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[Page number references are to Lawson, Fed. Admin. Law, 2nd Ed., unless noted] APA = minimal procedural requirements when a federal agency takes action • Anything or anyone who can take final actions that affect rights o Agency or not? Amtrak case: the Supreme Court is going to decide based on actions rather than what Congress says. Timeline, US History 1. Founding a. Agencies were in the executive i. Single-headed ii. Not much rulemaking authority iii. Small, limited scope b. Courts did most of what we consider administrative law today c. Parties and the spoils system, no civil service system 2. Rise of the railroads a. US very dependent on the system b. The system was fragmented 3. Granger Movement a. Rural/farmer/anti-big business/anti-wall street political movement b. Lots of commerce clause cases 4. Interstate Commerce Commission, 1887 a. First modern federal agency b. Formed mainly to regulate railroads c. Independent Commission 5. Progressive Movement: late 1800s to early 1900s a. Get away from spoils system b. Get politics out of agencies c. Create non-political / non-judicial bodies d. Civil Service Reform 6. FTB, FTC created on the same ICC model, 1910s a. Multi-member commissions 7. New Deal, 1930s continues this movement a. SEC, NLRB, FCC i. Independent ii. Professional iii. Broader mandate... act in the public interest b. National Recovery Administration “NRA” – now gone i. Some Con Law poultry cases got rid of this agency 8. 1946 – APA a. controversial... these agencies are not in the Constitution b. enacted right after the war i. a compromise between those who wanted agencies and those who did not 1. How will the public participate in rulemaking by agencies? 9. 1960-70s: EPA, OSHA, NHTSA a. Congress drops the independent commission form b. These agencies are headed by people who are directly under the President c. Congress no longer trusted the agencies to act in the public interest i. Wanted the President and the heads to be accountable for their actions ii. Wanted to keep agencies from becoming the tools of corporations iii. Action Forcing - Given specific mandates, less broad than the earlier “public interest” mandates 10. 80s to Present – Cost-Benefit analysis / Deregulation
Ohnesorge, Administrative Law – Outline – Fall 2003
Ohnesorge, Administrative Law – Outline – Fall 2003
Conceptual views of agencies: Madison • separation of power • checks and balances Eastman • Expertise theory • Experts will forget affiliation and ideology and rule as philosopher kings Landis • Judges are experts at policing the boundaries, the procedural component of agency actions • Deference in any review of substantive decisions because not experts Bernstein • Capture Theory • Advocate of political accountability, greater executive power to combat the power of the regulated parties and industries Noll • Mechanical like bernstein Wilson • Lets be more empirical • Cautions against rigid rational actor models like Bernstein and Noll Ideal Types Legislation ---------------------------------------------------------------------------- Adjudication Speed limit ---------------------------------------------------------------------------- prosecution Generally Applicable ---------------------------------------------------------------- specific people Prospective ---------------------------------------------------------------------------- retrospective Requires actual application to deter --------------------- concrete application of law to facts Gray-area examples ICC – Railroads – Ratemaking Pond/Sawdust – Massachusetts – order given to specific sawmill with no hearing When does it matter? Procedural Due Process • If it is legislation, no process is due • Adjudication, yes
no violation of due process o impracticable to have more than a few people have direct voice o Necessity . quality and fitness for consumption The First Congress: Examples of Delegation Congress says US will pay Rev. 1915 (Holmes writes majority opinion) • 40% increase in property valuations • Holmes says that the question is “whether all individuals have a constitutional right to be heard before a matter can be decided in which all are equally concerned.” • no hearing given. Administrative Law – Outline – Fall 2003 Question: Is it a rulemaking or an adjudication? Londoner. it is not let into the country. 1908 (Holmes dissents) • Cul-de-sac road improvement • Paid for by special assessment to people who live on cul-de-sac • No hearing given. violates due process • This is an adjudication Bi-Metallic. State application of their rules o This was an adjudication under the APA b/c this is basically licensing This was result driven adjudication Separation of Powers Congressional Delegation: the non-delegation Doctrine How much of its own authority can Congress delegate to other actors? Example: o The Tea Importation Act (repealed in 1996) Congress instructs HHS to create a body that will submit tea standards (samples) to HHS All imported tea will be taste tested against these standard samples If the fails to live up to the standard. War vets pensions for one year “under such regulations as the President [ ] may direct.Ohnesorge. so it is invalid under the APA b/c no comment period Interesting – HUD’s rulemaking is NOT what was challenged in the case! o They were challenging HUD’s approval of the Wash. Rated on purity. 1994 (9th Cir) • HUD changes policies to allow for easier evictions when criminal activity is involved • Wash. State courts • HUD wants this to be adjudication b/c they do not want to have comment period o [they had not had a comment period] • • • Holding: this was a rulemaking/legislative act.” -4- .There must be a limit to individual argument for government to go on • • Londoner distinguished b/c it was concrete application of law to specific people not general legislation This is a Rulemaking Lincoln v. Vigil. 1993 The definition of “rule” under the APA is barely less than arbitrary Yessler Terrace. State applies the policy to its rules/laws as applied to tenants • Due process is still protected under Wash.
1928 • President can alter amount of a duty of imports “to equalize . Ryan.. Clark. from time to time. US. 1813 • Conditional legislation o Congress restricts trade with Britain o One of the later versions of the law says that the POTUS can end the restrictions is he proclaims that Britain had met certain criteria • This case is a Negative grant of power.Ohnesorge. 1935 • New Deal. cause to be established. in their discretion. Why not just delegate everything and have a monarchy.? o Final legislation included language that allowed the Postmaster to determine how many deputies he would have and where they should be assigned Cargo of the Brig Aurora v.. like a veto based on a fact finding o There are also positive grants of power. “filling in the details” language • Court says this type of delegation is ok Field v.” The Second Congress: Example of Delegation Postal routes: Bill introduced into the House authorizing the carriage of mail “by such route as the POTUS shall. then the delegation is OK The New Deal Panama Refining v. deem expedient. 1825 • Delegation of power to the federal courts o “Such alterations and additions as the [federal] courts . Southard..” o Bill ends up being defeated because many are afraid that this delegates too much leg. of the treasury may remit or mitigate any fine for violating certain laws “if in his opinion the same was incurred without willful negligence or any intention of fraud. Congress and Roosevelt want to control oil prices by regulating interstate commerce. the costs of production” • Court upholds the delegation • Intelligible principle doctrine: o As long as such direction is given by congress. Authority to the President. Administrative Law – Outline – Fall 2003 Congress says that the Sec.. shall... but not here • SCOTUS says this is all fine and good • Could there ever be review of the president’s fact finding? Wayman v. US. 1892 • delegation of power to president • if a country had “reciprocally unequal and unreasonable” trade practices o president could move country into higher level of tariffs • Courts says this is fine o Says legislative delegation is a no-no o BUT this is not legislative delegation • Congress specified all the duties to be paid in advance • This is just expediency and operation delegated to the president JW Hampton v. this is to raise the price by controlling supply -5- .
