1 ADMINISTRATIVE LAW NOTES SPRING 2010 LEGISLATIVE DELEGATION – REFUSAL TO REGULATE

Massachusetts v. EPA
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Legal question in this case? • Whether the agency can/should/must regulate under the Act. How do we answer this question? Has there been a delegation of power? Do they have the power to enforce the subsequent rules?

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Start from the language of the statute • Setting out a grant of power to the agency - always your first question  Creation of an agency  Or grant of power to the agency • Language of the federal statute is always the starting point  EPA shall - no discretion  By regulation  proscribe standards  Applicable to new motor vehicles  Any air pollutant – Stevens interprets this broadly  New motor vehicles  In the administrator's judgment – possible discretion  Reasonably be anticipated to endanger public welfare

EPA Argument 1: Regulating would interfere with other congressional actions  Conflicts with DOT's authority to regulate efficiency standards • Only way to regulate this would be tailpipe emissions and someone else is already regulating that • Any rulemaking that EPA would undertake would be superfluous • Response: • Congress is the one who makes the pronouncements and the agency doesn't get to decide whether or not to follow; agencies have to execute the inconsistencies

2 Allowing the outcome of the statute to determine the meaning of the statute is the wrong way to approach the analysis Steven's position: We're a country of great innovation - issue the regulations that will prompt innovation within the industry (like what happened with lead gasoline, airbags/seatbelts) Statutory interpretation shouldn't be based on technological abilities; don't just throw up our hands Set aspirational standards / Set up a timeframe / Allow for setbacks Concurrent jurisdiction is the assumption that our agencies will overlap; will be asked to regulate issues that fall at the intersection of two fiefdoms

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So what can the agencies do with concurrent jurisdiction disputes? Sue each other Negotiate with each other Go with the stricter regulation Get Congressional clarification (two actors within the same branch) Go to the head of the executive branch - ask the President o Concurrent jurisdiction is plausible and workable because the President (White House) is expected to oversee the whole mess EPA Argument 2: Congress failed to act on this issue on their own - Congress knew of this catastrophic problem and rather than acting, they delegated. o This inaction should be given deference - Congress chose a course and the EPA should respect that - Trying to figure out what the sorcerer wants us to do - we should try to honor the Congressional policy of further study EPA Argument 3: Piecemeal Approach - Might disturb an overarching presidential policy related to international negotiations - New Motor vehicles are 1/7th of the cause of GHG in the country - which produces 1/5th of the world's emissions o So why should the EPA interpret a statute in a way that would obligate them to regulate in such a fashion (which would end up being ineffective) and would also tie the President's hands in creating a global approach (would take away the President's carrot and stick) EPA Argument 4: Brown & Williamson Tobacco - FDA didn't regulate tobacco b/c regulating would ban the product - Tobacco was within the plausible definition of the statute - but the court said that wasn't plausible; Congress didn't grant to the agency regulatory power over such a large industry within the country

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Should be careful about interpreting broad language to grant immense power to the agencies

Secondary legal question: What is wrong with EPA’s decision—and justifications—for declining to regulate when the decision whether to regulate is left up to the administrator’s judgment? - In the administrator's judgment . . . May reasonably endanger health and welfare o EPA was saying, even if we're wrong about whether we have the authority, we still have the choice to regulate under that authority o There is residual uncertainty about the causal link between human conduct and climate change; the NRC report said causal link cannot be “unequivocally established”; so we (the EPA) do not want to regulate in the face of uncertainty
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Why is Stevens entitled to impose this on the agency? o The judgment is about the reasonability of the danger - not about whether they want to regulate / think it's effective o The discretion must be tied to the statute; they can choose not to act but their reason for not acting has to be connected to the statute  Their current reasons are arbitrary and capricious

In summary, holding of Mass v EPA is that the clear text of the Section 202 clearly indicates that EPA has authority — and the agency’s contrary interpretation based on DOT’s overlapping jurisdiction, the ineffective piecemeal approach & President’s prerogative, Congressional silence, and Brown & Williamson is weak and foreclosed by the bare text of the federal law. Also, the EPA’s justification for not acting, even assuming it has the authority, is arbitrary and capricious since the reasons it gives (e.g., residual scientific uncertainty) are unconnected from the statute. There is a subtle distinction between two types of decisions by an agency not to act: Refusing to take enforcement action (strong deference) v. declining to engage in rule making (much less deference, arbitrary and capricious standard) • IRS decides not to sue inaction (non enforcement) is given incredible deference  This is bound up in a highly factual inquiry • Decision to decline rulemaking petition – which is properly presented to the agency - is a question the courts will get into, although even here they will be deferential  Your decision has to be consistent with the text of the statute  Decision not to act as to be supported by reasons that somehow connect to the statute (unconnected reasons are tantamount to an arbitrary and capricious justification that can be invalidated by the court LEGISLATIVE DELEGATION - INTELLIGIBLE PRINCIPLE COST CONSIDERATIONS WHEN REGULATING

If the EPA can’t take cost into consideration. The point of an intelligible principle is to ensure that the administrative agency is not legislating. Did Congress provide an intelligible principle in its delegation to the EPA to set air quality standards for greenhouse gases. the intelligible principle is “requisite to protect the public heath with an adequate margin of safety. When we consider a question about delegation. Whether the EPA can take the costs of regulation (for the industry) into consideration when deciding whether to regulate or not The Statute: To set primary ambient air quality standards the attainment and maintenance of which is meant to protect public health with an adequate margin of safety. Two legal issues: This case presents two questions to the Court: 1. carbon dioxide. we should think about whether the language in the statute provides sufficient guidance to the agency. but is regulating and administering the law. closing entire industries and creating vast poverty would be deleterious to the public health. .” According to the Court. it must be limited in some way. So.4 Whitman v. In this case. That is because A1 S1 of the Constitution vests all legislative power in Congress.g. something that the EPA is charged with promoting. The case presented itself before the DC Court of Appeals where the Court said that the EPA can look at costs because the statute gives them a broad delegation of power and charges them with promoting the public safety. The SC requires Congress to give agencies an intelligible principle when delegating them power.. The Court’s Opinion (Scalia): It cannot take costs into account when setting air quality standards. then the affected industries will shut down. this sufficiently guides the EPA to administer the law as opposed to create the law. and 2. e. if Congress is going to grant that power to someone else. specifically with the portion of the Act in which Congress delegates the power to set air quality standards to the EPA. American Trucking Overview of the case: This case deals with the Clean Air Act. Obviously.

the court does not need to examine the statute as closely. they have done that very same thing in other provisions of the Clean Air Act (this type of analysis is called intratextual analysis). there are only two times in the history of the Court that it has declared a delegation unconstitutional for failing to provide proper guidance to the agency. air The Court said that the EPA could not take costs into account because the text was silent on the matter. Congress gave the EPA the power to waive a deadline if it is essential to the public health to waive the deadline. then the Court should examine the delegation more closely for an intelligible principle. Scalia believes that if the delegation of authority is broad. The breadth of the grant of authority is inversely proportional to the amount of examination that the Court will give the statute. such as the public health. it certainly would have said so explicitly. The statute does consider what the EPA may take into account. In fact. He said that Congress would “not try to fit an elephant in a mouse hole. However. Scalia’s third argument is that Congress was aware that this statute could have serious affects on the US and they created a safe-haven clause for this very reason. Congress did not provide the agency any guidance whatsoever. ***as a side note. Congress granted an agency the power to control the entire economy and in the other. . The Court also said that the EPA could not take cost into account because the legislative history revealed that Congress did not want the EPA to make that consideration. Scalia does consider two definitions of public health as given in the dictionary. when the delegation of authority is narrow. The first definition is narrow and the second is broad. it does not list cost of implementation.5 It is worth pausing for a moment on Scalia’s argument that the Court has rarely declared a delegation of authority unconstitutional. under the second definition the EPA would have the power to take ANYTHING into consideration. Conversely. but in that consideration. The court determined that the Act did provide sufficient guidance to the EPA to regulate quality standards after it examined the text and the legislative history of the statute. Placing language in statutes instructing an agency to consider the cost of implementation is not something that is foreign to Congress.” meaning that if Congress intended such a vast grant of power. Scalia determines that Congress must have intended the first definition to be used because. In one circumstance. In fact.

however. US . Breyer differs from Scalia with respect to the presumption that the court should have when reading a delegation of power. however. Thomas’s Concurrence: Thomas agreed with Scalia that this particular delegation of authority was Constitutional. he disagreed with the test that Scalia and the SC’s prior decisions use. Instead. all other things being equal. statutes should be read to grant an agency the power to consider all necessary implications of a regulation. all things were not equal and that is why Breyer concurs in the judgment. Breyer argues for an efficient government that can operate smoothly. so that the agencies have the tools and the flexibility necessary to run the government on a day-to-day basis.6 Breyer’s Concurrence: Though Breyer concurs in the judgment. Therefore. He agrees with Scalia that the legislative history of the Act reveals that Congress did not intend for the EPA to calculate the cost of implementation when setting the regulation. Therefore. Scalia believes that the court should presume that the power is not granted to the agency. the Court must read delegations of power broadly. He believes that court-imposed restrictions on power to agencies would handcuff them and put the brakes on government. He said that in order to have this. he believes that the SC should rework the test to whether or not Congress vested law making power in the agency and not whether Congress provided the agency with an intelligible principle. In this case. He argues that the intelligible principle test is a fictitious concoction of the SC that has no basis in the Constitution. while Breyer believes that the court should presume that the agency was granted the power. A1 S1 requires that Congress exercise all law making. LEGISLATIVE DELEGATION DELEGATING CRIMINAL PUNISHMENTS AND SENTENCING Touby v. he disagrees with the process that Scalia and the Court uses.

They were not swayed by the lack of judicial review. Basically. The temporary basis was not subject to judicial review. Congress is really only providing guidance to how the judiciary should exercise its own power. The Court: The Court found that this was a constitutional delegation of authority to an agency. Congress passed a statute permitting the agency to decide the penalties for drug offenses. Scalia’s Dissent: . The Court: The Court found that this commission was constitutional. Therefore. US Overview of the Case: Congress created a sentencing commission to try and deal with disparities in the sentencing of federal Ds. In this case. The commission was charged with creating a table for crimes that would recommend the appropriate sentences to federal judges.7 Overview of the Case: In this case. The court argued that Congress was really delegating something to the judiciary that it already had the power to do. So. by creating a commission in the judiciary to make sentences more uniform. The statute also permitted the agency to place new and innovative drugs on the schedule on a temporary basis. but the D could challenge the regulation in the trial court. because the D could challenge the statute during the prosecution of the offense. an independent judicial body still had the power to review the agency’s actions at some point in the process. 7 people got to decide the sentences for every federal defendant in the country. the Court wrestled with the question of what permits an agency to criminalize something in the first place? The Court had to balance society’s interest in speed and efficiency of criminalizing innovative drugs against society’s interest of having person who is accountable to the electorate. They noticed that Judges were all over the map with sentencing and Congress wanted to rein them in by creating guidelines for sentencing. The Court argued that Judges already decide sentences. a Mistretta v.” Each place on the schedule carried different penalties. It asked the agency to place drugs on a “schedule.

s. A prisoner sentenced to death under that section challenged this delegation of authority. the President is the Commander in Chief of the armed forces. LEGISLATIVE DELEGATION . US Overview of the Case: Congress authorized the President to set forth conditions as to when the death penalty can be enforced in the Courts Marshal system. so when he is controlling the Courts Marshal system he is already acting within the purview of his constitutionally granted authority. there is no hard and fast rule in the text of the Constitution preventing Congress from delegating its authority to a coordinate branch of government. . Second of all. The Court: The court said that first of all.8 Scalia wrote a stinging dissent. He argued that sentencing was something that Congress should handle because it is absolutely law making and A1 S1 vests all law making power in the legislature. Loving v. saying that Congress was actually giving the Commission legislative power.SUMMARY Art. 1: All legislative powers vested exclusively in Congress. 1.

has no problem with American Trucking. Scalia is much less ok in Mistretta when an agency is asked to determine what the right penalties are for the violations of federal law. Whitman. they included reference to costs elsewhere. standards within a technical field for a variety of air pollutants. and  (b) the agency is given some sense of the types of data & analyses that its conclusions should rest on • (3) Where broad delegations of power are involved. Moreover. But to use intelligible principle as litmus test does not make much sense . Mistretta. • This is the starting position for Scalia. it does not have to be very specific.could delegate something with intelligible principles that is entirely too lawmaking-like to be ok . the SC will require Congress to be more specific with regards to the "intelligible principle" • (4) Lots of concrete examples of language that satisfies the delegation requirements. they knew how to accomplish that objective and chose not to.examples of where the SC has upheld alleged violations of this doctrine. that looks too much like lawmaking  Justice Thomas picks up on this point. Therefore.9 Supreme Court doctrinal test: Congress must supply an intelligible principle to the agency. Touby and Loving . he then adds that Congress specifically contemplated considering costs and rejected that idea. that does not sound like something Congress is best at. then it would be improper for the agency to do so.  Distinguish the above from Justice Breyer. Take Aways: • (1) Where does the presumption lie?  When it comes to something like costs. • In contrast. the assumption the majority of SC will take: unless Congress specifically suggests that costs are to be contemplated by the agency. Acknowledges intelligible principle precedent. but assumed that cost consideration fell within the ordinary discretion of agencies where technical details do become a part of calculations • (2) American Trucking is the relatively easy case:  (a) the objective is clear. Agreed with the judgment.  See quotes from last class • (5) Be sure to understand Justices Thomas’ and Scalia's opinions  Reconcile Scalia majority in Trucking and dissent in Mistretta • American Trucking was not quintessential lawmaking.

10 • (6) Delegating authority to unit of government that already has that power is something that gets greater deference  Mistretta . PRESIDENTIAL APPOINTMENTS AND REMOVAL SUPERIOR OFFICERS AND INFERIOR OFFICERS • Introduction .Loving . so what is wrong with having a subunit WITHIN the Judiciary to set guidelines  E.smaller power was contained in the greater power. .That branch (judiciary) ALREADY fixes penalties.g. then ok.

2 “Appointments Clause”   • Pres advice and consent of Senate for superior officers BUT . Courts of Law. but NOT on the President’s ability to REMOVE? Historically – The Pres needed advice/consent from Senate so that small states could retain their political power in what high-ranking officials are in the Exec branch Myers v. United States Facts Statute provided that President can only fire the local postmaster general with the advice and consent of the Senate Holding Unconstitutional. Sec 2 – Says that the power to appoint may be VESTED in one of those three bodies – It does not actually GIVE that appointment power to Congress So then why would Congress be able to control when they are removed? ASSUMPTION – .11 o Presidential Appointment Power derived from Art II. Sec 2 . and Department Heads Thus – Shouldn’t Congress also be able to impose restrictions to REMOVE that inferior officer? BUT – Art II.Congress retains the power to vest the appointment of “inferior officers” What about removal? o Pres can fire superior officers at will – Does NOT need good cause – There are no constraints  So – Why are there restrictions on the Pres to APPOINT officers.Congress retains the ability to vest the power of appointment in Pres (alone). Constitution limits the Presidents power to appoint officials and the Court understands that power to be strict and not also limiting his power to remove Requirement to obtain advice and consent of Senate for removal is too much a constraint on the President Reasons why requirement is unconstitutional: Position is purely executive Consider – This position is one of an INFERIOR OFFICER – So – Given Art II.

as evidenced by the 7-year term restriction that intended to cross presidencies This 7-year term also ensures expertise in the job . it is assumed that they do NOT have the power BUT – With the Pres. Cong cannot control the removal Humphrey's Executor v. Does not overrule Commissioner is quasi-leg and quasi-judicial officer. we will assume he HAS that power even if not specifically delineated Myers should be read somewhat narrowly – Only thing that remains – With respect to purely executive officers. United States Facts Roosevelt fired a FTC Commissioner appointed with advice and consent of Senate for a fixed term of 7 years Issues Does Pres have authority to remove him before his 7-year term is up? Does the restriction of the 7-year term obstruct the President’s ability to remove him? Holding President did not have to power to do so Actually – Pres CANNOT fire someone in the middle of their term that is statutorily provided for This is the point at which the Court breaks with the general deference to the Pres and says that some restraints are ok It DISTINGUISHES from Myers.12 Unless Cong is specifically given the power. not purely executive Also note the 7-year term in distinguishing the cases The officer was DESIGNED to be independent of the Exec branch.

Olson Facts Morrison appointed independent counsel to investigate Ted Olson Subpoenaed individuals then challenge the statute Specifically that the Independent Council appointed by the Judiciary branch (not the Executive) and there was a restriction on the President's ability to fire the IC (for good cause only) and that restriction seems to handcuff the President in a way that the Constitution does not allow Statute – Grew out of Nixon Watergate scandal Provides for a politically independent investigation to high-ranking Exec official Allows AG to investigate and if finds anything then can ask Special Division to appoint Independent Counsel Allows Special Division (within Judiciary Branch) to then appoint Independent Counsel Holding "Good cause" requirement ok since it’s not really burdensome and does not impede President from performing his Executive responsibilities.13 Morrison v. What are the distinctions between these cases? Myers and Humphrey's Branches of government involves Impartiality matters Senate role Humphrey's and Morrison Inferior officer Purely executive INFERIOR AND SUPERIOR OFFICERS .

Limited duties 3. Although her position is limited to a particular series of events. seems a low bar. Essentially anyone besides the cabinet members will report to someone besides the President. so does that mean that all of those people are inferior officers. . II. 2) He cannot delegate that to a DC Circuit court. What is Scalia’s position? Does not agree that this is inferior office. If the person is deemed a superior officer. Sec. They are not dispositive. i. that investigation could take 6 months or 6 years and could involve subpoenas that involve lots of people The mere fact that someone besides the President can fire you. Subject to removal by a superior officer. Why is it important whether or not Morrison is an inferior officer or not? It comes from the Constitution that limits the ability of Congress to appoint inferior officers.. Office is limited in tenure These four facts are just issues or factors to look at. the Attorney General 2. And that seems like an unlimited jurisdiction. Office is limited in jurisdiction 4.e. (Appointments Clause – Art.14 QUALITIES & APPOINTMENT OF OFFICERS BY JUDICIARY The first question the Court puts forth to decide this is: 1) We have to decide whether or not Morrison is an inferior officer or not Holding – Yes. Morrison is an inferior officer Court’s definition of inferior officer: 1. etc. This person is embued with all of the powers of the Department of Justice to conduct her investigation. the President and only the President can appoint that person with the advice and consent of the Senate.

it specifically says that you can vest the decision to appoint these inferior officers in the courts of law along with the President or in the Heads of Departments. cl. and then you can ask whether Congress was acting within its powers to vest in the DC Circuit Court the power to appoint. the Head of National Security Office are rightly construed as superior officers. So superior officers are not just limited to the heads of cabinet departments.g. . Congress cannot pass a law sending the appointment of a superior officer to someone else. The reason for this is that they are long-standing positions. Not a new power being exercised. Judicial branch in charge of interpreting laws/making decisions. so appointment fall within the traditional scope of power and expertise. such as when there are claims of contempt of court or allegations of wrongdoing. not unusual for Congress to vest power in sub-unit of judicial branch. e. If IC is an inferior officer. So in light of this it is not unusual for Congress to have vested this power into a subunit of the judicial branch. Hears cases and make resolution (decides up/down). Pres need not have appointed. The judicial branch makes decisions. and positions that report directly to the President. 2..federal courts appoint officers in various circumstances. So framers anticipated judges/courts of law might from time to time be making appointments. II § 2. if you specifically look at the Constitutional clause – Art. but it also appoints in special circumstances and this is a special circumstance So there is no problem with the judicial branch appointing a prosecutor to investigate allegations against high officers of the executive branch Also. But in reality you do not fire the head of the Office of Legal Counsel without getting the President’s ok. So isn’t it odd for one branch to vest power to appoint in judicial? Chief Justice says no. It is a foreign concept for a judge to appoint someone to do it.15 Head of Office of Legal Counsel. Question 2: Is it okay for the judicial department to appoint this officer? Court’s holding – Yes Court’s reasoning .

Is the officer inferior? If not. then the provision is constitutional and okay. in some sense. not getting in the way of President .not an onerous restriction on President’s ability to discharge duties. • Morrison says that the ultimate q is: are you getting in way of President's responsibilities? Bc quasi-legislative/quasi-judicial function of IC. If not. the question of whether this removal provision violates separation of powers turns on whether or not the restriction interferes with the President’s execution of his executive power. can only remove by Ag and for good cause) -. an anti-President position like Humphrey’s Executor (so Myers is the outlier case). judicial branch. If so. It is just an ordinary provision. Because the ultimate test of Morrison is “does the firing condition get in the way of the President of doing his job” the Court finds they have no objection to the firing condition because it does not get in the President’s way. Congress’s power to remove is not a specifically enumerated power. but it is an incidental. Here. II. Test: 1. does the firing condition get in the President’s way of the discharge of his duties? (ultimate question). Art. This is a simple restriction in a lot of K's (i.e. Morrison takes the last part of Myers and says you are not getting in the President’s way  this is the ultimate question or test when you get to an inferior officer. then only the President can fire the person 2. or Department head • Morrison is. President can do his job. § 3 says that the President must “take Care that the Laws be faithfully executed” The restriction that you can only fire for good cause is not an onerous position that prevents the President from executing his responsibilities faithfully and it is found in many employment contracts. natural of the power to appoint inferior officers in the President.16 Question 3 – Separation of Powers = this is the meat of Morrison that gives rise to a new test that supplants the test of Humphrey’s Executor approach or either complements the Humphrey’s Executor approach…At the end of the day.

17 • Might find ammunition for analysis of "is it getting in the way" in prior cases Where is statutory language that gives Cong power to put restrictions on apptments? Ted Olson is an important figure in modern American legal history . Gore. Gore to challenge California’s Proposition 8 Other ways that the President and Congress have oversight power over agencies and the ways in which these powers are done.represented Bush in Bush v. Teamed up with the lawyer that represented Gore in Bush v. LEGISLATIVE VETO .

