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70 Cards in this Set
- Front
- Back
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Subject Matter of Adjudication
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A. Under the APA adjudication is defined as the agency process for issuing an order.
B. Order- a final disposition of an agency in a matter other than rulemaking but including licencing C. A decision by an agency about a particular person or persons that requires the application of laws to facts. |
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Formal Adjudications
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Those which must be conducted under Sections 554, 556, 557
1. Section 554 applies to adjudications required by statute to be determined on the record after opportunity for an agency hearing. THUS first step is too look to the statute to determine whether 554 applies either by specific mention or other language indicating the requirements of on the record with opportunity for agency hearing. |
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Wong Yang-
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SCOTUS determine deportation hearing must be held under APA. Court had earlier held due process required hearing, and Court presumed congress to provide whatever hearing constitution required. Indicates when in doubt, doubt should be resolved in favor of APA requirements
i. Later undercut |
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Allegheny and Florida East Coast RR
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SCOTUS says APA formal procedures required only when statute in question contains the precise language or other clear expression of congressional intent to require formal procedures. Rulemaking Context
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Marathon Oil
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Statute requires public hearing but no magic “on the record” language. (9th Circuit)
i. Distinguished from rulemaking context in Allegheny. ii. When nature of determination is adjudicatory-determing facts and applying law to them-presumption should be in favor of trial like procedures because it is equivalent to judicial determination iii. Minority Rule, most used Allegheny and Florida East Coast RR |
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Chevron and Formal Adjudication Requirement
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Where statute is ambiguous courts defer to reasonable interpretation by responsible agency.
a. DC Circuit held that term “public hearing is ambiguous” and EPA’s rule providing for informal hearing reasonable. |
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How To Argue for Formal Adjudication
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a. Burden is to show that APA procedures are required
b. Two Initial Options with the lack of the magic words i. Are there other indications that hearing is supposed to be on the record? Powerful argument is if statute provides for judicial review, implication that there will be a record for judge to review and thus hearing should be “on the record” ii. Legislative History c. If not, there are the tests from varying circuits i. First and DC-Limited to chevron argument that agency interpretation of hearing is unreasonable. • Factual determinations or scientific issues. If factual aruge need for cross-examination ii. Ninth-Presumption should be in favor of APA in adjudicative determinations. • Chevron doesn’t apply to APA d. Term public hearing is more likely to refer to legislative type hearings, whereas reference to an opportunity for a hearing to a particular individual more likely to be judicial in nature |
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Formal APA Notice Requirement
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1. Notice
a. Person Brought before the agency must be provided with i. notice of time, place, and nature of hearing ii. Lega authority under which hearing is to be held iii. Matters of fact and law asserted b. Also requires D to give notice of controverted issues of facts and law c. Purpose of notice is to inform D as to nature of charges against so he may prepare a defense d. Courts look to see whether as a practical matter D has been provided with a fair understanding of the charges and a fair opportunity to address them. |
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Formal APA Burden of Proof
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a. Proponent of an order has the burden of proof
b. However in Admin. Law, person who is proponent of an order is not always the intiator of the proceedings |
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Formal APA Rules of Evidence
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a. Oral or Documentary Testimony may be received, but agencies should exclude evidence that is irrelevant, immaterial, or unduly repetitious
b. APA does not preclude admission of hearsay, and generally it is admitted in adjudications. c. Residuum Rule-Old rule that while agency could accepts hearsay evidence, it could not be the sole basis for decision. Today no longer followed as such. d. However APA does state that no order may be issued that is supported be reliable, probative, and substantial |
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Role of the Agency in Adjudication
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1. Findings of ALJ may be either initial decision or recommended decision
a. Initial becomes agency decision automatically unless there is an appeal to the agency or the agency decides on its own motion to review the decision b. Reccomended-goes to agency for final determination 2. Agency can make that call on its own. 3. On appeal or review from the intitial decision, agency has all the powerswhich it would have in making the initial decision. That is it is free to accept or reject ALJ’s findings of law and facts |
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Bimetallic
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-Concept of due process does not apply to general law making/rule making.
