agen)5 as *elegate* -5 4ongress

4.A*ministrative Agen)ies an* te 4ourts

ow extensively may Congress em"ower agencies to "erform adjudicative functions w+out offending Art

*** – 'judicial "ower shall 0e vested in one 1u"reme Court and in such inferior courts as Congress may

from time to time ordain and esta0lish?

Nortern Pipeline adjudication of claim in Art * federal court is only "ermissi0le when one of four

exce"tions a""ly

# erritorial Courts

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# Courts /artial

# $u0lic ights (Murra5s ;essee&

o ov!t v% *ndividual

o Concerning a matter w+in the 4onstitutional power of the e(e)utive or legislature

'ra*itionall5 dis"osed of 0y legislature or executive inde"endently

1ince 0ranches could have inde"endently resolved the matter (a0sent Art ***

court), an adjudication w+out Art *** judge "rotections is "ermissi0leo Maraton Pipeline


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Com"ensation determination in 'omas is nonexistent a0sent

Congressional regulatory scheme

o *s the issue one that will create undue strain on thin federal court resources?

o *s any judicial review availa0le?

$resence of judicial review ensures – if nothing else – consistency with the

organic statute, the A$A and the Constitution

NB Court has ado"ted the more flexi0le,0alancing a""roach that was controlling in the majority of theCongressional+.xecutive se"aration of "owers cases – White!s dissent in Maraton Pipeline "revails%

S)or –administrative court may adjudicate state law counterclaim Why?

# 4alancing A""roach "revails

o 7id Congress have a justification for em"owering the agency to hear "endent state

law claims? Res – avoid ex"ense+inefficiency of adjudicating related claims in distincty

courtso 7o Art *** courts have e(tensive review powers of the administrative courts

decision? Res, std of review of S)or) > 0ut the legal

determination is

• Not enfor)ea-le exce"t u"on 7ist Ct a""roval

• 1u0ject to full de novo review

#

NB 7efendant counterclaimant in S)or had waive* his right to have his claim heard in an Art *** court%

Can a "arty waive their right to an Art *** tri0unal?

# Personal rigts are waiva0le (think Dth+2th+Kth Amendment) 0y clear and knowledgea0le)onsent

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at o A*ministrative Agen)ies o>

A*+u*i)ation

Constitutional Constraints all governmental action vis vis individuals must a0ide the 7ue $rocessClause of the 2th+3Dth Amendment

– 'no de"rivation of life li0erty or "ro"erty without 7ue $rocess of @aw

o @ife+@i0erty+$ro"erty – though historically an amor"hous troika that "laced a

constraint on ov!t action 0ased on vague notions of 'fundamental fairness, adminlaw has se"arated he "ieces

When *s $rocess 7ue?# Whenever the ov!t de"rives one of life, li0erty or "ro"erty – therefore the in:uiry focuses on

defining li-ert5/propert5 interests

# 'resol* InEuir5

o Appli)ation of ,enerali9e* Rules to In*ivi*uals

;on*oner – "rocess is due for a""lication of general tax to a s"ecific

individual

Hs%

o Rules of ,enerali9e* Appli)a-ilit5

Bi1metalli) – no "rocess is due for tax a""lied e:ually to all individuals

• Impra)ti)al to "rovide individual hearing for all the aggrieved

• edress+emedy for such taxes is politi)al pro)ess – since the

'injury is generali6ed, 'injured individual can seek su""ort of

others injured through the "olitical "rocess

Rot textual in:uiry to determine whether a s"ecific individual is due "rocess (holding that teacher hasno li-ert5 or propert5 interest in teaching "ost for which contractual term has ex"ired)

# as the individual 0een de"rived of a propert5 interest>

o Propert5 Interest – any legitimate claim to an entitlement > defined 0y rules or

understandings that stem from an inde"endent source oth lacked a propert5 interest in his em"loyment 0ecause no

rule+understanding defined his right – he had no relian) e interest in the

"osition

• ,ol*-erg A87C was the rule u"on which 0eneficiaries

justifia0ly relied for 0enefits (statutory entitlement)& "ro"erty

interest

# as the individual 0een de"rived of a li-ert5 interest?o @i0erty *nterest ("aste list)

When can li0erty interest 0e im"licated in em"loyment context?

• Reputational amage – *f .. makes charges that damage one!s

standing+re"utation, notice and o""ortunity to 0e heard is due the...

• Stigma – .. termination forecloses ... from working in the

field (if oth couldn!t get another teaching "ost)

3=


13/36

Sin*ermann university tenure guidelines create a reliance interest in $rofessors that they retain their

"osition

# tenure guidelines& rules+understandings creating entitlement &"ro"erty interest

o 4+c Sin*ermann relied on an entitlement created 0y a university rule or

understanding, he had a propert5 interest entitling him to "rocess

Jotice and an 9""ortunity to es"ond

# What is a state .. res"onse to the Rot/Sin*ermann a""roach

o Avoid the creation of any rules+understandings that ...s may rely on as "ro"erty

interest when terminated – Perverse In)entive

o Bi9arre u*i)ial Prote)tion – 1tate controls the right to "rocess through "ower to

create+avoid creating rules or understandings u"on which individuals might rely

;ou*ermill – rejection of the -itter wit te sweet test # though states retain the "ower to define wenpro)ess is *ue 0y the creation of rules+understanding& "ro"erty interest, once they create the su0stantive

right, the +u*i)iar5 has the "ower to define the contours of te pro)e*ure itself (holding that civil servant

w+ for )ause removal "rotection ("ro"erty interest in em"loyment) has right to "re # termination hearingdes"ite state "rovision of only "ost termination hearing)

# 8ederal court adverse ruling against state on ue Pro)ess groun*s does not reach thesu-stantive merits of an ..!s decision to terminate an ...s tenure # it only "roscri0es the

"rocedure the state must use 0efore termination

What $rocess is 7ue?

7ue $rocess is a fle(i-le conce"t that dictates different "rocedural "rotections in different contexts# Can 0e summari6ed in two ste" analysis

o *s any "rocess due (;on*oner/Bimetalli) *istin)tion)

o What "rocess is due?

,ol*-erg – harm of error in mistaken termination of welfare 0enefits necessitates a "re#termination

hearing concerning the welfare reci"ient!s eligi0ility

# 9nly rudimentary "rocess is necessary – meeting w+ social worker

l*ri*ge harm of error in mistaken termination of social security 0enefits does NO' necessitate a "re

termination hearing Why?

# 7ue $rocess is not a technical, "recise conce"t # it a*+usts to time+"lace+circumstances# hree 1te" est o 7etermine the $rocess one is 7ue

o Weight of the private interest

What is at stake for the aggrieved "arty?

• 7isa0ility 0enefits not as vital to livelihood as welfare 0enefits

• 7isa0ility 0eneficiary later receives oral hearing on appeal

o Risk of an erroneous deprivation of the individuals property/liberty/life interest

ow "ro0a0le is it that the ov!t will err in their determination in the

a0sence of greater "rocedural "rotections?