not designed to promote monopolies or to oppress small businesses o Other than these two. US. and technical subjects • Question: Has SCOTUS given up on enforcing non-delegation completely? • Scalia dissents. when dealing with complex. that is Congress’s job o Delegation of “judicial” or “executive” power is fine o There should be no delegation of legislative powers Ohnesorge says that power is now legislative for Scalia if it is co-mingled with executive of judicial power Fiction of non-delegation • Congress makes larger decisions and then the agencies fill in the details • o Also: -6- . 1989 • US Sentencing Commission has power to promulgate sentencing guidelines for every federal criminal offense • Intelligible Principle? o Majority says there is more than an intelligible principle o Also says: “Congress simply cannot do its job absent an ability to delegate power under broad general directives” • Especially.Ohnesorge. Administrative Law – Outline – Fall 2003 Not completely open-ended delegation b/c everyone wanted to confront deflation and depression Court strikes down delegation saying that there would be no barriers left blocking legislative delegation Cardozo dissents saying that this delegation is corralled o • • Schecter Poultry v. changing. that which is necessary “to effectuate the policy” The goal was to increase wages o Decrease hours of some o Same total needed. US. the President is left to his discretion. the industry group proposing must be truly representative. saying no agency should be created to create laws. 1935 • Idea was to get industries to overcome competition and find a consensus on a Code for their industry to be regulated by o The President would OK this code o He can also make changes in his discretion o Limitations: 1. no unfair barriers to membership • 2. gets more people working o Also increase minimum wage so that the new hires are making a living wage Court strikes down on delegation grounds o Cardozo concurs saying that the code is not canalized within banks that keep it from overflowing • • • Modern Doctrine Non-Delegation cases will not be well received: Mistretta v.
1989 9-0 Court says there is “no support” for a standard different than Mistretta for Executive delegation under the taxing power Touby v. Administrative Law – Outline – Fall 2003 Skinner v. 1998 Congress enacted the Line-Item Veto Court held that the cancellation of a line item in a bill. was tantamount to an amendment of the statutory text. 1996 Strikes down delegation Discretion to buy land is given “for the purpose of providing land for Indians” o Court says there are neither perceptible boundaries nor intelligible principles Loving v.Ohnesorge. 7 Scalia. Mid-America. US SCOTUS. American Trucking.. Greyer. had the president made delegations of judgment and discretion that were outside his Constitutional powers. Art. 2001 • EPA regulates particulates -7- . 1991 9-0 Court says even if higher standard needed in criminal cases. I Sec.. US. which can only be done by Congress. then there are delegation problems o Court says let’s construe the statute in a way to avoid this problem • Worth reading Rehnquist’s concurrence again Spark of Life for Non-Delegation??? South Dakota v. and O’Connor would have upheld under a delegation analysis Probably Dead. City of New York. “necessary to avoid imminent hazard to public safety” is plenty Court declines to address the question of whether higher standard is needed Rehnquist wants non-delegation back: Industrial Union. US Dept. for now. of Interior 8th Cir. then Delegation could be a problem Clinton v. 1980 • OSHA – single-headed o Mandate: make workplaces safer • Not enough data on benzene • Majority says that agency needs to provide a threshold showing before creating a permanent standard • If agency is right in its interpretation of the statute. the EO is upheld o However. 1996 Executive order specified criteria for military courts to use in death penalty cases Kennedy writes for 8 justices o Says the President does have this power as commander and chief.
Ohnesorge. Administrative Law – Outline – Fall 2003 • • DC Circuit strikes down on non-delegation basis Supreme Court reverses 9-0 o Stevens and Souter attack Scalia in concurring opinion o Thomas “asks” for more non-delegation cases Strong re-affirmation of Mistretta in the majority opinion • -8- .
actually lives in Kenya.Ohnesorge. but then says. • 3. House (or Senate. the entire program.. good moral character – DELEGATION o probably meets this one. he has been to school and worked here for 7 years. but UK citizen.. or committee. 7 years – objective o he meets this prong • 2. etc) can veto the decision o INS v Chadha he must meet 3 conditions to stay: • 1. how can congress control agencies? • Legislative Override – Congress passes a new statute that undoes the rule/action of an agency o Seatbelt case: NHTSA Lack of seatbelts is a public hazard. Administrative Law – Outline – Fall 2003 Congressional Control of Agencies: When it wants to. we like that.. will suffer extreme hardship if deported – MORE DELEGATION o From India... they can lose funding.. o What is hardship? What is extreme? INS decides to let him stay b/c he meets the criteria Legislative veto – House says no to that decision • Question – is this constitutional? o Presentment issue: did not present to President o Bi-cameral issue: just the House Court says this is unconstitutional because of both issues Congressional Review Act of 1996 – Enacted in the wake of Chadha o Applies to all rules (not orders). it distinguishes between major and non-major rules as OMB does All rules must be submitted to both houses of congress and the comptroller general • Not supposed to go into effect before they are submitted. and the individual careers of the officials -9- . people die in large numbers • Creates rule that cars cannot start without seatbelt being engaged (seatbelt interlock) People upset and Industry upset • Industry attacks this rulemaking in the courts. fails • Congress overrides NHTSA • Legislative Veto – gives power to agency. he probably pays his taxes. so that Congress can change it before it is enacted (60 days) • Supposed to go directly to relevant committees • Efficiency and close oversight are the goals o Congress forces itself to act more efficiently and timely • Indirect Effect: Legislative history through courts Significant debate over appropriateness of judicial use Direct Effect: Legislative history in agencies Agencies are very aware of legislative history beyond its use in the courts because they only lose a case of they are wrong in the courts o If they are wrong vis-à-vis Congress.
Administrative Law – Outline – Fall 2003 Do congressional committees actually control agency action via this informal conduit? .10 - .Ohnesorge.