1. Procedural safeguard in law making is the political process 2. Due process required only when a relatively small number of person was concerned, who were exceptionally affected, in each case upon individual grounds. |
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When is due process required?
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A. SCOTUS has held due process applies only to deliberate actions of government officials.
D. Administrative adjudication that deprives someone of liberty or property requires due process, however the issue will often turn on how liberty and property are defined |
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ITraditional Concept-Property
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Property was common law concept of property and liberty was freedom from government restriction on traditional common law rights. However if all government did was deprive you of government benefits, no due process required.
A. Termination of an at will government employee B. Right to use property and capital as you saw fit Protect type of liberty at common law |
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Goldberg-Terminated Welfare assistance to a women because land lady reported she had a live in friends. New York provides two step procedure for appeal. First step informal hearing. Then recipient could seek de novo formal administrative hearing with retroactive payments as damages if they prevailed.
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1. Court states that the loss of a government entitlement such as welfare benefit had same impact as when government deprived someone of traditional private property
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Modern Test for Property Interest
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To have a property interest in a benefit, person clearly must have more than an abstract need or desire for it. He must instead have a claim of entitlement to it.
Roth-SCOTUS holds no protectable property interest as it was simply a unilateral expectation of being rehired (what had normaly happened). |
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Implied Due Process
Sinderman |
i. SCOTUS-It’s a property interest if there are such rules or mutually explicit understandings that support his claim of entitlement to benefit that he may invoke at hearing.
ii. Fact that tenure system was not formalized, written into contract, regulations or statute was not dispositive d. Stuff to look for i. Look for documents/policies that confirm a mutual understanding in order to establish a legal right • Statutes or regulations • Terms of employment contract or other contracts with the government |
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SCOTUS and Purpose of due Process
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has suggested that, “the purpose of due process protections was to present an opportunity to refute the charge and if those protections are to serve any useful purpose, there must be some factual dispute between the discharged employee and the employer
a. HOWEVER SCOTUS in Cleveland Bd. Of Education seemed to recognize the due process right to present facts relevant to the determination of the appropriate punishment i. Essential element of due process is notice and opportunity for hearing appropriate to the nature of the case. ii. Only opportunity to invoke discretition of decisionmaker iii. Plaintiffs who assert a right to a public hearing under DP must show that the facts they seek to establish in that hearing are relevant under statutory scheme |
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Liberty Interest in Reputation
a. Early TestWisconsin v. Constantineau-State law required posting a list of public drunkards at dram shops, and law provided no procedure to contest it. Constantineua’s name was so posted. |
i. SCOTUS finds denial of due process because, “where a person’s good name, reputation, honor or integrity is at stake because of what the government is doing to him, due process is essential
ii. Roth also suggested that had state simply fired him it might have violated due process if, “imposed on him a stigma or other disability that foreclosed on his freedom to take advantage of other employment opportunities. |
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Modern Stigma Plus requirement
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i. While it might give rise to claim for defamation, absent some other tangible interest such as employment, reputation alone is not sufficient to invoke due process protections.
ii. One requirement seems to be that the government publish the information, if mere failure to get new employment is only an effect of damaged reputation, remedy is defamation. Damage to reputation must be incident to the termination of employment. • At least one appeals court held that making available personnel files was enough to make employer responsible because Employee had no meaningful choice if they wanted employment |
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Due Process and Parole
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3. SCOTUS has held that if a state creates a parole or similar system in which persons may be earn early release from prison if they comply with certain criteria, state cannot deprive them of it without due process.