• 7isa0ility determination 0ased on objective medical diagnosis –

low risk of error (whereas in ,ol*-erg terminatioin of welfare wassu0ject to human administrative error

o Gov’t interest in efficient administration

What are the additional 0urdens the admin agency will take on 0y ado"ting

more extensive "rocedural "rotections?

• $re termination hearing for disa0ility 0eneficiaries will

o Create huge costs for admin agency

3B


14/36

Bro) – l*ri*ge a""lied O' order to reinstate ... – and 0ear costs of 0ack"ay – 0efore

hearing to determine whether termination was "ro"er is Constitutional

# Private Interest Prong – /-@*$@. $*HA. *J..1

o .. interest in 0usiness "ro"erty (0ack"ay) im"licated

o ... propert5 interest in em"loyment through Whistle0lowers Act

# ov!t *nterest

o

.nforcement of the Whistle0lower!s Acto ighway 1afety+/aintenance *ncentives for Whistle0lowers

# isk of .rror

o /inimal decrease in the chance of error "rovided 0y confrontation of EEEs and

cross eamination of !itnesses does not justify the administrative costs of such

measures

(Insert Alternatives to l*ri*ge Balan)ing 'est for wat pro)ess is ue&

"tatutory #onstraints

What procedural constraints has #ongress placed on the agency in the adjudications it conducts$

# wo 1ourceso Organi) Statute – may "rovide greater "rocedural "rotections than the minimum

re:uirements of 7ue $rocess (l*ri*ge)

o A*ministrative Pro)e*ure A)t

δ 22D – 1ection a""lies in every adjudication re%uired by statute to be

determined on the record after opportunity for hearing – i%e% every agency

whose administrative statute contains this language musty follow the

adjudicative "rocedures contained in 22D

δ 22B S # =ormal rules (those reEuire* to -e ma*e on te re)or* after

opportunit5 for earing& must a0ide the "rocedures of 22K and 22M

=lori*a ast 4oast Railwa5 to trigger the earing the A$A contem"lates, the organi) statute must

ex"licitly track the language of the A$A (holding that after earing language in *CC statute did notcom"el *CC to only take action after following A$A "rocedures)

# 4ut isnt the court ignoring Congress! desire to com"el a formal record 0ased on a hearing?What underlay the court!s decision in =lori*a ast 4oast Railwa5?

o ;on*oner/Bimetalli) istin)tion

@ess "rocedural "rotection is necessary when an agency ado"ts rules of

general appli)a-ilit5 1 -@./AL*J

• 7is"ersed effects of rule are remedia0le for )olle)tive in*ustr5

a)tion troug noti)e an* )omment

/ore "rocedural "rotection is necessary when agency applies rule in an

in*ivi*ual )ase A7;-7*CA*9J

o 1ince the *CC was conducting -@./AL*J – adopting a rule of general

applicability to govern the entire rail industry #, court overlooks the after earing

language (as necessitating o""ortunity to give evidence, confront witnesses, cross

examine at traditional oral hearing)

4alifano where matter is adjudicative (appli)ation of rule of general appli)a-ilit5 to in*ivi*ual&,courts will 'read in a hearing 5 to the statute (holding that the 1ecretary of the 11A must hold an

individuali6ed hearing to determine whether recou"ment of over"ayments to 11 0eneficiaries is "ro"er)

3D


15/36

# 4alifano court could have a""lied the l*ri*ge analysis and determined that ue Pro)ess

mandated a hearing for 11 over"ayment reci"ients – Why didn!t they?

o 4onst Avoi*an)e – decide a :uestion w+out Const analysis where "ossi0le

o *n light of the ruling in l*ri*ge that 11 reci"ients are not entitled to "re#termination

hearing, it is not clear that reci"ients of over"ayments whose 0enefits will 0e reduced

are entitled to a hearing

ow can one reconcile greater "rocedural "rotections for a 11 0eneficiary who has

received over"ayments than for a 11 0eneficiary whose 0enefits are going to 0e

terminated (l*ri*ge)? 4asis of decision in l*ri*ge was the low risk of error des"ite the a0sence

of an oral hearing 0+c the de"endence on o-+e)tive me*i)al evi*en)e

whereas the 0asis of decision in Califano is fact s"ecific (would recou"ment

0e ine:uita0le etc) necessitating oral communication ecou"ment oral hearings less )ostl5 to the agency than a hearing each time

a reci"ient is dis:ualified from list of 0eneficiaries#

NB Courts will 'read in+read out a hearing 5 in a statute de"ending on the context of the underlying

matter # -@./AL*J – inclusion of hearing 5 in organic statute does not govern the in:uiry#

su0mission of written comments satisfies agency res"onsi0ility to conduct 'hearing

(;on*oner&

# A7;-7*CA*9J # exclusion of hearing 5 in organic statute does not govern the in:uiry – hearing is necessary to ensure individual su0jected to general rule receives "ro"er "rocedural

"rotections (Bimetalli)&

Ri)ar*son – administrative courts do not have to a0ide the 8ederal ules of .vidence (holding thatadministrative court!s reliance on earsa5 me*i)al testimon5 to make disa0ility determination sufficiently

meets factual "redicate of su-stantial evi*en)e on te re)or* to u"hold the A@;s decision)

# A$A – Administrative Ct% may receive any oral or documentary evidence >

# What a0out the resi*uum rule !idea that su0stantial evidence rule demands that at least aresidue of nonhearsay evidence is necessary to u"hold and A@8 ruling on the facts)?

o ejected 0y the Ri)ar*son court Why? /edical evidence is "articularly relia-le/)re*i-le

Perales could have su0"oenad the doctor

# Why shouldn’t the &edr R' of Evid apply in administrative hearings?

o 1o many pro se litigants

o 4ost concerns

*f 11A had to 0ring in doctors to testify, they would have to "ay them to do

soo Admin hearings focus is fa)t fin*ing not legal *eterminations

o Admin judges make decisions, not juries – concern of 8ed of .vid is juries hearing

irrelevant+"rejudicial evidence

(djudication and )ureaucracy

Nas – administrative law judges have Stan*ing to challenge )ontrol measures through which agency

attem"ts to harness their decisionmaking

# Where does the A@;s sufficient personal interest to challenge administrative control emanate

from?o Statutor5 right to *e)isional in*epen*en)e – :uasi# Art *** inde"endence

32


16/36

Can only 0e removed through formal a*+u*i)ation (sec 22D)# a la life

tenure emuneration comes from 9ffice of /anagement $olicy (to com0at agency

control) .xem"t from performan)e rules

# Why would an agency try to constrain the *e)isional in*epen*en)e /r Jash so dearlyattem"ts to "rotect?

o Efficiency/#onsistency

Agency is trying to reduce adjudicative costs through streamlining

decisionmaking

Agency is attem"ting to define concrete adjudicative standards to ensure

consistent determinations

• 11A is huge administrative 0ody – if standards do not exist, "arties

similarly situated will receive dfiferent adj holdingso What is the A@;s gri"e+res"onse?

