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General Approach

Sunday, April 10, 2011 3:13 PM

I. Look for key words a. Who is the actor i. Bureau, or commission, or agency 1) Agency action in the form of administrative action 2) Agency affecting rights of private party a) Question is probably asking you to consider the administrative law considerations II. Classify each agency action a. Adjudication i. Formal ii. informal b. Rulemaking i. Formal [that rare bird] ii. informal c. Choice of Agency Procedure (Adjudication or Rulemaking) i. Does agency intend to issue an order directed at a particular party or parties? 1) Yes - APA requires adjudication a) May be formal or informal i) Unless applicable statute or rule requires formal adjudication, APA allows for informal One. Informal adjudication: agency must give notice and a brief statement of reasons for the decision (See 555(e)) ii. If agency's enabling act or some other statue specifies a particular procedure, agency must follow that procedure. 1) If agency enabling act or other statute prohibits a particular procedure, Agency may not use that procedure iii. Does Agency enabling act or some other statue provide for the use of both rulemaking and adjudication? 1) No_ Agency may use only those procedures specified by statute a) Note: Court may find rulemaking power even if agency has denied it or statute not completely clear -see National Petroleum Refines Assc v. FTC 2) Yes- > Absent Constitutional constraints, agency may use either rulemaking or adjudication iv. Is the agency's decision particularized to the situation of a regulated party? 1) Yes -> Due process requires adjudication (See Londoner v. Denver) a) Adjudication may be formal or informal. b) Use Mathews v. Elderidge balancing test to determine which procedures are required by due process i) Balance: One. Strength of regulated party's interest Two. Likelihood additional procedure will produce more accurate results Three. The government's interest in minimizing process ii) IF regulated party's interest relatively weak and existing procedures already produce high degree of accuracy, One. due process may not require more than an informal adjudicatory procedure iii) IF regulated party's interest strong, (like welfare payments see. Goldberg) and procedures produce a high likelihood of error, One. due process may require relatively formal procedures (Goldberg as
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One. due process may require relatively formal procedures (Goldberg as high water mark) 2) IS the Agency's decision applicable to an entire class of parties? a) Yes -> Agency may use legislative procedure such as rulemaking i) Agency may, in its discretion, employ some or all aspects of adjudication (See Bi-Metallic) d. Are FORMAL requirements of 557, 558 triggered? i. only if 'on the record after a hearing' or very similar language (See Florida East Coast Railway) 1) Although 9th circuit only circuit that says just 'after a hearing' triggers formal adjudication (generally see Domion (1st circuit overturned precedent of 'after a hearing' triggering formal adjudication)
III. Identify statutory limits on agency action a. APA i. Formal adjudication Requirements 1) Was it really on record 2) Did they provide the rights required 3) Was there appropriate notice ii. Informal rulemaking Requirements a) Is this exempt from Notice and Comments requirements? i) Good cause (553(b)) One. Never actually used due to fear of being overturned ii) IS it an Interpretive rule? One. Test to distinguish legislative and interpretative rules (American Mining Congress) Two. Whether the purported interpretive rule has legal effect, which is best ascertained by asking First. Whether the absence of the rule there would not be an adequate legislative basis for enforcement action or other agency action to confer benefits or ensure the performance of duties Second. Whether the agency has published the rule in the Code of Federal Regulations Third. Whether the agency has explicitly invoked its general legislative authority Fourth. Whether the rule effectively amends a prior legislative rule One. A rule does not become an amendment merely because it supplies crisper and more detailed lines than the authority being interpreted Two. If that were so, no rule could pass as an interpretation of a legistlive rule unless it were confined to parroting the urle or repalcing the orignainal vagueness with another a) If answer to any is affirmative, legislative, not interpretative rule iii) Note/ Alternative analysis: even if found to be an interpretive rule - if 'force of law analysis' can argue that if given Chevron (or even Skidmore Deference) interpretive rule would have force of law. a) Makes above analysis sort of circular - court decides if has force of law 1) Notice in Federal register 2) Period for comment 3) Published in Federal register / concise general statement of their basis and purpose a) Or if not published, can enforce against anyone with actual notice some other
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a) Or if not published, can enforce against anyone with actual notice some other way b) Did agency respond to all important comments in the concise general statement? i) If not rule is invalid until agency responds to all major comments (see Nova Scotia) 4) Is the final rule a logical outgrowth of the proposal and the comments such that a reasonable person would have known his or her interest were at stake? a) No ->A agency may not materially alter the proposal and must issue a new notice and provide another comment period. (See American Medical Ass'n) 5) Did the agency rely on unpublished data or studies in making its rule? a) Agency must publish any such data or studies and must allow comments on them before finalizing rule. See Nova Scotia iii. Courts may not require agencies to add to those procedures specified in the APA or other applicable statute or rule (See Vermont Yankee)

IV. Identify Constitutional limits on agency a. Rulemaking i. Did Congress provide the agency with an intelligible principle? 1) See American Trucking for vague pricniple upheld b. Adjudication i. Is this the sort of claim congress can delegate to some non-article III entity? Question: Is this the sort of claim agency's can decide? 1. Public right or private right? If public (or private, but integral to public purpose statutory scheme see Thomas v. Union Carbine), okay for agencies to decide, even with very limited judicial review.

