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85 Cards in this Set

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Boyce Motor Lines, Inc. v. US.

Facts: Petitioner violated a statute by driving through the Holland Tunnel carrying an inflammable gas.

Issue: whether the words in the statute, "so far as practicable and where feasible" are so vague and indefinite.
Rule: A criminal statute must be sufficiently definite to give notice of the required conduct to one who would avoid its penalties, and to guide the judge in its application and the lawyer in defending one charged with its violation.

A statute which requires willful disobedience or violation is not one that will be easily interpreted as too vague.
Panama Refining Co. v. Ryan.

Issue/s: Whether the delegation of power to the President under Section:9(c) of the National Industrial Recovery Act an unconstitutional delegation of legislative power.

Facts: In Juy 1933, the President, by Executive Order, prohibited interstate and foreign trade in petroleum goods produced in excess of state quotas.
Reasoning/Application: The attempted delegation was plainly void because the power sought to be delegated was legislative power, but nowhere in the statute did Congress declare or indicate any policy or standard(criteria) to guide or limit the President when acting under the delegation. The Court noted that there were limits of delegation for which there was no constitutional authority to transcend. Here, § 9(c) was found to go beyond those limits. As to the transportation of oil production in excess of state permission, Congress had declared no policy, had established no standard, and had laid down no rule. There was no requirement or definition of circumstances and conditions in which the transportation of petroleum was to be allowed or prohibited. Furthermore, the Court found another objection to the validity of the prohibition laid down by executive orders under § 9(c) in that the executive orders contained no finding or statement of the grounds of the President's action in enacting the prohibition. Accordingly, the executive orders and the regulations issued thereunder were without constitutional authority.
A.L.A. Schechter Poultry Corp. v. US

I: Whether the Live Poultry Code was adopted pursuant to an unconstitutional delegation by Congress of legislative power – figure that out by looking to statute to determine whether Congress in authorizing codes of fair competition established the standard of legal obligation, thus performing its essential legislative function or by the failure to enact such standards, has attempted to transfer that function to others.
R:
• Live Poultry Code, pursuant to § 3. Code fixes no. of hours for work days, min wage, general labor provisions also prohibit employment of person under 16, declares employers have the right of collective bargaining and freedom of choice regarding labor organizations. Article 7 prohibits various practices which are said to constitute unfair methods of competition

• Is President’s discretion limited? (1) President as a condition of approval, is required to find that the trade or industrial association which propose a code impose no inequitable restrictions on admissions to membership and are truly representative. (2) (no discretion) code must not be designed to prmote monopolies, oppress small enterprises


Conclusions: Breadth of discretion IN A HOST OF TRADES AND INDUSTRIES is left to the necessary implications of the limited requirement as to his findings. He may impose his own conditions, adding or taking from what is proposed as n his discretion he thinks necessary to effectuate the policy. Can freely prescribe a code on his own motion if one is not approved .
Such a sweeping delegation of legislative power finds no support in the decisions upon which the Gov’t especially relies. Recovery Act does not prescribe rules of conduct but merely authorizes the making of codes to prescribe them. Code making auhtoirity is an unconstitutional delegation of legislative power.
Mistretta v. US


Facts: D is indicted on three counts centering in a cocaine sale; he moved to have Guidelines ruled unconstitutional on the grounds that the Sentencing Commission was constituted in violation of the established doctrine of separation of powers and Congress delegated excessive authority to the commission to structure the Guidelines.
R: In determining what Congress may do in seeking assistance from another branch, the extent and character of that assistance must be fixed according to common sense and inherent necessities of the government co-ordination. Thus so long as Congress shall lay down by legislative act an intelligible principle to which the person or body authorized to exercised the delegated authority, is directed to conform, such legislative action isn’t a forbidden delegation of legislative power.

Conclusion; In light of approval of broad delegations, there is no doubt that Congress’ delegation of authority to the Sentencing Commission is sufficiently specific and detailed to meet constitutional requirements. Although Commission has some discretion, cases suggest that delegations may not carry with them the need to exercise judgment on matters of policy and formulation of subsidiary administrative policy within the prescribed statutory framework.
American Trucking Ass’ns v. United States EPA (1999)

Issue: Section 109(b)(1) of the CAA (Clean Air Act) instructed the EPA to set "ambient air quality standards the attainment and maintenance of which in the judgment of the Administrator, based on [the] criteria [documents of Section 108] and allowing an adequate margin of safety, are requisite to protect the public health."
We interpret as requiring the EPA to set air quality standards at the level that is requisite – that is, not lower or higher than is necessary – to protect the public health with an adequate margin of safety, fits comfortably within the scope of discretion permitted by our precedent.
Kent v. Dulles (1958)

Facts: Director of the Passport Office denied petitioner’s application for passports to travel to England to attend a meeting of an organization known as the World Council of Peace in Finland b/c he is a (1) Communist (2) had a consistent and prolonged adherence to the Communist party line. Advised of his right to an informal hearing under Regs but whether or not a hearing was requested, it would be N before a passport would be issued, to submit an affidavit as to whether he was then or ever had been a Communist.


1926 Act: Secretary of State may grant and issue passports under such rules as the President shall designate and prescribe for and on behalf of the US and no other personal shall grant, issue, verify such passports.
• Two common issues was whether or not applicant was a loyal USC and whether he was participating in illegal conduct
A: Travel is a constutitonally protected right of USC and will not readily infer that Congress gave Sect of State unbridled discretion to grant or withhold it.. The crucial function over passport issuance is control over exist and the right of exit is a personal right included with the word liberty as used in the 5th. If liberty is to be regulated, it must be pursuant to lawmaking functions of Congress.

Conclusion: § 1185 and § 211 do not delegate to the Sect the kind of authority exercised here. Where activities or enjoyment, natural and often necessary to the well-bring of an American citizen, such as travel are involved, will construe narrowly all delegated powers that curtail or dilute them. Hesitate to find in this broad generalized power an authority to trench so heavily on the rights of the citizen.
Industrial Union Dep't Afl-Cio v. American Petroleum Inst.

According to Section 3(8), standards created by the secretary must be “reasonably necessary or appropriate to provide safe or healthful employment and places of employment.” Section 6(b)(5) of the statute sets the principle for creating the safety regulations, directing the Secretary to “set the standard which most adequately assures, to the extent feasible, on the basis of the best available evidence, that no employee will suffer material impairment of health or functional capacity…”.

At issue in the case, is the Secretary's interpretation of "extent feasible" to mean that if a material is unsafe he must “set an exposure limit at the lowest technologically feasible level that will not impair the viability of the industries regulated.”
Holding: The Court held the Secretary applied the act inappropriately. To comply with the statute, the secretary must determine 1) that a health risk of a substance exists at a particular threshold and 2) Decide whether to issue the most protective standard, or issue a standard that weighs the costs and benefits.