9ur inde"endent decisionmaking# statutorily "rotected – ensures flexi0le

res"onse to the varied needs of 11 claimants

(Co"y in the $olicy analysis concerning the Bureau)rati) A*+ mo*el v. u* Mo*el>

#ontrolling (djudication through Rulemaking

6e)ler – administrative agency can resolve certain factual adjudicative issues through rulemaking

(Storer/'e(a)o&

# What is the character of adjudicative factual issues that an admin agency may resolve through

"rior rulemaking?

o 8actual issues whose outcome is not in*ivi*ual *eterminative i%e% general rules that

a""ly to all individuals the same 9utcome of whether a jo0 is availa0le in the nat+l economy 0ased on 11A

grid is not *etermine* 0y individual

• .rgo, in:uiry can 0e resolved through rulemaking

# What is the character adjuciative factual issues that an admin agency may not resolve throughrulemaking?

o 8actual issues whose outcome is individual determinative i%e% the individuals uni:ue

characteristics are necessary to make determination

11A could not ado"t definitive disa0ility rule that dis"osed of each

individual case w+out an individuali6ed in:uiry (Go-le5 Why?

• 7etermination of ina0ility to "erform su0stantial activity > is an

inerentl5 in*ivi*uali9e* Euestion

NB 6e)lers com"laint is akin to Ri)ar*sons – eckler argued that the failure of the 11A to "roduce as"ecific jo0 in evidence on the record that he could "erform violated the admin agency evidentiary duty%

@ikewise, in ichardson, the claimant argued that the 11A failed to sustain their evidentiary duty to show

he was not disa0led 0+c all the evidence "resented was earsa5 wi) )oul* not amount to su-stantialevi*en)e on te re)or*.

(voiding (djudication through Rulemaking

Huesa*a admin agency may avoid adjudication through rulemaking, des"ite statutory indicationotherwise, when rule is one of general appli)a-ilit5 to -e applie* to all in*ivi*uals alie !holding that

8AA regulation that no "erson may "ilot a commercial "lane after here KQ th 0irthday dis"oses of any right to

adjudicatoiry hearing to challenge denial of license after KQ)

3K


17/36

# Akin to =lori*a ast 4oast Railwa5/7amasai – language of the statute indicating whether

an adjudicatory 'hearing is necessary to dis"ose of a factual issue is Not 4ontrolling as to

whether the agency may ado"t a rule to dis"ose of the issues (also Nat Why?

o 87A action is akin to summary judgement – there is no factual issue, the study has

not 0een conducted, as a matter of law, the failure to conduct the study is dis"ositiveof the determination whether a drug is ri"e for a""roval

J4 ein-erger is very similar to to the rulemaking cases that allow agencies to deny the right to an oral

hearing (adjudication) 0ased on a rule of general a""lica0ility (National Petroleum Refiners8 Storer8

'e(a)o&% he courts are "ermitting the agency to "lace a prior condition on the right to an adjudication%

What is the difference?

o he "rocedural rule in ein-erger is not su0ject to notice and comment a la

informal rules of Storer et).

Rulemaing

(uthority ,o -ake Rules

National Petroleum Refiners – des"ite historic and statutory indications otherwise, 1 Ct u"holds the 8Cs

"ower to "romulgate informal rules to effectuate its "ur"ose to regulate 'unfair com"etition and dece"tive

trade "ractices i%e% continues line of cases (=lori*a ast 4oast8 7amasai8 Huesa*a& where court ignores

the congressional language of organic statute to allow agency greater flexi0ility to carry out its statutorymandate through informal rulemaing

# What are the "olicy reasons for allowing an agency to "romulgate rules?o "treamlines agency process . reduces cost of re"etitious relitigation of the same issue

o otice/Reliance &unction – "rovides clear std for industry mem0ers of their rights,

duties and o0ligationso #onsistency – "romotes similar adj for similarly situated "arties

3M


18/36

o 0ecreases 1itigation – results in diminished areas regulatory ga"s where litigation

may ensue

o Particulari2e "tatutory "td % – "rovides content to vague congressional delegation

o &ull Participation – "romotes full "artici"ation of all affected "arties in notice and

comment "eriod, whereas "arty in adj "roceedings is limited to one industry mem0er

# 8or these reasons, it is the "olicy of federal courts to promote rulemaing as a meto* of*eveloping a*ministrative law

#hoice of Regulatory ,echni%ues

4ener5 – "st 6ol*ing

# agency has choice to develop ne! policy through adjudication even !hen rulemaking is

available (holding 1.Cs choice to determine whether self dealing in cor"orate reorgani6ationis 'unfair and ine:uita0le through a*+u*i)ation rather than rulemaking is lawful)

# Who decides how the agency will "roceed?

o Agency "rocedure is primarily in the informd discretion of the agency

# 5 woul* an agen)5 prefer to a*+u*i)ate?

o in&3" – issues may arise that agency could not antici"ate ("articularly true in

financial law where financial schemes are innovative)o uncertainty# agency may not 0e a0le to articulate a rule and cas 0y case analysis is

the only way

o speciali2ed problem

o avoidance of politics – rulemaking is highly "olitical

o speedy enforcement – rulemaking takes a long time, an adjudication may occur more

ra"idly# What are the concerns of an agency o"ting for adjudication?

o otice to the regulated

o Participation 1oss – the regulated interact with the agency in rulemaking+sha"e

"olicy – not so in adjudication

2n* 6ol*ing

# Revie!ing court may only uphold agency action based on the ade%uacy of the justifications

the agency provides for its action (IMQK – eview limited to issues wen presente*)

o Court may not su0stitute (even a valid) justification on behalf of the agency

What is the effect of an adjudicative rule on future "roceedings?

5man ,or*on – agency may a""ly 'adjudicative rule as pre)e*ent 0ut not as a rule

Whats the difference?o Precedent – creates no immediate legal o0ligation

eg other Cor"orations have no immediate o0ligation to a0ide S4 rule

concerng octane notification – o0ligation only ensues after individualadjudication

• 1u0ject to case 0y case adjudication

o Rule – creates an immediate legal o0ligation

4inding rule of general a""lica0ility

3N


19/36

• *f S4 ado"ted octane notification std through rulemaking, all

gasoline su""liers would 0e duty 0ound to do so

*s the agency ever RH


20/36

4ener5 – agency may, in discretion, ado"t rules through adjudicationBimetalli)/4f. 6e)ler agency must adjudicate when rule of general a""lica0ility will 0e a""lied to a

s"ecific individual uni:uely

&ormal Rulemaking . Bal*or

# When does an agency ado"t rules through formal pro)ess?o *f an agency!s organic statute mandates that a formal hearing "rocedures for the

ado"tion of rules be made on the record after an opportunity for hearing (22B)

o What are there so few instances of formal rulemaking?