ALJ • Landry has been dismissed by the FDIC on the recommendation of an ALJ o Landry was the CFO at a bank in Indiana o Landry argues that ALJ’s are inferior officers o If they are. • Take testimony. FDIC. conduct trials. They have the power to make final decisions. Valeo.” Court distinguishes Freytag: o ALJ’s never render final decisions o ALJ’s do not receive the same deference on factual determinations that judges in Freytag did o However. two problems: o Congress cannot appoint o House and Senate do not both have advice and consent • President must appoint and Senate must advise and consent Freytag. congressional power to decide mode of removal Decided that presidential removal power was the way to go o VP split tie in Senate . this will run afoul of the Appointments clause • • • Congress has given the FDIC (and other banking agencies) instructions to “establish their own pool of administrative law judges. 1976 • FEC board members. ALJ position is established by law as in Freytag o Also. power to enforce compliance with discovery orders • Possibly also primary officers because there decisions are final if not acted upon by those above. presidential removal o 3. 2000 • DC Circuit • Administrative Law Judge. take evidence.11 - . Administrative Law – Outline – Fall 2003 Agencies and Article II Appointments Clause Buckley v. 1991 • Tax Courts – legislative creation o Special Trial Judges (STJ) • Are they officers? Primary Officers? • Court says obviously officers. Landry v. rule on evidence. conduct trials. are they officers? Yes • Appointment procedure not ok. etc Significant discretion Court says that ALJ is an inferior officer Removal of Officers Decision of 1789 House and Senate have significant and sophisticated discussion of the issues and considered: o 1.Ohnesorge. by mode of appointment o 4. impeachment only o 2.
if not confident in subordinates. 1935 • Or. in a joint resolution. Administrative Law – Outline – Fall 2003 Myers v.. the governing act says that he cannot remove without “good cause” • Courts says: o FTC Act meant to limit President’s power in this area • Must be non-partisan..12 - .. FTC Commissioner Humphrey • FTC governs commerce o Rulemaking. US. o If he is an agent of the executive. Then orders him to leave office o But. Synar. the statute that governs says the president can remove only with the permission of the Senate • Family is suing for back pay. bringing suits. • • Court says he is a legislative agent b/c he can be removed by congress. must be able to remove o This applies at least to all heads of departments and bureaus Humphrey’s Executor. Olson. this case was simply decided wrongly Bowsher v. • Scalia dissents. etc o Says most of Myers is dicta • Confines decision to the removal of purely executive officers.. 1926 • Portland’s Postmaster. argues that this is a huge blow to the presidency o Ind. Counsel is inferior officer • Independent counsel. investigative actions • Humphrey appointed by Hoover just before Stock Market Crash • Roosevelt takes office.Ohnesorge. then unconstitutional. then OK. Roosevelt v. removal by Atty. but not to a very large degree and the President still has some power b/c of good cause dismissal o Cites Humphrey’s Executor as better for this case than Myers. for the rest of the postmaster’s term • Court says: the president has this power because removal of an officer is an executive power. counsel is pure executive power . not officers of independent agencies • By modern standards. removed by President before end of term o But. General is limited to “good cause” o Does this interfere with the President’s executive functions? o Court says it does. politely asks Humphrey to leave office. Strikes down law Morrison v.. 1986 • Budget Deficit Reduction Act • Comptroller general ends up being the executor of the law o If he is an agent of congress. o Controlling subordinates = executive power. 1988 • Courts says Ind.
those under the gun can appear with a lawyer but cannot cross-examine witnesses • SCOTUS says this is all fine .Ohnesorge. explain why Congress cannot transfer all adjudicative functions to politically controllable officials? o Schor is a narrow holding to counterclaims of same transaction o There is judicial review of all o The SCOTUS will not allow it!!!! That’s how the Constitution works! Lawson wants to separate: • Executive adjudication o Deals with “mere privileges” • Judicial adjudication o Deals with due process – life. like O’Connor here. Landy (state law counterclaims from same transaction) to support argument • Brennan and Marshall write an almost formalist dissent • Question: how do functionalists. 1986 • Issue: CFTC has power to adjudicate claims under statute. Administrative Law – Outline – Fall 2003 Interaction with the Executive Trading Commission v. but do they have power to adjudicate counterclaims stemming from the same transaction. III Courts • O’Connor writes a functionalist opinion o These provisions the congressional scheme does not impermissibly intrude on the province of the judiciary Only differ from traditional boundaries in one respect: jurisdiction over common law counterclaims Dismisses slippery slop arguments Cites • RFC v. only regarding counterclaims like this More efficient • Distinction: Public and private rights o Public law = historically can be adjudicated by both agencies and Article III courts o Private law = property. 1975 • Wisconsin Examining Board has investigative and adjudicatory powers/responsibilities regarding practitioners of medicine o At hearings. w/ judicial review) and • Katchen v. or property Due Process • Notice • Opportunity to be heard • Cross-examination / Contest / Confront • Neutral adjudicator / not biased in decision making Withrow. Banker’s Trust (jurisdiction over a state law claim ancillary to federal law claim. III courts But. etc – historically. salary. but based on state common law? o Did Congress overstep its Article III powers? These judges do not have tenure.13 - . the courts did not lose any power b/c they have review These are very limited circumstances. liberty. only adjudicated by Art. contracts. torts. Schor. etc of Art.
In rulemaking.” United Steelworkers v. too many people o This informal presumption makes the process much more streamlined . look to organic statute. Florida East Coast Ry. o o Constraints on Administrative Procedure • Sources of law o Constitution Procedural due process • Federal and state o APA o Organic Statutes o Agency Procedural Regulations o Practices o Court Decisions APA – 1946. no statute that lacks the magic words has been found to require formal rulemaking • B/C of this case. notice and comment rulemaking o Can just be in writing • Criticisms of the opinion o Goes against text of APA o Both parties thought formal was required They were arguing escape clause o Rehnquist writes this major decision • Compliments o Formal rulemakings were so complex and slow that it was almost useless as a rulemaking mechanism Percentage of peanut content in “peanut butter” under formal rulemaking. 557) if the words “on the record” o Hybrid rulemaking o Court relied heavily on Allegheny-Ludlum in making this decision o In the 25 years since FECR.Ohnesorge. page 909 • 553 – notice and comment/informal hearing o 553(c) – if “to be made on the record” then 556.14 - . Marshall. it took NINE YEARS • Can cross-examine anyone involved.. page 198 [right after Roe and Doe in US Reports] • Rulemaking only needs to be formal (556. 557 apply • • • 554 – is there an informal adjudication? 556 – formal/trial-type hearing 557 Formal (no longer) Rulemaking. vast majority of rulemaking is under 553.. Administrative Law – Outline – Fall 2003 Presumption of honesty Analogous to a judge issuing a warrant for probable cause and then sitting for the trial o Lots of precedent cited Bias: Decisions to not recuse oneself will be reversed where an actor has “demonstrably made up his mind about important and specific factual questions and is impervious to contrary evidence. Also Cinderella Career and Finishing Schools v. FTC. 1973..