Analysis: Here, the secretary failed to first determine that a health risk of substance existed for the chemical benzene when workers were exposed at 1 part per million. Data only suggested the chemical was unsafe at 10 parts per million. Thus, the secretary had failed the first step of interpreting the statute, that is, finding that the substance posed a risk at that level.
In its reasoning, the Court noted it would be unreasonable to assume that congress intended to give the Secretary “unprecedented power over American industry.”
INS v. Chadha

Brief Fact Summary. Pursuant to the Immigration and Nationality Act (the Act), which authorized either House of Congress to invalidate and suspend deportation rulings of the United States Attorney General (Attorney General), the House of Representatives (the House) suspended an immigration judge’s deportation ruling regarding Chadha.
Synopsis of Rule of Law. Where the House takes actions that have the purpose and effect of altering legal rights, duties, or relations of persons outside of the legislative branch, bicameralism and presentment are required.

Holding: Congress made a deliberate choice to delegate to the Executive Branch, the authority to allow deportable aliens to remain in this country in certain specified circumstances. Congress may delegate authority, but once it does so it must abide by its decision until that delegation is legislatively altered or revoked.
Morrison v. Olson

Facts. Title VI of the Act allows for the appointment of an “Independent Counsel” by a special court, upon the recommendation of the Attorney General. IC was appointed by a panel of three federal judges. The purpose is to investigate and if necessary, prosecute government officials for certain violations of federal criminal laws. The Act provides that the independent counsel can be removed from office only by impeachment or by personal action of the Attorney General for good cause. P challenged the contempt order, arguing, that IC's were principal officers; they therefore could be appointed only by the President with the advice and consent of the Senate.

Issue. Did the Act violate the constitutional principal of the appointment clause?
H: IC's were inferior officers based on the nature and scope of their duties and the fact that they were removable by a higher executive.

Analsyis: Holding based on four factors:
1) IC's could be removed (through only for specified reasons) by a higher executive branch official: the AG;
2) IC's had only certain, limited duties: namely, those of investigation and prosecution;
3) Their offices were limited in jurisdiction, reaching only certain serious federal crimes by certain high-level officials;
4) Their offices were limited in tenure; once a particular investigation were finished, the IC's office ended.
Edmond v. US (The Appointments Clause)

Question
Has Congress authorized the Secretary of Transportation to appoint civilian members of the Coast Guard Court of Criminal Appeals? If so, is this authorization constitutional under the Appointments Clause of Article II?
H: the Court held that judges of the Coast Guard Court of Criminal Appeals are inferior officers.

A: Court moved away from Morrison factors and looked exclusively at whether these judges' work is directed and supervised by principal officers. The judges, here, are subject to administrative supervision by the Judge Advocate General, who also has the power to remove them without cause. Moreover, the judges' decisions are subject to review by the Court of Appeals for the Armed Forces.
Buckley v. Valeo


Facts. The Act vested very broad powers in the Commission for administering the Act, including not only recordkeeping, disclosure, investigative functions, rulemaking and adjudicative powers, but also enforcement powers to institute a civil action for violations of the Act. With respect to four of the six voting members, neither the President, the head of any department, nor the Judiciary had any voice in their selection. The Appellants challenged the selection process, arguing that the Appointment Clause provides the exclusive method by which those charged with executing the laws of the United States may be chosen. Appellants further claimed that, if Congress retained the power to appoint, the members of the Commission could not discharge those functions which can only be performed by Officers of the United States under the separation of powers doctrine. The Court of Appeals held that the Necessary and Proper Clause of the Constitution gave Congress the authority to establish the Commission and appoint its members.

Issue. Were the powers of the Act vesting in the Commission the primary responsibility for conducting civil litigation in the courts constitutional?
H: The court ruled that the Federal Election Commission couldn’t engage in executive functions such as rulemaking and prosecutorial enforcement b/c 4 of its 6 members were appointed by members of congress. Only officers of the US may exercise authority under the laws of the US and that such officials must be appointed in accordance w/ the Appointments Clause of the constitution. However, congress and its officials may participate in the appointment of officials who act merely in aid of legislation, such as officers who gather info or do research to help congress decide whether and how to legislate.
Freytag v. Commissioner of Internal Revenue

F: Appointment Power granted to Federal Tax Judge: Distinction between court and agency—Is the federal tax court an agency or court of law?
1. APPOINTMENTS CLAUSE: The president has power to appoint officers of the United States under the Constitution, subject to the advice and consent of the senate. However, congress may grant the power to appoint inferior officers by statute to the President, heads of departments, or courts of law.
a. Congress can create Article I courts. If unclear whether it is an Article I court:
i. Compare the Article I court to the duties of Article III courts.
1. Decide federal law?
2. Conduct trials, hear evidence, typical courtroom matters?
ii. If yes, it is a court of law, and the appointment does not need to conform to the presidential appointment subject to advice and consent of the senate
Landry v. FDIC

F: Congress had authorized the Federal Deposit Insurance Corp with various powers. It had the power to remove a bank officer and bar him from further participation in the operations of a federally insured depository institution. Accordingly, FDIC notified the appellant that it was seeking a removal order against him. The matter was assigned to the ALJ. The ALJ after a hearing recommended removal of appellant from his position. FDIC's Board of director issued a removal order. Appellant filed an appeal with the appellate court that the appointment of administrative judges violated the constitution.

I: (1) Whether ALJ was correct in holding that FDIC could issue the proposed prohibition? (2) Whether FDIC's method for appointing ALJ's violated the Appointments clause of the Const?
H: (1) Yes, ALJ was correct in holding that FDIC could issue the proposed prohibition order. (2) No, FDIC's method for appoint ALJ's did not violate the Appointments Clause.

H: Statute permitted the FDIC to appoint its ALJ’s as
employees, as they could not issue binding decisions (i.e. Tax Judges could), and their decisions were reviewed de novo by the FDIC.
Removal: Myers v. United States
SC held that the power to remove subordinates (here, a postmaster) is inherently part of the executive power (vested by Article II in president)
Removal: Humphrey’s Executor v. United States (1935)
said Congress can create independent executive agencies, saying certain officers (those carrying out both legislative and adjudcative functions) were not removable by the president at will (can only be removed for cause)
Removal: Bowsher v. Synar

Statute: Gramm-Rudman-Hollings Act of 1985 calls for across the board spending cuts in certain federal programs if specified deficit reduction targersts aren’t met. Comprtroller General makes final determination whether the spending cuts were triggered. He is a presidential appointee w/Senate confirmation, who is removable by impeachment or joint resolution of Congress for five causes: i) permanent disability ii) inefficiency iii) neglect of duty iv) malfeasance v) felony or conduct involving moral turpitude
Conclusion: The task of estimating deficit figures and applying them to the statute at hand was an executive task and Congress can’t reserve for itself the power of removal of an officer charged w/the execution of the laws except by impeachment. Since Congress can remove him by joint resolution, even if for only specified causes, his authority under statute was invalid.
Removal: Morrison v. Olson (1988)

Facts. Title VI of the Act allows for the appointment of an “Independent Counsel” by a special court, upon the recommendation of the Attorney General. The purpose is to investigate and if necessary, prosecute government officials for certain violations of federal criminal laws. The Act provides that the independent counsel can be removed from office only by impeachment or by personal action of the Attorney General for good cause.