The AG could make a determination whether a foreigner could stay in the country But Congress enacted a statute that allowed either house of Congress to pass a resolution to deny the foreigner the ability to stay This was a law enacted by Congress to allow Congress to have a role in the deportation process What happened before this law was passed? Only remedy before the law was passed in 1952 was that Congress could pass a bill that allowed an individual foreigner to stay in the US when they face deportation Who is delegated the authority in the first place? The AG And what does he get to do? Make a determination that if the deportation would pose a hardship on that person or family and if AG found such a hardship. first person who needs to act for Chadha to stay in US is AG. it could pass a resolution against the AG’s suspension of deportation. but if Congress disagrees with AG’s decision not to deport. AG given power by Congress to make determination that deportation would be hardship and AG then has power to suspend deportation. o AG exercising power granted under the statute.18 INS v. Chadha Facts Law enacted by Congress that enabled Congress and AG to have a role in the deportation of immigrants (Immigration & Nationality Act of 1952) Chadha facing deportation. o But Ag's decision conditioned on Cong approval Sect 244 of Act gives Congress power to veto (Cong has reserved to itself some power to oversee the administration of justice). the AG found such a hardship So Mr. the AG could suspend deportation In this case. o No real delegation problems with this. Chadha is on his way to stay in the country so long as neither the Senate nor the House of Reps puts him on a list of people they thing should be deported . Congress delegates power to decide when deportations can be suspended. Under 1952 Act.

§ 7. Just as it was legislative action before 1952 to have private bills that would alter Chadha’s rights and allow him to stay here. The AG has exercised the discretion given to him under the statute. The question – does this pose a constitutional problem? What is the constitutional provision that you might invoke if you were Chadha? The presentment & bicameralism clause  Art. Chadha has to be deported --> Legal rights being affected by action of Congress o Legislation is nothing more than actions by Congress that impact rights and duties of persons beyond Congress . but they are limiting the power to say that one of the branches can limit the power to prevent deportation. The Court says that the statute § 244 is unconstitutional because it did not pass both houses and it was never presented to the President. So the only way that Congress can change this is to amend the Constitution. I. And thus it must meet the presentment and bicameralism clause. Congress is saying they are delegating the power to determine deportations that they used to exercise. 2 requires that both houses pass a bill and obtain presidential signature. Held: sect 244 violates Const because it violates bicameral requirement (doesn’t preserve 2 branch way of making bill become a law) Can tell by intent and effects that this is legislative action (modifies duties and rights of people outside of Congress) o Mr. duties. – deporting someone is affecting someone’s legal rights. The resolution that would prevent Chadha from staying here is also legislative action. but to reserve some of the power (limited oversight option). indicating a legislative action requiring bicameralism. cl. and rights of someone outside of Congress.19 This case is an example of where Congress has reserved for itself the power to oversee an administrative agency. Bicameralism is especially important when the veto may alter the responsibilities. So why is it so problemsome for Congress to enact a law to shift some power. It is certainly an example in which Congress does not show the utmost faith in the executive agency.

Senate ratifies treaties. That the Constitution consciously put in place separation of powers to put in efficiencies to ensure that one branch of government did not have too much power. why isn’t it ok that Congress preserved some power and gave away some power (retained some oversight)? Doesn’t this seem like plausible way of sharing power w/I govt? Hobson’s choice in the opinion  Hobson’s choice is a free choice when only one option is offered -you are offered horses in rotating stalls. and therefore subject to the protocol (bicameralism/presentment) What’s so troubling about this arrangement? The Court contemplates discrete lists of situations where one house by itself takes unilateral actions. But efficiency may be okay. Justice White says that you are about to strike down more laws than have been struck down in the entire history of the country.House impeachment.to give them a Hobson’s choice – to delegate completely or not delegate at all. but then to reserve some powers There were tons of laws that had these legislative vetos in them that gave one or both houses of Congress that gave them the ability to override the agency’s action. Senate advises and consents on Presidential appointments The original law satisfied protocol. but can really only choose the horse up front This is not a workable government that we envisioned in the administrative state – to delegate authority to agencies. Why does this not satisfy the spirit of presentment and bicameralism? Pre-1952 The Senate and House have to approve and President signs the bill . Senate convicts from impeachment. Doesn’t that seem harsh.20 Just as before 1952 Congress can pass a bill to allow Chadha to stay. a decision by either House which prevents him from staying is legislative action.

• • Congress has tried to create loopholes to get around Chada. but in addition states that if NASA needs more money it can make an additional request to a congressional subcommittee that deals with space exploration. If the subcommittee approves additional funding.  Prof. If so. a proposed regulation can be fast-tracked through both chambers. under § 244 The AG says that the deportation should be suspended and then we have both Congresses say they do not disapprove (by not passing the resolution). if that action in its intent or effects modifies the rights or duties of people outside of the legislature. the regulation will not go into effect. Congress authorizes the $2 billion. The act just standardized how this process should happen under Chada (It satisfied requirements for bicameralism and presidential approval) • Holding SC said: If you are taking legislative action. Every major regulation has to have a 60 day period of review before it becomes law. So this is both branches of government acceding to approving Chadha’s staying in the country The order of approval is different. then Congress can only do so in a manner consistent with bi-cameralism. but are these not the same thing?  Summary • Case sets forth the type of oversight the legislative branch can have through veto (of sorts). If the house and senate disagree during that time. • Prof asked: Is this plainly unconstitutional or not? . Congressional Review Act (around 1995).21 Post-1952. and sent to the president to sign. Hypo • Imagine that NASA gets a grant of $2 billion to establish a Mars  station. then original $2 billion grant can be exceeded.

They are acts of legislation. • 3rd debate: Mr. Most votes for not constitutional. • Prof: Changed hypo so that subsequent request would have to be capped at a certain amount according to the grant of funds under the original bicameral process. Arbagast: Not constitutional because rights of others could be affected if the subcommittee had unfettered access to funds. Broader pole. Would that scenario be different from Chada? Prof: The question is this a legislative action or not. There are questions about the constitutionality of such occurrences. but think that an exception for appropriating money exists. Committees are always allocating more or less money than planned for. Doesn’t fit under concept of legislative action. • Mr. instead of saying that the Senate or House can . Scholars have problems squaring these types of actions with Chada. but not legislative actions under Chada. it was only an approval of funds. which altered rights. Frankie: Not constitutional because the subsequent action is a legislative action that should go through the bicameral process • • • Ms. Prof: Would you be OK with Chada if. Prof: Why can’t the hypo scenario just be taken out of the legislative category because it can be distinguished from Chada. Mannion: Constitutional. • 1st debate Prof: Things like this happen all the time.22 • Ms. Tressler: Congess is essentially creating a legislative agency with its committee. Student: It has to be a legislative action of some sort. • Ms. Parsi: Not constitutional Said that hypo is similar to Chada. • 2nd debate: Bear in mind that congress can make non-binding actions[?]. Congress as a whole or subcommittees can act this way. Argument that the subsequent grant to NASA was constitutional: It was distinguishable from a legislative action because it did not change anyone’s rights.

We could have treated this as an adjudication because it dealt with one person. and Chada is still good law. J. Tressler’s point: A subcommittee would be granted power to override AG’s decision. Student: Who would have standing in such a case. There are many ways congress maintains oversight over agencies. the idea was that the House or Senate can disapprove of AG’s decision. Chada dealt with a specific designation of specific people facing deportation. that this subcommittee is responsible for vetoing it even though the AG said no. would that change the result in Chada? Prof: This is not a way to get around Chada. Chada involved an adjudication (as opposed to administration of a rule). • Point 2. but would run afoul of Chada. Restate hypo In Chada. .23 overcome legislation. Prof: Tabled until later  Bottom line: • Point 1. White: We could have avoided the broad sweep of the Chada decision affecting agencies with override provisions. Legislation could be used to deal with broader.

but SCOTUS held that they had no standing. that was signed by President  Clinton. • The Act included a provision that conferred standing to members of congress to challenge the Act.6 billion it had received in Medicaid benefits. Instead someone directly affected by a line item veto would have standing to file lawsuit. Clinton signed the broader bill.24 LINE ITEM VETO Clinton v NY  Facts Line item veto case. • Clinton vetoed a provision that would have allowed NY to not have to pay back $2. contrasted with discretion to control aspects of spending. Act allows President to veto specific provisions he disagreed with. Members of congress that thought the Act was unconstitutional challenged the bill. but used his line item veto power to cancel out the debt forgiveness to NY. no matter what standing the Act provided. When the subcommittee allowed the subsequent appropriation. someone affected by that . For example: Consider the NASA hypo above. Such a challenge would by fast-tracked directly to the SCOTUS. The act provided for 3 situation s when President could veto. because everyone disliked the idea that pet projects (pork barreling) were embedded in bills that the President was forced to accept if he signed the bill. There was wide support for the bill. Congress passed a line item veto bill.

o Standing: Harder option. The political nature of pet projects is welcomed in recipient district. Prof: If you think there is an inefficient process or protocol put in constitution by framers. it may be considered constitutional. it goes back to congress. The class of potential aggrieved parties would be narrow. The line item veto is practical. . Student. • Student response 2: Unconstitutional. • Prof. Y has standing. especially so soon afterwards (the Act allowed a veto action within 5 days of signing). likely an affected agency or state. • President does not have the power to unilaterally change statutes. so the line item veto raises a political question that can’t be decided by the President But if enough procedural limits were placed on line item veto power. o Standing: Easier option.  Holding • In Clinton. SCOTUS found line item veto unconstitutional because President should not be allowed to cancel a law after signing. the constitution can be amended to deal with modern truths. Congress is not going to want to limit themselves by giving power to the president. If congress gave money to X.25 additional appropriation could sue. then Y who felt entitled to that money would have standing. If Congress directly took money that was going to Y and gave it to X.: There are already constitutional procedures for getting rid of pork barreling (Pres can veto entire bill. requires bicameralism  Comments • Prof.: Did you agree with holding? Student response: Constitutional. and comes back to pres).

26 • Prof. But the SCOTUS concluded it was hard to get around plain language of the Constitution. We can’t allow a president to re-write legislation. On the one hand. there was no indication that the broader bill would have passed without the debt reduction to NY state.  Analysis • President may unilaterally take items off a list of items that can be traded is distinguished from line item veto power because the conditions related to trade. he is rewriting legislation by stroke of pen. That period is not long enough for facts to change. . Even when the President is acting to erase items from free trade. the line item veto is practical and widely politically popular. Clark (distinguished in Clinton case)  Holding • President can suspend free trade with other countries and veto items off a pre-determined list of items that are freely traded. summarizes. where President had to act w/in 5 days. Third. Second. President needs to be able to act quickly. Presidential authority here is limited by very narrow discretion. Field v. he is doing it to achieve the aims of congress. In Clinton. Instead with the stroke of his pen he is wiping away negotiations made in Congress. • In Clinton President is not effectuating the goals and aims of congress. There is only one legislative process intended by Framers. Instead. Contrast with Clinton. and policies of other countries may change suddenly.

(you owe this tax to us now) In these situations people must have notice and the opportunity to be heard.27 ADJUDICATIONS AND RULEMAKING COMPARED BASIC DISTINCTIONS Ajudication and Rulemaking: • • • • Adjudication: Effects a small group of people Is retroactive. .

28 • • Rulemaking: Affects a lot of people o Proscriptive .

v. each person does not have right to a forum to voice objectives.: Londoner is not a classic case of adjudication. when an agency decision/rule affects a broad group of people. Denver  Summary • Establishes when an agency rulemaking process must submit to adjudication. . and are not really bound by fact-bound limitations. Generally. It’s not that much of a burden on an agency to give people a chance to complain when those people are part of a small group. State Board of Equalization of CO. adjudication affects a small group of people. The 14th amendment due process clause allows notice and chance of individuals affected by agency decisions to be heard. the Due Process Clause requires that the people affected be given notice and an opportunity to be heard and challenge. may affect many people. Bi-Metallic Investment Co.29 ADJUDICATIONS RIGHT TO A HEARING & DUE PROCESS Londoner v.  Summary • One part of Bi-Metallic is. there is a political remedy through the democratic process. because: 1.  Issue • Do those affected by a tax have the right to argue their side and support their allegations by proof?  Holding • SCOTUS: When rules affect a small number of people. and 2. • Prof. Is not practical. and is usually retroactive. • Rules are prospective in application.).

if the Constitution demands that you have a hearing. • The Administrative Procedure Act has very different rules for adjudications and administration. McGrath.: The key nub of Yang Sung is that anything that is so important that a hearing is required (e. therefore. because the APA only applies to rules that are required by statute.  Analysis • Prof: When is a hearing necessary? If the APA does not apply.) Wong Yang Sung v. the APAs same protections should apply there . etc.  Facts • Government’s position was that the particular immigration statute at issue here doesn’t require a hearing. Orders are products of adjudications and rules are products of administrative decisions. thus his deportation order is invalid. • Prof. • Here even though statute does not say one gets a hearing in a particular circumstance.) and is a big deal. we are not required to give a hearing and are not bound by the APA. a Chinese citizen.30 • Londoner. we want the strong robust protections of the APA to apply.g entitlement to a license. what requires a hearing? Answer: the 14th amendment Due Process clause. Sung says that the court did not follow procedures of the APA for his adjudication. (1950)  Summary • Habeas corpus proceeding involving Sung. • An immigration hearing is exactly the type of hearing the APA was meant to apply to. A sub-category is informal rulemaking and informal adjudications (we’ll talk about later. and Bi-Metallic differ on the basis of an order versus a rule. respectively.

If due process guarantees right to hearing. ADJUDICATIONS APA STANDARDS AND OTHER LAWS Dickinson v. which ruled in favor of Zurko by using a stricter standard for reviewing the agency’s decision. Cir. Ct should only review to see if decision was “arbitrary & capricious” (from APA §706) Zurko claims that standard of review should be “clearly erroneous” which comes from settled case law Issue of case: whether standards for judicial review follow APA or case law (pre-APA law) APA §706. Zurko appealed to Fed. After Yang Sung.264) (Purpose of the APA & standard of review) Facts: Zurko applied for a patent & the Patent & Trademark Office (PTO) denied the application. • The APA was going to apply one set of rules to all hearings.“arbitrary & capricious” More deferential standard to agencies less strict standard agency has more latitude Ex of acting arbitrary & capricious: if they make decisions by flipping a coin Case law’s “clearly erroneous” Less deferential standard to agencies . we know that APA applies to all things where a hearing is guaranteed under the APA or the constitution. We assume that Congress intended for those robust protections of the APA to also apply. there would be a huge hole in the APA if it did not allow hearing. Circuit Court.31 as well. PTO said that Fed. Zurko (p.

then that “additional requirement” would supersede the arbitrary & capricious standard set forth by §706 The goal of the APA was to bring about uniformity & allowing unsettled common law standard to govern on the basis of §559 would create different standards of review Dissent: Point of APA was to raise the standard of review for everybody. if you followed procedure and made a thoughtful decision Easier to be clearly wrong than arbitrary or capricious When agency hears the facts.32 Stricter standard Could be wrong. but not acting arbitrarily or capriciously. Majority Opinion (Breyer): §706 “arbitrary & capricious standard applies b/c of uncertainty in case law’s “clearly erroneous” standard. makes determination. it is not recognized by law & it does not override the purpose of the APA which is to create a uniform standard Supreme Court will not override principal purpose of APA to set a uniform standard of review unless it is clearly recognized by law If it is recognized by law. not just uniformity. to correct those agencies that had suboptimal procedures . & decision is subject to judicial review by a court Rule: Agencies can make decisions in the form of rule making & judicial branch can review this (in most instances) How does question come before the court? APA §706 supplies judicial review standards for agency decision making (including arbitrary & capricious) APA §559 sets up conflict & is an exception that states the APA is not limiting or repealing additional requirements already recognized by law Sets up question of whether “clearly erroneous” is an extra requirement & whether it is recognized by law? It is an additional requirement b/c imposes an additional restriction on the agency’s decision making So accepted that it is an additional requirement so question is whether is recognized by law..

including terms like recognized by law. filling in where they had defects & strengthening it If congress wanted total uniformity then §559 would be pointless statutory interpretation. and Common law standard variably applied provides insufficient guidance to litigants before the agency . even if it is lowering standard of review Clear example where SCt says arbitrary & capricious is more deferential & less strict for the agencies than clearly erroneous. the Court is choosing the lower standard & hence lifting a constraint on agency action **KEY TAKE AWAY**: Supreme Court recognizes that one of the great hallmarks of the APA is uniformity & therefore terms like “recognized by law” should be interpreted to promote uniformity When interpreting language of APA. Clearly erroneous is less deferential and a step lower than arbitrary & capricious Question to the Class: Did the court get it right?? Those who say the Dissent is correct The APA used as a gap filler.33 Here for the sake of consistency. read them as consistent with that overarching purpose of uniformity Understand the text through the purpose of the APA Arbitrary & capricious is the appropriate standard of review unless it is clearly displaced by established/settled law or practice. §559 says recognized by law so many different areas of Admin Law then why mess with the existing standard then the uniformity The Majority is correct: APA created to make sure that all agencies were following the same set of constraints.

they filed for permit & exemption under §316 §316 exemption company needed to show that EPA standard was “more stringent than necessary” for a balanced indigenous population of wildlife and structure was “best available technology” most environmentally friendly available technology statute says only get an exemption after you’ve had a hearing. but problem is that there were additional findings submitted but no hearing after these findings were submitted claims hearing isn’t consistent with requirements of the APA. In this case wanted permission to discharge pollutant.tells us when the APA applies Compare Wong Sung v.325) (§554(a) of APA & definition) Facts: Private company wants to obtain permit for exemption from a statutory rule that says you can’t discharge a pollutant into the water. Costle (p. McGrath (holding that the APA applies even where the statute does not call for a hearing in cases where the Constitution demands a hearing since Congress must have wanted APA’s strict rules to apply when not just a mere statute but the Constitution necessitates a hearing ) APA says only time when rules apply is if hearing is on the record APA applies b/c §554 says that APA applies in “every case of adjudication.34 ADJUDICATIONS HEARINGS ON THE RECORD REQUIRED Seacoast Anti-Pollution League v. didn’t conform to procedural requirements of APA APA §554 says APA applies in every case where an adjudication takes place which is “on the record” Question: whether APA applies when statute requires a hearing but no mention of it being “on the record.” given that the text of the APA makes it clear that APA rules apply where a hearing is required to be determined “on the record” §554. B/c company wasn’t clear that system they had would satisfy agency’s requirements.” and a record is necessary to facilitate judicial review & if it is not on the record then it is very hard to be able to establish this review with nothing to look at How do we get past the text “on the record” Assume that when a statute refers to a hearing. it refers to it as a hearing on the record b/c need to have judicial review There can not be an agency whose decisions are not subject to judicial review b/c the hearing is not on the record . using a one time through system in order to remove waste heat. superheated water.

anytime you go before an agency you’re going to wonder what set of rules are we subject to. assume hearing means on the record. doesn’t make any sense to not have it on the record when the following 3 circumstances apply (1) In Seacoast court concluded that you could assume that a hearing was meant to be on the record b/c hearing implies that there is going to be some answer that is subject to judicial review This is the type of decision that is subject to judicial review (2) Decision depends on highly fact specific determinations . APA says only apply in certain circumstances Ex: when the adjudication going on is required by statute. ISSUE IS WHETHER THE APA APPLIES IN THE FIRST PLACE --> THE APA TELLS YOU WHEN IT APPLIES. both of which are fact based inquiry Therefore we need to assume that it is on the record The hearing determines individual rights and not simply broad policy APA is big set of laws meant to govern administrative proceedings. unless there is some contrary evidence. b/c the decision is subject to judicial review the decision depends on highly fact specific determinations The company is looking for an exemption which turns on whether standard was more stringent necessary & whether they were using the best available technology.” court concluded it is assumed that the statute meant “on the record” When the statute says hearing on the record. the magic words “on the record” are not needed Circuit Court concluded that you could assume that a hearing is meant to be on the record.35 There is a rebuttable presumption that any time the statute refers to a hearing it is referring to a hearing on the record. also applies when hearing required by constitution Such as deportation hearing which involves human liberty & happiness Meets spirit of the APA Seacoast Even if the APA says it only applies when statute says hearing “on the record.” if statute just says “hearing. ie: a hearing is required by statute Wong Sung Even though APA says only applies when hearing required by statute.

there is a rebuttable presumption that a hearing means on the record as well Even though the APA says it will only apply when a hearing is on the record. assume it applies even in those cases where the text refers to a hearing.36 (3) Hearing affects individual rights.. probably want a neutral judge to arbitrate that dispute. and then there’s a statute that says only make a determination after a hearing (could even just say you present evidence before a neutral judge.. Talk about uniformity Do APA’s rules apply in the first place Each put forward specific rules as to how the APA’s rules apply . should the APA apply? ASK: Does it make sense to have a hearing without a neutral judge? If this is the type of adjudication where individual rights are at stake. when this factor is present then assume it is on the record When these 3 things are true. etc. so assume that APA intended to apply even in those cases where the statute simply said hearing WHAT TO KNOW APA tells you that its rules apply in certain circumstances ex: hearings on the record. assume it’s on the record What if the APA said a hearing before a neutral judge and statute says a hearing. some other scenario can get you a hearing & have to reason why. doesn’t have to use the word hearing) Seacoast & Wong Sung say that APA’s rules apply in circumstances where the specific language of hearing is not used. not policy determinations.

which will require a highly fact specific determination. Statute  I. Commodities Futures Trading Commission Facts  I. when an agency makes a decision it has to set forth its reasons and factual findings on essentially every disputed question of law and fact. I. a commodities advisor. Armstrong. Nonetheless. By saying the ALJ’s decision is “substantially correct” the agency was basically summarily affirming the decision below. Armstrong’s company is not ultimately liable. An ALJ issued an adverse decision for him. Pursuant to 557(c) of the APA. The ALJ looked at the evidence and concluded that Armstrong was individually liable (which is basically a trial determination). The Commission adopted the opinion. so the question is if he can be held individually liable. Holding  The circuit court interprets §557(c) by saying that an agency in reviewing an ALJ decision CANNOT say it is “substantially correct”. although stating they had reservations about it. had some companies that ran into trouble with the Commodities Futures Trading Commission (CFTC) because of various violations including failure to disclose. . the Commission “substantially agrees” with the ALJ’s findings. but saying “substantially correct” is inadequate because it leaves too much guesswork regarding what the agency adopted.ADJUDICATIONS ADJUDICATION DECISIONS MUST SET FORTH REASONS Armstrong v. Armstrong argues that if the Commission does not fully adopt the ALJ’s opinion. II. Summary affirmation is permissible. then it has to give its own reasons.

meaningful judicial review of the agency’s decision. .38 II. If this were the standard. adequate. it would invite a more intrusive role for the court. When you are setting forth your reasons. The court interprets 557(c) of the APA as stating the following: (1) Administrative agencies must set forth their reasons on every question of law or fact. III. you have to provide enough clarity to facilitate judicial review. The basic rationale for the court’s decision is that unless we know exactly what the agency is thinking it makes it very difficult for a federal court to engage in proper.