8ormal ulemaking is a very rarely used techni:ue 0+c the )osts an*

ineffi)ien)ies that attach to "roviding it

• *f agency is una0le to ado"t rule unless all the interested regulated

"arties attend a hearing and have the o""ortunity to confront

witnesses, "resent evidence and conduct cross examinations, rules

will never get madeo esult – agency !ill opt out of rulemaking altogether and

proceed through adjudication/policy statements – contrary

to court intentions to encourage rulemakingo Courts will avoid com"elling agencies to ado"t formal rulemaing "rocedures

unless Congress ex"ressly shows an intention to track the language of 22B (=lori*a

ast 4oast Railwa5&

Informal Rulemaking – the 0read and 0utter of admin lawmaking

# What are the agencies 0asic "rocedural duties in ado"ting informal rules?

o Noti)e – agency must inform, through, 8ederal egister, the "u0lic of a "ro"osed

rule

o 4omment – agency must "ermit interested "arties to offere commentary concerning

the "ro"osed ruleo 4on)ise Statement of Basis an* Purpose – when issuing final rule, the agency

must include an ex"lication of the "ur"oses of the rule that addresses the concerns ofthe "u0lic as ex"ressed through their comments

# What agency "ronouncements are excused from these "rocedures?

o Announcement of agency interpretive rules8 poli)5 statements an* rules of

internal pro)e*ure

Interpretive Rule

• an ex"lication+clarification of the existing law

• one that lacks legal -in*ing effe)t (Ameri)an Mining 4ongress&

;egislative Rule –

• administrative law to fill in te statutor5 gaps Congress left in the

organic statute

#

o ules relating to militar5 or foreign affairs fun)tion

5/ otice and 3pportunity for #omment

Nova S)otia courts will ex"ansively inter"ret the "rocedural "rotections of 22B (holding that agency

failure

=Q


21/36

# to *is)lose te s)ientifi) stu*ies8 u"on which it relied to make rulemaking decision to, to

interested studies a0rogates sec 22B 0y failing to "rovide interested "arties meaningful

noti)e an* meaningful opportunit5 to )omment

# to respon* to )omments of )ogent materialit5 violates duty to make )on)ise statement of

-asis an* purpose

o Agency only has duty to res"ond to vital issues+comments Why even this duty?

o ensure that agency carefully considered r(a-le alternative

# 4road inter"retation of noti)e/)omment/)on)ise statement duty is )ountertren* to

encouragement of agency to rulemakeo Why would courts construct this o0stacle alongside encouragement to rulemake?

Nova S)otia rule (fish "re"aration 5) was Senseless su0stantively 0+c

courts will defer to the legislative )oi)es of an admin agency, broader

procedural protections are necessary to provide courts instrumentality to

compel agencies to reconsider substantive absurdities

# What if an agency modifies its proposed rule based on cogently material comments . must it

reissue the modification as a ne! proposal for comment ?

o Jo – so long as the modification is a logi)al outgrowt of the initial rule, agency

can avoid the endless cycle of notice and comment

Can a "arty in an administrative action introduce new evidence at an adjudication involving an agency!s

rulemaking choice?# Jo – the a*ministrative re)or* is that com"iled 0y the agency during rulemaking "rocedures

o no Additions to this record can 0e included on judicial review

o Agency only has duty to res"ond to vital issues+comments Why even this duty?

o ensure that agency carefully considered r(a-le alternatives

4road inter"retation of noti)e/)omment/)on)ise statement duty is )ountertren* to encouragement of

agency to rulemake

o Why would courts construct this o0stacle alongside encouragement to rulemake?

Nova S)otia rule (fish "re"aration 5) was Senseless su0stantively 0+ccourts will defer to the legislative )oi)es of an admin agency, broader

procedural protections are necessary to provide courts instrumentality tocompel agencies to reconsider substantive absurdities

# What if an agency modifies its proposed rule based on cogently material comments . must it

reissue the modification as a ne! proposal for comment ?o Jo – so long as the modification is a logi)al outgrowt of the initial rule, agency

can avoid the endless cycle of notice and comment

6/ Rulemaking by "tate (gencies

Pa)ifi) States Bo( –the A$A does not a""ly to state administrative actions, ergo state admin action must

only com"ort with Constitutional 7ue $rocess of the 3Dth Amendment (holding that 9regon restriction offruit -o(es to tose tat are roun* satisfies the rational -asis test, ergo rule is u"held)

# ational 0asis test is a""lica0le to state agencies+munici"alities+ordinances when action is

w+in the "ower delegated

o What if Nova S)otia had 0een su0jected to the same review as Pa)ifi) States Bo(?

8ish "re"aration rule would have 0een u"held as valid exercise of the

"olice+"u0lic health "ower where state was rationally concerned for the

safety of its citi6ens 0ased on ex"osure to toxic fish

;esson

=3


22/36

# A0sent A$A agency "rocessual duties would 0e e:uivalent to rational -asis test

# A$A "rovides argua0ly e:uivalent su0stantive "rotection

o Ar-itrar58 )apri)ious8 a-use of *is)retion standard of review is argua0ly the

administrative e:uivalent of an economic classification review# 4ut A$A can argua0ly 0e used as an instrument tol "rotect against su0stantive action

7/ 0uty of (gency to #onsider (lternatives and )asis for (ctions in Rulemaking

Motor ?ei)le Manufa)turers # esta numerous rules that agency must follow in rulemaking

# Agency failure to consider r(a-le alternatives (other suggestions 0y consumer grou"s

concerning safety 0elt rules) "rovided in comment "eriod & agency choice that is

ar0itrary+ca"ricious Why?o (gency cannot make a rational choice if it fails to consider all the rational

alternatives Agency only has to consider+answer cogently material alternatives (Nova

S)otia)

# Agency has duty to show rational connection 0etween facts found and choice made8 from

whence this res"onsi0ility?o Concise 1tatement of 4asis and $ur"ose??

o MQK – Ar0itrary, ca"ricious etc

Agency action for which there is no factual su""ort would a""ear to 0e the

definition the ar0itrariness and ca"rice

# Agen)5 un)ertaint5 –what is the agency!s res"onsi0ility to inform the "u0lic when it isgenuinely uncertain what the 0est "olicy is?

o must show rational connection 0etween facts found and choice made

# Agen)5 rule mo*ifi)ation?

o /ust give reasoned analysis of why change is necessary# what has changed

;esson

*n rulemaking, the agency must consider the rxa0le alternatives that interested "arties su""ly and

must ex"lain the factual "redicate for the regulatory choice it makes%

D+ Interpretive verse 1egislative Rules

Ameri)an Mining

# What is the "ractical significance?

o egulated "arty will challenge agency citation of interpretive rule as governing in

adjudication ow? *f agency intends "romulgation to have legal effe)t, it must do so through

rulemaking "rocedures# What will the agency say?

o We have discretion to fulfill our statutory duty through a*+u*i)ation or rulemaing

– ergo, as long as inter"retation is within the statutory mandate we can 's"ring it on

you in adjudication or ado"t through rulemaking# Whats the test to distinguish an inter"retive from a legislative rule? legal effe)t

o *s agency "recluded from taking enforcement action in the a0sence of a legislative

rule? *f answer is no, then character of rule is irrelevant 0+c agency can make

"olicy through adjudication

o 7id agency invoke general legislative authority to "ass rule?

o 7oes th rule amend a "rior legislative rule?