I: Whether the provision of Act restricting the AG’s power to remove independent counsel to only those instances for good cause, interfered w/President’s exercise of his constitutionally appointed functions.
New Test: Will first determine whether the President’s ability to perform his constitutional duty has been impeded on, and in that light, the functions of officials must be analyzed. Imposing a good cause standard for removal does not impose on executive authority. While the functions are executive (law enforcement), the independent counsel is an inferior office under the Appointments Clause, with limited jurisdiction and tenure and lacks policymaking or significant administrative authority. The President’s need to control exercise of the comminssion’s discretion is not so central to the function of the Exec as to require as a matter of constitutional law that the counsel be terminable at will by the President.


Part two of test: Does the restriction impermissibly burden the President’s power to control/supervise the independent counsel, as an executive official, in the execution of his duties.

Answer: No, the President has not been completely stripped of his power to remove and is not in a situation where he is afforded no means to ensure faithful execution of the laws. Since the independent counsel may be terminated for good cause (leg history: like misconduct), the Exec through the AG retains ample authority to assure that the counsel is competently performing.
Free Enterprise Fund v. PCAOB (DC 2008)

F: Title 1 of the Sarbanese Oxley Act of 2002 creates the Public Compnay Accounting Oversight Board (PCAOB) which is to regulate and oversee the audit practices of accounting firms, including the authority to register, inspect, investigate, sanction them. Chosen by the Securities and Exchange Commission (SEC) and may be removed by the Commision for good cause shown. SEC is an independent agency whose members are removable by President only for cause.

I: Are PCAOB members principal officers who can only be appointed by President w/Senate conformation

I: The statute’s double for cause removal arrangement (President can only remove SEC commissioners for cause and SEC commissioners can only remove PCAOB members for cause- improperly insulates PCAOB members from presidential control.
H: • PCAOB members were inferior and not principal. SEC commissioners were Heads of Departments. SEC has authority to review all rules and sanctions generated by the Board and Board’s work is necessarily directed/supervised at some level by the Commission. Subject to greater oversight than the Independent Counsel.

H: The Supreme Court held that the "for-cause" limitation on the removal of Board members is unconstitutional because it contravenes the Constitution's separation of powers. With Chief Justice John G. Roberts, Jr., writing for the majority, the Court reasoned because the Act protects Board members from removal except for good cause, but withdraws from the President any decision on whether good cause exists, the Act deprives the President the power to hold Board members accountable. Such an arrangement contradicts Article II's vesting of the executive power in the president.

Conclusion: As stands, no one has full control over the Board. Pres. Is stripped of Art II powers now that he is unable to attribute the Board’s failings to those he can oversee and thus he is no longer the judge of the Board’s conduct. Interferes with ability to ensure laws faithfully executed. This matters bc the people don’t vote for the Board and look to the President to guide them. The exec Branch touches almost every aspect of their daily lifes and there is a heightened concern that the Exec control it.
Court approved federal laws that delegated adjudicatory power to non-Article III entities in 3 main situations
1) Military Courts
2) Territorial Courts
3) Tribunals for adjudicating "public rights."
Commodity Futures Trading COmm. v. Schor

Facts. The Commodity Futures Trading Commission (CFTC) is an independent agency that enforces the Commodity Exchange Act (CEA). The CFTC was authorized to adjudicate claims for damages, or reparations, brought by customers of brokers for brokers’ violations of the CEA or CFTC regulations. The CFTC also issued a regulation permitting itself to adjudicate counterclaims brought by brokers in reparations proceedings. Schor sued his broker, ContiCommodity Services of America (Conti), claiming it was responsible for the negative balance in his trading account with Conti. Conti counterclaimed, and the CFTC ruled in its favor. Schor then questioned the CFTC’s authority to adjudicate the counterclaim, and the agency rejected the challenge. The Court of Appeals reversed.

Issue. Did CFTC’s assumption of jurisdiction over common law counterclaims violate the Constitution?
Test: Article 3 serves both 1) to protect the role of the independent judiciary with the constitutional scheme of tripartite gov't (Structural Interests) and 2) to safeguard litigants' right to have claims decided before judges who are free from potential domination by other branches of gov't (Personal Interests).

Structural Interests:
1) extent to which essential attributes of judicial power are reserved to Article III courts,
2) extent to which the non-Article III forum exercises teh range of jurisdiction and powers normally vested only in Art. III courts,
3) the origins and importance of the right to be adjudicated, and
4) the concerns that drove Congress to depart from the requirements of Art. III.

Analysis: The Court emphasized that the class of counterclaims that the CFTC was authorized to hear accounted for a very small slice of judicial business; the CFTC's decisions on those claims were subject to judicial review; the decision whether to allow the CFTC to adjudicate a particular claim was left to the parties; and it was extremely efficient for the CFTC to be able to hear those compulsory counterclaims., given the close connection between them and claims that the CFTC had unquestioned authority to adjudicate.
Withrow v. Larkin.

Facts: Board sent notice to Dr that they would hold an investigating hearing to determine whether he engaged in certain proscribed acts, closed to public but he and attorney could attend, no cross exams and based on evidence would warn if it finds such practice to institute criminal action or action to revoke license if PC exists. Then he was notified that a hearing would be held to determin whether he engaged in certain prohibited acts and upon that evidence, Board would adduce whether his license sould be temporarily suspended. → Seeks injunction against enforecement of statutes.

District Court: Board moved from purely investigative proceedings to a hearing aimed at decideing whether suspension of his license was appropriate. Substantial fed. Q had arisen – whether authority given to them to investage, present charges and rule on those and impose punishment to degree of suspending license would violate his DP rights.
Analysis:
CAN INVESTIGATE AND ADJUCIATE Court has never issued a holding stating it would be a violation of DP for a judge to sit in a case after he expressed an opinion as to whether certain types of conduct were prohibited by law. Judges frequently try the same case and there are no more stringent rules for agencies.
POLICY A challenge to these functions would bring down too many procedures designed, and working well for a govt structure of great and growing complexity. We cannot have one singly organizing principal for all administrative mechanisms to follow.
NO EVIDENCE Suggesting that there was bias in the investigation or that there would be a risk of bias in order to trump the presumption that a state administrator is smart and balanced. So even though there is nothing inherently wrong with an agency performing both investigating and adjudicative functions, can still ask a court to make special findings of facts and circustamces present in the case to see if there was a risk of unfairness. No such facts, evidence present here.
Lemoyne-Owen College v. National Relations Board.