Section 310 of the Packers and Stockyards Act calls for a “full hearing” before determining the maximum rates for buying and selling livestock. BUT NO PROBING MENTAL PROCESSES GOVERNMENT MUST PROVIDE NOTICE Morgan I Facts  I. The Court is trying to figure out what a “full hearing” consists of. II. There was an intelligible principle question. Analysis IV.39 ADJUDICATIONS ONE WHO HEARS MUST DECIDE. 2 minor questions: I. American Trucking delegation is ok. III. Supreme Court said this was not a problem. Fifty suits were consolidated for trial and were brought to restrain the enforcement of an order by the Secretary of Agriculture fixing the maximum rates to be charged by market agencies for buying and selling livestock in Kansas City. Secretary did not hear any of the evidence. Like in Whitman v. Was it ok to consolidate these 50 suits? a. Instead the following process ensued: . Issue  II.

the Secretary of Agriculture did not delegate the decision making. Examiner . The Supreme Court takes a step back. o The Secretary of Agriculture testified that he was overwhelmed.40 1.” The Court says that if the Secretary of Agriculture has too many things on his plate he can delegate to the Acting Secretary as long as the Acting Secretary hears the evidence and makes decision. Here. The Supreme Court says that if he says that he did adequate consultation then that is fine. essentially performed the role of a trial judge. The principle of “the one who hears must decide. You can delegate both of the responsibilities (hearing the evidence and adjudicating) completely. Holding  V.Initially an examiner in the ALJ admits testimony. 2. the new secretary comes along and instead of holding the hearings all over again.” but the Court says it’s not their job to probe into the mental processes of the Secretary. . Morgan II First Issue  I. The examiner then stepped aside. but you CANNOT split up responsibilities of hearing the evidence and making the final adjudication. he looks through documents and makes a decision. Acting secretary – Then the acting secretary hears all oral arguments. It does not renounce the principle “the one who hears must decide. The examiner that does this handles a huge number of investigations. 3. o Within an agency you cannot divorce responsibilities. The Court will not inquire into the Secretary’s mental processes. Secretary – Finally. He reviewed the reports of the Acting Secretary.

We will not look at the mental processes of what the Secretary did. Why is it okay that the cases be consolidated and that each petitioner did not get an individual hearing? o (Pre-APA) .41 o This puts a veil over “the one who hears must decide” because the Court is saying that though they are requiring to the one who hears to decide. A “full hearing” under the statute provides for proper notice and opportunity to be heard. Whether or not Petitioners received a “full hearing”? Holding I. . The Court says you have to give notice of the complaint against these individual litigants. they will not look at how he did it. but we know what a full hearing looks like in an ordinary adjudication. Second Issue  I. That requires the government to set forth the basis of its complaint.Individual adjudications are appropriate when there are some common issues of law and fact. to provide notice to its opponent. A full hearing is still possible without individualizing each hearing. VI.

II. and provide guidance on how things should be done. a typical hearing should last 2 days). Reforms: 1.000 cases and the director decided upon a series of reforms to improve the situation. The Social Security Administration (SSA) in 1975 had a backlog of 100. Peer review program – an outside committee that comes to in to says what the best practices are (i. . A veteran ALJ brought suit because he claimed all of the reforms impaired the ALJ’s right to decisional independence. Bowen Facts  I.e.42 ADJUDICATIONS AGENCY MAY REQUIRE QUALITY STANDARDS FOR ADJUDICATORS Nash v.

43 2. a per se antitrust violation . FTC issues a cease and desist order against 74 corporations that manufacture and sell cement. Court said that the Secretary’s efforts to promote quality and consistency do not infringe upon the ALJ’s decisional independence. ADJUDICATIONS AGENCY MAY CONCLUDE ACTIVITY IS ILLEGAL. An average 50% reversal rate for all ALJs is acceptable. THEN ADJUDICATE FTC v. Though the rate of reversal is not an undue influence it is a proxy for consistent decisions. The FTC complains that the 74 Cement companies are engaging in horizontal price fixing by agreeing to identical services for identical prices. Rate of reversal – the ALJ had to maintain a fixed percentage of reversals in favor of the SSA. setting desired reversal rates. 3. which the agencies are allowed to do. Peer review. Cement Institute Facts  I. Production quotas – The SSA required that the ALJ render a certain number of decisions a month. and production quotes are all fine. Whether efforts to improve the quality and efficiency of the work of ALJs impaired their asserted right to "decisional independence" under the APA § 551/Do these types of reforms interfere with the judicial autonomy of the ALJs? Holding  II. Issue  . If they don’t meet the quota there will be penalties. Issue  I.

44 I. The respondent’s legal objection is that the FTC is biased, so the respondents ask the FTC to disqualify itself from judging the issues. o The FTC had investigated this exact problem, put out reports, testified in front of congress and said that it believed this was wrong and now they are trying to adjudicate this same claim. Holding  I. The Court disagrees with respondents and concludes that investigating and adjudicating after submitting reports to Congress that posit a violation of law on a given topic is not a problem. Therefore, what the commission did was fine. o Reasoning  The tagline for the Court’s justification is that if the Court rules to the contrary then an investigation into bad conduct would result in immunity for that bad conduct. Congress set up this commission to see if companies/individuals were engaging in antitrust violations. If every time you investigate you then can’t adjudicate, this would create a problem. Investigating would mean immunity and that is bad, so it is ok for the commission to have these 2 things.

ADJUDICATIONS AGENCY MAY MIX INVESTIGATIVE AND ADJUDICATORY FUNCTIONS

Wintrow v. Larkin
Facts  I. Larkin, a physician, was performing abortions in Milwaukee, WI when abortions were criminal. Wisconsin’s statute authorized the State Examining Board to investigate

45 physicians and temporarily suspend their licenses for professional misconduct. The medical board said they would investigate his practice at a closed hearing where Larkin and his attorney could attend and respond to evidence. Issue  I. Larkin files a federal complaint saying there was a violation of his due process rights because the examining board was mixing investigative and adjudicative functions, which is a wrongful overlap of duties. Holding  I. The Court holds that for an agency to have the authority to investigate and adjudicate does not violate due process, and therefore what the examining board did was fine. II. The Court says that this case is not governed by APA because it is a state agency, but the Court refers to the APA because even the APA says that it is sometimes ok to both investigate and adjudicate. Embedded in that exemption is the presumption that we put our trust in our administrators that they can do both jobs in good faith. a. Moreover in this case during the investigation Larkin’s counsel was present. At the end of the decision the Court says there may be special circumstances in which this would be a violation. o APA Section 554(d) – an employee or agent may not participate or advise in the decision. The APA specifically says the person involved in the investigation cannot be involved in the adjudication. But it has an exception that says that the body composing the agency itself is exempt from this

46 ADJUDICATIONS EX PARTE COMMUNICATIONS

Portland Audubon Society v. Endangered Species Cmte.:
Background: The Endangered Species Act required a high level 7 member panel to hear and grant exemptions. The Society charged that the panel had given an exemption because the WH had improper ex parte communications with the administrators of the committee. Questions: 1. Are Committee proceedings subject to the ex part communications ban of §557(d)(1)? 2. Are ex parte communications from the President and his staff covered by that provision? §557(d)(1) is a broad provision that prohibits any ex parte communications relevant to the merits of an agency proceeding “any member of the body comprising the agency” or any agency employee who “is or may reasonably be expected to be involved in the decisional process” and any “interested person outside the agency.” Need 5 of 7 votes to get exemptions from the Endangered Species Act. President communicated with 1 or 2 members of the committee, and outcome would have changed depending on their votes. President says they are not outsiders subject to the ex parte statute, made three arguments: 1. Because President is the center of Exec Branch, he does not have an interest in the Committee proceedings greater than the interest of public as a whole. President says he is not interested person within its usual meaning. 2. Do not fall within terms of the statute because President’s interest is no different from that of his subordinates on the Committee. These people are appointed to be President’s alterego on the Committee, he should be allowed to talk to them. 3. Separation of Powers argument—the statute prevents the President from carrying out his duty. Are any of these arguments persuasive? • 2nd argument: There are plausible arguments for why President might able to talk with his alter-ego on the committee, but does that allow the President to talk with other members of the committee?

This is the case on ex parte communications. o Could also use Morrison approach—this is a de minimus interference. • SOP argument: Court says that an agency engaged in quasi-judicial decision-making must have constraints on presidential ex parte communications. Castillo-Villagra v. o Adjudications meant to be decided without backroom communications. then he is part of the agency. ALJ says they don’t have a reason to be granted asylum. . you can talk to whoever you want.  Ms.  Mr. these are the people that are supposed to make the determinations. There is no evidence that Congress set this up to be adversarial to the president. President has views on the matter and an interest in the outcome. falling under the usual definition.  Mr. o Subordinate can speak on behalf of the President. This does not impede on the President’s ability to carry out this duties. similar to the special prosecutor by Nixon. INS Petition asylum to INS regarding persecution by political party in Nicaragua. Freyman: The purpose was to keep this agency independent from the president. and once you are in the agency. Enyeart: Alter-ego argument most persuasive.  Ms. Arroyo: Can the president communicate with is committee member? Response: Not with respect to the matter at hand while the case is being adjudicated. Jose: This is differet from the independent prosecutor. o 9th Circuit rules this argument not viable. Their claim is a result of their own actions.47 • What does “outside the agency” mean? President argues that since his alter-ego is on the Committee. and their protests of the government were causing the persecution. • First argument: President does indeed have an interest in this.

• • We assume litigant won’t debate them. Regarding opportunity to rebut. o Suggested litmus test: Is it subject to reasonable debate? Is it external to the litigant? o Adjudicative facts are those bound up in the litigants themselves. But in administrative setting. May cause them to withdraw petition. Procedurally. and when must they give you opportunity to rebut those facts? General rule: With respect to legislative facts. Generally speaking. when must it notify when they are doing so.48 BIA takes up the issue—takes administrative notice re: the fact of regime change and determined from that petitioners no longer threatened. Fear of persecution no longer valid. even though it was recently decided. in administering the statute. you should at least warn the parties that you are going to use them as the basis of your decision. you MUST give notice and MUST give opportunity to litigants to challenge and rebut. But that point is a little unclear. and probably not required. The AG is allowed to. and allowed to take in new determinations. AG’s opinion. that will usually be difficult. they are allowed to do this. Nothing that prevents BIA from reaching different conclusion or using different grounds. agencies are allowed to take notice of them. Both appellate agency. you will probably be required to give opportunity to rebut. but it may change their strategy. Matter of Compean This case is not the law. With respect to adjudicative facts. they are generally accepted as true. this case demonstrates who sits at the top of the decision-making chain. • When is it appropriate for an agency to use these facts. Questions: sometimes there are legislative facts that will have dimension subject to debate. In those cases. Adjudicative Facts: o Legislative facts are not subject to debate. . Legal question: • Legislative v. make decrees that are decisions on behalf of the agency. Notice how BIA uses completely different basis for decision than the ALJ.

On the basis of this. There were 20 years of precedne ton the point that asylum seekers were entitled to this basis for appeal. 5th Amendment Due Process is only enforceable against the government. the process of setting up these rules is state action. agency can guarantee because of this complicated basis. How do you justify Holder’s position outside of BIA precedent? • • Can’t justify on criminal grounds. Immigrants in particular are ill-equipped to navigate the system. AG Holder has reestablished the BIA precedent that right to appeal on this ground. Rhetorical counter-argument—unfair to the alien. Didn’t have rights to a lawyer in the first place. this is definitely a civil proceeding. which are incredibly complex. Not enforceable against a private attorney. Why doesn’t the Constitution require a lawyer? • • 6th Amendment right to attorney only applies in criminal cases. . then you can’t complain under the constitution that your lawyer wasn’t good enough. But how do you make the argument constitutionally? Since this case. Justification: If you don’t have constitutional right to an attorney. we are going to provide you with a lawyer.49 AG essentially says we no longer will recognize ineffective assistance of counsel claims for aliens challenging deportation. State action grounds best argument Prof can come up with—when agencies are setting up their procedures. an immigration case is civil. Alien can’t appeal to a federal court on the issue that his lawyer wasn’t affective.

Holder. US 2009 Facts: Neguise is a dual national of Eritrea and Ethiopia. Neguise refused to fight. Arrested and made to spend time in prison. The provision refused to sanction asylum of people who committed the very persecutions they now wish to escape. Neguise sought asylum on the grounds that the Persecutor Bar did not disqualify him from asylum. and thus failed to read a duress exception. . PH: BIA: Persecutor bar applies. War btwn Eritrea and Ethiopia. which stated that aliens that assisted in the persecution of others are not eligible for asylum. Within 1 year.50 Neguise v. The persecutor bar shouldn’t apply where persecution of others was not voluntarily. and (2) Whether the Supreme Court had to give deference to/remand/reverse the BIA’s interpretation. Fifth Circuit: Affirmed Neguise’s Defense: The BIA did not properly interpret the statute. APA-specific Legal Issue: (1) Whether the BIA properly interpreted the INA to have no duress exception and thus bar an alien conscripted and compelled to assist in persecution from asylum. as he was merely conscripted and forced into persecuting others. However. Released after 2 years and then conscripted/forced to be a prison guard. In his actions as prison guard he allegedly persecuted prisoners. Neguise’s persecution of others was done under duress. As a matter of law (precedent on statutory interpretation) there is no exception to the persecutor bar based on duress. Forced into the military. as required by the provision of the Immigration and Naturalization Act (INA). the INA contained a provision (Persecutor Bar). Eventually escaped to the US. Neguise moved to Eritrea from Ethiopia. Neguise applied for asylum.

INA: Similarly. the Supreme Court holds that the BIA improperly relied on and misapplied Fedorenko because the INA did not have with parallel provisions – one containing a duress exception and the other not containing a duress exception.” INA: It is unclear whether Congress enacted the INA in response to the equivalent of the “Nuremberg defense.51 Holding (1): Reversed. Distinction in the political context of the Fedorenko statute and the INA Fedorenko: Congress enacted the statute after the Holocaust. Reasons: The BIA did not exercise its agency authority to interpret the INA. The Supreme Court in Fedorenko held no duress exception because the inclusion of the word “voluntarily” under section (b) and the failure to include “voluntarily” under section (a) suggests that the omission was deliberate and therefore (a) is intended to apply regardless of whether the actions were voluntary or compelled. The BIA did not properly interpret the INA.” TAKEAWAY: The Fedorenko statute illustrates that since Congress knows how to create a clear duress exception. in response to the “Nuremberg defense. Distinction in Statutory Construction of the Fedorenko Statute and the INA Fedorenko: In Fedorenko the issue was the interpretation of a statute to determine whether there was a duress exception. 2 Reasons Why Fedorenko did not control the BIA’s statutory interpretation of the INA: 1. 2. erroneously decided that there was no duress exception. The statute at issue in Fedorenko stated: (a) to have assisted the enemy in persecuting civil populations of UN members. the issue here was the interpretation of the INA to determine whether there was a duress exception. or (b) to have voluntarily assisted the enemy forces since the outbreak of the second world war in their operations against the UN. However. the ambiguity as to whether the INA similarly does not contain duress exception suggests the Fedorenko does not control the BIA’s interpretation of the INA. the BIA incorrecly assumed that the Supreme Court’s holding in Fedorenko controlled its statutory interpretation of the INA. Instead. and consequently. .

2 Reasons: 1. Ordinary remand rule: Where we believe agency has made an error but might get it right the second time around. would you allow an asylum seeker to assert a duress exception or not? • • Duguies: Would allow duress exception. Because this was an error of law. Franke: Would allow duress exception for specific circumstances like exception for serving in the military. We should just decide whether there is a duress exception or not rather than waste the BIA’s time with 3 more years of hearings. 2. then we should give them that second chance to get it right. Neguise went to the Supreme Court b/c it involved a major policy question. Vignarajah: BIA did not exercise its authority to interpret the ambiguous statute.52 Holding (2): Remanded to the BIA. Question: If you were on the BIA. BIA was under the misapprehension that they did not have any flexibility to interpret. The BIA is charged with properly interpreting the INA to resolve the ambiguity of the duress exception. then the federal court should defer to the agency’s interpretation of that statute so long as that interpretation is reasonable Dissent to Holding (2): Stevens: Took a different approach: Remand is a waste of time. in contrast. When people like Neguise apply for asylum. Prof. That assumption was wrong and so deference should not be accorded. Proof might be difficult and so some that don’t deserve may assert. in light of the fact that the court holds that Fedorenko does not control. in thinking Fedorenko tied your hands. BIA believed its holding of no duress exception was dictated by Fedorenko. yet still think that it should be awarded. and the agency’s statutory interpretation is contrary to that crystal clear meaning of the statute. No Chevron deference to the BIA’s original interpretation: A federal court may overrule an agency decision only if the statute at issue is crystal clear. we will not give BIA deference. Might have been difference if they provided separate justification. Question: Why wasn’t Chevron deference accorded in this circumstance? • • Morse: Only reason BIA gave was reliance on Fedorenko. . the adjudicative body that decides whether to grant asylum is an immigration judge. It is our job to supply clarity to lower courts. if the statute at issue is ambiguous.

Prof. Gives sense of scope b.53 • Jairam: Should not be a blanket duress exception. Vignarajah: Aren’t you troubled that if we allow such a standard. • • • • • RULEMAKING OVERVIEW Rulemaking is generally informal. If the party actively participated then there was a voluntary choice made. so perhaps that’s a reason it should be considered. Must give notice . If there was a definition of duress that took in to account varying degrees Rohm: From a foreign relations stand point. everyone is going to claim it? Aren’t you going to invite needless claims and frivolous litigation? Hanson: By denying blanket duress situation then not acknowledging the horrible situation these people have been forced into and not giving them a way to escape – forcing them to return to that situation. unlike adjudication. exception should apply. Enyeart: Should not be a blanket duress exception. which is generally formal. the risk of accepting a war criminal into the US is so much higher than sending them back – the latter is more of a neutral stance Goldberg: Should be a duress exception available but should have an extremely high standard of proof. o Prof. Vignarajah: It’s difficult to imagine what one would do in these circumstances. If the person is passive. There are varying degrees of duress. Rule §553 in sum: a. Even if consequence of refusing to act would be death then that might be better than torturing others.

54 c. the agency shall incorporate in the rules adopted a concise general statement of their basis and purpose. RULEMAKING NOTICE AND COMMENT RULEMAKING APPLIES UNLESS “ON THE RECORD” SPECIFIED IN STATUTE United States v. After consideration of the relevant matter presented. the agency shall give interested persons an opportunity to participate in the rule making through submission of written data. When rules are required by statute to be made on the record after opportunity for an agency hearing. All interested persons are allowed to request a rulemaking (this is essentially what happened in Mass v. US 1973 Facts: Shortage of freight cars. (2) reference to the legal authority under which the rule is proposed. Also directs when §556 and 557 should be applied instead of §553 – when statute says “on the record after … hearing” d. Florida East Coast Railway. and (3) either the terms or substance of the proposed rule or a description of the subjects and issues involved. Need to publish within specified time frame e. … (c) After notice required by this section. Interstate Commerce Committee (ICC) sought to establish rates to encourage railroad operators to return empty freight cars back to owners. EPA) Rulemaking under §553 is often referred to as notice-and-comment rulemaking – this is b/c of (b) and (c) of the statute. The ICC . or arguments with or without opportunity for oral presentation. Must allow for comment at least in written form. place and nature of public rule making proceedings. RELEVANT STATUTORY PROVISIONS: §553 Rulemaking: (b) General notice of proposed rule making shall be published in the Federal Register … The notice shall include: (1) A statement of the time. sections 556 and 557 of this title apply instead of this subsection. views.

but keep a lower rate for returning empty cars. Florida If “on the record” is missing from the authorizing statute. In adjudication context [Seacoast] even where “on the record” is missing from statute. Thinking was if rate goes up then: (1) people will not allow empty cars to sit empty. §556/557 apply where the statute says “on the record after … hearing. ICC makes a rule under §553 rulemaking establishing these rates. ICC statute says that rule can only be made after “hearing.55 wanted to raise rate for railroad companies to borrow each others’ cars. because it’s adjudication. Congress wanted formal proceedings and §§ 556 and 557 apply Unless it’s something like routine licensing hearings. “on the record after … hearing.” then informal rulemaking. . and (2) will encourage people to build more freight cars b/c can make more.” Issue: Whether formal rulemaking rules (§556 and 557) apply (as opposed to the informal rulemaking rule (§553)) even though the statute does not say “on the record after … hearing"? Rule: Under §553(c). This was a practical matter – formal rulemaking would have eaten up too much time and agency resources. we assume that. Take-Away: In rulemaking context.” This case does not overrule Seacoast b/c this concerns rulemaking and Seacoast concerns adjudication. etc. the rebuttable presumption is in favor of informal rulemaking—unless statute explicitly says “on the record. the presumption is in favor with informal rulemaking under § 553 The exception is if the statute explicitly says rulemaking must be formal under §§ 556 and 557 Seacoast If “on the record” is missing from the statute.” Holding: Opposite conclusion of Seacoast: Formal rulemaking does not apply where statute merely says “hearing” and does not contain the necessary language. the rebuttable presumption is in favor of formal adjudication.