a. Government can create a protectable liberty interest just like entitlement interest b. But court refuses to touch prison discipline |
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Modern Test For Due Process
Mathews v. Eldrige-Eldridge on disability. In the course of monitoring, agency preliminarily determines he’s no longer disabled. Sends him notice, given opportunity to respond with more info. He does, agency still decides to cut him off. Has a right to reconsideration proceeding, which is full evidentiary hearing approximating APA standards there, and if he prevailed, gets retroactive benefits. Court finds requirements of due process satisfied |
B. The Eldridge three factor test
1. The private interest that will be affected by official action 2. Risk of erroneous deprivation and likely mitigation of those risks by alternative procedures 3. Government interest in using the procedure as opposed to alternatives a. Usually involves administrative burden and costs C. No longer any presumption in favor of judicial like procedures D. Some suggestion in Clevland Board of Education that in the absence of exigent circumstances, some predetermination hearing must be given. E. Determination based on generality of cases, individual not entitled to the additional procedures to protect him or her. |
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How to Challenge Second Factor in Eldrige test
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a. Challenger carries burden of identifying what additional procedures are necessary to meet due process concerns
b. Usually were witness credibility is an issue, due process almost always requires judicial type proceedings c. Need not just chance to hear charges and respond because cross-examination and confrontation i. w/o can get to motives d. Failure to provide procedures creates unacceptable risk of error e. You can always argue that essence of due process is that the person be given notice of charges against him and opportunity to meet it |
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How to Defend Second Factor in Eldrige Test
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2. Defender
a. Not a significant change of error b. Did tribunal question him, if so argue no reason to think tribunals questioning any less reigourous c. Is it usually an issue? If not argue even if issue in this case, standard is generality. |
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How to argue step three
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1. Usually government argues drain on resources, particulary in mass justice cases
a. Current process does it expeditiously |
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Definition of Rule under APA
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i. Unlike orders, rules do not name particular persons or entities at whom the rule is directed.
ii. Usually contain provisions identifying the type of persons or entities subject to the rule. iii. Govern conduct that is yet to occur iv. SCOTUS-Rule cannot be retroactive unless the statute authorizing the rule explicitly empower the agency to adopt a retroactive rule b. Designed to implement, interpret, or prescribe law or policy |
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Rules v. Orders
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a. Rule becomes binding on all applicable parties.
b. Order legally binds only the parties to the particular proceeding i. Though it may have precedential value for other parties that agency can cite c. Courts have generally expressed a preference for making policy by rulemaking d. However it is black-letter law that the decision whether to make policy by adjudication or rulemaking is a decision to be made by the agency it its informed discretion. |
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Requirement for Notice and Comment Rule Making
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a. If no exception applies, rules as defined by APA must go through either Notice and Comment or formal rulemaking
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Procedure for Notice and comment rulemaking
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a. Notice
i. Requirements 1. Statement of time, place, and nature of public proceedings 2. Reference to legal authority under which rule is proposed 3. Either terms or substance of the proposed rule or a description of the subjects and issues involved ii. APA does not require agency to publish an actual proposed, but today virtually every notice of proposed rulemaking contains the text of the actual rule 1. Preamble-What the agencies trying to do and why, and explanation of the rule b. Comment i. Agency has to give interested persons adequate time and an opportunity to participate in rulemaking by commenting c. Final Rule i. Agency has to incorporate in the rules adopted a concise statement of their basis and purpose. |
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The Logical Outgrowth Test
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i. Purpose of notice and comment rulemaking is inform the agency to ensure that the rules it adopts are fair and accurate as possible and to involve the public so that it has a sense of participation in the rules that may affect it.
ii. As long as the final rule is the logical outgrowth of the proposed rule, further notice and comment are not be necessary |
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How to argue logical outgrowth tests
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1. Does the final rule involve persons and products not affected by the proposed rule and hence such people weren’t put on notice
2. Whether the party, ex ante, should have anticipated that such a requirement might be imposed 3. Where an agency responds to the comment elicited this generally is evidence that the response could have been anticipated. 4. When agency proposes to do something, there is an understood premise that it may choose not to it. |
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Rules Exempted From Notice and Comment Requirements
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a. Interpretative Rules, General Statements of Policy, and rules of agency organization, procedure, and practice.
b. Where the agency find for GOOD CAUSE that the notice and public comment are impractible, unnecessary, or contrary to the public interest. |
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Substantial Impact Test
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i. Does the rule have a substantial practical impact on the regulated community
ii. Vermont Yankee-Courts did not have authority to require additional procedures beyond those present in the APA. 1. But if substantial practical impact, not a an interpretative rule |
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The Legally Binding or Force of Law Test
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i. Adopted by most courts as a replacement for substantial impact.
ii. If rule is legally binding on persons outside the agency by creating rights or obligations, or effecting a change in existing law, it cannot be an interpretative rule. iii. Trouble 1. Merely restates the conclusion that only legislative rules can be legally binding 2. Agency can always just claim it isn’t legally binding. iv. While contemporaneous statement by agency that rule isn’t legally binding may have some weight, it has generally been found to not be determinative |
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Adequate Basis
(Force of Law Test) |
i. Whether in the absence of the rule there would not have been an adequate basis for enforcement action or other agency action to confer benefits or ensure that obligations are met.