Facts: The faculty of LeMoyne-Owen College sought to unionize and negotiate with the management. The College argued that the faculty members were management and therefore not entitled to the protection under NLRA and relied on the precedent case decision of Yeshiva. The Regional Director determined that the faculty were not managerial employees and certified a bargaining unit consisting of all full-time faculty members for which the Director distinguished the case from the precedent case of Yeshiva University. Thereafter, the College requested the NLRA Board to review the Regional Director's decision. The Board denied the review and stated that no substantial issue was raised warranting review. Subsequently, the Regional Director issued certification of the union representative. The College again sought review of the Board quoting precedent analogous cases post Yeshiva. Again, the Board denied the review. From this decision, the College challenged the Board's proceedings of the underlying decision.

Issue: Whether the Board's order to the college to recognize and negotiate with the faculty's representative, was correct?
Holding: No, the Board's order was not correct without an explanation in arriving at the result.

Rule: We need adequate explanation of apparent departures from precedent to serve the purpose of ensuring treatment in like and unlike circumstances. This also facilitates judicical review of agency action in a manner that protects the agency's predominant role in applying the authority delegated to it by COngress.
Office of Personnel Management v. Richmond.

FACTS
Charles Richmond (plaintiff) sought advice from a federal employee of the Navy regarding the statutory limit on earnings that would disqualify him from a disability annuity. As a result of erroneous information that this employee provided, Richmond earned more than permitted by statutory eligibility requirements and the Office of Personnel Management (defendant) denied him six months of benefits. Arguing that the employee’s erroneous and unauthorized advice should give rise to equitable estoppel against the United States Government, Richmond sought payment of benefits contrary to the statutory terms. The court of appeals agreed with Richmond, holding that he was entitled to the payment of the disability benefits.

Claims: Wants the gov’t to reimburse him for the lost disability pay – claim for payment from Public Treasury
The Gov’t can’t ensure its 1000s of employees and performing perfectly, if allow a suit like this one, courts would be flooded with ltigation that would be burdensome to defend for the govt. If the gov’t would be estopped here, valuable informational programs would be lost to the public, which are invaludable to persons with little resources, bc the govt would try and ensure it will not be sued.
US v. Mendoza.

Facts. Mendoza (Respondent) argued that the United States immigration office in the Philippines was closed between October 1945 and August 1946, which excused his delay in filing. In his argument, Respondent relied on a 1975 district court holding that sixty- eight Filipino war veterans were entitled to naturalization despite delay due to the closure of the immigration office in the Philippines. The court of appeals held that the government was estopped to relitigate the issue.

Issue. Does the doctrine of collateral estoppel apply when used against the government?
Synopsis of Rule of Law. Non-mutual offensive collateral estoppel cannot be applied against the government when the party seeking to stop the government from relitigating is a different party than was present in a prior action, or when the subject matter is not the same as was present in the first action.

Discussion. The Supreme Court of the United States uses this case to differentiate between the role of private citizen as a litigant and the role of government as a party to an action. The court notes that if offensive collateral estoppel were allowed under the facts in this matter, the development of important questions of law would be halted due to effectively freezing the first final decision rendered on a particular legal issue. The effect of allowing non-mutual collateral estoppel would be quite wide-ranging and could, as the court suggests, force the government to change its procedural operation.
Londoner v. City of Denver.

acts. The charter of the city of Denver empowered the city to make local improvements and to assess the cost upon the properties specially benefited. The plaintiffs owned corner lots and were assessed a tax for paving done to the street which their land abutted. Under the charter, the city clerk was to notify the owners of real estate to be assessed by publication for ten days in a newspaper of general circulation. In this case, the notice did not fix the time for a hearing, but stated that written complaints filed within thirty days would be heard before the city council before the passage of any ordinance assessing the cost. The plaintiffs filed a timely paper with objections, but instead of affording them an opportunity to be heard upon their allegations, the board of the city council met and adopted a resolution to assess the tax. The plaintiffs sought relief from the tax in the State Court of Colorado, claiming the process of assessing the tax denied them due process of law. The trial court granted relief to the plaintiffs, but the Supreme Court reversed, holding that the tax assessed was in conformity with the Constitution and the laws of the State.

Issue. Upon these facts, was there a denial of due process of law guaranteed by the Constitution, and was the assessment valid?
Rule: Due process is required when the proceeding is functionally an adjudication, as opposed to rulemaking.

Discussion. There are few constitutional restrictions on states’ power to assess, apportion and collect taxes. However, where the legislature authorizes a subordinate body to make a determination of the tax, due process of law guaranteed by the Fourteenth Amendment requires that the taxpayer be afforded a hearing, of which he must have notice. The hearing requirement is not satisfied by the mere right to file objections.
Bi-Metallic Investment v. State Board of Equalization of Colorado.


Facts. The Plaintiff owned real estate in Denver, Colorado and filed suit to enjoin the State Board of Equalization and the Colorado Tax Commission from putting in force, and the assessor of Denver from obeying, and order increasing the valuation of all taxable property in Denver by forty percent. The Plaintiff claimed that it was given no opportunity to be heard in connection with the tax increase, and therefore its property would be taken without due process of law, contrary to the Fourteenth Amendment of the Constitution of the United States. The order was sustained and the suit directed to be dismissed by the Supreme Court of the State of Colorado.

Issue. Do all individuals have a constitutional right to be heard before a matter can be decided where all land owners are equally concerned and stand alike?
Rule: THe concept of due process does not apply to general rule making.

Synopsis of Rule of Law. Individuals do not have standing merely as members of the public at large or the general taxpayer population to challenge government action or imposition of taxes.
Yesler Terrace Community Council v. Cisneros

Facts. HUD determined that Washington’s state court eviction procedures satisfied the elements of due process, allowing the public housing authorities to evict tenants accused of criminal activity without first affording them an informal grievance hearing. In March, 1992 the Seattle Housing Authority served Davidson with an eviction notice stating she would not be afforded a grievance hearing because her eviction was due to alleged criminal activity. Davidson and Yesler brought suit seeking injunctive and declaratory relief, claiming HUD’s determination was invalid because it was made without giving public housing tenants notice and an opportunity to comment. The district court granted summary judgment for HUD.

Issue. Did Yesler have standing to bring this action? Pursuant to Section:10.1, was HUD required to use notice-and-comment rulemaking procedures in making its determination that Washington state-court eviction procedures met HUD’s due process standards?
Holding: Yes. Plaintiffs had an injury-in-fact, the injury was traceable to HUD’s action, and Plaintiffs’ interests in the terms and conditions of their tenancies fell within the zone of interests protected by the statutes they alleged HUD violated. Therefore, Plaintiffs had standing. Yes. When HUD decided that Washington’s state eviction procedures satisfy the basic due process elements, it promulgated a substantive rule.An agency can't avoid the requirement of notice and comment rule making simply by characterizing its decision as an adjudication.

Rule: Adjudications resolve disputes among specific individuals; rulemaking affects the rights of broad classes of unspecified individuals. HUD’s own requirements under Section:10.1 mandate that HUD proceed by notice and comment rulemaking whenever it promulgates a substantive rule. Here, HUD’s determination had no immediate, concrete effect on anyone, but affected the rights of a broad category of individuals not yet identified. Therefore, HUD’s determination was a rule, subject to the notice and comment requirement.
National Petroleum Refiners Association v. Federal Trade Commission.