people have all sorts of input into the legislature. • • • • • • RULEMAKING NO HARMLESS ERROR FOR PROCEDURAL VIOLATIONS OF RULEMAKING Sugar Cane Growers Cooperative of Florida v. Vignarajah: In the legislative model. . You have two different judicial interpretations of the same section of law. DC 2002 Facts: Dept of Agriculture initiated payment-in-kind (PIK) program: • • • There was a surplus of sugar and the price of sugar went down. There are not individual rights at stake. Rulemaking doesn’t have same rights and privileges at stake Parsi: look at when they used formal rulemaking to decide on 90 percent peanuts in peanut butter – took eight years.56 Question: Why did the court reach this conclusion? • Kobrin: Two separate areas. Whereas rulemaking is more like legislative function. Rubin: Difference in value of preserving judicial record. When you have broad rights at stake. Veneman. M. o Prof. you assume that applicants are going to want the rights and privileges of a quasi-trial. individual rights aren’t affected. Muschett: Affects many more people. Adjudication deals with quasi-trial – want to protect rights and privileges as much as possible. we have concluded that a sufficiently fair way of conducting is using democratic process. o Kobrin: Stakes are broader in the rulemaking situation. Ann. Dept came up with plan to reduce amount of sugar. Prof. There are public rights at issue. To ensure grower’s didn’t lose plantations. Jost: but you can interpret the same statutory language for two different purposes and come up with two different interpretations. But rule – less important to preserve record. and then it’s decided. And formal rulemaking is incredibly arduous and takes a very long time – not necessary where not high stakes. Findings of fact more important to preserve. but whole industries can be affected by an agency rule. If you agree not to plant more sugar then you can buy at a discount and resell some of the sugar surplus. Both adjudication and rulemaking are subject to judicial review. Vignarajah: But it seems like you still would want a record for a reviewing court to see why the agency settled on a rule. In adjudication. Taylor: It still doesn’t make sense. Sure. Rulemaking is quasi-legislative.

o The reason they don’t want to hear that argument is they want to encourage agencies to follow the APA’s rules scrupulously. Instituting a rule that you can buy sugar at a reduced rate if you do XYZ – that is a rule. the ship has sailed. harmless error: Even if we had allowed notice-andcomment we would have reached the same conclusion o What is harmless error? Imagine that a criminal defense attorney failed to object when hearsay was given. Following specified procedure is what the APA is all about. Vignarajah: I imagine farmers filed suit to get damages. even where Dept argues it would have reached the same result. Defense: Dept of Agriculture argues: Not a rule – isolated agency act Even if it was a rule. • Failure to engage in rulemaking is not harmless error. Take-Away: Take-Away: No such thing as harmless error when there are procedural violations of the APA. but not clear what falls into that exception]. the eggs are scrambled. the milk is spilt.57 • Only condition is that you don’t regrow sugar. Example of concrete exception to the ordinary remand rule—where the damage has already been done and cannot be reversed. . In passing the program Dept does not do notice-and-comment rulemaking. If we create a harmless error rule for failing to follow procedure than we eviscerate the APA. but the ordinary remand rule does not apply here b/c the damage has already been done and you can’t quite reverse it (the sugar cane growers already replaced their sugar crop with a different crop). In criminal context harmless error rule exists: Court’s generally require you to show that you were harmed by lawyer’s failure in order to have criminal conviction overturned. There cannot be harmless error if there is any uncertainty at all as to the effect of that failure. In response to Dept’s arguments: The PIK program is obviously a rule. The horse is out of the barn. and his client was convicted and sent to prison. [There is a de minimis exception. • • • Holding: Note: Whether agency is subject to notice-and-comment rulemaking depends on the statute and what it permits or does not. the chance to make another rule/policy]. Court reverses and remands (not going to give agency another chance). but Court decided it wasn’t useful to give the Dept. [Prof. Usually we would vacate and remand under the ordinary remand rule.

v. NRC allowed interested parties to submit written answers. Issue: Whether the APA provides the floor or the ceiling for making rules? Are the requirements of the APA the exclusive set of rules or can courts require more? . but no discovery or cross examination. PH: Court of Appeals holds that discovery and cross examination should have been required. The NRC had proposed a rule to resolve questions that kept arising over and over: NRC used rulemaking to determine issue of environmental impact of nuclear power plants. In making rule.. Inc. Natural Resources Defense Council. US 1978 Facts: Nuclear Regulatory Commission (NRC) had power to issue permits to authorize construction of nuclear power plant and to license operation of the completed plant.58 RULEMAKING COURT MAY NOT IMPOSE PROCEDURAL REQUIRMENTS OUTSIDE APA Vermont Yankee Nuclear Power Corp.

Do we have the same discovery requirement in immigration hearings as we do in nuclear ones? o Vignarajah: Right. If the APA doesn’t set that requirement. Here. but they’re not in the Constitution. If Courts are allowed to add requirements. what the Court was saying was. Question: Why is the Court uncomfortable with adding requirements? • ?: Uniformity issue.59 Holding: A court should not add requirements beyond what the APA requires even if the Court believes that requirement was implied by Congress. The judicial branch was imposing additional requirements. When a court comes along and provides for more requirements than the bare minimum of what the Constitution requires – like Miranda warnings. It’s like they’re implied by the Constitution. then Courts shouldn’t be able to do it. Need consistency in applying the APA. Vetter: Ability to make rules is a delegation from Congress. Congress has not delegated authority to courts to delegate additional requirements. Federal Courts have come to play a much more prominent role in reviewing substantive outcome of agency decisions. you can’t do that with the APA. They were created by the Court. . As a result. There’s nothing in the statute about discovery and cross-examination. • Consequence of Vermont Yankee: • Vignarajah: Federal Courts do not review procedural format of agency’s rulemaking. don’t tinker with the procedural requirements of the APA. then there will be additional requirements that apply from one circumstance to another which will create a lack of uniformity. o Vignarajah: Congress has delegated some substantive authority to agency. Agency gets to decide because that is a Congressional deferral.

does not make sense--there are different size of transfer facilities . not to exceed 1.60 RULEMAKING FINAL RULE MUST BE LOGICAL OUTGROWTH OF NOTICE RULE NRDC v. in this case. Under the original rule: if you are going to have bark and debris. you are allowed to have a zone of deposit up to 1 acre at first with up to 4” of this debris--but no more than 1 acre Would work for small producer But what about larger producers. then the EPA reviews those rules to make sure that they comply with the EPA’s ultimate objectives ADEC changes rule to accommodate the differences in size of transfer facilities. ADEC allows LTFs to go up to each LTF’s project area.5 acres. is timber debris from long transfer facilities in Alaska EPA initially proposed to limit debris to a “zone of deposit” of one acre The Clean Water Act splits the responsibility of the State and Federal government so Alaska is initially tasked with coming up with the first set of rules. instead. EPA Facts: EPA is trying to figure out what its rules should be for pollutantsthe pollutant.

with some exceptions for larger producers--will allow up to the size of the project area EPA then adopts the ADEC standard EPA adopted the ADEC proposal Issue: What is sufficient notice when the final rule deviates from the the original rule? APA Section at Issue: § 553(b)(3): The notice shall include.. agencies usually put this out there as a new/revised comment that the agency is now considering for adoption Discussion: NRDC argues that the original rule elicited comments that did not address the “project area. but note.. Students arguing against the Court: Trussler: the only thing that changed was what the area should be .61 Alaska says that this does not make sense. the EPA violated the notice and comment requirement under § 553(b). we will allow 1 acre.this is not a substantive difference Professor: it is permissible for the final rule to be different from the rule proposed for comment— but what is problematic about changing the size of the project area from the proposed rule Gawronski: this “project area” proposal is incorporated into the original proposal . Holding: the final rule must be a logical outgrowth/reasonably anticipated from the notice and comment process. The assumption is that anything in the comment is now part of the record and it is an idea out there to respond to In practice.(3) either the terms or substance of the proposed rule or a description of the subjects and issues involved.” and therefore.it is subsidiary to the initial proposal Students arguing for the Court: . the final rule does not need to be reasonably anticipated from the announced notice if it is reasonably anticipated from a comment keep in mind that this is an issue of common sense .this determination should be made on a case by case basis.

Professor’s Takeaway: This Toyota hypo would be acceptable. Acceptable? Arbogast: This would not be reasonably anticipated. of Transportation proposes that you must take your Toyota into the dealership for repair in 180 days. what the env’t impact was going to be based on the different project area) Professor: A lot of this has to do with being able to respond to the right target.e. and when you have a moving target. of Transportation accepts GM’s rule as the final rule. They didn’t know the specifics of the operations (the size of the operation. if the agency was offering a discrete area this would be acceptable because you would know what the cap is Regales: people were surprised by the rule because they had not heard about the area contemplated. reasonably anticipated has to be factual inquiry. And it seems clear from NRDC and subsequent cases that everything submitted as a comment is now part of the record. 2 acres etc) vs. this is reasonably anticipated. The final rule must be the logical outgrowth of the notice and comment process and it has to be reasonably anticipated. others argue it is too short. only interested parties would be responding. this would be a logical outgrowth of the proposal Cortemeglia: No.62 Estoesta: there is a difference between a discrete cap (i. “project area. Hypothetical: what if you had an actual notice and allow interested parties/public comments. Sometimes agencies play it safe and re-announce the comment. 1 acre. Tweak hypo: Dept. Note: the fact that arguments are appearing for the first time in your brief challenging the rule might support a party’s claim that this final rule was not reasonably anticipated. but that is not necessary. CEO of GM proposes that the only way to ensure safety is to take all Toyotas off the road and ban Toyotas for two years. Would this be acceptable? Arbogast: Yes. Suppose Dept. . This person would propose for his own benefit. Then someone come along and makes a proposal to use a project area cap for different size facilities (not in the original notice but buried in the comments provided) and ADEC/EPA adopts. you do not know which type of arguments you will be making. Commenters argue that 180 days is too long. cannot anticipate if buried within thousands of comments Another student: Not reasonably anticipated if we have crazy commenters.. So a lot of this has to do with making sure that the public and interested parties can respond in a meaningful way. regardless of who authored the comment. Would this still be inadequate notice? The EPA ends up adopting this project area rule even though it was not in the original notice.” which is not defined.

the agency shall give interested persons an opportunity to participate in the rule making through submission of written data. RULEMAKING CONCISE GENERAL STATEMENT REQUIRED. Nova Scotia argues for a “species by species” rule instead of a general rule because general rule would destroy commercial viability of whitefish. not just the notice. Nova ignores the rule. FDA brings action to enforce their rule. views or . Facts: botulism outbreak caused by salted/smoked fish this is a case about how to properly treat fish so there is no botulism FDA promulgates a general rule that sets the temperature at which fish must be cooked without consulting scientific evidence and the decision leading to the destruction of an industry. INCLUDING REBUTTALS United States v. Issues: What qualifies as a concise. Nova Scotia Food Products Corp. general statement? Two issues in this case (arguments): Disclosure Concise and general statement APA Section at issue: 553(c) – After the notice required by this section.63 The logical outgrowth must from the notice and comment process.

This is sort of an outgrowth of the 553 notice requirement. but not officially tethered to that. general statement. which are: the need for meaning judicial review the need to contemplate alternatives prevent arbitrary rule making Two categories of objections agencies must respond to in order to meet the requirement of a concise. Jose: when you rely on something outside the record. When rules are required by statute to be made on the record after the opportunity for an agency hearing. While it obviously does not need to respond to everyone single objection. Whenever you rely on something that is outside the record. sections 556 and 557 of this title apply instead of this subsection. the agency shall incorporate in the rules adopted a concise general statement of their basis and purpose. you should put it up for people to comment on--it should be part of the comment record Adequate statement requirement: You have to address major objections that are raised during the notice and comment process . Holding: When putting forward a concise. it must respond to adequately serve the purpose of the notice and comment requirement. general statement: commercial viability alternative proposals Discussion: Nova Scotia argues: FDA does not have authority to enact the regulation FDA improperly relied upon undisclosed evidence in promulgating the regulation and because it is not supported by the administrative record there was no adequate statement setting forth the basis of the Disclosure requirement: Court says that you must disclose data (not limited to scientific data) unless you have some reason to conceal the data. then that is a problem. an agency must respond to major objections to the rule.64 arguments with or without opportunity for oral presentation. After consideration of the relevant matter presented.

the purpose of this requirement is to make sure that the agency contemplated this argument and didn’t just ignore it.65 we have to get a sense of the major issues that the agency wrestled with. the agency must at least explain why it did not find counter arguments to a rule compelling. You don’t need to address every trivial proposal under Nova Scotia. if there was an objection that was raised about the commercial viability of the fish industry. moreover. Concise and general statement includes a rebuttal of major objection So therefore. federal courts cannot conduct meaningful review without knowing why the agency rejected an argument. . commercial viability and alternative proposals are two categories of issues that must be addressed by the agency in order to conform to the APA’s concise and general statement requirement.

After consideration of the relevant matter presented. the agency shall incorporate in the rules adopted a concise general statement of their basis and purpose. Issue: what qualifies as a concise and general statement? challenge on the basis of the notice and requirement APA Section at issue: 553(c) – After the notice required by this section. Discussion: . but to keep it fair for other domestic ships. Dole Facts: US is trying to compete with foreign ships Congress decides to subsidize ships that are competing with foreign ships Eventually. When rules are required by statute to be made on the record after the opportunity for an agency hearing. Tanker Owners Committee v. views or arguments with or without opportunity for oral presentation. sections 556 and 557 of this title apply instead of this subsection. the agency shall give interested persons an opportunity to participate in the rule making through submission of written data.66 RULEMAKING CONCISE GENERAL STATEMENT MUST RELATE RULE TO STATUTORY PRINCIPLES/GUIDELINES Independent U.S. Congress realizes this is still not working and want to try to come up with a way to get those ships to also provide capacity in the domestic market So Congress gets some of the ships to go domestic. Congress requires the subsidized foreign ships to return some of their funding. Holding: the agency must explain how the final rule serves the purpose and goals of the statute.

context). If the agency had said it needs market efficiency to maintain a viable fleet. Judge Bork says that if market objectives are important. the agency did not explain how market efficiency is implicit or derived from the original statutory objectives. Next. preamble. consider the reasons the agency promulgated the rule. then that might be adequately connected. If the objectives are apparently different. Why is the new rule not connected here? Peters: the goals considered by the secretary did not seem to be contemplated by the statute Professor: so the analysis you should go through is to first find out what the original statutory objectives are (via legislative history.67 This is a compendium case to Nova Scotia. . then they must correspond or be connected to the objective of the statute (maintain a viable fleet). Court held that the payback rule here did not connect to the statutory objectives. but here. then the agency must explain how its reasons can be derived from or are implicit in the original statutory objectives.

set standard based on the amount of PCB on the surface after cleanup. In rule making context.. but useful.68 RULEMAKING ERRORS IN THE FINAL RULE Utility Solid Waste Activities Group v. unnecessary.(B) when the agency for good cause finds (and incorporates the finding and a brief statement of reasons therefor in the rules issued) that notice and public procedure thereon are impracticable. Issue: Does a technical error in the final rule require the agency to provide notice of another round of notice and comment rulemaking? APA Section at Issue: § 553(b)(B): This subsection does not apply. the agency may forego the notice and comment process only if it provides actual notice or personally serves those named (Internet publication is insufficient). rather than by the surface on which the PCB was spilled. should have measured standard by the PCB contents that spilled. or contrary to public interest Discussion: Court said that was no such thing as a technical error in this context: . technical error and so did not go through notice and comment process again. EPA argued that this was a clerical. Holding: Agency’s inherent authority to correct technical corrections in the adjudicatory context does not carry over to the rule making context. or contrary to public interest. or It is impracticable.. unnecessary. EPA then says that it should have used a different standard. Instead. EPA promulgates rule that sets the acceptable level for PCB clean up. Environmental Protection Agency Facts: PCB is a carcinogenic.

. the fact that someone is suing usually shows that the determination is significant to and impacts someone. impracticable: a situation is impracticable when an agency finds that due and timely execution of its functions would be impeded by the notice requirement. and inconsequential to the industry and to the public. and contrary to public interest. showing that rule needed for safety/threat to the environment rationale is similar to public interest prong unnecessary: notice and comment process is unnecessary in which the administrative rule is a routine determination. unnecessary. this case is dealing with rule making. contrary to public interest: good cause may be shown if the interest of the public would be defeated by any requirement of advance notice. if you make a clerical error. that protocol is the “good cause shown” requirement in 553(b)(B). in the rule making context. insignificant in nature and impact. you only have a couple of options: you can fix it by notice and comment process again. Professor: although. OR there is a specified protocol for how you can get around the notice and comment requirement.69 This is not an adjudication. this requires impracticable. Although there is precedent that adjudicative agencies can fix clerical errors.

and shareholders of federal trying to reorganize company so would get preferred stock and would someday trade for common stock Immediately following stock market crash – govt knows energy companies engaging in suspicious activities. − In power of court. was once very popular for federal judges to scold BIA and say “I have no idea why you reached this conclusion” – not uncommon for admin law exams to have an incoherent reasoning. use preferred stock to their advantage when switch to common stock − management is trying to maintain some degree of control over future company and SEC is skeptical of this proposed reorganization − Chenery 1 – first time goes to SCOTUS − core principles − 1. − when energy companies reorganize. so need to subject to some scrutiny. in rare cases. Court cannot provide or substitute its own reasoning for why a given agency decision was correct − applies broadly − 2.70 RULEMAKING THROUGH ADJUDICATION AGENCY MUST GIVE CLEAR RATIONALES FOR DECISION SEC v. but cite Chenery I for no guesswork rule − Chris Dahl asks about Chenery I court offering subtle guidance as to how agency should handle – courts routinely do this – dicta – is this appropriate? − sometimes inefficient not to just say something even if not directly before the court – as a general matter. directors. and you should say not only that it's a bad reason. Chenery Facts: 1935 Holding Company Act – several officers. need to submit new form. courts can say whatever they want in dicta and will do this in many fields. and will approve or deny proposed reorganization plan − one company plans for management of old company to buy preferred stock and when convert to new company. The court must uphold the no guesswork rule. requiring the agency to sufficiently explain its own rationale for its decision – not uncommon for court to invoke Chenery I to say “I don't get your explanation” to an agency − agency must be sufficiently clear for court to be able to decide if is right or wrong − in immigration context. to convert dicta into holding – if court provides a specific directive RULEMAKING THROUGH ADJUDICATION .

It may not impose fines or liability for retroactive rules. and can present their own particular facts – shouldn't give agency carte blanche − argument for decision – this is what happens in common law adjudications all the time – − can argue that your facts are different so not bound by announced rule – not precluded from bringing argument next time around – rule is mainly legal in character. or can announce it via adjudication as well? − Ordinarily. should do that in uniform way in advance so can conform conduct. and dealing with problem of first impression but let agency decide how to do it – may change minds later . Agencies can use adjudication or rulemaking as preferred process for policy decisions and apply that rule retroactively. the Chenery issue would be done through rulemaking − can agency do it through adjudication? − Yes − agency can choose how to operate. and can say disapprove because management has vested interest in future company – applying policy decision to particular action – not fining or imposing liability – modest context in which are retroactively applying a rule − advocates here have tried to dress up as big retroactivity controversy. and agency is learning a lot from case by case adjudications. so trust to choose what best process is − ultimately SCOTUS says have to defer to agencies where congress has not tied hands and said have to do one or other − court emphasizes fact that type of thing that involves case by case adjucation – need to look at particulars of plan. but isn't really that big of a deal − should the agency take a particular adjudication rule and apply it to everyone? − Argument against decision – tough for future parties to anticipate and make decisions based on rule because of retroactivity − agencies are supposed to come up with rules that affect lots of people.71 RETROACTIVE RULEMAKING Chenery II − agency reached same decision but provided some different reasons − court seems pretty satisfied with reasons for agency's correction − embedded question of retroactivity – Should a ruling of this nature be retroactive? − big question is whether agencies setting up rule as to whether management can have vested interest in stock during reorganization – if coming up with policy for this are you constrained to announce policy only via rule since affects all. − going to apply policy to party before us – context of adjudication.

and when do so. employer doesn't have to let you unionize − new rule – arguable – have to show are type of employee that if unionize have conflict of interest. there are penalties. and some will be – can't have agency try to make universal rule. not decided via adjudication − SCOTUS disagrees with lower court. which changed the rules − SCOTUS in position to say not okay that constantly changing mind and some of this should be via rulemaking − Judge Friendly (on lower court) says understand generally have freedom to do this. and arguable whether a buyer was considered management − The agency may take an old rule and modify it substantially through adjudication. there was reliance etc. applying it to the case at hand – new groups can argue that they get the protections of the NLRA − question – BA appeals. Facts . because would be so general as to be meaningless − also scenario where not imposing liability or damages. which says that because of Chenery NLRB had to go through rulemaking – SCOTUS says court misunderstood holding in Chenery − NLRB was notorious for using case by case adjudication – so therefore relatively nimble in response − but composition of NLRB would change by administration. so easier to justify case by case adjudication and even retroactivity to cases before us − genuine debate! Rare for Judge Friendly to be overruled − except in very rare circumstances (where not highly factbound. but can't just flip flop and modify rules − SCOTUS says in this context have lots of different types of buyers and some will not be candidates for unionization.) where would not be appropriate for NLRB to do via adjudication and would need to do a rule Shaw’s Supermarket 1.72 − agencies are ultimately setting policy. have great flexibility in how they do it → ultimate finding Bell Aerospace − company refused to bargain with buyers. claiming were otuside of the NLRA − NLRB disagreed − old rule – if you were a managerial employee. saying NLRB should have made rule. not under NLRA.