==


23/36

o *s the rule "u0lished in the C8?

*f answer is yes to any of these :uestions, then the 'rule is legislative

I*ea

4ourts want agency to 0e a0le to ado"t inter"retive rules that it can follow in adjudication to notif5

regulated "arties of their duties "rior to adjudication – if courts find that rules which agencies "rofess as

interpretive are actually legislative, agencies will have "erverse incentive to give no gui*an)e as tointer"retation of statute and make "olicy strictly through adjudication

5 *o agen)ies opt to rea* inJ more e(tensive pro)e*ural prote)tion from APA instea* of

overruling agen)5 a)tion on su-stantive groun*s !ar-itrar58 )apri)ious et).&>

# Allow agency flexi0ility

# /aintain "ro"er 0alance of ex"ertiseso Agencies are ex"erts at the su0stantive filed over which they regulate

.rgo they deserve deference in the su0stantive decisions they make w+in the

field

o Courts are ex"erts at "rocedure

.rgo, scrutini6e agency consistency w+ the "rocedures in the A$A

9/ :ybrid Rulemaking

What is hy0rid rulemaking?

# An attem"t to com0ine the efficiencies values of informal rulemaking with the "artici"atory

values of formal rulemaking # increase the "artici"ation level of rulemaking w+out incurring

the "aralysis of formal rulemakin

?ermont 7anee exce"t in etremely rare circumstances, the courts may not com"el agencies to em"loy

rulemaking "rocedures that exceed the sco"e of the A$A

# What was the legal 0asis of nhybrid rulemaking$o An ex"anded understanding of these 5!s

Jotice

Comment

Concise statement of 4asis and $ur"ose >

o as those terms were ex"ansively inter"reted in Nova S)otia/Motor ?ei)le

Manufa)turing

o Why did court limit judicial auth to com"el such "rocedures?

o allow greater judicial authority to com"el rulemaking "rocedures would

frustrate ex"ress congressional will as ex"ressed through the A$A *f court "rovides greater "rocedural o0stacles in informal rulemaking,

agencies will have incentive not to ado"t rules and to make "olicy on a case 0y case adjudicative 0asis

• 1uch a result runs counter to the desire to have agencies "roceed

through ruylemaking as extensively as "ossi0le

;/ Politics/E Parte #ontacts in Rulemaking

Sierra 4lu- – so long as agency is engaging informal rulemaing8 recei"t of comments after the

comment "eriod and ex "arte contacts w+ Congress men and the $resident are "ermissi0le

# Receipt of comments after comment period epires is 3< as long as the agency

o 7ocuments the comments of )entral relevan)e in the record Why?

.xhi0it rational connection 0etween facts found and choice made

=B


24/36

• .xclusion of centrally relevant factors lacks the re:uisite rational

connection ecognition of "olitical realities of 7C rulemaking >

# 7iscussions w+ Congressmen are 9L 0+c

o Congressmen are citi6ens for "ur"oses of informal rulemaking

o e"resent constituents who have an interest in rulemakingo owever, there are two limitations on ex "arte contacts w+ Congressmen

*m"ro"er in a*+u*i)ative )onte(t !Pills-ur5&

*m"ro"er if agency 0ases action on Congressmen suggestion that is

irrelevant to the statutory mandate of the agency (?olpe&

o Comments of )entral importan)e from Congressmen must 0e included in the record

also

# 7iscussions w+ the $res are 9L Why?

o 0+c agencies are "art of the executive 0ranch

o "ower 0eing exercised is executive & "resident

o "olitical realities – $res will often 0e interested in the "olicymaking choices of the

admin agencies

o What if $res "ushes agency to do G when G or R is w+in the congressional mandateand the agency head chooses G 0+c the "ressure?

As long as agency head is w+in Congressional mandate, his ex"lanation for

action is unreviewa0le

;esson

Court does not want to +u*i)iali9e the inherently "olitical nature of the administrative "rocess%

=/ )ias in Rulemaking

Asso)iation of Nat


25/36

,enerall5

K@02 A "erson suffering a legal wrong 0ecause of agency action, or adversely affected or aggrieved 0y

agency action within the meaning of a relevant statute, is entitled to judicial review thereof# Courts inter"ret K@02 t" "rovide Presumptive Review of all agency action

# here are however limitations to the review # Pitts

o Pro)e*ural

Court takes the record as develo"ed 0y the agency in their "roceedings

• Ct has no "ower to develo" a factual record of its own

• *f Ct determines that record is incom"lete, it must remand for

further develo"ment (think Motor ?ei)le/Nova S)otia – remand

to agency to consider rxa0le alternatives "resented, to further

ex"lain the rxing of their rulemaking choice)o Su-stantive

Court!s t5pi)all5 review of the su0stance of agency action is limited to

overriding agency action that is arbitrary and capricious (IMQK)

• Could a rxa0le "erson have made the decision of the agency given

the factual record they had develo"ed?

Overton Par remand an agency decision for which there is an incom"lete record and an inade:uate (ora0sent) rationale for the action taken

# agency action entitled to presumption of regularity/court may not substitute its judgment for

that of the agency

# the a""ro"riate standard of review is governed 0y IMQK of the A$A

o eview for >arbitrary? capricious or abuse of discretion or other!ise not in

accordance !ith la! is always availa0le

o eview for substantial evidence is availa0le for agency formal rulemaing/pu-li)

a*+u*i)ator5 earings !I@0%!e&&

o 7e Jovo review is availa0le when

Agency adjudication at which agency factfinding "rocedures were

inade:uate or

When issues not 0efore the agency are raised in a "roceeding to enforce arulemaking What does this mean?

• Court may indulge in de novo revies to consider just for a

rulemaking hat were not offered during the rulemaking >

# Post :oc Rationali2ations are an inade:uate 0asis for review Why?o eviewing court decision is limited to the record develo"ed *uring te agen)5

a)tion – ergo ex"lanations that "ostdate the action are not part of te re)or*

o Pra)ti)al Result of .xclusion of $ost oc ationali6ations from the record

Agency will "rovide clear ex"lanation of "ur"oses and findings

)ontemporaneousl5

When they do not, issue will 0e remanded to agency for further

develo"ment of the record

NB *n s"ecial circumstances, administrative officials who "artici"ated in the decision may 0e com"elled togive testimony%

Issues of =a)t

# o determine the sco"e of factual review of agency factfinding, look to the A$A (IMQK) and

the organic statute

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26/36

o *f the organic statute s"ecifies a different std% of review then the A$A, then a""ly the

std% of review in the organi) statute – "resum"tion that Congress intends what the

do and that they intend a different std%

o &ormal Rulemaking/(djudicatory :earings & "ubstantial Evidence on the Record as

a Whole *@=A; *e++ What is su-stantial evi*en)e?