Facts: Appellees were two trade association's ands 34 gasoline refining companies. Appellees attacked appellant's rule on several grounds but the district court disposed the case on the ground that the commission did not have any authority for issuing the rules. Appellant Federal Trade Commission filed an appeal on the holding of the district court that the commission did not have authority to issue rules.

Issue: Whether the district court was correct in holding that the commission under its governing statute did not have power to promulgate substantive rules of business conduct?
Court rejects claim that rulemaking is procedural, says that is not present in statute.
Allowing substantive rulemaking advances purposes of act.
Congress and Judicial Review always remain as check on administrative power.
- the Court found that the plain language for that section was not limiting, and so just because the Statute said that they could use adjudication, it didn't imply that was the only thing FTC could do.
In fact, §46(g) explicitly said that the FTC "may make rules and regulations for the purpose of carrying out the provisions of sections 41 to 46 and 47 to 58 of this title."
AIR LINE PILOTS ASSOCIATION v. QUESADA.

Facts: Defendant Elwood Quesada, Administrator of Federal Aviation Agency, promulgated a regulation without holding the adjudicatory hearings as required by the Administrative Procedure Act and the Federal Aviation Act of 1958, before an airman's license was amended or modified. The regulation stated that, no individual who reached his 60th birthday would be utilized as a pilot on any aircraft, while engaged in air carrier operations. Agency promulgated rule under §553 (informal rulemaking), was not required to make rule under §556. Plaintiffs, thirty-five individual pilots, Air Line Pilot Association and others brought the suit for a declaratory judgment that the regulation was null and void and for an injunction against its application. District court denied plaintiffs' motion and stated that the regulation was in accordance with Administrative Procedure Act. Pilots claimed §556 hearing was required as this was adjudicatory in nature; 2nd Circuit holds that it is broad, prospective rule, has character of legislative enactment, thus is not adjudication requiring formal hearing. Plaintiffs appealed from this decision.

Issue: Whether the District Court was correct in holding that the Administrator's regulation was in accordance with the Administrative Procedure Act?
Rule: Even though private property rights are effected (e.g., right to fly, pilot's license), Bi-metallic allows private property interests to be effected all the time as long as it is "across the board."


Analysis
This is a rule. It is directed to all commercial airlines and all licensed commercial pilots. Looks to the future. It is a general rule to be applied to invidivaul pilots at a subsequent time. Accordingly followed §4 of APA. Such rule making can alter contractual rights and ollective bargaining agreements and there is no DP violation since regs often limit in in the public interest the use that persons may make of their property w/o affording e/one affected an opportunity to present evidene on the fairness of the reg.
Applies Bi-Mettalic and states that just too many people here are affected to give them an adjudicatory hearing. All private property and privileges are subject to limits that may be imposed on them in the public interest. Limits are reasonable.
Moreover, the FAA 609 only applies to individuals not general pilots. Congress intended Admin to give a hearing to an individual airman. The word order is in there. There is also a reasonable basis for the legislation and it is sufficiently narrow to commercial flights. The Administrator is an expert in this field which is the very reason why he was given the responsibility for the issuance of air safety regs.
Yetman v. Garvey.


Facts: Petitioners were sixty nine pilots, all either approaching or having reached the age of sixty. Petitioners sought exemptions from the Federal Aviation Administration's (FAA) 'Age Sixty Rule'. The rule provided that until it was satisfied that medical standards could demonstrate an absence of risk factors in an individual sufficient to warrant a more liberal exemption policy, prohibited from serving as pilots. FAA denied petitioners' request. Petitioners sought review before Appellate Court for Seventh Circuit.

I: Can an agency inflexibly enforce a properly promulgated rule, even if the policy considerations underlying the rule appear to have become outdated, as long as there appears to be a continuing rational basis for enforcement?
Rule: An agency can inflexibly enforce a properly promulgated rule, even if the policy considerations underlying the rule appear to have become outdated, as long as there appears to be a continuing rational basis for enforcement.

A: The standard for judicial review of administrative rule making is much higher than that when an agency attempts to engage in rule making by adjudication. Once a rule is solidified in rule through notice and comment proceedings, it becomes extremely difficult for a court to judicially determine that the rule is arbitrary and capricious.
In Re Federal Water Service Corp (1945).

Facts: On remand, the Chenery group proposed the same plan the Commission rejected, it was again rejected.
A: The statute does not limit our power and duty to withhold approval solely to cases where someone is able to establish by affirmative evidence that actual misconduct accompanied such a conflict of interests. The connection b/t voting power and purchase of preferred stock is enough for us to make our decision.

While we could promulgate a general rule w/flexible provisions, that does not affect our duty to act by order in deciding whether this plan is fair and equtable meeting the other standards. REVERSE- TO DETERMINE WHETHER A RULE SHOULD BE ADOPTED.
Chenery Corp. v. SEC [“Chenery I”] (1946 Frankfurter):
- Holding: the only way that the agency can find that the company violated the statute is if it is not fair and equitable, or detrimental to the interests of the shareholders. The court disagrees with the agency’s legal analysis that it is not fair and equitable and that it violated principles of equity. The court also states that, with regard to the agency’s policy argument, they cannot offer new explanations beyond their initial statement. The court strikes it down, remands to the agency.
- The court stated that had the agency promulgated a standard to the effect of their conclusions this case would have been different. This indicated that the court felt that Congress intended for the agency to go through rulemaking to promulgate standards.
SEC v. Chenery (SCOTUS 1947)

F: SEC(D) withheld approval of a corporate reorganization plan in which the Chenery Corp ℗ was a participant. A court refused to sustain the Commission’s (D) order, but on remand the agency (D) again declined to permit operation of the proposed plan, although on the second occasion the agency cited different reasons for its order.

I: Must agencies deal with novel issues by promulgating rules of prospective application only, or may they render adjudications which are binding upon the parties to an actual controversy as well?
R: Even when confronted with novel issues, agencies may make adjudications which are binding upon the parties to the controversy, rather than announcing rules of prospective application only.

A: Although the courts apparently prefer that agencies proceed by general rule making rather than by ad hoc case-by-case adjudication, the latter procedure is clearly countenanced by the courts. And in rendering its decisions on an ad hoc basis, agencies are permitted a freer hand than are courts themselves. For instance, inconsistent decisions rendered by an agency may not be attacked on that basis, unless the inconsistency is so glaring as to constitute an abuse of agency discretion. And rules of res judicator have traditionally been relaxed in the agency context, although there is an apparent trend toward recognizing res judicator principles as essential elements of agency decision-making.
Bailey v. Richardson.


Facts. The Regional Board advised the Federal Security Agency, by which Bailey was employed, that it has reason to believe she was disloyal to the United States Government, and instructed the Agency to separate her from service. Bailey appealed to the Loyalty Review Board and requested a hearing, which was held before the panel without testimony from any other witnesses besides Bailey. Bailey complained that her Fifth Amendment due process right was violated because she was denied reinstatement without revelation of the names of those who informed the Government against her, and the methods by which her activities were detected.