Holding • Yes. and that NLRB cannot suddenly depart from its prior decisions. Discussion • NLRB believed that the speech before the election basically amounted to a threat. Issues • If an agency departs from its prior opinion/rule. The VP made several statements that indicated that if the employees unionized they would start bargaining from minimum wage and worker’s compensation (“bargaining from scratch”) instead of from the higher wages that they enjoyed prior to unionization. Shaw responded that this is not an unfair practice because it doesn’t violate the NLRB guidance. The NLRA prohibits speech that would indicate the potential for retaliatory action if the employees unionize. they will be bargaining from scratch. • • • • • 2. The supposed threat is that if the employees unionize. As a general matter.73 • The NLRB found that the vice-president of Shaw violated the NLRA through some comments that he made to the employees before they voted on whether to unionize. agencies can change their mind regarding policies and can enact them retroactively but there should be an explanation as to why the agency changed the rule. The NLRB has accepted statements that were similar to those made by Shaw’s in at least 8 prior decisions. must the ground for that departure be clearly set forth so that the reviewing court may understand the basis of the agency action? 3. The VP also stated that the first contract is usually the most difficult to resolve and could take up to a year. • . the court would not be able to figure out the reasons behind the change. Absent that clear explanation. This kind of statement appeared to be allowed under prior NLRB cases as part of a general account of the postunionization bargaining process. 4. The NLRA generally requires an election to determine if the employees want to unionize.

agencies can change their mind and they can take those new policies and apply them retroactively even to parties that were apparently governed by prior decisions. that agencies can change their minds but they must provide the reasons for doing so. Epilepsy Foundation − EF challenged NLRB decision − Section 7 of NLRA . • as a general matter. that position should be provided a high degree of deference. • The agency is allowed to switch its position. • Zhang – the reason the board should be required to give their reason for changing their decision is to prevent arbitrary decision making. – potential that this gives too much power to the agency. • Wrobel – companies rely on the rules set out by the NLRB and they act in accordance with these decisions. everyone will be on notice that they may be operating in a grey area. but they will be entitled to argue that they are not operating in a grey area and the burden will be on the agency to explain its decision. but it must clearly state the reason for changing its position to allow for judicial review.Winegarden rule – entitles union employee to have union rep present at any investigative interview or meeting where person believes discipline may happen . a court can’t figure out if the agency is acting arbitrarily. its current decision constitutes a reversal of its position.74 • Because the NLRB has accepted similar or worse statements in past decisions. o If the agency is trying to distinguish the facts from prior decisions. • Taylor – when the parties are trying to distinguish their decision from prior decisions they should be entitled to take that position. • Arroyo – the agency can change its position but it must provide the reason for its changed decision. • rule. all that is required is an explanation of why the agency changed the o This requires a recognition that the rule has changed and an explanation of the reasons. • Smith – When you announce a rule of regularity. Absent this explanation.

or not imposing damages − An agency may not retroactively apply a new rule when: 1) the rule is firmly in place. dealing with retroactivity − can't apply this retroactively − this company ends up being fined for violating newly expanded Winegarden rule. Secretary decides to use previous schedule and initiates notice and comment rulemaking After notice and comment period. and at time of case. corrective retroactive adjustments to make sure hospital is getting right amount. can't retroactively apply and impose damages − not like a three part test.75 − pro-labor rule − does the Weingarten rule apply to nonunion employees – NLRB goes back and forth. not set in stone. as long as interpreting statute that gives room to choose between two − when statute is ambiguous. Georgetown University Hospital Facts: • • • • • • • Hospitals receive reimbursement from the federal government because they have Medicare patients under their care HHS is responsible for making sure that hospital receives correct amount Medicare Act authorizes Secretary to make appropriate. can change mind − one limit that EF and Georgetown hospital start to flesh out. the agency issues exactly the same schedule (as the court struck down) and applies it retroactively for two years. Question: Is an agency allowed to retroactively apply a rule promulgated through notice and comment rulemaking? . 2)there is actual reliance on the old rule. and court agrees with company that this is not acceptable because actual showing of reliance − when firmly set rule. 3) it imposes monetary damages and liability Bowen v. can a few years later change mind. decided does not apply − here. and people rely. and supervisor refused to allow − board changed its mind and decided rule does apply to nonunion employees – court says is okay as long as statute is ambiguous enough to allow two interpretations − even when have firm rule in place. holds that agency must go through notice and comment rulemaking Instead of appealing. can argue that retroactivity is okay because rule wasn't set in stone and wasn't reliance. HHS issues new reimbursement schedule Court strikes it down. nonunion employee called into disciplinary meeting and and requested another employee be there.

Professor: Congress doing it puts people on notice and flags the issue. Concurring Opinion (Scalia): o APA defines what a rule is . it has to do so clearly and unequivocally. • But didn’t the authorizing statute allow for retroactive adjustments? (42 U. the default is the presumption against retroactive rulemaking. o Congress can authorize retroactive application because:  Democratically accountable  People are on notice o Most retroactive applicability language will be read to refer to adjudication. Court will assume the default. not a rulemaking one).76 Holding: No. why does adjudication get the presumption? Gawronski: Reliance interest. Generally. Absent that clear statement.Court has asked Congress to make a clear statement of intention in one context or another. the aggregate reimbursement produced by the methods of determining costs proves to be either inadequate or excessive”) Court’s interpretation: only certain kinds of rules can be retroactively applied. At least you can ‘change’ the system when Congress does the retroactive playing around. Professor: But retroactive rulemaking is allowed if Congress authorizes it. Statutory language refers to a specific provider of services o Suggests individualized determinations for retroactive applicability. It’s consistent with what a rule is defined to be under the APA. there is a presumption against retroactive application of rule. Didn’t Congress do exactly that with §1395? Enyeart: It is burdensome for everyone to think that this could be applied to them. Retroactive application only appropriate in case-by-case adjudicatory setting. so kicking that reliance out form underneath them is unfair. §1395x(1) (A): “such regulations shall… provide provider of services for any fiscal period. In this case.  “Clear Statement Rule”. agencies are generally not allowed to engage in retroactive rulemaking unless they have explicit statutory authorization from Congress. Stretching that retroactive adjustment power to EVERYONE through rulemaking is stretching the retroactivity power too far. • • • • • Class Discussion Taylor: What’s so bad about retroactive rulemaking. (The language refers to an adjudicative determination for retroactivity. If Congress wants to change that. so don’t you also have that problem even if the retroactive rulemaking is “allowed”? Gawronski: Congress is elected.things that have future effect. People had been relying on the old rule. General presumption against retroactive rulemaking is not something the Court just fashioned.C. The statute . You can’t change anything when an agency does it.S.

Congress was not oblivious to concerns about retroactive application. Knoll’s assertion): If Congress included this text in the statute.77 serves as a rainy day fund for something that may not happen. ask Congress for it. This case sets the default rule: if you need authorization. This could be an explicit mandate from congress to conduct adjudication. due process may serve as a limit. Congress has only authorized retroactive application in case-by-case adjudication. An agency still has to be authorized in the first place to conduct adjudications. Based on these considerations. Knoll: If the general rule is that retroactive application is already allowed in the adjudication context. The legislative history in this case makes clear that Congress contemplated this possibility and specifically envisioned retroactive application in the adjudicative context only. Professor: Parties may be able to argue due process violation. doesn’t the court’s interpretation render the statutory language merely surplussage? Professor (reiterating Ms. Bellum: Are there many examples where congress has expressly authorized retroactive rulemaking? Professor: Routinely agencies will ask Congress to authorize their power of retroactive rulemaking. . doesn’t it suggest that they were authorizing retroactive rulemaking? Hanson: Congress was attempting to be explicit in this case. CONCLUSION: All we have here is a general presumption that retroactive rulemaking is not authorized unless Congress says so. They fashioned the statute to authorize it in one context and not another. Puts individual providers on notice. Cortemeglia comment: Agencies are not despotic units of government. Gozhansky: Another possible interpretation is that this language was included to provide parameters for when adjudication could result in a retroactive adjustment Professor: We have studied cases that say that there is no constraint of APA or Constitution preventing retroactive application. Professor: Congress is arguably more democratically accountable than the President. The President is politically accountable.

That justification will be accorded almost absolute deference. What is the appropriate standard of review when the agency refuses to engage in notice and comment rulemaking? 2. Questions: 1.Arbitrary and Capricious Standard. PPF and 2 individual pilots want to review two decisions by FAA FAA decision to decline to engage in rulemaking (APA §553(e) “each agency to give an interested person the right to petition for the issuance. o Court rejects this argument  Arbitrary and capricious is the appropriate standard for a federal court in deciding whether or not an agency properly declined to engage in rulemaking  More deferential standard only appropriate if the decision to decline in rulemaking is based on some pragmatic consideration such as budget or personnel. Court finds this reasoning legitimate. it will provide additional appropriation. even though arbitrary and capricious is the most deferential standard available. FAA Facts: • • • • • − − − − − − Age 60 rule: Time-honored rule at FAA that once a pilot turns 60 s/he must retire in the interest of safety. amendment or repeal of a rule”) over urging of PPF. • Court’s rationale: if Congress really wants agency to take particular action. • Assumes that administrator will act in good faith. Agency cites insufficient data to show that there is no safety issue beyond age 60. Did the reasons given by FAA for not engaging in rulemaking surpass the arbitrary and capricious standard Holding: Standard of review for federal court in deciding whether or not an agency properly declined an opportunity for rulemaking. FAA decisions to decline to engage in rulemaking and to extend rule were not arbitrary and capricious in violation of APA. the year rule was promulgated. It is expected that agency gives a reasoned explanation for their decision. PPF objects to agency’s decision to not even start the process Decision to extend Age 60 rule to commuter airlines PPF argues that rule is arbitrary given state of knowledge now vs.78 RULEMAKING AGENCY REFUSAL TO MAKE RULES Professional Pilots Federation v. • • FAA wanted an even more deferential standard. FAA’s argument: We cannot be expected to engage in rulemaking every time an interested person makes a request. 1959. that they will • • • • . The court should not second guess the agency.

Otherwise the limit could be age 90. If FAA had rule of age 35 for mandatory retirement and agency said cannot obtain data to justify rule change. You can gather data without increasing danger. it becomes hard as hell to kick it out of there. commuter planes. . But even if we wanted to challenge rule. FAA can look at exceptions – cargo planes. should they have engaged in rulemaking? Vetter: FAA had the right to make that determination. Agency did not take opportunity to do a test program. Jairam: If they don’t have any data. Mackenzie: There has to be some line. there is greater likelihood that population as a whole could have heart attacks or strokes. Knoll: What if you had it the other way around and there was data that 55 was dangerous but the FAA still refused to change the rule because it “didn’t have the data or motivation” to do so? Professor (via Estoesta) When a rule becomes entrenched. we need to gather enough data and that is what notice and comment period would permit you to do. would you still defer? Mackenzie: At age 60. why not err on the side of caution and bring it down to age 50 or 40? Choice of 60 is not backed up by any data. Jose: Wouldn’t more appropriate attack be against rule itself? Professor: We will explore this after spring break. But there are easy ways to test. everything they have seen since rule was promulgated did not convince them to rescind. FAA needs leeway to draw line somewhere. but data collection is simply too problematic. Some might say that they can’t change rule because they don’t have enough data. decision was made in the 1940s. without endangering lives. There are scenarios where data can be obtained. and they will consider reasonable alternatives. It is not an impossible dilemma. Court acknowledges there is a Catch-22 in not generating data because the agency refuses to open up rulemaking. Professor: What have they seen? Vetter: Interest in protecting public safety is great enough to maintain status quo. Hildreth: There’s certainly intuitive appeal to the idea that you don’t conduct a natural experiment by increasing the age and seeing what happens. • − Class Discussion: − Professor: Did the FAA get it right. Agency needs flexibility to have this brightline rule. Imposes the same expectations on agency AS IF agency had gone through the entirety of notice and comment rulemaking (its satisfying the same test).79 respond to significant objections. Professor: Maybe there is intuitive appeal to not engaging in big experiment to see how older pilots do but comments have some force – what if limit is set at 35? Also. otherwise the agency’s declination of rulemaking is arbitrary and capricious. whether pilots of 60 can pilot commuter flights. Since then there is new science to refute basis for initial decision.

it had evidence to support it. it is very hard to displace that rule. if original rule is validated and ultimately becomes entrenched. This case is important in that it establishes the arbitrary and capricious standard for reviewing an agency decision to decline to engage in rulemaking. The decision not to appeal or amend rule is generally given great deference to the agency. Although the court acknowledges Catch 22. .80 Ordelt: Hilton study found downward trend – there is data there. and it will consider reasonable alternatives. Recall the requirements for notice and comment rulemaking. FAA put notice out that we are thinking of having a rulemaking but then decided not to. In practice. that it will respond to significant and relevant considerations raised. not challenging agency’s substantive decision. Here the court is imposing the same type of requirement on agency in their decision to decline to engage in rulemaking. Professor: Sounds like substantive inquiry where I would generally defer to agency. alternatives for generating data are too problematic for overturning on that basis alone. It also tells you that the courts expect that the agency will give a reasoned explanation for their decision. Regales: There is enough data to show that the human body starts to break down in substantial ways. How is it not arbitrary to say that data from 40 years ago justifies maintenance of the age 60 rule? Knoll: What if there were data that accidents increased at 55? Professor: Would it be arbitrary and capricious to not engage in a rulemaking in that case? When agency instituted first rule. Unless they have evidence that strongly contests initial position. Agencies have to respond to objections raised when reaching final conclusion.

o After notice is published.81 RULEMAKING EX PARTE COMMUNICATIONS IN RULEMAKING HBO v. then the notice and comment period becomes a sham proceeding Not an absolute prohibition • • • . o Need an actual record o Record must be available for judicial review If extraneous communications are taking place and FCC is basing decision on communications not in the official record. we want to give opportunity for adversarial comment. Question: Whether or not it is acceptable for members of various interest groups to engage in ex parte communications with agency. ex parte communication does not have to be disclosed (made part of the record). o Prior to that publication. 3 year notice and comment rulemaking proceeding re: paid TV services access to contemporary films and sporting events. FCC Facts: • • • • • Battle between HBO and FCC Allegation that FCC engaged in ex parte contacts during rulemaking process which influenced the final rulemaking decision. that is when notice and comment period begins. Current rule restricts HBO's access. Holding: Court recognizes the importance of informal contact but also sees need for a record that is the basis for the final decision • Rule: o When notice is published. people who don't have HBO will not be able to see these events. Why is the timing important? o If ex parte communication is important basis for the agency's decision. events must be shown on broadcast television first Relaxing rule creates more competition and develops better TV. ex parte communications must be made part of the record. On the other hand.

Holding Contact with White House was not inappropriate Contact with Senator was acceptable • • • Contrast with decision in Portland Audubon where court strictly prohibits ex parte communications in the context of formal adjudications (President could not communicate with representative on board) In the context of informal rulemaking. Basic Rules: (in stark contrast to ex parte communications in context of adjudications – usually formal) • • • Portland Audubon – very strict. any written doc or a summary of oral communication must be placed in the public file so that interested • . Costle Facts: • • EPA issued revised new source performance standards under Clear Air Act to govern atmospheric emissions of sulfur dioxide and particulates by new coal fired power stations. Sierra Club v. Very clear prohibition on ex parte communications. but if ex parte communications occur. o Like a trial. Possible ex parte communications between agency and White House and agency and Senator after comment period closed. don’t get to talk to judge Informal rulemaking – very different culture o Supposed to be able to discuss and submit comments o Meetings with others are subject to different set of rules Before you announce notice and comment rulemaking o Greatest Freedom o Talk as much as you want to whomever you want o Don’t have to documented After notice announced o HBO: ex parte communications not appropriate o Must be part of record o Not appropriate for public record and comments not to include side meetings o Should try to avoid. there is supposed to be communication between agencies and individuals (lobbyists. no contact. senators.) There is a different culture surrounding informal rulemaking (public notice and comment) and it should therefore be subject to a different set of rules.82 o Court recognizes pragmatic reality. very formal. etc. alter ego sitting on board does not give Pres authority to communicate. cannot toss out rule and lengthy rulemaking process.

Also.  Why not explicitly barred?  Hard to detect and hard to avoid for some individuals  Have to face a pragmatic reality. and lobbying on behalf of his constituents. • Sen. those type of ex parte communications must be docketed – generally o Congressman – standard even lower  Expect congressmen to lobby on behalf of their constituencies  Those communications fine so long as arguments being made are types of arguments agency is permitted to consider. would create tremendously high repercussions if such communications take place. an absolute prohibition would lead to absurd results…throwing out the entire rulemaking process?)If you set in place an explicit rule that ex parte communications prohibited. Post Comment Period: o If Pres’ office meets with commissioners.83 parties may comment thereon. • . Byrd was essentially repeating himself.

etc.84 ADJUDICATIONS WELFARE AND DISABILITY BENEFITS Goldberg v. Not a judicial trial. Termination of aid pending resolution of a controversy over eligibility may deprive an eligible recipient of the very means by which to live while he waits. as well as express interests in writing. When welfare is discontinued. • . the agency must conduct a pre-termination evidentiary hearing to provide the recipient with procedural due process. That appellate decision is final. HOLDING: Court finds such action unconscionable. unless overwhelming considerations justify it. 2) Caseworker must contact supervisor and they make a joint notification that welfare is being cutoff. so New York substitutes with a system: 1) Caseworker has doubts whether you should have welfare benefits. 3) Individual has 7 days to appeal decision to uber-supervisor. but the agency is already providing some mechanism for P to employ. b. With respect to welfare benefits. so providing oral opportunity is vital since may not be able to submit in writing. to cross examine witnesses. Doesn’t the due process clause guarantee you some procedural protections before welfare can get cut off? Like some chance for oral arguments? QUESTION: Whether the DPC requires that the recipient be afforded an evidentiary hearing before the termination of benefits. Kelly – 783 FACTS: City of New York cuts off welfare benefits without notice or comment. Individual has no chance for hearing. Whether the recipient’s interest in avoiding that loss outweighs the governmental interest in summary adjudication. 14th Amend guarantees notice. Thought Supreme Court got it wrong – went too far. but more an opportunity for them to come in person to present arguments orally. People complain about this. Kevin Rodkey: Good policy to require some procedural measures. a. Notice and Opportunity to Be Heard O’Fallon: dealing with a poor population with little education. CLASS DISCUSSION: Did court get it right? Majority of class agrees Kelleen O’Fallon: promise a fair hearing on different terms than what we would normally think.

so where does this right come from? Emily Hanson: I would argue that if under law you have a right to a benefit. others have time limits. if over time the govt. Not a supplement – perhaps only source. with procedural protections. Don’t have to give in first place – isn’t it a real problem that agency can’t retract benefits? Make agencies more reluctant to provide benefits in the first place – handcuffing themselves to procedural obligation that they would not otherwise have to endure. could be significant burden on agency to hear potentially thousands of cases. they are no worse off then they would be. and you have been rec’ing that benefit. Prof: Goldberg limited to its facts.. .85 … there are still other avenues out there to be utilized. Without which difficult to get back on feet. Welfare is differentiated.. The scope of this decision – could apply to 10’s of thousands . then you build into your equation 2 years of welfare benefits… Prof: Some states have perennial state benefits.If agency making determination. Alan Glickman: expectation. saying you will receive this so long as your income is below x Prof: why wouldn’t they then always be written as arbitrary and non-binding benefits? Kelleen: Court holding specifically notes that this holding applies to welfare – they are not extending to all other benefits. Communication. for that benefit to be taken away – that’s where you take that leap from something the US didn’t have to give you to where you have a right not to have that taken away. State promised – dependence created. If written in certain way. Say you will receive this so long as there is sufficient funds vs. Prof: I don’t have a right to have a Porsche. but I have a right to not have my Porsche taken away… Even if no right to something. limits ok. Rachel Gozhansky: Isn’t there a time limit? In a scenario where we promised you no more than 2 years. either by law or routine practice or state law – some mechanism – essentially confers that you will get this. at that point the right is created that it can’t be taken away from you without notice. Welfare unique: • Specialty commitment: You need it and no other collateral sources of funding. Without welfare no worse or better. Determining welfare is affecting people’s chances of survival. Procedural due process protection created. Stephen Bellum: Positive vs negative rights. If you don’t give them benefits in the first place.

If we do give it to you. how much does error rate go up? If not much. etc..86 Mathews v. The Court must consider the following in determining whether evidentiary hearing factors apply to a termination of benefits: 1) Private Interest: The degree of potential deprivation that may be created by a particular decision is a fact to be considered in assessing the validity of any administrative decision making process. What is person at risk of losing? How important? How disruptive to lose? Compare to other benefits. Eldridge – 839 FACTS: Benefits given out according to qualifying statutory definition of “disabled”. QUESTION: What type of constitutional/procedural protections flow from the due process clause of the 5th amendment regarding social security disability payments? Don’t these individuals deserve an evidentiary hearing? SSA contends: the existing administrative procedures provide all the process that is constitutionally due before a recipient can be deprived of that interest. how much value does that really add? 3) Government Interest: what is the burden to the public? Using these factors to determine social security disability did not need an evidentiary hearing under the due process clause: . Const probably does not guarantee. 2) Risk of Erroneous Deprivation: Error vs Added Value If no oppty for discovery or cross-examination. Distinguished from Goldberg: eligibility for disability benefits not based upon financial need.

3) Public Interest: evaluate the burden.87 1) Private Interest: sole interest is disruption – receiving benefits in uninterrupted benefits. These disability benefits are not based on financial need. So the pre-termination evidentiary hearing is merely to prevent the interruption. Not sole source of benefits. Provides the analysis for determining this.000’s of people would contest termination. the cost is the disruption. . 2) Risk of Deprivation: value added with pre-evidentiary hearing low. credibility mattered and credibility often best evaluated in evidentiary hearing. GOLDBERG established the right to some due process protection in first place. Disability. All that you’re worried about is the interruption in the benefits received. and can receive retroactive payments. Utilitarian scale: How much does this policy improve the system and reduce the error rate? HOLDING: DPC does not require recipient of disability benefits to have evidentiary hearing prior to termination. routine unbiased standard med reports. unlike welfare. Oral evidentiary hearing would not benefit recipient. You will eventually get these benefits if they are due you. This can be filed in paper work. May have other source of income. Not an interest in receiving the benefit but in receiving it uninterrupted. you only need a doctor’s note. burden to agency could be huge. MATHEWS established how much process is due to you. Here. etc. CLASS DISCUSSION: Jennifer Ordelt: The sole interest here is receiving benefits in uninterrupted fashion. Not the pre-term evidentiary hearing in addition to… Ordelt: the added value is low. since you already get a postterm evidentiary hearing. What would the added evidentiary hearing give to the recipient? In Goldberg. does not turn on credibility – based on medical documents. you can still get your benefits if you can prove that they are due you. so could have other private resources – need not as dire… Prof: Private interest is not that weighty. If you don’t get this. Disability benefits not based on financial need. written submissions. If 1.