Ohnesorge. most people think 1st circuit will lose • DC Circuit has been wishy-washy on the issue (page 227) and Chemical Waste. also get what Congress specified in the organic statute. • The judiciary would be doing the review. they should have a say in what the record will include o says that FECR is for rulemaking only West Chicago v. o Chevron enhances agency discretion Regs – they will have likely changed their regs Practice – they will have likely changed their practice Adjudication Formal/Informal split • Formal 554-557 o 554a: Exact same triggering language as rulemaking • Informal 555 o Not much by way of requirements o Can be very informal Courts have applied some restrictions to informal adjudication because they need to be able to review meaningfully the agencies decision A split between the Circuits. Costle (1st Circuit. 1978) • Discharge of heated water. 1983) • Regs – 10 CFR 2. • • • Seacoast anti-pollution league v. from nuclear plant • Question: what language creates a presumption of formal hearing? o The court says that any language calling for a hearing should create the presumption of a formal hearing.105 o Very deferential review o Court says neither is triggered 2. NRC (7th.104 defer to agency’s interpretation 2. Guarantees • reasoned decision making • an evidentiary record for reviewing courts 555 is pretty thin. SCOTUS has not spoken. see below . either “on the record” or very clear intent from Congress o thus no APA b/c not triggered Constitutional Due Process o Court says health and environment concerns do not constitute liberty or property o Even if they were. Court did not want to leave the factual record created under 555 and Congress alone. the AEA o Adopts a stance very similar to FECR. unlikely to get anywhere • Statute – as long as reasonable under step two..104 and 2.105 this is not a commercial disposal Statute – 189(a). Administrative Law – Outline – Fall 2003 Procedural rulemaking attacks • Constitutional DP – unlikely • APA – b/c of FECR. we would hold that there was sufficient process • • Eventually..15 - .
rather than informal. Notice of Proposed Rulemaking. only is here) 3. Administrative Law – Outline – Fall 2003 • • Chevron (SCOTUS. narrowly construed. 1983) Vermont Yankee (SCOTUS. EPA uses formal for some. as almost all rulemaking was now notice and comment after FECR Three layers of informal rulemaking: 1. Informal Rulemaking Buildup to VY: 60s and 70s saw the fear of agency capture grow DC Circuit dominated by liberal activists creates hybrid rulemaking. conduct of rulemaking proceedings (Vermont Yankee. framework for courts reviewing agency interpretations of statutes. 1978 • Rehnquist reigns in DC Circuit. 1978) o Courts cannot add to the procedural requirements of the APA o Trying to reign in the federal courts o But this was on rulemaking Chemical Waste (DC. EPA uses formal. data that. though not nearly equal to formal rulemaking Example: Portland Cement v.” Taken to mean that the DC Court would require this DC makes by far the most Admin law decisions Flight to rulemaking. NPR 2. and o ii) that courts in various circuits have applied the Chevron framework to agency determinations of whether their statutes require them to engage in formal. adjudication. publication of a statement of basis and purpose Vermont Yankee.Ohnesorge. 7-0 decision o DC was requiring more formal requirements than APA Would this allow public interest/NGO orgs to challenge industry influence? Were the DC circuit justices worried about agency capture? • Apparently so • Can be read in two ways .. type of order given.. requiring additional procedure from agencies. depends on type of situation.What you need to take from Chemical Waste is o i) that the Supreme Court's 1983 Chevron decision provides a new.16 - . 1989) • Issue: what procedure should be used for review of EPA orders (orders result from adjudications)? o (b). deferential. level of civil penalty • Ohnesorge said in email . “It is not consonant with the purposes of a rulemaking proceedings to promulgate rules on the basis of . is known only to the agency. severity of corrective action. informal for others. Ruckelshaus. but leaves some wiggle room o (h). [to a] critical degree. says congress “probably” intended formal.
broadly – applies to all rulemaking procedure Did anyone listen to VY??? Seems like they did for Phase Two. For unless there is common ground. DC Court upholds the regulations. 2nd circuit Phase One: o Agency promulgates rule but provides none of the data it relies on o “To suppress meaningful comment by failure to disclose the basic data relied upon is akin to rejecting comment altogether. 1977.” Nova Scotia.17 - . DC “It is not consonant with the purpose of a rulemaking proceeding to promulgate rules on the basis of inadequate data. one issue is only mentioned in a footnote in the background section • Turns out to be important aspect of changes . 1995. Portland Cement: 1973. but has “concerns” about the procedures followed.” Could lead to arbitrary decision-making o Court says this is procedurally erroneous as the burden is on the agency to show why the rule should be applied to such a broad class of fish Phase Two: o Court strikes down on this basis as well o Agency left vital and material questions that were raised in comments unanswered o Court will not sanction silence Connecticut Light and Power Co. but just barely o Exemption procedures play an important role in the courts upholding the rule Phase One: Rule changes from NPR to final rule o Court says this makes comments almost useless because comments are on something that is not the final rule o Courts says that NPR must contain adequate technical basis for proposed rule so that meaningful comments can be made (like Nova Scotia) o But. narrowly – only concerns middle section of rulemaking.Ohnesorge. Administrative Law – Outline – Fall 2003 o 1. or on data that [in] critical degree. 1982. v. NRC. all is good because the final rule was a logical outgrowth of the NPR NPR gave precise subject matter and issues as required by 553(b)(3) Phase Two: o Court says that the statement of basis and purpose must be sufficient to allow judicial review without the court “rummaging” through the record to elicit reasoning MCI. DC Circuit • 1st phase – NPR o buried notice In NPR. the comments are unlikely to be of a quality that might impress a careful agency. is known only to the agency. courts cannot make new procedural requirements o 2. says the commission has complied.