Issue. Was the President required to either allow Bailey, a person whose loyalty he reasonably suspected, to continue her employment, or to publicly reveal the methods by which he detected disloyalty and the names of persons who assisted him?
Synopsis of Rule of Law. The due process clause provides: “No person shall be deprived of life, liberty or property without due process of law.” However, government employ is not “property” under the Fifth Amendment, nor is it a contract.

Held. No. The due process of law clause of the Fifth Amendment does not restrict the President’s discretion or the prescriptive power of Congress in respect to executive personnel. No hearing was required prior to termination, as government employment is not a property right encompassed by the Fifth Amendment.
Joint Anti Fascist Refugee Committee v. McGrath (1951)

Facts. Petitioners were organizations that engaged solely in charitable or insurance activities and had been designated “communist” by the Attorney General and included in a list of organizations furnished to the Loyalty Review Board of the United States Civil Service Commission. The Attorney General derived his authority from Executive Order No. 9835 (Order), issued by the President on March 21, 1951. Petitioners alleged that their organizations were involved in charitable and civic duties that were helpful to their communities, and not anti-communist. Petitioners claimed their constitutional rights were violated because they received no notice, disclosure of reasons justifying the label, or opportunity to respond and establish their innocence. The complaints were dismissed for failure to state a claim for which relief could be granted.

Issue. In the face of the facts alleged in the complaint and therefore admitted by the motion to dismiss, did the Attorney General have authority to include the complaining organization in the list of organizations designated by him as Communist?
Held. No. Remanded with instructions to deny the Respondents’ motion to dismiss. The Order contained no express or implied attempt to confer power to act arbitrarily and capriciously, which is what the Attorney General did. The Order was not only to protect against communism, but also to protect employees against untrue accusations. It would be contrary to the purpose of the Order to place on the list an organization that was patently arbitrary and contrary to the undisputed material facts. The majority did not address the constitutional issues.
Cafeteria Workers AFL-CIO v. McElroy (1961).

Facts. Brawner was a short-order cook at a cafeteria on the Naval Gun Factory in the City of Washington. The Superintendent determined that she failed to meet security requirements, and required her to turn in her identification badge. The Cafeteria and Restaurant Workers Union (Petitioner) requested a hearing regarding Brawner’s denial of admittance, but it was denied. Petitioner then filed suit in District Court against the Secretary of Defense, the Superintendent and the Lieutenant in their individual and official capacities (Respondents). Brawner was offered employment in another cafeteria in suburban Washington but declined to accept, claiming the location was inconvenient.

Issue. Did Respondents’ action in denying Brawner access to the Gun Factory deprive her of any right secured by the Constitution?
Synopsis of Rule of Law. The Fifth Amendment does not require a trial-type hearing in every conceivable case of government impairment of private interest. Where it is possible to characterize that private interest as mere privilege subject to the Executive’s plenary power, it has been held that notice and hearing are not constitutionally required.

Discussion. Due process was not violated because this case involved the important interest of keeping security on a military establishment; and Brawner did not lose liberty or property within the protection of the Fifth Amendment because the action did not impair her other employment opportunities.
Goldberg v. Kelly (1970).

Facts. This case was brought by residents of New York City who received financial aid under the federally assisted program of Aid to Families with Dependent Children (AFDC) or under New York State’s Home Relief Program. Their complaint alleged that City officials administering these programs terminated such aid without prior notice and hearing, denying them due process of law. After the suit was filed, the City adopted procedures for notice and hearing, which the plaintiff-appellees then challenged as constitutionally inadequate. The procedure allowed the recipient to challenge the proposed termination of benefits within seven days and submit a written statement for the reviewing official to make a final determination. Appellees’ challenged the procedures’ lack of an opportunity to personally appear before the reviewing officer for oral testimony and cross-examination of adverse witnesses. The procedure did allow for a post-termination “fair hearing,” however. The District Court held that only a pre-termination hearing would satisfy the constitutional due process requirement.

Issue: Does the Due Process Clause require a state to afford welfare recipients an evidentiary hearing prior to terminating their benefits?
R: Welfare benefits may be terminated only after a hearing at which the recipient is afforded at least minimal procedural safeguards, including the opportunity to be heard on his own behalf.

A: The effect of this case is to guarantee two hearings - an initial determination of eligibility prior to termination, and a final resolution after benefits have been discontinued. The procedures prescribed by the case are in some ways more extensive than those compelled by 554 of the APA.
Wisconsin v. Constantineau.

Facts. The Act allowed designated persons to forbid sale or gift of liquor to persons who “by excessive drinking” demonstrated traits that rendered them possibly “dangerous to the community,” and the chief of police posted notices about the Appellee without any prior notice.

Issue. Did the label or characterization given by “posting” under the Act require procedural due process?
Synopsis of Rule of Law. Where government action will impact a person’s reputation in the community, procedural due process is required.

Discussion. Where a person’s good name, reputation, honor or integrity is at stake because of what the government is doing to him, notice and an opportunity to be heard are essential. “Posting” under the Act without any notice was unconstitutional.
Held. Yes. Due process required notice and an opportunity to be heard before the posting of such a stigmatizing notice, which was the equivalent of an official branding of the Appellee. The notice was stigmatizing and harmful to Appellee’s reputation in the community.

Later cases require proving "reputation plus" in order to bring a reputation(liberty) violation claim he has to show an appreciable harm.

In prison cases, Courts evaluate liberty interests similar to the way they evaluate property interests. (i.e. Prisoner being denied his "good time" credits.)
Bell v. Burson.

Facts. The Act provided that the registration and license of an uninsured motorist involved in an accident should be suspended unless he posted a security to cover the damages claimed in the accident reports. The administrative hearing to be conducted prior to the suspension excluded any evidence of fault or liability for the accident. Petitioner was a clergyman who was involved in an accident when a five-year-old child rode her bike into the side of his car. In the administrative hearing, Petitioner was not permitted to present any evidence that he was not at fault for the accident, or that his ministry would be severely handicapped if he lost his license. Petitioner appealed to Superior Court, which found him free from fault for the accident and ordered that his license not be suspended. The Georgia Court of Appeals reversed, rejecting Petitioner’s contention that the State’s statutory scheme denied him due process of law.

Issue. Did the revocation of Petitioner’s license without affording him an opportunity to contest liability violate due process?
Synopsis of Rule of Law. Once licenses are issued, they cannot be revoked without procedural due process required by the Fourteenth Amendment.

Discussion. It is fundamental that, except for in emergency situations, States afford notice and opportunity for hearing appropriate to the nature of a case before terminating an interest. This case did not involve an emergency situation, and due process was violated.

Since the only purpose of the provisions is to obtain security from which to pay any judgment against the licensee resulting from the accident, DP will be satisfied by an inquiry limited to determination whether there is a reasonable possibility of judgment.
Board of Regents of State Colleges v. Roth.