If you pay into SSI. Disability covers a wide spectrum of things. Natl Assc of Radiation Srvs – 851 Oppty for a benefit applicant or recipient to obtain legal counsel to aid in the presentation of his claim to the Veterans AdmiNistration.88 Sarah Baum: people would be more induced to go all the way through the process to extend their benefits for as long as possible Shomari Taylor: Doesn’t see the difference between … … the interruption would have the same effect on a person receiving welfare benefits as a person receiving disability benefits. you have more of a right to receive money than a general pool fund. Walker: There are a lot of people who live from check to check. Shashi Jairam: 2 different pools of money. So you might go to a million doctors and they all say there’s nothing wrong with you but you know there’s something wrong with you. shows the thin line between the two. Prof: How does this play into bank scenario? Student ?: waste of time – welfare and disability for individuals different than a right to money for business. Prof: What about this scenario for banks – same DP argument? Clarke: This is different. Given that the court itself noted that should the elimination of disability benefits force the claimant into destitution. Hotz: The difference between someone who depends on disability benefits and one who relies on welfare are generally not that disparate. . Disability you pay into. No one pays into welfare. Disabilities are very subjective. Prof: There are scenarios where people don’t need the income. they could then apply for welfare. Shomari: that does not affect the constitutional implications. money to cope with disability is basic. May not always come across in a written supplement. Burden on govt vs private interests. Eric Garvin: …money to eat is so basic. more human than in the bank hypo… ADJUDICATIONS RIGHT TO COUNSEL IN ADJUDICATIONS DEPENDS Walters v.

• • STANDING Allen v. Factor 3. P claims this rule violates his due process of law by depriving him of representation by expert legal counsel in his VA claim.Is this interest more or less like disability or welfare? o Court says these benefits (service related disability benefits) are very much like disability benefits.89 FACTS: Statute Fee Limitation . Wright – 1118 Requirements for standing: • Particularized injury • Injury fairly traceable • Judicial intervention will remedy injury FACTS: .Public Interest: o Agency has a great interest in keeping lawyers out of the system.Attorney’s fees in VA claims never awarded above $10 per claim.” question here is whether individuals are entitled to the procedural protection of right to counsel for benefits hearings. • • • Here factor 2 predominates: Risk of Erroneous Deprivation: Error vs Added Value o There simply isn’t much added value to having a lawyer. Govt argues: no need for the employment of attorney VA does this so that a claimant never has to divide his award with a lawyer System will be rendered more adversary and complex by the very presence of lawyer representation • Engender greater administrative costs • Paternalism is a legitimate legislative goal HOLDING: Fee limitation does not deprive claimant of due process of law. Factor 1: Private Interest . (public ‘cost’ doesn’t have to be fiscal). because they will mess it up. o Error rate is pretty constant with or without the protection. o Makes system more inefficient and costly. QUESTION: Along the Matthews line of “how much due process.

QUESTION: Can parents of children in public schools on the ground that they are being injured in some way. bring claim against agency for not enforcing rule? 1. it would scare them into implementing desegregation. Entirely speculative whether withdrawal of a tax exemption from any particular school would lead the school to change its policies. A lot of other ways in which segregation may exist. and expenditures. Traceable to IRS – tax deductible contributions allow white students to avoid attendance in desegregated schools (cost of private schools kept low). Second prong of standing not fulfilled.90 Nation-wide class action / parents of black school children / IRS should deny tax-exempt status to racially discriminatory private schools. • If schools were threatened with losing their tax exempt status. general abstract injury doesn’t establish standing. The line of causation from the IRS’s conduct to the continued segregation of the public schools was so attenuated that the latter was not fairly traceable to the former. injury claimed (that you’re slowing down integration/impeding desegregation) can’t be fairly traced to the IRS’ failure to enforce tax exemption laws. Too attenuated a cause – failure of desegregation cannot be fairly traced to this law Why did Congress pass this tax-exempt law? Promote desegregation. a. Congress tried to draw a direct line between Tax Law and Desegregation with this law So why doesn’t the court see this connection. • • First. . b. Particularized injury – fails a. which is essentially what these parents are claiming? a. P’s claims a direct injury to their children’s opportunity to receive a desegregated education because of the Govt’s conduct. contributions. Federal Election Commission v. • HOLDING: No Standing. Akins – 1155 Fed Elec Campaign Act of 1971 – political committees must disclose membership. Too abstract – agency not following law b. FACTS: Akins – group of voters who challenge an agency determination in court. You can’t sue over government failure to not implement the law. Second.

though widely shared. but it can cure the prudential standing problem. o This law compels disclosure of info vital to my voting decisions. then Congress has already told the courts that this is how they want these handled.g. o Without this info I am harmed. Cases and Controversies. MA • May also cure generalized grievance problem. the Court has found injury in fact. o Can create causal links where fed court may not otherwise find them.. • Concrete injury: in order for me to vote. o E. • Political branches better at dealing with generalized grievances. • If congress has already put a “citizen suit provision” in the act. contributions. Prudential Standing Doctrine: as a matter of prudence. AIPAC – Amer Israel Public Affairs Committee – claims not to be a political committee. QUESTION: Does Akins have standing with such a generalized grievance? HOLDING: Court finds group has standing. even though this is a generalized grievance. o Statute contains a citizen suit provision – statutory standing: • Even if you wouldn’t ordinarily have standing. Better for individuals to bring federal suits to get this problem fixed. EPA v. Rooted in Art III. • Const Standing Doctrine: that part of standing doctrine that Congress can not get around. But what about Generalized Grievance issue? Why ok to bring this suit? o Because the statute says you can. • Administrative Context: congress is able to create and open door for litigants to enter fed court to challenge agency action or inaction through citizen suit provisions o Relax traditional standing rules • Citizen suit provision can’t cure the constitutional standing problem. Congress has passed law that allows you to do this. I need information. we don’t think courts should prevent anyone from bringing a claim. . Where a harm is concrete. FEC determination: AIPAC is issue-oriented – falls outside Act. and expenditures. o Solves the constitutional standing problem of concrete injury.91 Claim: AIPAC met definition of political committee and had unlawfully failed to register and to make public statutorily listed info about members.

Pharma sued for pre-enforcement review. Facts • • • In 1962 the FDA was amended to require prescription drugs to print the established name at least half as large as the proprietary name. . The FDA commissioner required that every time the proprietary name was printed the established name had to be printed as well.92 STANDING PRE-ENFORCEMENT REVIEW Abbott Labs 1.

3. • The Third Circuit reversed without reaching the merits holding that pre-enforcement review was unauthorized and therefore beyond the jurisdiction of the court. Procedural History • The district court granted injunctive relief finding that the statute did not permit the Commissioner’s interpretation. o Dahl – two arguments – general principle that judicial review is particularly important and so we are not going to insist on explicit statements authorizing judicial review. The requirement to print the established name applied to advertisements as well. • Whether the plaintiffs satisfy the requirement of an actual case and controversy making the dispute ripe for judicial review. and they could be punished if they follow the old procedures which they in good faith believe are the correct standards. • The Third Circuit also held that no actual case or controversy existed. In contexts where judicial .Pharma and drug distributors would have to take on significant costs to comply. 4. Discussion • When Congress includes a right of judicial review in some contexts and not in others doesn’t that suggest that in the case where they don’t include it.93 • The purpose of the regulation was to show that the drugs sold under proprietary names were the same as generic drugs being sold at a lower price. 3. • 2. Issues • Whether the Pharma companies can receive pre-enforcement review of the Commissioner’s interpretation of the statute. Holding • The Supreme Court found the APA contained a presumption of judicial review and before the Court rejects pre-enforcement review there needs to be specific language that prevents pre-enforcement review. they don’t intend to allow pre-enforcement review? o Huntington .

o The injury is that the pharmaceutical companies will have to pull their product from the shelves and spend a lot of money to reprint their labels. o Congress has been silent about judicial review in the shadow of the APA.  That could be the burden that Congress intended to impose. Congress knows how to grant judicial review. o Gawronski .94 review is so important.Judicial review is important where litigants’ concrete rights are at stake. we don’t apply the cannon of statutory review that the inclusion in some places implies the exclusion in other places. The Court bears the brunt of the effects of not allowing pre-enforcement review. • What is the agency’s action in this situation? o The agency promulgated a rule that it has made effective immediately. so the Court is impeding on their powers when it takes that decision out of their hands.Allowing courts to apply statutory canons in some instances but not in other instances allows the judges to make policy which is not what courts should be doing. • Sections 701-702 of the APA establish the presumption of judicial review o anyone who is adversely effected by an agency action is entitled to judicial review. o Carvin – The Court is authorized to decide if pre-enforcement review is allowed because the burden is on the court if it allows preenforcement review. . o Levy – Potential problem with separation of powers issues. o The question is harder with pre-enforcement review because the issue there is whether the party has been aggrieved by the agency action. o Estoesta .

Congress tells HHS to develop rules for when abortions are entitled to be granted federal funding. it doesn’t look like DOJ will do anything other than enforce the agency’s rules. then courts will be hesitant to allow for pre-enforcement review because it is unclear whether the agency will enforce the provision. o both parties filed for summary judgment indicating that both parties agreed that there were no factual disputes.95 o This suddenly imposes an obligation to make a number of costly changes. (3) whether agency authority to enforce is self-executing or not. A rule may not be self-executing where the decision to enforce the rule is left to the discretion of an independent actor.  eg. Congress gives HHS 180 days to develop    . Whether a provision is self-executing can also depend on whether there is a delay before the provision is enforced.  Where there is some discretionary decisionmaker who can choose whether to enforce a provision.  NOTE: Pre-enforcement challenge question should discuss: (1) whether the debate is exclusively legal (is it purely a question of law or is it a mixture of law and …). (2) what are the consequences of not having pre-enforcement review. o the court observes that even though DOJ approval is required. • What makes the controversy ripe? o high stakes o This was a solely legal issue. Keep in mind that federal funds must be available when a woman’s life is in danger. When there is some step left to take before enforcement then the court is more likely to find that the controversy is not yet ripe for judicial review. No factual dispute. o consequences of waiting – if review is only allowed once agencies have decided to enforce the provision. it will be very costly for the industry.

Holding • The court must look at the full record and the trial examiner’s findings are part of the record. substantial evidence review had created two theories of what constituted substantial evidence review o looking at the agency’s factual findings. 2. 4. Discussion • Over the course of time. Facts • The dispute is over whether an employee was fired for supporting the union’s position in an NLRB representation proceeding or solely because he had accused the personnel manager of drunkenness. the second circuit approved the board’s decision but it stated that it had problems with the board’s factual determinations. – The Court finds this interpretation has not been incorporated into the APA. 3.96 the final rule. 1. the evidence supporting the agency’s conclusion is substantial. Issue • Whether the substantial evidence review standard requires the court to review the entire record or simply to find substantial evidence in support of the agency’s decision. • After the board’s decision. This interpretation requires the agency to . There is still some room for the agency to decide on the final rule. o The issue is whether there is substantial evidence when looking at everything. As a result Congress’s statement is not self-executing. • The trial examiner found in favor of the employer and the board made the opposite finding. JUDICIAL REVIEW SUBSTANTIAL EVIDENCE REVIEW Universal Camera Corp.

4. b. Board-supervised election ii. b. The company held an internal poll and the union lost 19-13. 2. d. Issues a. employers can poll only when it would be unnecessary to do so. The new business refused to recognize the union that represented the employees under Mack Trucks claiming a good faith belief that the employees did not support the union. The new business hired 32 of the original 45 Mack employees c. therefore. Allentown Mack Sales v. – this is the proper interpretation of substantial evidence review. • The second circuit court of appeals should not have felt like it was bound by the board’s rejection of the trial examiner’s findings. NLRB 1. it can request a formal. ALJ held that Allentown was a successor employer and therefore there was a presumption of continuing majority support for the union. f. 2 and 3 are unfair labor practices unless the employer has a “good faith reasonable doubt” about the union’s majority support. Facts a. it can withdraw recognition from the union and refuse to bargain iii.97 look at the whole record and account for contrary evidence. b. The ALJ held that the poll complied with the NLRB’s standards but Allentown had not demonstrated a reasonable doubt as to majority employee support for the union. Allentown’s arguments a. NLRB precedent provides three options when an employer believes a union no longer enjoys the majority support of the employees. Mack Trucks sold its Allentown branch to several of the managers of that branch. e. 3. Whether the NLRB standard for employer polling is rational and consistent with the NLRA. The DC Court of Appeals enforced the Board’s bargaining order. b. The record evidence clearly demonstrates a good-faith reasonable doubt that the union enjoyed majority support. it can conduct an internal poll of employee support for the union. During interviews a number of employees made statements indicating a lack of support for the union. The court is not bound by the higher agency’s rejection of the lower agency’s factual findings. The NLRB affirmed the ALJ’s decision. Whether the Board’s factual determinations are supported by substantial evidence in the record. h. Background a. g. The reasonable doubt standard is the same as the standard for unilateral withdrawal. . i.

The substantial review standard requires that the court look through the record as a whole and determine if there is substantial evidence supporting the agency’s fact finding. Findings a. c. b. The Court’s substantial evidence review rewrote a rule without adequate justification and failed to give the Board the appropriate deference. An agency’s result must be within its lawful authority and the process by which it reaches that result must be logical and rational. rational. The Board’s requirement of the same standard for polling and withdrawal of recognition is not so irrational as to be arbitrary and capricious.98 c. The Board’s regular application of the rule differently than announced does not change the rule. The Board improperly failed to consider ambiguous statements by employees and statements that other employees also did not support the union. the problem with applying a standard in a way other than announced is that lower court’s can’t apply the standard consistently and higher courts can’t review the decisions properly. d. . b. c. Substantial evidence review requires the Court to identify the conclusion and then examine and weigh the evidence. 7. b. The Board’s precedent required more than a reasonable doubt regarding employee support of the union even though that was the established standard. The dissent argues it was reasonable for the ALJ to disregard statements made during job interviews. d. g. Rules a. The notion that the agency can be forced to go back to the APA from a standard that it set in prior decisions is in tension with the rule of regularity. The issue for review is whether a reasonable jury could find that Allentown lacked a genuine. Substantial evidence decisions should be made by the courts of appeals. 6. c. Dissent a. e. and not arbitrary. reasonable uncertainty about whether the union had majority support. – The Court says NO. The Court rejected the board’s argument that doubt meant disbelief and not uncertainty. i. Courts must defer to the Board’s decision if it is rational and consistent with the Act and the Board’s explanation is adequate. The Board has sub silentio abandoned the reasonable doubt prong of its polling analysis. 5. f.

99

JUDICIAL REVIEW ARBITRARY AND CAPRICIOUS REVIEW

Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402 (1971)
a. Procedural History: This was an action by citizens' organization, individuals and conservation group to enjoin the Secretary of Transportation from releasing federal funds to state highway department for construction of segment of expressway through city park. The district court granted the secretary's motion for summary judgment. The COA affirmed and the Supreme Court reversed. b. Facts: Section 4(f) of the Department of Transportation Act of 1996 and § 18(a) of the Federal-Aid Highway Act declare it is national policy “that special effort should be made to preserve” public parks. The Secretary of the Department of Transportation (“Secretary”) shall not approve any project which requires the use of any publicly owned land from a public park “unless (1) there is no feasible and prudent alternative to the use of such land, and (2) such program includes all possible planning to minimize harm to such park.”Petitioners file suit to prevent the construction of a six lane highway through Overton Park. If the highway is constructed at least 26 acres of the park will be destroyed. The highway was approved by the city council and requested by senators and congresspersons. The Department of Transportation Act of 1966 and the FederalAid Highway act of 1968 prohibit the Secretary of Transportation from authorizing the use of federal funds to finance the construction of highways through public parks if a feasible and prudent alternative route exists. If there is no such route he can approve construction only when there has been all possible planning to minimize harm. The Secretary authorizes the construction c. Issue: Was the agency action of the Secretary of Transportation arbitrary and capricious? i. Whether the Secretary made an independent determination in approving construction of the highway through Overton Park? ii. Whether the Secretary’s decision that there was no feasible and prudent alternative to the use of the park land was correct? d. Holding: Maybe, The whole record was not before the District Court. The post-hoc affidavits were not sufficient so the court remanded to the district court. i. The court suggests that the court gather all the evidence that was available to the agency when it made its decision and that should be the 'record' on review 1. There is no formal record so we can only reconstruct what the record would look like ii. In some circumstances we may expect the administrator to testify 1. There is some tension with Morgan's proposition that we don’t want to probe administrators mental processes e. Analysis: i. Petitioners argue that the action is invalid without factual findings as to why there were no prudent and feasible alternatives. The Secretary simply relied on the decision of the City Council instead of making the decision himself. 1. Respondents argue that formal findings were not necessary.

100 a. Respondents introduced affidavits indicating that the secretary's decision was supportable. 2. SC agreed that formal findings were not necessary, but judicial review based solely on the affidavits was inadequate ii. Is this action subject to judicial review? 1. APA 701 provides that AN agency action is subject to judicial review except where there is a statutory prohibition on review or where THE agency action is committed to agency discretion by law. a. In this case there is no indication that Congress intended to limit judicial review i. Section 4(f) o the DOT Act and s 138 of the FederalAid Highway Act gives clear and specific directives. iii. What standards of review should the court employ? 1. Court says that substantial evidence does not apply from section 706(2)(E) a. This is only appropriate in formal and informal rule making or formal adjudicatory hearing i. This is an informal adjudication 2. Court also says that de novo is not appropriate (this is only appropriate in a very narrow set of circumstances) a. De novo review is authorized when the action is adjudicatory in nature and the agency is factfinding procedures are inadequate b. It is also authorized when issues that were not before the agency are raised in a proceeding to enforce nonadjudicatory agency action. 3. APA 706 provides that a reviewing court shall hold unlawful and set aside agency findings if it is "arbitrary, capricious, and abuse of discretion, or otherwise not in accordance with law". a. When is an agency action arbitrary and capricious? i. Was the decision made on consideration of relevant factors? ii. Has there been a clear error of judgment? iii. Have the necessary procedural requirements been followed? Class Discussion Issues: Prof: General roadmap for evaluating an agency’s actions: 1.Whether action is within the agency’s statutory authority 2.Whether agency is justified in making factual findings and reaching ultimate conclusion 3.Whether agency followed the required procedural steps Prof: Overton Park provides overview of different standards of review. Section 706 of the APA delineates standards of review applicable to agency decisions. Overton Park is a guide to which standard applies and when.

101 Substantial Evidence Test: • See APA § 706 • Authorized only when the agency action is: • taken pursuant to a rulemaking provision of the APA (§ 553) (notice and comment rulemaking); or • based on a formal adjudicatory hearing (§§ 556, 557) (classic case where person has a hearing before an administrator). • Fact-bound review standard that applies to factual findings by an agency De Novo Review: • Review of whether the Secretary’s decision was “unwarranted by the facts” • Two situations in which it applies: • Agency fact-finding procedures are inadequate • Procedural problem • Occurs in adjudicative context • New issue – facts not presented to the agency • Occurs in non-adjudicative context • Federal court will operate like the trial examiner and make its own finding of fact Arbitrary or Capricious: • Definition: • Whether decision is made on a consideration of relevant factors; and • Whether there has been a clear error of judgment • Inquiry into the facts is to searching and careful but a narrow one • Court not empowered to substitute its judgment for that of the agency • Standard to be applied for an agency’s determination when an informal agency adjudication Discussion of which standard of review applies: • Substantial Evidence does not apply because it is an informal adjudication • Factual determination • Applies only to Overton Park • Not a binding rule • Statute doesn’t require a formal hearing • De Novo does not apply • Arbitrary or capricious is the proper standard of review What should happen when there is not a record of the agency’s decision: • District Court should NOT: • Have parties submit affidavits that explain and justify decision • Make decision based on competing affidavits • District Court SHOULD: • Gather all evidence available to agency at the time the agency made its decision. This becomes the record on review. • Reasoning: Court needs some form of judicial review, so court trying to re-create what would be in the record • Should be evidence the agency actually considered; should not be evidence that was available somewhere but not considered by the agency

Morgan is still good law and still provides a shield to the administrator with respect to the questions that can be asked of the administrator. the Secretary may be expected to testify and explain why the decision was made. State Farm Insurance Co. The court is supposed to review an agency’s decision based on what the agency knew at the time it made the decision. Overton Park is a bit of a reversal from Morgan because some form of recorded is needed so that there can be judicial review.e. District court unable to know with precision whether what is in the affidavit was in the record. The district court. • Prof: Court rejected the affidavits as a post-hoc justification of the agency’s decision. Passive restraints included airbags and automated safety belts. There is a tension between Overton Park and Morgan. In 1969. The rule required that every new car have passive restraints by 1975. Prof: What’s wrong with the affidavits the agency submitted after the fact (the “post-hoc” rationalizations)? • Regales: Part of the problem is the district court relied on the affidavits. Dahl: What’s the difference between the Secretary testifying and the submission of affadavits? Knoll: Brining Secretary to court to ask “what were you considering” is different from asking “what was your reasoning” Prof: Courts are very unwilling to compel Secretary to testify unless there is some prima facie evidence of bad faith. • • . Congress mandated that the DOT improve highway safety. or • Morgan limits the types of questions that can be asked under Overton Park. Overton Park addresses a blind spot in the APA – where judicial review is promised but no traditional record is required. Motor Vehicle Mftgs v. looked at the affidavits rather than what was part of the record at the time the decision was made. I.102 • • Falls to the agency to reconstruct the record In some circumstances. etc. • Reconciling Morgan and Overton Park • Morgan sets out a general principle and Overton Park creates a narrow exception. The district court should have looked at the record and reviewed it under the arbitrary or capricious standard. Overton Park is a Post-Morgan I & II decision that says in some circumstances. Prof: Court is saying the district court erred in relying on the agency’s affidavits because it is inconsistent with the APA. Facts: In 1967. • Jairam: There’s no requirement the agency document these things in informal adjudications. i. in reviewing the agency’s decision. Overton allows asking the substantive questions. instead of relying on the record the agency looked at. the DOT imposed Vehicle Safety Standard 208. • Alternatively. court will request the agency administrator to testify. – Morgan creates an absolute bar to asking questions about how much time the administrator actually spent reading the transcripts.

b. (Note that the legislative veto was later struck down in INS v. This device would prevent a car from starting unless the seatbelt was buckled.103 The DOT also said that between 1972 and 1975. In time they will be able to make a rule that will make the public safer. Issue: Is the NHTSA's rescission of the passive restraint requirement of Standard 208 arbitrary and capricious? iii. State Farms adds additional factors 1. Chadha. in 1982. v. the Secretary of Transportation concluded that. while passive restraints are technologically and economically feasible. Holding: Yes iv. Arbitrary and capricious a. Did the agency rely on extraneous factors a. there may be massive public backlash. and (3) the public would lose trust in the agency to implement safety regulations. • Finally. He decided to slow things down and try a pilot approach instead of implementing the rule. • Thus. If there is an obvious fix to the problem the agency is expected to look seriously at the alternative • . Agency justifications a. It is a big investment to demand the industry implement something that will have nominal safety advantages. The agency said it wouldn’t impose this passive restraint because anyone can unbuckle it and its not clear that adding it will make cars safer because people can unbuckle the automatic seatbelt.) • In 1976. Safety and feasibility should have controlled the decision not public opinion and resistance 2. Finally the agency said that the public won't trust the agency to make the cars safer if they make a rule that doesn’t make them safer d. Did the agency fail to consider an important aspect of the problem? a. The public was outraged at this ignition lock requirement. Are the relevant factors considered? b. The Secretary reasoned that: (1) The safety benefits of passive restraints would not materialize as originally expected because automakers would choose automatic seatbelts over airbags and seatbelts can be easily unbuckled. What is the appropriate standard? 1. • Shortly thereafter. ii. Analysis: 1. (2) the safety rules demand an unreasonable. especially in light of current economic distress. the Secretary of Transportation of the Carter administration rejected that pilot approach and reverted to the original approach (reinstated the rule). Congress amended its law to prohibit the use of ignition locks and to allow for a Congressional veto of agency decisions. the subsequent Reagan administration Secretary of Transportation again rescinded the rule. burdensome investment by the auto industry. Has there been a clear error in judgment? vi. manufacturers can opt not to install passive restraints but must at least install an ignition lock. c.