• evidence that rable mind !ould accept as sufficient to support a

conclusion

• niversal 4amera – formal rule of the J@4 is su0ject to

su0stantial evidence test

o 1u0stantial evidence refers to the entire record, not just

consideration of the weight of the evidence su""orting the

agency!s conclusion

o A@; findings are "art of the record of the administrative

agency

o What if the A@; and the agency reach a differtent

conclusion 0ased on the factual record?

eviewing court is more likely to overturn theagency!s ruling >%

o Informal Rulemaking B (rbitrary? #apricious? (buse of 0iscretion or other!ise not

in accordance !/ la!

AAPSO – factual review of informal rule for ar0itrariness+ca"rice &

factual review for su-stantial evi*en)e of a formal rule/a*+u*i)ation

1tatute at issue in AAPSO indicates that review was for substantial

evidence – Why didn!t the 7C Circ% rely on the statute for their ultimate

holding that review of factual findings would 0e e:uivalent su0stantial

evidence?

• 1et "recedent for e:uivalence of factual review of agency action

regardless of the context – uniformit5

# 1ince AAPSO e:uated the su0stance of factual review of rulemaking with that of formalrulemaking+adjudications, is there any difference 0etween review of factual findings in

rulemaking and those in adjudicatory settings?

o Res

reater deference to rulemaking&legislative facts

• State =arm rational connection 0etween facts found and choice

made reater scrutiny to adjudicative setting&judicial facts

• *m"licates courts ex"ertise – no invasion in the legislative

ex"ertise of the agency

Issues of ;aw

IMQK(=)(A) – Court can set aside agency action not in a))or*an)e wit law

What standard of review do reviewing courts a""ly standard when an agency!s administration of a

Congressionally delegated "ower is contested as not in a))or*an)e wit law/-e5ong teir statutor5

autorit5>

4evron 'wo Step

=K


27/36

3+ *f Congress clearly and unam0iguously ex"resses its intent regarding the underlying su0ject matter, then

the agency!s action must conform to Congressional intent%

=+ *f Congressional intent is am0iguous regarding the underlying su0ject matter, then an5 rxa0le agency

inter"retation is acce"ta0le%# Agency inter"retation does not have to 0e the only rxa0le inter"retation or even the 0est

inter"retation, it only has to 0e rxa0le%

o he courts may not su0stitute their inter"retation (even if '0etter) for a rxa0le

agency inter"retation

1 4evron test is one of high deference% *t em"owers the agency to ado"t any rxa0le inter"retation of the

congressional delegation – regardless of other rxa0le com"etitors – so long as Congress has no ex"ressly

authori6ed the agency to act differently%

# Why might the courts "rovide the agency!s such deference in legal matters "ertaining to fulfillment of

their congressional mandate?

# elegation 'eor5 – Congress im"licitly or ex"licitly delegates to the agencies the "ower tofill in the statutory ga"s that it leaves o"en through legislation

o *f Congress wishes to constrain the agency, it may do so through greater statutor5

pre)ision/oversigt/legislative amen*ment et).

# (pertise 'eor5 Agencies "ossess a "articular skill in their field that "ositions them to

understand the congressional delegation

o Pro-lem – 7oes agency!s field ex"ertise exceed the court!s ex"ertise in construing

Congressional statutes? 4ar*o9o =onse)a – in matters of pure statutor5 )onstru)tion, agency

inter"retation will receive no deference# Politi)al 'eor5 – as agency action is identified with an ele)te* $res, adherence to the theory

that those accounta0le to the "eo"le should make+enact the law dictates that agency, not

a""ointed judiciary, should make the call

o Pro-lem – 7oesn!t court, in legal review, "lay the role of "rotector of Congressional

intent – the true direct re"resentatives of the "eo"le – thus a0dicating legislative

"ower to unele)te* agen)5/Pres>

# niformit5 – to ensure distinct reviewing 0odies do not inter"ret the authori6ation of "ower

differently, it is necessary to allow the agency, as centrali6ed decisionmaker, to ado"t the

inter"retation# Pro)ess 'eor5 – agency "rocess (A$A) "rotects individuals against ar0itrary action and

allows concerned individuals to "artici"ate in the inter"retation of the statuteo Pro-lem – What if the agency is ostage to "articlauri6ed "owerful interests who

skew the final inter"retation in conformity to their interests?

What is the outcome of Chevron on the "owr distri0ution amongst the three 0ranches?# Power transfer to te e(e)utive troug te agen)ies to -oa*l5 *efine wat 4ongress

meantJ in its legislation

o 4ounterpoint Congress can retain its "ower 0y s"eaking clearly# statutory

"recision L 0ut the a0ility to pre)isel5 elu)i*ate s limited 0y the inherent am0iguity

of language, ergo agency!s can almost always argue that the statute is

unclear and su0ject to their rxa0le inter"retation

=M


28/36

4evron Re*u( ;imitations on u*i)ial eferen)e to Agen)5 Interpretations

When does an agency inter"retation not receive 4evron deference?

# Constitutional interest im"licatedo Congress may not delegate authority to the admin agencies to inter"ret the Const%

# *nter"retation of a statute that is not the agency!s organic statute or >

Ara-ian Ameri)an Oil – agency w/out rulemaing power does not receive 4evron deference –

receives Si*more deference Why?

# elegation 'eor5 – Congress did not intend to delegate to an agency w+out rulemaking "ower,ergo such an agency is not su0ject to deference

# What level of review does an agency w+out rulemaking "ower receive?

Si*more – agency must persua*e court that its inter"retation of the statute is legally soundrather than rely on the sim"ler ex"lanation that the inter"retation is rxa0le

o ow does it "ersuade?

thoroughness evident in consideration of issue

consistency w+"revious inter"retations (,oo* Samaritan1denying

deference where agency waffled on inter"retation of statute)

its reasoning

;e)mere – agency inter"retation that is inconsistent with a "re 4evron 1u"reme Court ruling on the

matter receives no deference

,oo* Samaritan – agency inter"retation that is inconsistent w+ "revious agency inter"retation is due

considerably less deference

# $ro0lemso *f more than one rxa0le inter"retation of the statute are availa0le and an agency o"ts

to im"lement a "olicy change to a different, though still rx0le, inter"retation, wasn!t

it the "ur"ose of the 4evron to shield such decisions from scrutiny? 7iscourages+restrains agencies from ado"ting all rxa0le inter"retation

illiamson 'o-a))o 4ompan5 in extraordinary cases, a court, des"ite the statute!s am0iguity, may find

that Congress could not "ossi0ly have intended an im"licit delegation (affording no deference to the 87Asinter"retation of their governing statute to "ermit them to regulate cigarettes as 'drug)

# What makes a case sufficiently 'extraordinary that a court may "lay a role in determining

whether Congress im"licitly delegated authority to an agency?o *f the "ower exercised would have wides"read economic and social conse:uences

Why?