cannot be direct basis for enforcement action Practical effects of interpretive rules may be the same as those of legislative rules Substantial Impact – reality-based. unnecessary. Williams 4-part test American Mining. can only be applied much later. whether the rule effectively amends a prior legislative rule “Good Cause” 553 – “when the agency for good cause finds . there must be a balance between the degree to which rights are effected and the needs of the agency Court upholds hard look rule because after applying balance test.reality-based.Has legal effect. the rights affected are not as important as the efficiency concerns of the agency Policy Statement or Interpretive Rule? Four tests • Legal Effects – legal formality test. Administrative Law – Outline – Fall 2003 o Court applies Florida Power & Light – was the notice “adequate to afford interested parties a reasonable opportunity to participate in the rulemaking process” More cites on 275 Exemptions from APA rulemaking procedures Procedural rules (procedure and practice) JEM.. in absence of rule. See 287: US Telephone Ass’c. very pro-agency.” • • • . substantial effect on the regulated parties Impact on Agency . or contrary to the public interest.. Vermont Yankee killed this test o Does a rule have a real.. whether it has been published in the Code of Federal Regulations 3. has the effect of law o Interpretive rules are not enforceable..Ohnesorge. 1993 Test: If YES to any of these. then. there would NOT be an adequate basis for enforcement action 2. 1994. o Fact/history specific: what is the agency actually doing with regard to the rule? If 100 people break an “interpretive” rule and all 100 are prosecuted by the agency. whether the agency has explicitly invoked it legislative authority 4. DC • FCC creates “hard look” rule o Any incomplete applications or errors in applications • • All procedural rules effect substantive rights. then it is a legislative rule: 1.18 - . DC.. that notice and public procedure thereon are impracticable.. causes gamesmanship o Substantive/Legislative Rule . is binding on regulated parties.
especially if accelerated construction before final ruling is given • Court strikes it down because the agency did not back up fears about environmental problems from construction with good data. . 1992. interim measure o 2.Ohnesorge. DC • Interim rule challenged o Rule requires notice to be given to the agency before construction on existing or new pipelines • Agency argues that it falls under the good cause exception o 1. needed to prevent environmental harm.19 - . Administrative Law – Outline – Fall 2003 Inherently fact-specific Tennessee Gas Pipeline v. FERC.
Similar to Overton. 1971 • Congress has said that Federal funds may not support the building of a highway through a park (or other similar area) unless o “no feasible and prudent alternative” AND o “all possible planning to minimize harm” • Secretary of Transportation decides to run highway through Memphis’s Overton Park o Says “no feasible and prudent alternative” AND “all possible planning to minimize harm” o But. see US Tankers Owners Committee v. Lewis. Administrative Law – Outline – Fall 2003 Informal Adjudication Adjudication – whatever creates an order • Same “on the record” language. they must remand to District Court for factual record-building • This case is based on the citizens substantive complaint. so agency is forced to bring an enforcement action. PBGC takes the LTV pension plan. Volpe. 1982.20 - . LTV. you should get a prompt notice of denial with grounds for denial Citizens to Preserve Overton Park v. but it develops additional procedural requirements. arbitrary and capricious o to review using this standard. does not back up these findings • 706 gives the court its standard or review. interested parties need to be somewhat informed of and have the ability to comment on the evidence that the agency has in front of it PBGC v. then decides to give it back when it thinks the steel industry is facing an up tick • LTV refuses to take the pensions back.Ohnesorge.. 1990 • PBGC is kinda like the FDIC.. LTV challenges enforcement action in court • LTV argues Overton o This decision was procedurally inadequate o Sometimes it is ok for courts to require additional procedures • PBGC argues Vermont Yankee . but not the same at all • Trend is to make adjudication more like rulemaking. look for “hearing” language in organic statute Informal adjudication requirements • Constitutional Due Process o 5th and/or 14th amendments • Organic Statute o May not trigger formal. but provide pension insurance • LTV files for bankruptcy. DC: Court says the trend is towards requiring the equivalent of note-and-comment procedures for informal adjudications o Courts require some explanation of agency action o Also. deference to agency. the court needs some record to go on o so. but may require some process • Agency Regs • Agency Practice • APA DOES NOT HAVE anything beyond 555(e) o If you have made a written application/request and it is denied.
not in original SEC order Chenery I rule o Cannot uphold agency action based on justifications brought up in court alone o Must base review on actual reasoning used by agency at the time Court seems to want SEC to use its expertise to promulgate a rule/regulation. That Overton did not create new procedures out of thin air but based them on the “arbitrary and capricious” section of 706.SEC says that Chenery has a fiduciary duty to the shareholders • from Business law. 9th Circuit (Supplement) • Legislative v. you want adjudicators to take notice of these • X is president of C o Adjudicative Fact: relevant to parties in the case. the facts under adjudication • Y and Z can return to country C without fear of persecution o Mixed • Q is out of power in C • 556(e) of the APA o only applies to formal adj • No clear rules about when official notice must have a chance for opponent to rebut Chenery Saga Chenery I. not an adjudication • . Meinhard v. INS. this does not provide any real support for the SEC’s position 2. special dividend rights • 1935 Public Utility Holding Act o creates SEC to force reorganization of public utility holding companies o supposed to approve reorganization plans that are “fair and equitable” and not “detrimental to the interests of investors” • Commission says o Chenery cannot buy into the new shares of the new post-merger corp through Federal’s current preferred shares o Why? • • 1. Administrative Law – Outline – Fall 2003 o Vermont Yankee says that Courts should not add procedures Court upholds the agency action and says that Overton and VY are not in opposition.Ohnesorge. adjudicative facts o Legislative: facts about the world. Castillo-Villagra v. Business Law reasoning . 1943.21 - . 1993. Salmon • Unfortunately. Expertise Theory – the SEC has the experience to apply the standards of the organic statute • did not raise this until the Trial. US • Chenery owns Federal Corp through a complex set of corporations owning other corporations • Federal is a holding company that owns shares in utilities • Federal Corp has three classes of shares o A o B: voting rights o Preferred: often do not have voting rights.