1. Look to whether there is a grant of agency discretition |
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Legal standard or policy Facter
(Force of Law Test) |
1. Indications
a. Does agency use interpretive tools? b. If agency describes rule in terms of how it will best serve the public, focus is on policy c. If agency relies on factual information to support its conclusion as to why the interpretation itself best serves the law’s purpose d. Level of specificity of the rule compared with the standard being implemented i. i.e. standard calls for reasonable but interpretative rule makes specific determination of what reasonable is e. Has clear line been drawn from an ambiguous term? 2. Agency can’t grant itself the power to later avoid NCR by using a catch all provision a. Incentive for agencies to be clear in NCR |
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Consistent Factor
(Force of Law) |
iii. If the agency is interpreting a legislative rule, whether the claimed interpretative rule is consistent with the legislative rule it is interpreting.
1. Only through notice and comment rulemaking would it be able amend or change the legislative rule with which it is inconsistent. iv. Whether interpretative rule is inconsistent with prior interpretative rule 1. DC Circuit-Once persons have been informed of agency interpretation and come to rely on it overtime, then only NCR can change it. 2. Rare and often criticized |
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Nondispositive Factors
Force of Law Test) |
v. Whether the agency contemporaneously indicated it was issuing an interpretative rule.
1. Not determinative vi. Whether person signing the agency document had authority to bind the agency or make law |
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General Statements of Policy
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a. Rules that do not have binding legal power and thus do not require NCR
b. Announces how an agency will prospectively exercise any discretionary power i. Indicate to public or regulated community when the agency will take investigative or enforcement action ii. How the agency intends to act under certain circumstances in an agency adjucidation. iii. To provide guidance to its employee’s |
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How to argue General Statements
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i. Does policy statement make clear that it only states a general rule?
ii. Does it reserve prosecutory discretition? iii. Does it merely announce how agency will proceed in future adjudications, or is it merely guidance for agency employees? |
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Tests for GSP
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d. Test: Does the rule create a binding legal norm?
i. Akin to binding legal effect tests ii. Many factors used there are applied e. Test: Does it decide future cases rather than merely guide? If it has the effect of deciding future cases, its essentially a legislative rule. f. Statements of Policy Regarding when initiate investigation and enforcement actions subject to same scrutiny i. I.E. not take enforcement action unless a certain amount of X chemical is found, in effect makes contamination below level lawful g. Courts have also struck down statements of policy that have been an attempt to coerce regulated entities into actions Agency could not mandate by legislative rule i. Exercising its prosecutorial discretion less vigousously if regulated entities adopt a certain policy. Especially where the costs of being investigated, inspected, or enforced against exercise substantial coercive power. |
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Rules of Agency Ogranizatoin, Procedure, or Practice
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a. Rules covering agency action that do not themselvesalter the rights or interests of outside parties, though they may alter the manner in which parties present themselves or viewpoints to the agency.
b. Procedural rules are legally binding c. Theory behind exempting them from NCR is that they do not govern primary conduct of the regulated d. However a rule that specifies the substantive criteria an applicant must meet in order to obtain a benefit or permit would not be a procedural rule. |
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Substantial Impact Test for Rule of Agency Procedure
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i. Here it asks whether not whether the procedural rules can have a substantial impact on persons, but rather whether the alleged procedural rule has substantial impact on a person’s behavior outside the proceeding itself.