$resuma0ly, Congress would not delegate such swee"ing "owers overmatters that it, itself, would normally govern

o Could Congress "ossi0ly have meant this?

*t seems a stretch to 0elieve Congress would em"ower the 87A to classify

cigarettes as a drug when the 87A is em"owered to 0an drugs

4ase Stu*5 – Could Congress "ossi0ly have intended to 0an the migration

of )onstituents when all environmental legislation focuses on a9ar*ous

waste

o *s there other legislation which indicates Congress could not have intended this?

=N


29/36

Congress regulatd the legality of cigarettes elsewhere

4ase Stu*5 – other legislation focused on a9ar*ous waste not ha6ardous

constituents

#

Mea* – only agency action that has the for)e of law receives 4evron deference, ergo interpretiverules/poli)5 statements do not receive 4evron deference (holding that tariff reclassifications ado"ted as

inter"retive rules, u"on review, are su0ject to Si*more !see a-ove& not 4evron deference)

# ow does the ruling in Mea* affect agencies?o .ncourages them to ado"t "olicy through noti)e an* )omment rulemaing which

will 0e su0ject to greater deference

6/ ,he (vailability of Revie! – Are there statutory or constitutional doctrines that "reclude the

"recise issue from review? Are there statutory or constitutional doctrines that "reclude theparti)ular part5 from o0taining review?

Pre)lusion (What agency action is reviewa0le?)

# Congress may re0ut the "resum"tion of reviewa0ility of agency action in two fashions

I' @=A5*a+*5+ . #ongress may preclude revie! of agency action

o 8or "reclusion to 0e effective, Congress must evince a )lear an* )onvin)ing intent

to for0id reviewo 4onstitutional Avoi*an)e – on review of a constitutional challenge to agency

action, court will attem"t to avoid the Const issue whether Congress can "reclude the

exercise of federal judicial "ower over const :uestions 0y focusing on the Const of

the statute itself rather than the agency actiono Congress may not "reclude )onstitutional )laims exce"t 0y ex"licit "rohi0ition

onson# "reclusion of review of agency action under the statute does not

"reclude the court from considering the legality of the statute itself i%e%

examine the legality of Congress! statute

o Why would Congress "reclude review of agency action?

ffi)ien)5 Purposes – assurance that agency decision is final reduces

ex"enses of judicial a""eals Avoi* Politi)i9ation – unseemly to allow veteran!s 0enefits issues to 0e

major sources of dissension Avoi* Agen)5 Paperwor Bur*en – if review looms over the agency, then

it must create a sufficient record to su0stantiate its choices on a""eal

• his can 0e a "ositive effect of review too

o

Agency record ensures facile review andcontem"oraneous justification for action tha courts willdefer too

Overton – courts more heavily scrutini6e post

hoc rationali2ations

o 4anneling Review – organic statute mandates that affected "arty exhaust

administrative remedies or "roceed through a certain amount of administrative hoo"s 0efore judicial review

=P


30/36

ein-erger – channeling is un:uestiona0ly constitutional – there is no

de"rivation of review as in "reclusion, merely more hoo"s to traverse

0efore reviewo Reno court will scrutini6e "ersonal li0erty claim with great care des"ite ex"ress

"reclusion within the statute

II . @=A5*(+*6+ . >commitment to agency discretion

# Congress may limit court "ower to review those decisions that it ex"ressly "rovides exclusivediscretion to the agency to make

o *f the delegation of authority to Congress is so broad that court has no meaningful

standard to appyl to statute upon revie!, then Congess has evinced its intent to vest

exclusive discretion in the agency to make the decision elegation Pro-lems – if there is no meaningful legal standard u"on which

to examine agency action, hasn!t Congress conveyed "ower to the agencyw+ no intelligi-le prin)iple to guide the agency action

• As long as discretionary "ower is only over a narrow field, w+

slight national conse:uences, the delegation is 9L o

Can the agency commit Constitutional :uestions to the exclusive discretion of theagency?

No at least w+out an e(press8 uneEuivo)al denial of review of

constitutional claims

o e-ster – statutory delegation to the C*A director to do as he deemed in the

national interest leaves no meaningful standard of review for court to a""ly u"on

review, ergo commitment to agency discretion

$laintiff!s statutor5 )laim of arbitrary/capricious lawmaking is

nonreviewa-le

$laintiff!s )onstitutional )laim of due "rocess violation is reviewa-le

o 6e)ler presumption of nonrevie!ability of agency decision not to take

a*+u*i)ative action Why? commitment to agency discretion inheres in the choice of agency actions

• Analogue of Prose)utorial is)retion

• S)ar)e Resour)es # deference to agency ex"ertise in allocation of

resources

• *n inaction, there is no exercise of )oer)ive power over individuals

to which the courts are s"ecially e:ui""ed to review When is agency adjudicatory inaction reviewa0le?

#

• When Congress "rovides clear and ex"licit guidelines to which

agency is to conform its action and the agency fails toa0ide+follow+ado"t the guidelines

o Ameri)an 6orse Asso)iation "resum"tion of reviewa0ility of an agency refusal to

0egin rulemaing pro)e*ures for ar0itrariness and ca"riciousness (holding that

agency head must "rovide r easone* e(planation for refusal to ado"t rulemaking

"roceedings) Akin to Motor ?ei)les/Nova S)otia – agency has "rocedural duty to

ex"lain its decisions – whether they 0e of action or inaction

• emand to the agency for an reasoned ex"lanation of their re fusal

to 0egin rulemaking – post hoc rationali2ations of the agency!s

BQ


31/36

failure to act will receive less judicial deference than a

contem"oraneous record that ex"lains the decision

• 4ut > court would not order agency action > 0ut in rarest/most

)ompelling )ir)umstan)es

Ripeness (What is a""eala0le?) – emanates from the Art *** )ase or )ontrovers5 5 i%e% judicial "ower of the -1 may only 0e exercised when there is a case or controversy

# ow can this doctrine 0e ex"ressed?

o 4ourt Prote)tive – judiciary avoids entanglement in a0stract disagreements

concerning admin "olicieso Agen)5 Prote)tive – "revents the judiciary from intervening in admin matters 0efore

they have 0een resolved

# What is the "articular context in which ri"eness issues arise?o When adversely affected industry mem0ers challenge admin "olicy pre1

enfor)ement

# What is the test for whether a pre1enfor)ement challenge to an admin "olicy is sufficientlyripe for review

o u*i)iall5 =it 4laim

Pure 1egal 4uestions • *f the court will 0e reviewing agency "olicy strictly for its

lawfulness, this is an indicator of fitness

&inality

• *f review will revolve around )omplete* agen)5 pro)ee*ings, this

a =nd indicator of fitness

o eg A rulemaking that has 0een ado"ted after notice and

comment is final

o eg A "ro"osed rule which is in the midst of the comment

"eriod is not final

o K@0 – Any agency action is final unless

Organi) Statute ex"licitly "rovides action is not

final until further "roceedings or

Agen)5 Regulation ex"licitly "rovides thataction is not final until a""eal to su"erior agency

authority

o 6ar*sip

Are the finan)ial affects of the challenged agency action *ire)t an*

imme*iate?