Facts. Roth was hired for one year, and had no tenure rights to continued employment, nor statutory rights. Under Wisconsin statute, a State university professor could acquire tenure as a “permanent” employee after four continuous years of employment. Roth was notified by the President of the University that he would not be rehired for another year, but no reason was given, nor any method for review or appeal. Roth brought an action claiming that he had a constitutional right to a statement of reasons and a hearing on the University’s decision not to rehire him for another year.

I: Are state employees entitled to a hearing and a statement of the reasons for the state's employment decisions?
R: The state need no hold hearings or offer reasons for its employment decisions.

A: The gov't may fire or refuse to hire an employee, unless, in doing so, it stigmatizes him in a way which seriously forecloses future employment opportunities or deprives him of employment to which he had shown himself entitled as a matter of right, contractual or otherwise.
Perry v. Sindermann.

Facts. The State of Texas did not have a formal tenure system in place, but did have an official Faculty Guide that Respondent claimed established a de facto tenure system. Respondent claimed legitimate reliance that employment for seven years or more at his particular college created some form of tenure that was no less a property interest than a formal tenure system at another university. The District Court granted summary judgment against Respondent.

Issue. Did Respondent’s lack of tenure or contractual right to re-employment, taken alone, defeat his claim that nonrenewal violated his First and Fourteenth Amendment rights? Did Respondent have de facto tenure, sufficient to afford him procedural due process?
Synopsis of Rule of Law. “A person’s interest in a benefit is a “property” interest for due process purposes if there are rules or mutually explicit understandings that support his claim of entitlement to the benefit and that he may invoke at a hearing.”

Discussion. Although the Texas college system had no formal tenure program, its guidelines and standard practices, coupled with the length of Respondent’s employment, were sufficient that an “entitlement” could be found to procedural due process.
Town of Castle Rock, Colorado v. Gonzales.

F: essica was married to a guy who was a little crazy. She filed for divorce and got a restraining order against him.
Jessica’s husband came and took their three children, in violation of the restraining order. Jessica called the police multiple times, but they took no action to retrieve the children.
Despite the fact that the restraining order explicitly tells the police that they “shall use every reasonable means to enforce this order.”
Jessica’s husband eventually killed all three children.
Jessica sued the police and the town, arguing that their inaction had resulted in the deaths of the children, and that was an unconstitutional violation of the Due Process Clause of the 14th Amendment.
Jessica argued that there was a Federally-protected property interest in enforcement of the restraining order and claimed that there was “an official policy or custom of failing to respond properly to complaints of restraining order violations.”
The Trial Court dismissed the claim. Jessica appealed.
The Appellate Court reversed. Castle Rock appealed.
The Appellate Court found that Jessica had a procedural due process claim, although no substantive due process claim.
The US Supreme Court reversed the Appellate Court and found no constitutional violation.
The US Supreme Court found that Colorado law did not make enforcement of restraining orders mandatory.
The Court found that even if it were mandatory, enforcement could not be considered a protected entitlement.
*Basically, the restraining order doesn’t entitle a person to any specific action, it just provides grounds for arresting the subject of the order.*
You could argue that the State may have established a duty to care by getting involved and issuing the restraining order, but that is a tort law issue, not a constitutionally-guaranteed right.
The Court found that even if there were a protected individual entitlement, a restraining order has no monetary value and therefore did not count as property (and hence no property interest).

Scalia says that "shall" doesn't mean must in this case. Police were entitled to use their discretion.

In a concurrence, it was noted that enforcement of a restraining order is a process(i.e. pursuing an arrest warrant), not the interest protected by the process, and that there is not due process protection for processes.

It is also convoluted to think the process should would be entitled to is a hearing weighing the police official's denial of enforcing the restraining order.
Matthews v. Eldridge.

Brief Fact Summary. Respondent Eldridge commenced this action in District Court to challenge the constitutional validity of the administrative procedures established by the Secretary of Health Education and Welfare for establishing whether there exists a continuing disability entitling a recipient to Social Security Disability (SSD) benefits. Eldridge was notified his benefits would terminate without an opportunity for a prior hearing.

I: Does the due process clause require a hearing prior to termination of disability benefits?
R: The DP clause does not require a hearing prior to termination of disability benefits.

Discussion. The factors giving rise to due process are: 1] the private interest that will be affected by the official action; 2) the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and 3] the Government’s interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail.

A: Eligibitliy for disability benefits is not based on financial need. The probable value of additional safeguards is not that great b/c termination of disability benefits turn on the routine medical reports of physicians. In considering the public interest, ultimate additional cost in terms of money and administrative burden would be substantial.
Cleveland Board of Education v. Loudermill.

Brief Fact Summary. The Cleveland Board of Education (Board) hired James Loudermill (Respondent) in 1979 as a security guard. Respondent stated on his application that he had never been convicted of a felony; and the Board fired him when it discovered he had been convicted of grand larceny in 1968. Respondent filed suit in the Federal District Court for the Northern District of Ohio, alleging that he was denied of liberty and due process because he was not afforded notice and an opportunity to respond prior to removal.

Issue. What pretermination process must be afforded a public employee who can be discharged only for cause?
Synopsis of Rule of Law. An essential principle of due process is that a deprivation of life, liberty or property be preceded by notice and opportunity for hearing appropriate to the nature of the case. The pretermination hearing, though necessary, need not be elaborate. “The formality and procedural requisites for hearing can vary, depending upon the importance of the interests involved and the nature of the subsequent proceedings.”

Held. “All the process that is due is provided by a pretermination opportunity to respond, coupled with post-termination administrative procedures as provided by the Ohio statute.” Respondent’s federal constitutional claim depended on having had a property interest in continued employment, which the Ohio statute clearly created. Some opportunity for the employee to present his side is of obvious value in reaching an accurate decision. Respondent had a plausible argument that may have presented his discharge. The government interest in immediate termination did not outweigh the other interests. However, since the statute afforded a full administrative hearing and judicial review after termination, all that was required before was the essential elements of due process: notice and an opportunity to respond. Nine months was not an unconstitutional delay for the post-termination hearing.
Ada VAN HARKEN v. CITY OF CHICAGO

I: Chicago’s procedures for reviewing parking tickets adequate

F: Arguments:
P = denied due process if not allowed to appeal decision (since pay $200)
D = not denied due process
Process includes: part time lawyer as judge, officer not required to appear, respondent can present evidence, cannot appeal ($200 to do so)
a. Comparison of cost/benefits of whatever procedure P contends is required –
i. COST so making sure that O is present at every hearings as P contends, would depend on the number and length of hearings, avg time it takes for O to go to and from hearings, reduction in his productivition expense tho the City of hiring additional Os (issues 4 mill tickets, 200,000 (5%) are challenged 1/3 in person requiring 67,000 oral hearings.) If Os are present-→ the number of oral hearings would increase, length of time of hearing all amounting to a huge expense ofr the city
ii. BENEFIT benefits depend on harm that the safeguard will avert in cases where it prevents an erroneous result and likelihood that it will prevent an erroneous result. Throws a hypo → what if 5% really did it and O’s being there reduced wrongful convictions by half 0.25 then 55x.025=1.38. that’s not a lot of savings. → but what about those who really didn’t do it is a higher percentage → Benefits don’t exceed the cost
iii. ALSO NO RIGHT! PROPERTY? There is no absolute right of confrontation in civil cases – Goldberg doesn’t have much lift after Eldridge. Ps are sufficiently protected with the opportunity to have witnesses subpoenaed.