. Bottom line: State Farm exemplifies the willingness of courts to look at the facts and details of the agency’s logic. is supposed to be the standard of review for the final agency finding that is not factual. We have given agencies a level of discretion for a reason. extraneous factors? (e. Is the decision implausible? vii. Clear error of judgment. is supposed to consider the actual decision made by the agency (mixed law and fact question II. • Bear in mind that arbitrary & capricious review. then removing this rule entirely when there is an alternative (airbags) makes no sense. If the agency’s goal was to create safety standards. feasible alternatives) • Is the decision contrary to the facts? • Is the decision simply implausible? Prof: The prongs of arbitrary & capricious review may look like clearly erroneous.g.g. it is the final agency action that is under review. It is the decision to rescind the earlier rule that is subject to arbitrary & capricious review. but it is not wrong for the agency to follow the policy of the administration at the time. Prof: Two final notes: • When an agency has gone back and forth over time. In this case the agency could have insisted on airbags or they could make it impossible to remove the automatic seatbelt except in emergencies ii.. and to overrule the . they are separate. but do not confuse the standards. Is the decision contrary to the evidence? 4. The fact that the agency didn’t explain why it didn’t take these courses of actions is arbitrary and capricious 3. even though it implicates factual findings. *arbitrary and capricious review. those should be your targets in an arbitrary & capricious review. public resistance to the decision. and it is a mixed question of law and fact. even under arbitrary and capricious review. • Hotz: Generally yes. Prof: The Court provides some additional guideposts for applying the arbitrary & capricious standard: • Did the agency rely on bad. Prof: Was the agency’s decision arbitrary and capricious? • Dockerty: Yes. • Lopez: No.104 i. *only the final agency action is under review viii. Class discussion: Prof: When you see an agency set out its particular reasons for its decisions. The agency properly considered the relevant factors in rescinding its rule – the reduction in realized safety and the cost to the industry. even though it implicates factual findings. the economic climate) • Did the agency fail to consider an important aspect of the problem? (e.

b. Paid each time they responded to an alarm. Swift 1. 7 employees sued Swift to recover overtime and other fees. The administrator’s ruling came in a Bulletin. Facts a. d. Bulletins lack binding effect. c. the employees agreed to remain within hailing distance three or four nights a week. . JUDICIAL REVIEW SKIDMORE DEFERENCE Skidmore v. which is an informal statement of policy by an agency.105 agency’s decision where it focused on the wrong factors or failed to look at important aspects of the problem. Only duty was to respond to alarms.

f. b. Findings a. and any other factors that add to its persuasive value. The decision to give Skidmore deference must be based on the degree of thoroughness of the agency’s statement. Skidmore deference – the deference a federal court will give to an agency statement or informal decree where that statement doesn’t have the power to control but only the power to persuade.106 The trial court found this time was not work time. The decisions of the Administrator are not controlling on the courts by they do constitute a body of experience to which the courts and litigants can turn to for guidance. No principle of law prevents waiting time from counting as working time. e. but he does not hear adversarial proceedings in which he makes findings of fact and reaches conclusions of law. Before Skidmore. the validity of its reasoning. c. and when does arbitrary & capricious review apply? • There are 3 standards of review: • 1-substantial evidence review • Applies to factual findings of agencies. g. JUDICIAL REVIEW CHEVRON DEFERENCE When does Chevron deference apply. 2. informal agency announcements received no weight. federal courts are entitled to and expected to look at agency statements for guidance if the statement is persuasive. factual determinations of agency • 2-arb & cap review • Applies to nonfactual findings/ determinations of agencies • 3-Chevron deference • A threshold question as to whether an agency is acting within its authority or not . The Court disagreed with the Administrator’s view that waiting time did not constitute work. What degree of deference should a court give to a bulletin that does not carry the force of law? 3. after Skidmore. An administrator applies his experience to decide this sort of issue. The Court of Appeals affirmed. its consistency with earlier pronouncements. d. Issue a.

107 Arb & Cap review is the std you use to eval an agency’s action, when you know agency is acting within broad authority, but you’re not sure agency decision within broad authority is proper Was it a bad decision? Chevron is reserved for whether or not agency has the authority to do what it’s doing Take each Chevron case and think of it as that someone is skeptical that agency can do what it’s doing—is is within authority of the agency? Agency expanding what it can regulate in the first place State Farm—could agency rescind propose a different rule for passenger restraints… we were deciding whether that was a good decision or bad decision Contrast where DOT interprets motor vehicles to mean cars and also motor boats… they say the believe under their authority we also can impose a requirement that all water vessels also have air bags This looks like agency is trying to expand beyond cars into boats—moving beyond boundaries of what they’re supposed to regulate Another telltale sign of where Chevron deference is appropriate—where there is ambiguity in statute This does not answer the question—it’s a signal we should look out for

Chevron v. NRDC (US 1984)

Facts:

In Clean Air Act Amendments, Congress enacted requirements that were only applicable to States that had not reached national air quality standards established by EPA pursuant to earlier legislation • Amendments required these non-attaining states to establish a permit program regulating “new or modified major stationary sources” of air pollution • A permit could not be issued for a new or modified major stationary source unless several stringent conditions are met • EPA regulation promulgated to implement this permit requirement allows a State to adopt a plantwide definition of “stationary source” • Meaning, that existing plant that contains several pollution-emitting devices can install or modify one piece of equipment without meeting permit conditions if alteration will not increase total emissions of plant • Treated all pollution-emitting devices within same industrial grouping as though they were encased in single bubble Held: • Congress did not have a specific intention on the applicability of the bubble concept, and the EPA’s definition of “source” is a permissible construction of the statute Every time we have a Chevron Q, we need to look to the statute

108 Every state that hasn’t complied is subj to new set of rules that they have to get a permit • EPA issues a regulation pursuant to the statute that says that all states that have to apply for permits—they have to apply whenever there’s a change to a stationary source • So how do we define stationary source? • What qualifies as a stationary sources—there are 2 interpretations: • Each smokestack as a stationary source, OR • In context of statute that wants to improve air quality, this one is the proper defintion • the bubble approach—the whole factory is one stationary source (the whole group of smokestacks) • this works to maintain air quality, and this is permissible in contexts where statute is directing agency to maintain air quality • this is a more accommodating approach; this meant that if they did something on 1 side of factory that increased pollution, they could do something on other side to decrease • measured in the aggregate Procedural History: • EPA: promulgating a regulation pursuant to authority under the statute, that says stationary sources as bubbles • Court of Appeals strikes that down • Sup Court reverses, agency interpretation upheld by Supreme Court Chevron test from text: • Did Congress directly speak to the precise question at issue? • If intent of Congress is clear, then that is the end of the inquiry; follow the mandate of Congress • If court determines that Congress has not directly addressed precise question at issue, the court must decide whether the agency’s answer is based on a permissible construction of the statute FIRST STEP of Chevron test: • Is there ambiguity in the statute? • Ambiguity can be in form of silence, OR in an ambiguous term • Clarification—has to do with ambiguity as to that matter • This is issue specific—is there ambiguity as to this particular issue? SECOND STEP of Chevron test: • Is the interpretation that the agency gives reasonable? • You don’t get to come here unless it is ambiguous! • If congress is crystal clear (no ambiguity) then you don’t need to ask the next question • Chevron is not a shield an agency can use if statute is clear! Ms. Rohm- first identifies that there is a gap in the statute

109 First looks at statutory language, then legislative history, then policy behind the Act • Prof—look to text, legislative history, and maybe policy (controversial—Justice Stevens says yes to policy, but there is disagreement as to this) • If text is unclear, that’s where we would have ambiguity • If words are contradictory, or if the information is not there • A number of justices think we can look at legislative history • Congress didn’t debate smokestacks v bubbles, so they didn’t know what definition they wanted • What happens when text is crystal clear, and legisl history is crys clear in exact opposite direction? • 4 justices think that creates ambiguity • Stevens believes that legislative history trumps—that we should follow what Congress clearly contended • [doesn’t matter; we won’t have to deal with this] • For our purposes, we should refer to statutory text and legislative history • If we see contradicting sides, then we should argue that there is ambiguity or gap in statute • Dahl: • When Cong has explicitly left a gap for agency to fill…. • Prof: an explicit gap is where Congress says, “we don’t know whether it should be a bubble approach or a smokestack approach. We leave it to the agency to fill in the gap.” • There is no ambiguity here; it was specifically delegated to agency • This would fall into arbitrary and capricious review • We will encounter ambiguity as a result of words, and silences • [**An advanced question**] Knoll: is the agency interpreting how much authority it has, or the term, and which one is relevant to this inquiry? • At times agencies look to interpret outer boundary of their authority explicitly • At times; they are the same thing (how much authority & term) • Here, interpretation of motor vehicles expands overall scope of agency • So an interpretation of authority can be same as interpretation of word • Sometimes agency will issue a statement that we believe we have the authority to do something • Deciding whether federal statute preempts state law • Agencies will sometimes believe they have rules that trump state rules that conflict with this • “it is within our authority to decide whether our rules have preemptive force or not” • This impacts the overall scope of their power • Courts have been reluctant to say that they get Chevron deference as to that • Betancourt question: if court finds that statute is clear and agency’s interpretation is unreasonable or finds after ambiguity that it’s unreasonable, what happens?

Is the agency’s interpretation of that ambiguity reasonable? MCI and HUD: concrete examples of how courts do not defer to agency interpretations of arguably ambiguous statutory language where the court concludes that there is no ambiguity Mead Corp. they are eviscerating the rule o Case turns on meaning of “modify”  Agency’s argument: Since different dictionaries give different definitions of “modify” the term is ambiguous. everyone but AT&T) ISSUE: Whether the statutory term “modify” was ambiguous such that Chevron deference might apply. we defer so long as it’s reasonable Chevron Test: • • How courts do/don’t defer to agency interpretations of statutes Chevron questions: o Threshold inquiry (Step 0): Mead Corp. HOLDING: This rule is NOT within agency’s authority to “modify” Supreme Court: o Communications Act conferred to FCC authority to modify any rule.: Does the agency’s interpretation carry the force of law? o 1. Chevron step 0 threshold inquiry • • • MCI v. We interpret modify = change • • • • . thus only one bound by filing requirement o Deregulation  new competitors. and it goes back to agency • Prof: we trust congress in general to write things explicitly—where Congress has been ambiguous. competition o New 1992 rule: filing of tariffs was optional for non-dominant carriers (i. the filing requirement applies to everyone: o §203(b)(2): the commission may. in its discretion. 1052: • Communications Act of 1934: long distance carriers must file tariffs w/ the FCC and then charge only those rates.e. or does it send it back to the agency? • In the ordinary case. Is the statute that the agency is interpreting ambiguous on the precise question at issue? o 2. (in both cases) they strike down rule. if they find that interpretation of agency is invalid. we trust agencies to figure it out • Thus.110 Does court impose it’s own interpretation. AT&T (1994) p. modify any requirement made by or under the authority of this section either in particular instances or by general order applicable to special circumstances or conditions…” Facts: o AT&T was the only long-distance carrier when the statute was passed. BUT the FCC isn't modifying the rule.: recasts Chevron doctrine. and for good cause shown.

:  Words of statute are inconsistent w/ legislative history  Words are themselves ambiguous • • . i. Vetter: should interpret "modify any requirement" broadly. it is not what is intended by Chevron because Chevron doesn't get agency an extra degree of latitude because of ambiguity in agency action. give the agency a lot of latitude  APA: allows the agency to “modify any requirement”  Ms. there is ambiguity as to whether agency's action is big vs. thus agency should receive deference  Professor Vignarajah: While this is a potent argument.” the FCC does not even satisfy step 1 of the Chevron analysis. but only ambiguity in statute o Agree with the majority (Scalia)  Ms. but that this new rule itself is a modest change  Even under the clear definition of modify.e. legal problem  Just figure out what "modify" means in order to figure out what the agency's authority is  Dictionary definition: modify means modest change Why is this a Chevron case? o Statute confers authority to agency and there is a question as to what exactly the authority is  Here: the statute allows the FCC to “modify” the rule o FCC invokes the Chevron doctrine in arguing that the term “modify” is ambiguous  Must find an ambiguity somewhere in the statute in order to invoke Chevron. the statute here is clear o Lilliputian exception: Congress left as an exception a small change that the agency could NOT modify. Hanson's argument:  Might agree with Justice Scalia that "modify" only authorizes modest change. there is no ambiguity. small change. which is to find an ambiguity in the statute. Estoesta: this isn't complicated. so it would be strange if Congress intended FCC to have massive authority but left as an exception a very small change that the FCC wouldn’t have the power to make Class Discussion: Do you agree with the majority in this case or the dissent? o Agree with the dissent (Stevens):  Mr. but one outlier does not necessarily mean ambiguity  Agency action that is contrary to the clear grant of authority is invalid  the action here was invalid o No Chevron deference to FCC on its interpretation of the word “modify.111  If the word “modify” is found to be ambiguous the FCC would be entitled to deference  SC adopts a definition of “incremental/moderate changes” which does not equate w/ rewriting the whole statute  [Only 1 dictionary gives a definition that does not = incremental change]  In these cases you can look to dictionaries and if they are all in agreement.

Rodkey: Scalia likes that words have meaning and thinks that courts are on much firmer footing finding that the statute was unambiguous than finding that the Agency. you could analyze under either but failing one will automatically mean failure of the other  Some courts believe that Chevron is only an analysis of statutory interpretation United States v. Congress must be ambiguous. Mr.112 o Majority: "an agency's interpretation of a statute is not entitled to deference when it goes beyond the meaning that the statute can bear" • Agency is only granted deference when there is ambiguity in the statute. as opposed to saying (in step 2) that the FCC’s interpretation was unreasonable? o Mr. pursuant to the statute. Yeung: Why does Scalia choose to say that there is no ambiguity in the statute.” is assessed a 4% tariff instead of “others” which has no  Mead now had to pay a tariff as a result of the reclassification ISSUE: Should Chevron deference apply even if Congress didn’t give the agency authority to take actions that carry the force of law? HOLDING: There is no Chevron deference where the agency’s actions do not carry the force of law • • . 1068: • • Customs Act: US Custom Services is authorized outline tariff schedules according to categories Facts: o Mead day-planners used to be in the “others” category.” This ambiguous act is not Chevron-worthy. the agency is not allowed to invoke Chevron deference  Example: “Motor Vehicles” statute is vague  Does this apply to just cars or boats as well? The agency can fill in the gaps  Example: Like the case at hand.” o Category of “diaries etc. Mead Corp (2001) p. but the USCS sent Mead a “ruling letter” stating that it would now be in the “diaries etc. with its expertise. an agency takes an action that may or may not be a “modification. was unreasonable o Mr. not the actions of the Agency o If the agency itself makes a rule. Bellum: Agencies can't then come back w/ a different interpretation of the ambiguous statutory language for the court to examine. that is ambiguous. here there is no further room for agency interpretation What happens when the agency makes a reasonable interpretation of an ambiguous statute (satisfying Chevron) but is arbitrary and capricious for another reason? (what is the interplay btwn Chevron and other standards of review?) o This is possible:  Some courts believe that Chevron step 2 and arbitrary and caprious are the same analysis.

issuing a ruling letter)  It carries the force of law if it is binding in nature. it doesn't automatically mean that the action doesn't carry the force of law (i.000-15.e. here the letter only applied to Mead. ambiguous provisions Argument against Chevron deference: o Ruling letter raises new question of whether agency gets Chevron deference. on more than 1 person Does the agency get any deference if it doesn’t get Chevron deference? (Skidmore) o Even if an agency action doesn’t carry the force of law (looks like the policy documents in Skidmore). they do NOT get Chevron deference  In this context.000 ruling letters each year We can assume that the agency’s actions would be getting judicial deference if its actions carried the force of law o Why does this matter?  It is more appropriate for the court to give the agency deference when the agency is acting at Congress’s behest instead of “on its own”  The only reason you get Chevron deference is because Congress intended you to get Chevron deference  Congress will allow for Chevron deference by leaving an ambiguity in the statute • Underlying implicit assumption: statutory ambiguity meant that Congress wanted the agency in charge of administering the statute to clarify & fix the ambiguities it left in the statute  If Congress has not even given agency the power to make actions that carry the force of law. even if Congress didn't give it the authority to take actions that carry the force of law o Court's answer: no Chevron deference if Congress didn't intend for agency to take actions that carry the force of law If an agency is acting pursuant to rulemaking or adjudication powers pursuant to the APA. not to other companies that make day-planners) o They are subject to change o 46 regional offices process 10. deference should be accorded to customs agency in its interpretation of tricky.e..113 o There is no Chevron deference her because ruling letters do not carry the force of law Characteristics of ruling letters (why they don’t care the force of law): o They aren't carried out by rulemaking or adjudication proceedings o No notice and comment requirements o No publication requirement o No reliance on ruling letters o Not binding on 3rd parties (i. we can presume that the output of that process (rule/order) carries the force of law and Chevron doctrine is available to that agency o However. we can't automatically assume that when an agency is not acting under rulemaking/adjudication. they are still persuasive o Remand this case to see if USCS has any Skidmore deference • • • • • • . then it is not clear that Congress wanted the action to receive Chevron deference at all Argument in favor of Chevron deference: o "Other items" and "diaries" are ambiguous in their application to "3-ring day planner" o Thus.

shall be cause for termination of tenancy.. co-tenant or guest is cause for termination of that tenant’s lease: o “Each public housing agency shall utilize leases. we need not look to the legislative history • Evicted tenants resting on legislative history but Rehnquist will not look to it b/c the statutory text is clear  No need for step 2 analysis b/c the statute is unambiguous • • • • • . thus Supreme Court sent the case back to the Court of Appeals on the grounds that at least some Skidmore deference may be available What are the various triggers for ambiguity? HUD v..any drug-related criminal activity on or off [federally assisted low-income housing] premises.. but will allow agency opportunity to persuade. “innocent tenants” can be evicted  respondents in this case were evicted ISSUE: Does HUD’s interpretation. engaged in by a public housing tenant. may get Skidmore deference. comport w/ the statute? o Chevron issue: apparent ambiguity over the knowledge requirement of this lease violation HOLDING: The agency’s interpretation is valid Tenants: object to agency interpretation that imposes eviction grounds where tenant is innocent: o Tenants claim they didn't know that guests were involved in criminal activity o The agency's interpretation of "shall" is wrong: statute doesn't require the agency to have grounds for termination even in cases where tenants are innocent Supreme Court: o The text of the statute is crystal clear (although in the opposite direction that the Court of Appeals thought) o Chevron analysis:  Where the text is clear. 1091: • Anti-Drug Abuse Act of 1988: drug-related activity by a tenant.” Facts: o Respondents were tenants whose relatives were found engaging in drug-activity in the parking lot/in a location other than the apartment itself.114 o Reconciles Mead with Skidmore: even if agency action doesn't carry the force of law. that an “innocent tenant” can be evicted. any member of the tenant's household. arguably w/out the tenant’s knowledge o HUD: doesn’t matter if tenants knew about the activity.. or any guest or other person under the tenant's control. it looks similar to policy.providing that. consistent with Skidmore  Even if agency doesn't get Chevron deference. non-binding statements of Skidmore that have the power to persuade  Courts are expected to and allowed to look to persuasive agency determinations  Courts are not bound to defer to agency interpretation under Chevron deference. Rucker (2002) p.