when and what process needed? • For property interests o “legitimate claim of entitlement” what is that? • Documentation of some kind saying you have a right to it • Basically. or property b. we are going to look at the nature of the deprivation o Move magnitude to third inquiry. Before deprivation can take effect? • Usually a strong presumption ii. or property? a. look for a formal positive source • Some people describe this case as creating a positivist trap o The employer or legislature can control whether you get an entitlement Entitlement Paradox • Entitlement is defined by the process given to you o So. Often this means. Being called a communist in 1950s was a big deal b. Afterwards? 2.Ohnesorge. McGrath. liberty.. Frankfurter’s concurrence is the important opinion • Group was put on a list of communist orgs by Attorney General a. But if fits into life.. Administrative Law – Outline – Fall 2003 Due Process 1. or property then don’t worry about magnitude Application of McGrath’s “grievous loss” standard: Wisconsin v. What is the action? (according to the Courts. Kinda • Frankfurter uses “grievous loss of any kind” or magnitude analysis a. they were lucky to even find out that they were on the list • Was there a deprivation of life.22 - . When is the process due? i. Constantineau (1971) (page 396) Bd. Of Regents v. Tarnished your reputation • No process given. 1951 • Ignore the majority opinion. Don’t necessarily worry about life. 3. then you have no entitlement and no due process claim o There is a post-Roth line of cases that bring this and other problems up Likely cover these in con law II . Londoner/Bi-Metallic) a. liberty. v. if the process given to you says you have no process. Adjudication Was there a deprivation of a Protected Interest? What process is due? a. liberty. Rulemaking b. Roth • One-year contracted professor is not rehired • Court limits due process deprivation inquiry o The range of protected interests [in property and liberty] is limited o We are not going to look at magnitude. Joint Anti-Fascists Refugee Comm.
private interest – including magnitude of harm o 2.Ohnesorge. including the burdens additional procedure will cause on the government is the gov’t interest. express intent to enhance the role of the judiciary in reviewing agency determinations • Court says that action must be: o Supported by the evidence seen in the whole picture Includes pro and con evidence Also must look at the findings of the initial determination. just did not renew contract • • Court holds that his lack of tenure did not dismiss his free speech claim o Also. 1976 (page 447) • a few years after Roth. only “arbitrary and capricious” to review findings of fact Universal Camera (1951) • “substantial evidence” review needs to be more searching o look at whole picture. 1976 • Disability is cancelled by agency. notes that government employees may not be fired for things covered by freedom of speech (any constitutional protected interest) o Held that no hearing is required for the nonrenewal of a non-tenured teacher Unless can show a deprivation of life. McElroy. the risk of an erroneous deprivation through procedures given reliable? Fair? What is the value of adding additional procedures? o 3.” Mathews v. the government’s interest. Sindermann. Administrative Law – Outline – Fall 2003 What procedures are due (if first two inquiries are met)? Perry v. liberty or property even without tenure Reverses summary judgment and remands to District court for further proceedings Cafeteria & Restaurant Workers Union. the public interest? What are the costs of adding additional procedures? Judicial Review . all evidence • Industry and congress think that the NLRB is too pro-labor. enough process given? • Eldridge cites Goldberg (1970) which was a Welfare case o Goldberg was still in the “grievous loss” period o It said that you needed a ALJ hearing before the money is taken away • Three part test to determine what procedures are due o 1. Eldridge. AFL-CIO v.Facts Under 706 • Unless formal.23 - . 1972 • Professor at junior college in Texas is fired o He had been there for four years under one-year contacts renewed every year o He had some institutional disagreements with the Regents and had missed some classes to testify before the Texas Legislature o Regents never gave him a hearing. probably not the “findings” in the final Commission’s decision o What exactly does “substantial evidence” mean? . 1961 – “the very nature of due process negates any concept of inflexible procedures universally applicable to every imaginable situation.
And cap. 1995. respondeat superior) to be used? Court rejects common law and even state laws as bases for defining employee • Says congress intended a national standard • Mixed legal question: o Are full-time newsboys “employees?” Court decides that the Board should make the decision with review by the Courts • Through adjudications.. Hearst. ATF suspends him for 30 days b/c this was “willful” violation of the statute Court cites Felton v. 1987) which said that willful violation requires more than intentional action when the action is a violation. of the Treasury. Applied legal questions. FHA) • Some of the other circuits do not agree. reverse Judicial Review of Facts – Informal Proceedings Association of Data Processing. unwavering testimony to Trial court (AJ) indicating that he did not think this was a violation and he thought this was necessary to accomplish his duty successfully. fact-specific are reviewed: o In varying ways. not much extra driving at all. Agency normally gives discretion to officers to make this type of decision.24 - .e. Federal Reserve.. page 530 • Scalia’s opinion from his DC days o He says when reviewing informal actions. then we have to define the new language. DC Kimm works for the Dept. he is required to stay in contact and staying in the gov’t car allows him to do so. EPA (5th Circuit 1991) Judicial Review – Law Pre-Chevron • Pure. EEOC (DC. NLRB almost never uses rulemakings • Various clauses are used on 553 to define the standard of review Court should accept agency’s determination if it has: .Ohnesorge. of Treasury/the ATF and used his gov’t owned car four time in the last year to drop his child off on his way to work.. Dept. see cases NLRB v. 1984. Standard • Lawson says (page 537) that this is settled law in the DC Circuit (citing Center for Auto Safety v.. v. abstract legal questions are reviewed De Novo • Mixed questions. did they intend for the common law definition of employee (i. He is also highly decorated. Court says Not supported by substantial evidence.. major time savings.. must have knowledge that it will be categorized as a violation Kimm gives solid. same problem faced with substantial evidence Substantial Evidence is for formal agency actions • Kimm v. DC. see Corrosion Proof Fittings v.. arbitrary and capricious review is the same as substantial evidence This is not the norm He is actually try to move substantial evidence test to the arb.. Administrative Law – Outline – Fall 2003 Don’t replace with new language. 1944 • Pure Law question o When Congress defined employees as employees.