ii. If regulated entity required to do something new at great expense, may fit the test However while a rule may impose costs and inconvenience on regulated, if it doesn’t have a substantial impact on any legitimate interest of regulated, it should be upheld 1. Look if regulated required to do anything new 2. Mere fact that regulated had increased chance of citation no legitimate interest |
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Encoding Substantive Value Judgment Test (DC Circuit)
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i. DC Circuit moves away from substantial impract test
ii. Asks whether the agency rule encodes a value judgment or puts a stamp of approval on a given type of behavior. |
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When Agency Finds for Good Cause that NCR is Impracticable, Unnecessary, or Contrary to the Public Interest
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a. Two Requirements
i. Substantive-Agency must find there is good cause not to engage in NCR ii. Procerdural-APA requires that agency put this finding and the reason for it when it is adopted. b. Narrowly Construed because agency incentives for avoiding NCR may color its view c. True Emergency i. However mere fact that agency cannot meet a statutory deadline is not sufficient reason to avoid NCR |
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Interim Final Rules
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i. Usually when faced with a deadline, agency claims good cause and adopts rule but promises to provide for comment and then make changes if necessary
ii. Courts generally did not accept after the fact public participation to excuse lack of NCR before adoption. iii. However in close cases agencies attempt to provide for some public participation may influence a court to accept good cause claim |
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Risks to public health and safety
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not alone sufficient to make NCR contrary to public interest
i. Normal delay to rulemaking which protects public health/safety uniformely not good cause. ii. However a rule which addresses a particular public health or safety crisis makes courts more likely to accept a good cause claim. |
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Direct Final Rules
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i. Agency senses lack of public interest
ii. Claims unnecessary good cause, rule will go into effect within 30 days if there is no adverse public comment |
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Skidmore
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A. Skidmore-Rulings, interpretations, and opinions of an Acts administrator, while not controlling, do constitute a body of experience and informed judgment which Courts may properly resort to for guidance.
B. Weight Given Depends on 1. Thoroughness evident in its consideration 2. Validity of its reasoning 3. Consistency with earlier and later pronouncements 4. Other factors etc. |
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Chevron Test
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A. The First step is to determine whether the statutory language being interpreted is ambiguous, or whether the meaning of the statute is clear using traditional tools of statutory interpretation.
1. If its clear that’s the end of the matter and the court announces the clear meaning of the statute 2. If its ambiguous the court goes onto to the second step B. The second step is to determine whether the agency’s interpretation is reasonable or permissible 1. If the agency’s interpretation is reasonable or permissible, that the court upholds the agency’s interpretation even if the court does not believe it is the best interpretation. |
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Chevron Case
1. Under clean air act, owners of major stationary sources of pollution are required to meet very stringent requirement when they modify a major stationary sourceso it increases pollution a. Act does not define stationary source 2. EPA adopts a rule that interprets the term “stationary source” to mean smokestakes in a contiguous facility a. Bubble Policy-Company can avoid stringent requirements by offsetting any increase in pollution from one smokestake by decreasing emissions from another. |
a. Step One-Court undertook extensive statutory analysis, but could not determine whether bubble policy was allowed or not
b. Step Two-Purpose was to allow flexibility. Other amendments to act provide for flexibility to accommodate certain types of economic |
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Chevron Doctrine Theory
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A. If a statute directly addresses an issue, then congress has made law and the Court enforces it with regard to agency’s preferences.
B. If the statute is silent on the issue, Congress is deemed to have delegated the power to make on law on that issue to the administering agency. 1. Agency has expertise and experience C. Strong judicial deference to agency interpretation is certainly a hallmark of the second step, but the determination of whether the statute directly addresses the issue or is ambiguous. D. Chevron is not constitutionally compelled, |
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Determining Ambiguity
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A. Chevron says Courts should use traditional tools of statutory contruction. Thus courts can look beyond the text of the statute itself.
1. Canons of Statutory Construction (fill in later) 2. Legislative History B. How clear is clear? 1. Scalia C. But in FDA v. Brown and William Tobacco, SCOTUS says whether congress had addressed the issue must be guided to a degree by common sense as to the manner in which congress is likely to delegate a policy decision of such economic and political magnitude to an administrative agency. D. Could be argued when the legal issue is of profound economic, social, or political importance that absent an express statement congress did not intend to delegate resolution to the agency and Chevron deference should not apply. |
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interpretation is first made by an agency in the course of litigation to which it is a party,
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SCOTUS has consistently held that no deference should be paid to litigating agency. Its more likely to be post hoc rationalization made be lawyers involved in litigation rather than policy makers in the course of trying to determine the best public policy
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agency is interpreting a statute that is not responsible for administering it or is one of several agencies responsible for the statute
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B. Likewise not appropriate where agency is interpreting a statute that is not responsible for administering it or is one of several agencies responsible for the statute
1. Possibility of multiple meaning of the statute if court showed deference 2. Where more than one agency involved, less likely to be specialized knowledge or expierience |
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Only an agency that actually administers a statute is entitled to Chevron deference
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1. Requires that the agency has administrative responsibilities under the act, usually abjudication or rule making.