2. If private, consider variety of Article III purposes: A. individual protections - need to have claims decided by judges free from domination B. structural concerns need for an independent judiciary CFTC v. Schors multifaceted analysis (1) extent to which Article III courts retain essential attributes of judicial power (2) extent to which court jurisdiction and powers normally reserved to Article III courts are exercised by nonArticle III forum (3) origins and importance of right to be adjudicated (4) concerns that drove Congress (efficiency? Desire to emasculate judiciary?)
Policy concerns include: procedural efficiency and agency expertise vs. checks and balances; ensuring agency adherence to "rule of law ii. Procedural due process? 1) Does the agency enabling act or some other statute or rule require an adjudicatory hearing? a) Yes -> Agency must follow any applicable statue or rules (at a minimum) i) Due process may require more 2) Does adverse government action threaten a party's freedom of movement or threaten
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i) Due process may require more 2) Does adverse government action threaten a party's freedom of movement or threaten to restrict a party's ability to practice a trade or profession? (liberty) Or does the government action threaten to deprive a party of an entitlement created by state or federal law, including common law, statutes, or rules? (Property) a) No i) No protected interest and due process does not apply b) Yes i) The government action may deprive the party of property or liberty, and due process applies to determine what procedures are required One. Amount of due process determined by Mathews v. Eldridge test (see above)and asking whether the procedures already provided are adequate 3) Does the government's action threaten an important interest such as government employment or subsistence? a) Yes -> may require an adjudicatory hearing before any adverse action is taken b) No -> Less important interest may not require significant pre-deprivation process 4) Do existing procedures create a high risk of error? a) Yes -> more process may be required i) Examples: oral hearing, confrontation and conrss-examiantion of adverse witness, a closed record, and an impartial decision maker b) No -> existing procedures may be adequate 5) Does the government have a strong interest in minimizing process? a) Yes -> Due process may allow for less process and in an emergency may allow process to be postponed until after the government acts i) Example Mathews v. Eldgerige: court noted unlikelihood that government would be able to recoup disability payments made in error -> militated in favor of postponing the hearing until after the benefits had been suspended b) No -> Due process may require more if there is an important private interest and a high risk of error

V. Whether the agency action can be set aside in court a. Pre conditions to judicial review i. Standing 1) Regulated parties almost always have standing a) Based on traditional standing test that party must be asserting his or her own legal right agnst the challenged government action 2) If P is asserting his own legal rights almost certainly has standing if the agency action violates the p's rights (APA 702 -> standing to a person suffering legal wrong because of agency action) 3) P's not asserting own rights: Has the p suffered a concrete, particularized injury-in fact? a) No -> no standing (See Lujan) i) Abstract interest are not sufficient for standing (Sierra v. Morton) ii) Action of private parties not in the government's control may defeat causation or redressability 4) Is injury fairly traceable to (i.e. caused by) the challenged conduct? a) No -> no standing (See Scrap - fairly traceable so standing despite generalized) 5) Is there an available judicial remedy that will redress the p's injury? a) No -> no standing(see Lujan for discussion on redressability) 6) Is the interest the p seeks to protect "arguably within the zone of interests" regulated or protected by the relevant statue or constitutional provision? a) No -> no standing (see Data processors / Air Courier Conference of America (erik
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or protected by the relevant statue or constitutional provision? a) No -> no standing (see Data processors / Air Courier Conference of America (erik is this right) (In opposition to) National Credit) 7) Prudential limits: is the P asserting the legal rights of a third party? a) Yes -> The plaintiff may lack standing i) If a legal right is difficult to assert, a third party may be allowed to assert I ii) Congress may override the prudential, but not constitutional standing b) No -> if claim is not a generalized grievance there are no apparent impediments to standing i) If it is a generalized grievance, may not have standing One. But see scrap -> concrete injury although general, given standing ii. Availability of Judicial Review 1) If a statute grants a right of review of the agency's decision, review of the decision is available, subject to standing and other potential issues (see 704) 2) Agency action must be final for review 3) Is there an adequate non-APA judicial review mechanism available a) Yes -> APA review is not available i) 704 "final agency action for which there is no adequate remedy in a court" is reviewable 4) IS the agency action the promulgation of a rule? a) Review of a rule may not be avaible until the rule is enforced unless the issues are fit for review and the petitioner would suffer hardship if review were postponed (see Abbot Labs) i) An issue is fit for review if it is ;purely legal and further factual development would not aid review ii) Hardship exists if compliance with the rule would be expensive and where waiting until enforcement would involve potentially harsh penalties or other injuries (see Abbot Labs) iii) If the fitness and hardship tests are met standing and reviewability must still be examined 5) Does a statue preclude judicial review a) Must mention judicial review and either preclude it altoghetr or channel review to a method of review different form the one sought in the case under consideration 6) Is the statue administered by the agency so vague that there is no law to apply to judge the agency's action? a) Yes - the agency's action is committed to agency discretion by law and not subject to judicial review (701(a)(2)) See Overton Park i) Overton - action committed to agency discretion by law when there was "no law to apply" ii) Statutory language indicating that the agency has final authority also means committed to agency discretion (Webster v. Doe) b) Also, above if: i) Statute suggest agency should have final authority to decide a matter, or ii) The decision in a category traditionally held not subject to judicial review( like prosecutorial discretion) 7) Is the agency decision an exercise of prosecutorial discretion a) Agency's action is not reviewable unless the statute constrains the exercise of prosecutorial discretion (See Heckler v. Chaney) 8) IF none of the above triggered - > agency action is reviewable