Cardoza-Fonseca.” • Court rules that the two standards are separate and the terms of each should be used exclusively for that rule. warrant in the record AND • 2.. just as it was before Chevron was misread by courts. a reasonable basis in law Court agrees with the agency O’Leary v.Ohnesorge. 1984 • Opinion by Stevens o Whether the Bubble-concept is legal Question: is this a pure question of law? • The consensus is that it is • Chevron analysis o 1. drowns himself • Pure Law question o How should scope of employment be defined? Common Law scope of employment asks Detour or Frolic of the activity. was the agency’s determination reasonable? INS v.25 - . used plain meaning to determine this o Cites chevron for the court’s and agency’s deference to congressional intent as expressed through the statute o Also holds (citing chevron) that the judiciary has the final word on the statutory construction. 1951 • Man is on employer’s property. Administrative Law – Outline – Fall 2003 • 1. then we assume Congress had delegated some discretion to the Agency] o 2. goes to save him. Has Congress spoken on an issue? With enough specificity? [if not. . de novo. no deference. subject to persecution • demonstrates that “life or freedom would be threatened” o §208: discretionary give asylum • “persecution or a well-founded fear of persecution on account of. Court agrees with the agency decision Mixed legal question o Was O’Leary acting in the scope of his employment when he tried to rescue these guys in the channel? Court says yes Uses substantial evidence test • Why? Cites Universal Camera. Brown-Pacific-Maxon. sees a man drowning. • Chevron. is misinterpreting Chevron. No justices join him. the author of Chevron. 1987 • Stevens writes majority opinion • It was fairly well-established that plaintiff feared the Sandinistas b/c they had held relatives prisoner and plaintiff had fled country • Two ways for aliens to petition to not be deported: o §243: mandatory withhold deportation • more likely than not.. If not. and in particular by Scalia. That it should be deferential review of agency interpretations of pure law. • Scalia dissents: says Stevens.
• Contracts.. v. United Food. page 586 Chevron Step 0: Wagner Seed v. 11th Circuit 2000: no deference for constitutional interpretation o Reno v. DC If more than one agency interprets a statute. 1987 (after Cardoza-Fonseca) • Courts applies: o 1. if silent or ambiguous.. then is the agency’s construction of the statute permissible? • • Scalia’s vision seems to win o He writes a concurrence (joined by 3 others) declaring that this is a re-affirmation of strong Chevron analysis Strong Chevron has not really been questioned since this case Judicial Review of Agency interpretations of their own regulations Seminole Rock.Ohnesorge. then proceed de novo because none of the agencies is administering the statute . Ass’n v. Administrative Law – Outline – Fall 2003 NLRB v. and other legal instruments are a mixed bag. FCC. 2000: judicial opinions no chevron deference.. deeds. Act not administered by any agency.. Bossier Parish School Board. 1945 • Regarding agencies interpreting their own regulations o Same as Chevron? More deference? o Seems to be more deferential: • The agency’s interpretation is “of controlling weight unless it is plainly erroneous or inconsistent with the regulation. Knoll. so not under Chevron analysis o Step 1: Has Congress spoken? o Step 2: Is this reasonable? There is a split in the Circuits over whether Chevron deference applies to interpretive rules.. Shalala (collects a whole bunch of cases from DC that say this) o 3rd Circuit agrees with DC: Elizabeth Blackwell Health Center for Women v. Bush. 10th Circuit disagrees: Rapaport. intent of congress through statutory construction o 2.” Interpretation of Constitution or Judicial Decisions • De Novo review – o Gulf Power Co. de novo? Not sure. (page 593) DC says yes: Ginsburg opinion in Wagner Seed & Health Ins. DC • Courts holds that EPA interpretation of CERCLA (Superfund) is ok because EPA “administers” it o It says step 0 is met • Chevron Analysis only if step 0 met: o Step 0: Is this a statute administered by the agency? • APA and Freedom of Info.26 - . 1991. 1995.
2001 Solid Waste wants to use an old query outside Chicago as a landfill. she definitely makes it all pretty confusing: o She decides that the agency’s decision is unreasonable and that the reasonable decision would have contradicted clear congressional intent. 2001. Administrative Law – Outline – Fall 2003 Of course. Of course. Very extensive . 2000. US Army Corps of Eng. in any case. at least that’s how the Army was interpreting things. and agencies should not get Chevron deference in constitutional questions. but there is power to persuade. it seems logical that if one is supposed to administer the statute. Chevron Step 1: should it be exhaustive investigation or obvious answer? FDA v. The Army gets it’s authority from a Congressional statute that gives them jurisdiction over all navigable waterways. page 618 • Basic question: Whether tobacco should be covered by the FDCA? Be regulated by the FDA? • This is the step one analysis • Why not leave it to congress? (Court does not want to leave this decision to congress. Supplement QP: Whether customs classification rulings should receive chevron deference Court holds that Chevron deference applies when the agency is acting with a congressional grant of authority to make rules that have the force of law o Examples (safe-harbors): Adjudication Note-and-comment rulemaking Other indications of congressional intent Court holds that Chevron does not apply to the ruling in the case But. anywhere a bird may get its feet wet is a navigable water. the Court revives Skidmore v. o “Spectrum” or sliding scale of Skidmore deference: from indifference to substantial deference Scalia Dissents and thinks that Chevron should always apply SWANCC v. Brown & Williamson Tobacco.27 - . then other interpretations should be discarded Haggar Apparel. some are more than others and judges should give agency action the chance to persuade them. o No power to control. 1999. Moreover.. Swift o Skidmore stands for the experience and expert nature of agency decisions. cited in Mead Held that Customs regulations receive chevron deference Mead.Ohnesorge. The Army Corps of o Engineers denies them a permit. The query outside Chicago had some small ponds and such. An agency shouldn’t really be able to determine their own jurisdiction. o Or. o This is a 10th Amendment issue. the Army was interfering with the state of Illinois’ ability to govern it’s own land and waters. Congress gets its authority from the Commerce Clause because birds travel interstate and need the waters. Rehnquist dislikes the Army’s interpretation. This case is controversial for revived Federalism. So.) o Political pressures will make congress leave the agency’s decision alone? • • O’Connor seems to make Chevron into one question or maybe reverses.