2. Agency only gets Chevron deference for part of act it administers |
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Jurisdiction Questions
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1. Three members of the Court argued against the use of chevron
2. Scalia argues that chevron should apply even in jurisdictional questions 3. Lower Courts (DC Circuit) have overwhelmingly found that Chevron analysis is appropriate in questions of agency jurisdiction. |
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Gonzales v. Oregon
1. CSA requires certain drugs to be used for legitimate medical purposes. Oregon enacts Death with dignity act. AG issues interpretative rule that its not a legitimate medical purpose to issue prescriptions pursuant to the acts |
2. Analysis
a. Step One-Court concedes that term is generality, susceptible to more than one definition, and thus ambiguous in the relevant sense BUT i. Chevron deference is not automatically accorded simply because statutory term is ambiguous and an agency is involved ii. In order for an interpretation to qualify as valid, congress must have intended to delegate authority to make the interpretation iii. Congress had not in the CSA delegated to the Attorney general the authority to make a rule declaring illegitimate a medical standard of care authorized under state law. iv. Thus no Chevron deference was appropriate |
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1. National Cable- 9th circuit had declared broadband cable modem providers exempt from state regulation because they were “telecommunication providers.” Then FCC adopts a rule regulatory definition inconsistent with how 9th circuit had applied the term. Rather than apply Chevron deference, Court of appeals held the rule unlawful because its definition had already been decided.
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a. SCOTUS reverses on the grounds that only when a court decides that the meaning of the statute is clear would this preclude Chevron deference.
b. Court of appeals had only decided what best definition of the term was, not that statute commanded that interpretationCourt had only concluded term was ambiguous and absent agency interpretation forced to make its own best guess c. This did not preclude agency from later reaching a different interpretation of an ambiguous term entitled to Chevron deference d. Majority-Akin to when Federal Court applies state law. Court makes best interpretation, but that doesn’t preclude state court making different interpretation e. Stevens-If SCOTUS has interpreted statute ambiguity would have been removed and agency couldn’t have adopted differing interpretation f. Scalia-Anomolous to allow agency to overturn judicial interpretation of the law |
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Christenson
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interpretations such as opinion letters, policy statements, and agency manuals, all of which lack the force of law, do not warrant Chevron style deference.
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MeadUnder competing classification, day planners are either subject to 4% duty or are exempt. Customs service, agency responsible for administering customs laws, sends importer a ruling letter that the day planners were subject to the tariff. Importer appeals. Fed Circuit concludres that the Chevron did not apply and Custom’s interpretation was entitled to no deference.
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A. Adminitrative implementation of a particular statutory provision qualifies for Chevron deference where it appears Congress has delegated authority to the agency generally to make rules carrying the force of law, and the interpretation claiming deference was promulgated pursuant to that authority
C. Analysis 1. Under test above, SCOTUS found Congress had not intended for Custom’s ruling letters to have force of law. 2. Did use NCR framework or formal adjudication requirements 3. Court looked at all factors surrounding ruling letters in order to determine whether congress had intended them to have force of law a. Didn’t bind third parties b. Issued by 46 Different Customs Officers, and 10000+ issued a year D. However just because they were not entitled to Chevron deference does not mean they get no deference. 1. Contextual assessment-degree of agency care, consistency, relative expertise, and the persuasiveness of agency’s position. 2. Can raise skidmore claim where the regulatory agency’s expertise and experience are of benefit to the subtle issues of the case. E. Skidmore deference still leaves to Court the determination of the best interpretation of an ambiguous term. However in making such a determination, Court should consider agency interepration because of its experience and expertise. |
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So where are we?