iii. Exhaustion iv. Finality (if adjudication) v. Rule in pre-enforcement? 1) Is there a ripeness problem
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1) Is there a ripeness problem vi. Statutory preclusion of review vii. Heckler v. Cheney - Enforcement decision committed to agency discretion by law 1) No law to apply b. Classify the nature of the agency challenge i. Legal 1) No special expertise a) De novo 2) Expertise of agency/ committed to agency discretion a) Chevron discretion i) Unreasonable interpretation of law? 3) Judicial review of agency statutory construction a) Is the statute construed administered by the agency? i) No -> agency's construction is not entitled to deference b) Is the statute clear and unambiguous? i) Yes _> Congress's clearly expressed intent governs and a contrary construction by the agency is void One. Sometimes court only looks at plain meaning of statute (see MCI v. ATT) Two. Other times uses traditional tools of statutory construction to determine congress's intent (see INS v. Cardoza-Fonseca) First. This allows courts to refuse to defer to agencies in many more circumstances than would be the case with the "directly spoken" standard Second. Traditional tools 1. Canons of statutory construction 2. Structure of the statue 3. Legislative history 1. FDA v. Brown and Williamson - > looked at other statutes and structure of food and drugs laws c) Was the statute construed in a legal proceeding under which agency conclusions have the force of law? One. Erik: insert test to see if has force of law i) No -> the agency's statutory construction is entitled to Skidmore deference but not Chevron Deference One. Skidmore: agency interpretation gets deference based on it's persuasive power ii) Yes -> Then may be entitled to Chevron Deference One. Unless congress's intent is clear, courts should defer toa permissible construction of a statute by the agency administering it Two. A construction is permissible if it is "sufficiently rational to preclude a court from substituting its judgment for that of the agency" First. See Young v. Community Nutrution Institue - apply agency standard unless clearly beyond the range of meaning of the statue will bear

ii. Factual 1) Informal adjudication a) Arbitrary and capricious 2) Informal rulemaking i) Hard look standard (informal rulemaking) One. Did the agency follow it's quasi-procedural duties First. Looking at alternatives Second. Make reasonable choice among policies
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Second. Make reasonable choice among policies 3) Penalty (discretionary) a) Did it make a reasonable choice, did it abuse its discretion i) Arbitrary and capricious 4) Formal adjudication i) On the record after a hearing? a) Under substantial evidence b) Looking at whole record

iii. Policy iv. Discretion c. Apply appropriate standard i. Did Agency action exceed it's statutory authority?
ii. Does the agency enabling act or some other statute specify the standard of review for the agency action 1) Yes -> apply the specified standard. 2) No-> APA 706 provides standards of review iii. Is the agency action under review the product of formal adjudication or formal rulemaking 1) Yes -> Substantial evidence review applies a) Uphold decision when it is supported by such relevant evidence that a reasonable mind might accept as adequate to support a conclusion (See Universal Camera Corp v. NLRB i) Same standard courts use when deciding whether there is sufficient evidence to send a case to a jury in a civil action iv. Is the agency action adjudicatory and are fact finding procedures inadequate? Or Did New issues arise in a judicial proceeding to enforce nonadjudicatory agency action (Erik: insert reference here) 1) Yes -> De novo review applies a) Case is retried in court, and no deference is paid to agency conclusions v. IF no other standard applies -> Arbitrary, capricious, an abuse of discretion or otherwise not in accordance with law" applies (706(2)(A) 1) "Arbitrary and Capricious review" -Hard Look requires(see Overton Park) a) that agencies take a hard look at the record before them b) Consider all relevant factors c) Not consider irrelevant factors d) Apply the correct legal standard e) Not make a clear error of judgment 2) Review is searching and careful, but it is narrow, and a court should not substitute its judgment for that of the agency 3) Agency must give a reasoned explanation for its decision and must explain why it rejected alternatives

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