*s it necessary for the regulated "arty to modify immediately its 0ehavior to

conform to the agency mandate?

o Where the affected "arty can show that agency action is final, the challenge involves

a purel5 legal Euestion and immediate economic ar*sip ensues from the order,

the affected "arty!s claim is rile for review

A--ott ;a-oratories – challenge to authority of 87A order to advertise

the generic name of drug ever5 time the "ro"rietary name was advertised "resented a purel5 legal Euestion concerning a final agency action that

delat the aggrieved an imme*iate e)onomi) in+ur5& Ripeness

o *t is necessary for the challenging "arty to show all three "rongs are "resent

'oilet ,oo*s – though a regulation to sus"end the licenses of manufacturers

for refusal to allow ins"ections was final and "resented a pure legal

B3


32/36

Euestion, s"ecific manufacturer incurred no imme*iate ar*sip from the

mere announcement of the license sus"ension order& Not Ripe

o What are the "olicy consideration that underlay the ri"eness doctrine?

A*min =lesing Out

• 1"ecific factual scenario will allow courts a fo)us u"on which to

0ase review Agen)5 Mission

• Courts should allow agency to com"letely resolve its "olicy

"ursuant to its admin mission "rior to legal examination of the

action Prompt Resolution

• he earlier the courts "ronounce their 'sentence on the actions,

the earlier the agency may enforce a "olicy u"held or adjust a "olicy denied

4on)urrent nfor)ement

• Agency may enforce their "olicy while the court is mulling its

legality

o Affected "arties will seek sta5/temporar5 in+un)tion

until a court decision comes down

(austion

Basi) Rule 1 long settled rule of judicial administration that no one is entitled to

judicial relief until the prescribed administrative remedy has been ehausted (M5ers&

# Why does the rule of exhaustion exist?o Agen)5 Respe)t

es"ect agency autonomy to make final decision in area of ex"ertise

Courts should not countenance+encourage flouting of administrative

"rocess in favor of judicial remedieso A*+u*i)ative ffi)ien)5

Allow the agency to develo" a )omplete fa)tual re)or* 0efore review

Agency may resolve te un*erl5ing *ispute in favor of the a""ellant if

allowed to com"letely adjudicate ()onserve s)ar)e fe*eral )ourt

resour)es&

4ivil Pro)e*ure Analogue – no interlo)utor5 appeals so as to avoid

a""eal of each decision of admin agency

# Retrospe)tive (austion – litigant challenges adverse admin action in federal court des"ite

her failure to exhaust admin remedies 0+c the SO; on administrative a""eals has la"sed

o Ro) an* a 6ar* Pla)e – admin 19@ "recludes admin a""eal and exhaustion

forecloses the federal courts from hearing the claim

o ow do the federal courts avoid the harsh ro) an* a ar* pla)e situation to assert;7 to hear the claim?

M)Fart 1 (pplication of the ehaustion doctrine in specific cases re%uires

an understanding of its purposes and the particular administrative schemeinvolved * holding that exhaustion does not a""ly to case of alleged draft

dodger given the "articular structure of the 1elective 1ervice 1ystem and

the circumstances of the case)

• -"holding e(austion in )riminal )ase would 0e "articularly

harsh

B=


33/36

o hreat of criminal sanction mitigates fears of admin

flouting

7raftees are not likely to flout admin remedy

when 'dodging carries 2 year sentence

• no invasion of agen)5 autonom5+respe)t/premature

interruption where agency "rocess is com"lete 0+c 19@ has

la"sed• M)Fart "resented a pure legal Euestion – no factual record

necessary for review

# 7oes the A$A re:uire exhaustion of all admin remedies?

o J9 # IMQD# =inal agen)5 a)tion L is su0ject to judicial review

An agency action otherwise final (A--ott& is final (and thus su0ject to

judicial review) unless

• Organi) Statute ex"ressly "rovides otherwise or

• Agen)5 Rule

o e:uires otherwise and

o 7eems action inoperative

o 8or an a""eal to superior a*min agen)5

o herefore, unless organic statute deems the action not final or the agency does so

itself 0y regulation, all agency action otherwise final may 0e a""ealed to federal

courts

ar-5 – agency "rovision of o"tion to seek reconsideration of decisions of

A@;s does not re:uire "arty who receive adverse A@; ruling to e(aust

agency remedies through reconsideration where neither the agency organic

statute or agency rule re:uires so Mene*e9 default judgment & final agency action su0ject to judicial

review in a0sence of agency reg or organic statute announcement otherwise

# Would the modern inter"retation of IMQD have "recluded the e(austion ruling in M5ers?

o Jo – the action a""leaed in M5ers was not oterwise final – it was only a formal

)arge

;esson – *f an agency wishes to ensure that a regulated "arty exhausts her

administrative remedies 0efore seeking judicial review, then it must ex"licitly do so 0y regulation in the

event their organic statute does not re:uire it%

5% What if the organic statute "roscri0ed agency attem"ts to re:uire regulated "arties to exhaust

admin remedies?

o Congressional will would trum" agency attem"t to control adjudication through

"rovision of exhaustion

Impe*e te e(e)utive in te performan)e of is 4onst *ut5

Stan*ing in administrative law, the doctrine is a mixture of Constitutional and 1tatutoryauthority that limits the exercise of federal judicial "ower to those instances where there is

sufficient adversity 0etween the "ro"osed "arties

# What are the 0asic stan*ing limitations on federal courts?

o In+ur5 in =a)t – the com"laining "arty must show overnmental action that results

in an injury, e)onomi) or oterwise, that society recogni6es

BB


34/36

AAPSO government decision to allow 0anks to "rovide 7ata

$rocessing 1ervices has injurious effects on the 0usiness of 7ata $rocessor

"rovider "laintiff

• .xtends to aesteti)8 )onservational or re)reational in+ur5

Sierra 4lu- – injury must 0e to s"ecific legal person, ergo association

itself does not have standing to sue

• Asso)iational Stan*ing/asington Apple – association may sueon 0ehalf of its mem0ers where

o /em0ers have standing inde"endent of the

association

o Association!s "ur"ose is related to the "ur"ose of

the suito neither the claim nor the relief sought re:uire

individual "artici"ants i%e no monetary relief is

sought ;u+an – injury alleged must 0e temporall5 imminent to have re:uisite

)on)rete in+ur5

S)lesinger generali9e* grievan)e – one whose injury is dis"ersed

across the "o"ulation – does not satisfy injury in fact std% Why?

• 'a(pa5er suits• $olitical "rocess is the remedial venue for generali9e* grievan)es

(

administrative law - siegel - spring 2003_4

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