Legislative history is a relevant consideration. ambiguity is not triggered by potential constitutional issues where the text is crystal clear o Court also finds that there is no constitutional problem with regard to the unambiguous statute Courts themselves can reach diametrically opposite conclusions about what a statute says.115 o Tenants’ argument: agency interpretation would result in absurd results  If the statutory interpretation would result in absurd results. but the text is the primary consideration. this might be a source of ambiguity • Here. i. you should take into account both the text and the legislative history. We can get a better sense of what Congress meant by looking at the history. Four examples of reasonable statutory interpretation positions are: 1) Text Only (Scalia/Thomas/Rehnquist) – Text is the beginning and end of the analysis. 2) Text is Primary (Kennedy) – The text of the statute is the beginning of the analysis. not required eviction • Constitutional Argument: the statute is unconstitutional b/c it deprives the tenants of housing w/out Due Process o Canon of constitutional avoidance  Avoid the statutory construction that might create constitutional issues  Only available if there is an ambiguity. there are no absurd results. For the exam. but you can also consider legislative history. . Legislative history is not used to discern congressional intent even when the text is ambiguous. it’s just as easy to play with words as it is to play with Congressmen.e. but legislative history is more authoritative. but this fact alone does not create ambiguity o This emphasizes that ambiguity is in the eye of the beholder Discussion of Statutory Interpretation: Justices and courts take different positions on statutory interpretation. Response to textualist criticism is that all of the methods are subject to manipulation. the statute only provides for grounds for eviction. We should start with what Congress wanted to accomplish and see if the text accomplishes what Congress wanted it to. Criticized as similar to looking around a room of people and picking out your friends – there will always be someone making statements that make it seem ambiguous 3) Legislative History is Primary (Breyer) – Both text and legislative history are relevant.

the right types of issues  are they ignoring other important factors? (very procedural approach) o Here: we have an ambiguous term and we have to figure out whether the definition is a reasonable one. even though the actual text may be ambiguous. Shalala: • The Nutrition Labeling and Education Act of 1990: required the manufacturers of food to provide certain nutrition information on food labels. Argument for arbitrary and capricious review: o Chevron is appropriate when the question is whether the agency had the authority. but the FDA was required to turn this into a mandatory set of labeling requirements if stress were not in “substantial compliance” with the guidelines. I  It’s a little bit curious that when there’s an ambiguous term. and 60% of stores as a whole. arbitrary and capricious is appropriate when considering if the agencies use of authority was reasonable. stores that carried raw food were subject to a voluntary scheme of labeling this food. The size of the retailers and the portion of the market served by the retailers in compliance with the guidelines shall be considered in determining whether the substantial-compliance standard has been met. but they should still be treated as separate standards. legislative history controls. judges can consider substantive aspects of the decision. because there is no ambiguity. Question: Why is Breyer second from right instead of all the way over? Answer: Breyer would be reluctant to overrule clear text with legislative history – would say that legislative history creates ambiguity. Unclear Text (Stevens) – If there is a conflict between clear legislative history and text.116 4) Legislative History v. Arent v. but here where Congress blatantly says “you decide what this means” and somehow that takes it out of Chevron and into arbitrary and capricious o Note though that arbitrary and capricious review is not entirely procedural. we assume that agency can define it and get Chevron deference. In the Chevron context. • • • • • • . they were to determine what “substantial compliance” meant: o “The regulation shall provide that there is not substantial compliance if a significant number of retailers have failed to comply with the guidelines. Argument for Chevron : o Arbitrary and capricious review is the type of approach you would use to see if the agency has looked at the proper considerations. ISSUE: What standard of review should be applied in this case: Chevron step 2 or arbitrary and capricious? HOLDING: There should be arbitrary and capricious review in this case There is a lot of overlap between the two.” Facts: o FDA defined substantial compliance as 90% of products from particular retailer. Stevens’ position means that Chevron is not implicated where there is crystal clear legislative history.

the ambiguity may not be exposed until the facts show something that makes the statute ambiguous o Don’t assume that you will know whether something will be Chevron or arbitrary and capricious. NATIONAL CABLE & TELECOMMUNICATIONS ASSO.117 o Here: the view is that the FDA is clearly entitled and empowered to define what substantial compliance means. that broadband companies did not fall within the definition of telecommunications providers because they didn't provide the ultimate service to the consumer o There was clear ambiguity in the statute as to the agency's authority to regulate broadband companies. o If the ambiguity that is at play impacts the type of things the agency can and cannot do. this doesn’t trigger Chevron. V. it’s the agency’s role to fill that gap. BRAND X: • • Communications Act (1934): “telecommunications companies” are subject to common carrier rules  Does a broadband provider qualify as a “telecommunications” provider? Facts: o The FCC determined. It’s the premise of the Chevron doctrine that if there’s ambiguity. the Court of Appeals had already made the opposite interpretive determination as the agency. and the only question is whether the 90/60 definition is arbitrary and capricious Ms. where the agency’s authority is contingent upon some other determination. and talk about how this impacts the agency’s interpretation. the agency can still make its own determination and be entitled to deference despite the previous ruling Letting whoever gets there first control doesn't make any sense. so the agency would normally get Chevron deference o In this case. that decision would be binding on the agency o If the court ruled that the statute was ambiguous (yet interpreted that ambiguity). it’s affirmative. Bonifant: If I just read the statute. it doesn’t matter if there’s ambiguity in the regulation or factual finding. you should think instead why one would be appropriate or not  Consider ambiguity in the text or congressional intent. it has to be ambiguity as to what Congress intended in the statute and about the agency’s authority. however. not a passive o We assume Congress wanted the agency to clarify that gap and you would be • • • • . through an adjudication order. will I know that this may be a Chevron question? Or would I not know until I read the prompt? o You wouldn’t know if it’s a Chevron question until you read the rest of the example. that’s the type of ambiguity that might be entitled to Chevron deference. such as Negusie. Grozhansky: Does Chevron mean that there’s already an ambiguous term? Why do we have to have this first step then to figure out if there’s ambiguity? o You need a specific type of ambiguity. there are more subtle cases. ISSUE: Does Chevron deference trump stare decisis? HOLDING: The agency was entitled to Chevron deference o If the court determined that the law was unambiguous.  Examples: again the “motor vehicle” example: this has to do with the scope of the agency’s authority. Ms. not just the statute.

membership in a particular social group. the agency’s determination is no entitled to Chevron deference. incited. or political opinion” Facts: o In this case the alien was rejected on these grounds despite the fact that he was forced to persecute others. ISSUE: Is the agency’s determination entitled to Chevron deference? HOLDING: Despite the ambiguity here. we will allow a court to decide. religion. was not binding o The statute at issue in this case did not address the duress defense. or otherwise participated in the persecution of any person on account of race.118 acting contrary to Congress by allowing a court to fill that gap o In the interim. Holder: • A person seeking asylum in the US will be denied if he or she persecuted others in his or her homeland: o “The term ‘refugee’ does not include any person who ordered. Negusie v. which interpreted a different statute. so it was ambiguous through silence o BUT the agency's decision was made based on the previous Court case. not because of its own independent decision o The agency did not interpret the statute for itself  not entitled to Chevron deference The agency must actually exercise the discretion conferred to the agency by the ambiguity in the statute to get Chevron deference o If the agency does not feel that it has the freedom to make the choice then it makes no sense to give them deference • • • • • . then that is what stands • Ossification argument: There is value to allowing an agency the flexibility to move back and forth and make various determinations o If we didn’t allow agencies to come up with its own determination after the CoA determination. the law that the court came up with would harden. the court’s determination would be frozen in place regardless of the agency's evolving expertise and experience. nationality. • Scalia (dissenting): the interpretation of statute is the province of the courts and agencies should not be able to overrule them o Rulings can be overturned by Congress o If the agency has chosen to lay dormant for a while. but once the agency gets around to making that determination. that’s how it should be Note: We should not just make fun of the Thomas/Scalia duo. the BIA refused to recognize a “duress” defense o The BIA felt compelled by the prior court decision in Fedorenko to disallow the duress defense. and a court makes a determination. but should also make fun of Ginsburg/Souter. The Court determined that the prior ruling. assisted.

the drug manufacturer didn’t give me sufficient warning of the side effects”)  This was a close decision (5-4 decision) Legal Q: Do FDA regulations preempt state law claim?  What does “preemption” mean? o Doctrine under the Supremacy Clause: federal law explicitly or implicit that displaces stat….because federal law is supreme.119 JUDICAL REVIEW CHEVRON & AGENCY PRE-EMPTION OF STATE LAW Wyeth v. a party could bring a tort claim (here claim is saying “you. it COULD preempt state law)…what happens when it is not clear whether FDA has the authority  Holding: the Court held that the federal law did not preempt the state law claim. she developed gangrene. and doctors had to amputate her forearm  Levine argues that Wyeth should have included better warning labels on Phenergan---warning labels that are in excess of what the FDA requires as a minimum  Wyeth argues that Levine’s claims were pre-empted by federal law because Phenergan’s labeling had been approved by the FDA  The jury found in favor of Levine and the state supreme court affirmed  Relevant federal law: Federal Drug and Cosmetic Act  Under VT law. after she was injected with the drug via the “IV push method” whereby the drug entered her artery. the manufacturer of Phenergan. Congress can write a law that can overwrite state law (results in one federal standard and no competing state laws)  2 kinds of preemption: explicit and implied preemption Admin Law Q: Did the FDA have the authority to state in the preamble that the rule could preempt the state law? (Note: there was no doubt that FDA had clear authority to make these rules and decisions that carry the force of law---thus. Levine Facts: Respondent. brought a state tort law claim against Wyeth. Levine. . an anti-nausea drug.

although it was possible for Congress to do so. In this case. Jeram: state has not imposed any new/additional requirements on the manufacturer o Prof: Why isn’t a tort claim NOT like a new requirement? You now have to include this new piece of info…  Mr. but that decision didn’t necessarily carry the force of law. (Failure of Chevron step 0) Here silence does not necessarily create ambiguity. the determination of pre-emptive effect would carry the force of law. (Failure of Chevron step 0) Second.Mr. should the agency be given deference to the agency’s view as interpreted in the preamble? Prof: Does the FDA rule have pre-emptive effect. the silence itself may be taken as clarity. Congress did not authorize this. This shows Congress’ intent not to pre-empt state tort law. state tort law would apply. when silence occurs in contrast to other explicit statements in the law. Jeram: It doesn’t put the manufacturer on notice that there are additional requirements on top of FDA reguations .Ms. It was not clear that the rule could possibly lead to federal pre-emption of the states’ laws. including a reading of the preamble . 3) What about Skidmore deference---why did the Court decide that it was NOT appropriate here? First. Skidmore deference may not be appropriate where the agency’s statement on the matter suffers from a procedural defect.120 Class Discussion: 1) What is your viewpoint of how the case turned out? . but not in the section of the law at issue here. it couldn’t possibly be a ceiling since you. the preamble never afforded the states actual notice of the agency’s intent to begin its notice and comment rulemaking. . an agency’s decision on its own rule’s pre-emptive effect must carry the force of law to be afforded Chevron deference. Here the pre-amble did not go through notice and comment period. One question that would apply here is whether the agency’s determination that its rule pre-empts state law itself carries the force of law. Rubin: the manufacturer in good faith was following the federal reg. If Congress did authorize it. Why Chevron Doesn’t Apply Here First. but rather an opinion. Companies could not rely on the preamble stating preemption because it wasn’t a rule. the agency was giving its view on pre-emption. Bonafonte: says that under the specific regulation here. there was no ambiguity since Congress had explicitly provided for pre-emption in other parts of the law. In some sense. the manufacturer have a duty to update that info 2) Is this classic Chevron deference analysis? That is.Mr.

implicates the authority of the agency…does the rule set the floor or the ceiling? Court determines that Chevron is not appropriate…useful case to study as a counterpoint for all the things we have studied . since Congress never explicitly intended to pre-empt state law. Skidmore deference might have applied had the agency. It changed its prior position on pre-emption without explanation. the FDA was not consistent.121 Second. Third. the FDA’s position is not persuasive. given a reason such as its intent to preempt varying state tort laws to promote uniformity. based on its years of experience. Takeaway: It is not appropriate where the agency’s statement on the matter suffers from some procedural defect Ultimate take-away: whether Preemption is arguably a classic Chevron question…if there is ambiguity.

claiming it had the authority to do so Issue: Does the FDA have the authority to regulate tobacco? Holding: No. Reasoning: . Brown & Williamson Tobacco Corp. The Court held that the FDA never had the authority to regulate tobacco products. Facts:  The FDA attempted to regulate tobacco products.122 JUDICAL REVIEW GRAVITAS EXCEPTION TO CHEVRON DEFERENCE FDA v.

The FDA can either do clinical trials to make it safe or ban the produce. and the FDA should not have the authority entirely to ban tobacco and regulate the industry. even though there was no ambiguity in the text. which proposed making Plan B available without a prescription to women 17 and older    . this is an extraordinary case in that Congress was clear that the FDA did not have the authority to regulate tobacco. and it implicitly approved of the FDA’s position that the FDA didn’t have the authority to regulate tobacco.e. and the FDA administers the statute. the FDA’s actions to reduce the use of tobacco were inconsistent with the purpose of the state granting it authority to regulate “safe” products. the Plan B sponsor (comprised of Women’s Capital Corporation and Barr Pharmaceuticals) submitted a second SNDA.123 First. Here. Tobacco is a $50 billion industry. This shows Congress did not want the FDA to regulate tobacco. the issue is just too big. Williamson is a good case of where an issue is too big (i. which requested that the FDA make Plan B available without a prescription to women of all ages The FDA considered the Citizen Petition in tandem with a number of proposals – referred to as supplemental new drug applications (“SNDA”) After the FDA denied such access. Congress only gave the FDA narrow grants of authority to regulate tobacco. Fourth. Under the statute. Note: Brown v. the regulation of tobacco products) and therefore Chevron analysis is not appropriate (even if there is ambiguity) Tummino v. seeking nonprescription access for women 16 and older (The FDA rejected that application too despite nearly uniform agreement among FDA scientific review staff that women of all ages could use Plan B without a prescription safely and effectively) The Plan B sponsor then submitted a third SNDA. Extraordinary case exception to Chevron deference: If Congress is clear. as well as parents and their minor children seeking access to the same– brought this action challenging the denial of a Citizen Petition. aka “morning after pill” is only available through prescription Virtually all major industrialized nations allow Plan B or other emergency contraceptives to be sold over the counter Plaintiffs – individuals and organizations advocating wider distribution of and access to emergency contraceptives. Third. while Chevron deference would likely be appropriate since the word “safety” creates ambiguity. the FDA consistently said it didn’t have such authority. Congress should have that authority. Torti Facts:    Plan B emergency contraceptive. Second. the court may deny the agency deference due to the gravity of the case. all the while regulating tobacco itself. it cannot regulate to reduce the use of an unsafe product.

Plan B would be available without a prescription only to women 18 and older. the FDA Commissioner determined that. Subjective bad faith will be evidence of arbitrary and capricious decision making 3.ora heavy reliance on political consideration is itself evidence of arbitrary & capricious decision making General Rule Reliance on political considerations may constitute evidence of A&C action. the FDA’s decision was arbitrary and capricious. which would be OK) Mr. The agency didn’t listen/adhere to the scientific panel to come up with a recommendation on this matter Class Discussion: Where do you come out on this case?         Mr. Making decisions on the basis of political decisions is evidence of arbitrary & capricious decision making 2.124 While FDA scientists and senior officials found that 17 year olds could use Plan B safely without a prescription. Radcliff: it doesn’t rise to the level of arbitrary & capricious because the agency doesn’t always have to follow their own panel Mr. it is acting arbitrary and capricious. this is a good example of an issue-spotter type question where an agency is doing something crazy and it is taking into consideration both relevant and irrelevant factors…you can refer to this case if you are trying to justify the position that subjective bad faith and. Reasoning: 1. Jose: The NLRB is not basing its decision on scientific data…here. because of “enforcement” concerns. Taylor: Science can be subjective.  Ps argue that the FDA’s decisions regarding Plan B---on the Citizen Petition and the SNDAs – were arbitrary and capricious because they were not the result of reasoned and good faith agency decision-making Issue: Was the FDA’s decision to deny the Citizen Petition and the 3 SNDAs arbitrary and capricious?  Holding: Yes. Mr. too. . the decision is almost entirely based on science therefore the info is objective Mr. Vetter: there are 2 types of politics that should be distinguished---1) politics unconnected to the issue (not political ideology. Abrogast: the FDA did not act arbitrary and capricious because it was reasonable to balance scientific reasons with political reasons Ms. McKinsey: the FDA was considering things that they shouldn’t have been… these factors were not the ones that Congress told them to consider Prof: Arbitrary & capricious is a standard has so much to do with whether an agency is taking account of factors that Congress has instructed it to consider. Tressler: this decision was not arbitrary but it was capricious since the FDA was making decisions based on political ideology that would change from administration Mr. and when it takes into account irrelevant factors.

.............................................................................................................48 Allen v..................37 bad faith....................................... Shalala............................72 BENEFITS...................92 additional requirement..... Commodities Futures Trading Commission.......124 Bell Aerospace.27 ADJUDICATION DECISIONS..125 INDEX Abbott Labs.14 ARBITRARY AND CAPRICIOUS REVIEW.......... NLRB...................................................................................116 Armstrong v.. Wright..............37 ADJUDICATIONS...89 Allentown Mack Sales v.....................................................................97 APA STANDARDS AND OTHER LAWS31 APPOINTMENT OF OFFICERS BY JUDICIARY..........................................................84 ......................................................99 Arent v.....................29 Adjudicative facts..................32 Adjudication..................................................................

.....................................................13 Government Interest.......................................................................... INS.................84 evidentiary hearing factors.....86 EX PARTE COMMUNICATIONS....... Georgetown University Hospital. 5 CRIMINAL PUNISHMENTS AND SENTENCING............. Zurko...........3 declining to regulate.......86 DUE PROCESS......................................................................................................65 CONCISE GENERAL STATEMENT............86 GRAVITAS EXCEPTION TO CHEVRON DEFERENCE.........90 Field v.....19 Bowen v................8 decisional independence.................................................63...........26 fixed term of 7 years..................................................................71 CHEVRON DEFERENCE...122 ...........................................................110 Chevron v..............................................3 costs.........24 Concise and general statement....1 Dickinson v.......43 declining to engage in rule making.......................................126 Bi-Metallic Investment Co.....................31 disability.................................3 due process..... 112 FTC v.....................................68 evidentiary hearing............................................................75 Brown & Williamson Tobacco Corp...............46 EX PARTE COMMUNICATIONS IN RULEMAKING...................2 contrary to public interest...................... 66 Concurrent jurisdiction..............................106 Castillo-Villagra v.....................47 Chenery II..........84 discretion....46 ex parte communications from the President .................................................................74 ERRORS IN THE FINAL RULE..................122 bulletin.....106..................................84 Good cause............29 bicameralism..................................................81 extraneous factors....... Clark................................106 Chevron Test..................43 generalized grievance........................................................................................................ Kelly.........68 COST................................................................................................................................................12 force of law....................................................................................86 DISABILITY............................107 citizen suit provision. Cement Institute.............3 delegation............... Akins...................................................................103 Federal Election Commission v...............91 Clinton v NY.........29 efficient government...............................................6 death penalty..................91 Goldberg v.................. NRDC................................................................4............................................6 Epilepsy Foundation..............

..............................90 INS v.............................. Holder...60 Londoner v...................7 Morgan I.................................................. Eldridge............. Chadha...................................... FCC...........................................51 investigating and adjudicating........................11 NATIONAL CABLE..............30 HEARING...................................................................................................................117 Neguise v..............................................48 LEGISLATIVE VETO...40 MENTAL PROCESSES................29 HEARINGS ON THE RECORD..............118 no guesswork rule... United States.............................................................................................................................................................................................39 notice and opportunity to be heard...............................1 Mathews v................................17 LINE ITEM VETO........127 HARMLESS ERROR........48 MCI v................................................................................. AT&T........34 HUD v............................................. Tanker Owners Committee ..................................60 on the record....................................14 INFERIOR OFFICERS......40 Morrison v........................ EPA.................................................. Rucker...S. Olson....................112 mental processes.........................56 HBO v.........................................................86 Matter of Compean.39 Morgan II.........................................29 Loving v...................................34 ON THE RECORD.... US.110 Mead Corp....68 Independent Council..................70 NOTICE....13 Independent U....114 Humphrey's Executor v................ Holder............66 ineffective assistance of counsel....1...................... Denver........ United States..............18 intelligible principle.......................................4 INTELLIGIBLE PRINCIPLE.......3 interpret......................................55 injury..................39 Mistretta v...........................................................................................10 informal rulemaking...............44 LEGISLATIVE DELEGATION........12 impracticable...........8 Legislative facts........ 3 LEGISLATIVE DELEGATION SUMMARY...................................8 Massachusetts v........................................................................ US............................................................................44 INVESTIGATIVE AND ADJUDICATORY FUNCTIONS..................54 ......41 NRDC v..............................................50 Negusie v..............................13 Myers v......49 inferior officer...............24 LOGICAL OUTGROWTH.................................................................................................... EPA.........................................81 hearing.....

........................................ Volpe..................................46 postmaster general...............................................................................119 PRE-ENFORCEMENT REVIEW...............37 Rate of reversal.......105 .........................72 Sierra Club v............................7 Persecutor Bar...................34 SEC v.................70 rules affect a small number of people....50 political decisions....86 rule affects a broad group of people..................................43 Professional Pilots Federation v..11 PRE-EMPTION OF STATE LAW.....88 rights....................112 scientific panel................3 regulate.........................2 Private Interest.....................78 REFUSAL TO REGULATE...............12 QUALITY STANDARDS FOR ADJUDICATORS.....71 RIGHT TO COUNSEL IN ADJUDICATIONS..12 question of law and fact............. Endangered Species Cmte.............................124 Portland Audubon Society v.21 Risk of Erroneous Deprivation........................................92 presentment................................................ FAA..............................................70 Senator................................................1.............82 sentencing commission.................................................29 Rulemaking..42 penalties for drug offenses.. 4 RETROACTIVE RULEMAKING.............................................................................................................124 Seacoast Anti-Pollution League v....................................................................128 ONE WHO HEARS MUST DECIDE..........................58 PROCEDURAL VIOLATIONS OF RULEMAKING......99 Peer review program.................................................................19 PRESIDENTIAL APPOINTMENTS AND REMOVAL..................86 PROCEDURAL REQUIRMENTS OUTSIDE APA.................................................................................. Costle..................................................... Chenery.....................................................28 RULEMAKING.....................70 REFUSAL TO MAKE RULES.....43 reasonably anticipated...56 Production quotas.............61 reasoning.............42 quasi-leg and quasi-judicial officer.............................................................................1 Refusing to take enforcement action..............................................................53 RULEMAKING THROUGH ADJUDICATION..................7 Shaw’s Supermarket.....29 ruling letter...........78 purely executive officers............................................................39 Overton Park v........10 presidential policy.......... Costle.......................................82 SKIDMORE DEFERENCE...............................................

...................117 State Farm Insurance Co.......................................................89 stare decisis...129 Skidmore v............37 Sugar Cane Growers Cooperative of Florida .84 Whitman v.....44 Wong Yang Sung v............4 Wintrow v....................................................105 STANDING...................... US......................32 United States v................. Florida East Coast Railway ......96 substantially agrees..............119 ....... Natl Assc of Radiation Srvs.................................................................68 Utility Solid Waste Activities Group....................................... American Trucking......................56 SUPERIOR OFFICERS...........102 SUBSTANTIAL EVIDENCE REVIEW............88 WELFARE............................................37 substantially correct..................44 Touby v................................................................................6 Tummino v.... McGrath...........26 Walters v.......................123 uniform standard.........63 Universal Camera Corp....................... Larkin..................................................................................................30 Wyeth v............. Swift....................54 United States v........................... Nova Scotia Food Products Corp.........58 veto items off a pre-determined list...................................96 unnecessary...............................10 testified in front of congress............ Torti..............................68 Vermont Yankee Nuclear Power Corp..................... Levine...................

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