they seem to be either contrary to the underlying statute or completely bizarre. • Then. page 643 This is an agency’s first loss on step two ever in the supreme court The statute’s standard was “necessary and impair” o The FCC decided that necessary standard would be met even if alternatives were available because it could cause delay and higher costs for new Market entrants o The FCC decided that the impair standard would be met if a failure by the incumbent to provide access would decrease quality or increase cost (financial or administrative) when compared with the cost and quality of using the incumbent’s network Basically. not which network elements must be unbundled Not a reasonable interpretation Reviewing discretionary policy decisions Q2: outcome v. the court applies arbitrary and capricious o Agency tried to get around this standard by arguing: This was not a policy decision. keeps others. Industrial Union Dep’t. 1983. 1974. see page 6 of the OUTLINE. it will be overturned as A&C • “Smoking out” bad decisions o Policy decisions need to be made for the right reasons . it is prima facie A&C Test B) if a reason is given. Hodgson.Ohnesorge. they need to go through the same process and face the same level of review as in a normal rulemaking.. State Farm. DC. the FCC interpreted every very expansively in order to give new market entrants and competitors the best access to incumbent networks o Scalia says they based this on an erroneous interpretation of “at any technically feasible point” o But. page 677 • Point One: when agencies rescind a rule. the agency never considered just requiring airbags • o • • Test A) the agency must give a reason • If no reason.. Administrative Law – Outline – Fall 2003 Chevron Step 2: what is reasonable? Agencies seldom lose at this stage When they do lose.. procedure justification The benzene case is a good one here.. Iowa. o Says that agencies must justify the decision to regulate all agencies the same Motor Vehicle v. process v.28 - . 1999. so standard should be abuse of discretion • What would the difference be??? • Ohnesorge says this is not necessary to know for this course 1. but it is a bad one. page 672 • Technically supposed to be “substantial evidence” according to OSHA Statute • Ends up being a “hard look” review o The same thing the court would have done under APA arbitrary and capricious • Question: is this review done on substance or on procedure? • Court remands some things. that section only says where access will occur. AT&T Corp v. AFL-CIO v. but a pure discretion decision.
Procedural problems with not including data from draft studies • Requiring 5 year inspections for underwater parts of bridges o No data/insufficient data • Court will not allow the agency to define the record in a vacuum .29 - . Administrative Law – Outline – Fall 2003 o 2. but failed to distinguish sufficiently • passed A but failed B This is THE SCOTUS endorsement of Hard Look Review Engraving and Printing v. A&C 2. 1992. they did not examine the actual safety gains caused by passive detachable seatbelts • • the agency did examine. if not A&C o This may only result in remand for justification Center for Auto Safety v. DC. page 705 • Agencies must explain departures from past practice. page 707 • This is a mandate on the states • Allowing petitions to excuse from 2 year inspection requirement o Concurrent problems: 1.Ohnesorge. FLRA. DC. Federal Highway Admin. 1993.
Review • 701(a)(1) o express: statute precludes review courts generally hostile to express restrictions on their right to review action o implied: preclusion is the intent of congress one way or another relies more on standard statutory construction • seems contrary to the court’s reaction to express preclusion Block: basically gets rid of customers as plaintiffs (dairy) Bowen: does not preclude consumers (health insurance) • 701(a)(2) o “Committed to Agency Discretion by Law” .30 - . The trend is towards joining the two tests. Nature of the action involved. near chevron. ICC. Administrative Law – Outline – Fall 2003 Chevron Step Two Conclusion In an article. Preclusion Doctrine • 701 (a) (1) and (2) • pre-1900. etc “Committed to Agency Discretion by Law” – 701(a)(2) • Possible overlap between this and implied? Overlap in process of examining situation? Just in practice? • Overton Park o “No law to apply” • Webster v. Pages 713-716. Judge Silberman says that Chevron Step Two and A&C are analytically the same. Chaney and find that this is a 701(a)(2) discretionary case where review is precluded What about the agency regulations? Preclusion. Abbott Labs creates presumption of reviewability o also allows pre-enforcement review • then Overton Park “no law to apply” Statutory preclusion . court makeup changes.701(a)(1) • after Abbott. Silberman says the same thing – National Ass’n of Regulator Utility Commissioners v. the courts generally were skeptical of claims of statutory preclusion o limited statutory preclusion to “direct” or “Express” preclusion • mid-80s. • Courts should not look to just the explicit grants of preclusion • Statutory scheme as a whole. They both end up asking: whether the agency considered and weighed the factors Congress wished the agency to bring to bear on its decision” Then in a decision.Ohnesorge.. presumption of non-reviewability • 1900 SCOTUS gets rid of this presumption • 1967. dairy marketing programs. New Category of Statutory preclusion: o Implied Preclusion Block. Doe o CIA fires an employee for being homosexual They did not follow their own regulations This is an informal adjudication o Majority applies Overton Park and Heckler v..
conservational. and recreational” Zone of interest test is just made up • • Common Law Exhaustion ended with Darby Darby: 704 o if statute does not make requirements for exhaustion.e. “likely” that injury will be redressed by a court’s favorable opinion 702. o This could also be challenged under standing. no third party 3. Administrative Law – Outline – Fall 2003 o Webster: when no law exists to apply (from Overton Park). courts cannot create requirements (like those of common law exhaustion) o in 704. Agency creates program.Ohnesorge. Defenders of Wildlife. Causal Connection: traceable to challenged action of the defendant. see page 802 for summary • First sentence = pretty restrictive legal interests/legal wrongs test • First sentence was basically re-written by Adapso case (zone of interest). final means exhausted Finality • 704 again o no finality problem with rules or adjudications that have been finished o NEED to look at the substance of the rule and the effects on the parties. Standing Two major things to know: • Need to do Lujon 3 part test. Injury in fact: (a) concrete and particularized and (b) actual or imminent 2. • Adapso zone of interest Lujon v. for no particular reason. then it is committed to discretion o Lincoln v. know 3 part test. then decides to end program. i. Probably no review at all b/c implied preclusion OR 701(a)(2) Any review (if ANY at all) will be very deferential. page 810 o Makes the standard for standing much broader: o When? Exhaustion • Twofold: o Make use of the opportunities that exist within the agency o Raise during these reviews any arguments you want to raise later in court Like preserving arguments • Why exhaustion? o We want the agency to have the chance to correct and learn from its own error o The court will get the most final opinion from the agency o We want agency process to mean something “”aesthetic. Are they substantial? • FTC v. Vigil: congress gives agency money. 1992 • Standing – 3-Part test 1. committed to agency discretion by law A lot like prosecutorial discretion .31 - .. No guidance from congress. Standard Oil of Calif..
it is the desire to have agencies apply a rule before having judicial review of the rule. two prong inquiry. just inquire into these areas: 1. o Then. not necessarily a test.Ohnesorge. o Actual damage Affects standing as well • Abbott Laboratories: o General presumption of reviewability by the courts Recognition that judicial review is pat of the game. Administrative Law – Outline – Fall 2003 Ripeness • Not in the APA • Generally. It may be applied narrowly or broadly. Hardship: would there be hardship if we wait until the agency actually applies this? • Then we ignore ripeness and must review it . Realist view of the process.32 - . Fitness: “fit” for judicial review? • Then it is ripe 2.
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