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A. Chevron almost definitely applies to interpretations rendered in the course of legislative rulemaking
B. Christenson says opinion letters, policy statements, and agency manuals don’t get Chevron deference. While this is consistent with Mead, SCOTUS used a different test in that case C. Mead has contextual assessment to determine whether Congress delegated authority to agency and agency excercised that authority |
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Bowles v. Seminole Rock
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Faced with a need to interpret an administrative regulation a court must necessarily look to the administrative construction of the regulation if the meaning of the words used is in doubt.
1. Congressional Intent or Constitutional Principles may be relevant BUT 2. The ultimate criterion is the administrative interpretation, which becomes controlling unless plainly erroneous or inconsistent with the regulation. 3. Three steps a. Language of Regulation itself. If its clear that’s the end of the matter, BUT IF NOT b. Court looks to see if Constitution or a statute makes a particular interpretation appropriate c. If there is an administrative interpretation not ruled out by Constitution or statute, it is controlling unless plainly erroneous or inconsistent with the regulation. |
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Christenson, the agency having lost its case for Chevron deference to its interpretation of the statute, asked for Seminole deference for its interpretation of its own regulations
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1. SCOTUS says that Seminole Rock deference is appropriate only where regulation was ambiguous, and in that case it was not.
2. Suggests that had the regulation been ambiguous, Seminole Rock Deference would have been appropriate even though agency interpretation of the reg did not have the force of law. |
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Mead and Seminole
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C. Under Mead and agency only receives strong Chevron deference when it makes law, but under Seminole Rock an agency receives strong deference to its interpretation of its own regulations
1. Underlying theory is that who better knows what an agency meant in its regulations than the agency that promulgated them. 2. Further the meaning and effect of rules under a statute are more likely to be complex and interrelated with regulatory practices than the ordinary statute, suggesting value of agency experience and expertise may be even greater than when it interprets a statute |
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Arguments against seminole rock
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1. Leads to anomalous results
2. Creates an incentive for agency to adopt ambiguous regulations. 3. Outdated, in 1945 agencies did not use preamble in their rules, so besides regulatory language there would be no guide other than administrative practice. There not the same need today to rely on agency interpretations to gain the benefit of their expertise. Some argue that preamble could be treated like legislative history to make clear otherwise ambiguous language and avoid Seminole Rock deference |
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Limits on Seminole Rock
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1. Gonzales-Statute said prescriptions could be issued only for legitimate medical purposes, and ambiguous term. AG issued a rule that merely repeated statutory language. Thereafter issued interpretative rule saying not legitimate medical practice to issue prescriptions for assisted suicide. Court said agency interpretation of the statute was not entitled to Chevron deference, but also held that the rule interpreting the regulation was not entitled to Seminole Rock Deference either.
a. SCOTUS concludes that the existence of a parroting regulation does change the fact that question was not meaning of regulation but meaning of statute b. Agency doesn’t get special authority to interpret its own words when instead of using expertise to formulate regulation it simply paraphrases statutory language. |
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When does a court use SER
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agency action was formal rulemaking or formal adjudication
A. Court does not substitute its judgment for the agency’s but instead asks if a reasonable person person viewing all the relevant evidence in the record could find that a preponderance of the evidence supports the agencies decision. |
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Meaning of Substantial Evidence Review Universal Camera Corp v. National Labor Relations Board
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More than a mere scintilla
2. Such relevant evidence as a reasonable mind might as adequate to support a conclusion 3. Sufficient to withstand a motion for directed verdict 4. Agencies findings are entitled to respect, but they must nonetheless be set aside when the record before a cout clearly precludges the decision from being justified by a fair estimate of worth of testimony of witnesses or its informed judgment on matter within its special competence |
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ALJ’s Findings of facts
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A. ALJ’s findings themselves are part of the record to be considered by the Court, and if it is inconsistent with the Agency’s final decision, undercuts agency finding and therefore may affect a Court’s determination as to whether agency’s finding supported by substantial evidence.
B. If ALJ’s finding based in whole or in part on demeanor evidence and Agency makes a finding inconsistent with ALJ’s, agency’s determination is severally weakened. |