Conclusion: when less money is at stake, other things being equal, less process is due, that is the teaching of Mattews. City’s procedures for dealing w/violations satisfy requirements of DP. Notes that the appeal costs more than the fee they have to pay.
Hamdi v. Rumsfeld

Facts
Congress passed a resolution authorizing the President to "use all necessary and appropriate force" against terrorists or those who harbored terrorists.
Government detained D for allegedly fighting with the Taliban during the Afghanistan war.
D was born an American citizen, moved to Saudi Arabia as a child, and eventually to Afghanistan.
D was transported to Guantanamo Bay, then, upon learning of his American citizenship, transferred him to the U.S.
Gov't claims that he is an enemy combatant, and therefore the gov't can hold him indefinitely.

I: What process is constitutionally due to a citizen who disputes his enemy-combatant status?
Holding/Rule
Although Congress authorized the detention of combatants in the narrow circumstances alleged here, due process demands that a citizen held in the U.S. as an enemy combatant be given a meaningful opportunity to contest the factual basis for his detention.

A: Matthews balance: risk of an erroneous deprivation of private interests in process were reduced and the probably value of additional or substitute safeguards.
Matthews has interest in being free from detention by his own government.
This is not offset by circumstances of war or the accusations, because the risk of erroneous detention is high and must be considered since it could be used abusively.
However, there is also the gov't interest in ensuring that enemy combatants do not return to combat. It is also impractical to expect that military officers engage in litigation to prove enemy combatant status.
Held that a citizen detainee seeking to challenge enemy combatant status must receive notice o the factual basis for his classification and a fair opportunity to rebut the gov't's factual assertions before a neutral decision maker.
However, the proceedings may be tailored to alleviate burden on Executive.
For example, hearsay could be allowed and there could be a (rebuttable) presumption in favor of the government.
United States v. Florida East Coast Ry.


Facts. There was a chronic freight-car shortage on the Nation’s railroads, and Congress responded by amending Section:1(14)(1) of the Act to expand the Commission’s authority to prescribe per diem charges for use by one railroad of freight cars owned by another. After an investigation, a notice of proposed rulemaking, and an informal conference at which Appellees voiced concerns, the Commission concluded that Section:1(14)(1) authorized it to impose additional “incentive” per diem charges. In December, 1969, the Commission issued a proposed rule with a notice to railroads to file statements of position within 60 days. Both Appellees filed statements objecting to the proposal and requesting an oral hearing, but the Commission overruled their requests. Appellees brought this action in the District Court to set aside the incentive per diem rates established by the Commission in a rulemaking proceeding. The District Court sustained Appellee’s position that the Commission had failed to comply with Section:553 and Section:556 of the APA; held that the language of Section:1(14)(a) of the Act required the Commission to act in accordance with the APA Section:556(d) in a proceeding such as this; and the Commission’s determination to receive submission from the Appellees only in written form violated Section:556(d) because Appellees were “prejudiced” by that determination.

I: Must the ICC (D) hold a formal hearing prior to establishing rules with respect to car service by common carriers?
R: The US Supreme Court found that a formal hearing is only required when the Enabling Act requires that the rule be made "on the record after opportunity for an agency hearing."
If the Enabling Act just uses the term 'a hearing' (like it did in this case), then an informal rulemaking as defined by APA §553 is perfectly acceptable.
The Court was very clear that courts cannot impose stricter rulemaking procedures on Agencies beyond what is set out in APA §553 and the Agency's Enabling Act.

Discussion. The Court interpreted the “hearing” requirement under the Act loosely, as not requiring the Commission to either hear oral testimony, permit cross-examination of the Commission witnesses, or to hear oral argument.
Vermont Yankee Nuclear Power Corp. v. Natural Resources Defense Council.

F: Vermont Yankee wanted to build a new nuclear power plant. They applied for a permit from the Nuclear Regulatory Commission (NRC).
The NRC went through an adjudication process, but decided that there were some environmental issues that would be best dealt with by instituting a new rule. So, they initiated a rulemaking process.
As part of the rulemaking process, the NRC issued notice, had an oral hearing, and allowed interested parties to file written comments.
NRDC attended the hearing and gave comments, but were unhappy with the final rule. They sued.
NRDC argued that NRC's rulemaking process was not sufficient, and should include a discovery process and the ability to cross-examine witnesses.
The Appellate Court found for NRDC and ordered NRC to go back and add the additional procedures into their rulemaking process. NRC appealed.
H: The US Supreme Court reversed.
The US Supreme Court found that, in the absence of "constitutional constraints or extremely compelling circumstances" a court may not impose rulemaking procedures on an Agency beyond those set out in APA §553.

R: The basic rule in this case is that the courts may not impose any rulemaking procedures on an Agency, outside of what is specified in the APA and the Agency's Enabling Act, the Constitution, or the specific Substantive Statutes of the Agency.

A: There are three compelling reasons why the agencies' discretion should be determinative.
1) First, if courts continually review agency proceedings to determine whether the agency employed procedures that were what the court perceived to be the best or correct results, judicial review would be totally unpredictable.
2) The fact that the court looked only at the record and not at information available to the AEC (D) when it decided to structure the proceedings in a certain way is an example of Monday morning quarterbacking that would compel the agency to conduct all rulemaking proceedings with the full panoply of procedural devices normally associated only with adjudicatory hearings.
3) This type of review misconceives the standards for judicial review of an agency rule; rulemkaing need not be based solely on the transcript of a hearing. In fact, in a case like this there need not be a formal hearing.
Connecticut Light and Power Co. v. NRC.

Facts. Following a damaging fire in 1976, the Commission developed technical guidelines for evaluating fire safety of both new and operating nuclear plants. Due to ongoing disputes involving the evaluation process, the NRC decided to embark on rulemaking for a more stringent program in 1979. Connecticut light challenged the NRC’s new rule, claiming: 1) the notice of proposed rulemaking was inadequate because it gave no indication of the technical basis on which the Commission relied in formulating the proposed rules, and also because the final adopted rules differed in major respects from the proposed rules; 2) the Commission failed to offer technical justification for the final fire protection rules it adopted; and 3) the Commission failed to comply with its own regulations concerning new regulations for existing nuclear plants.

Issue. Was the procedure employed by NRC in adopting its new rule inadequate?
Held. The Court reluctantly upheld the NRC’s adoption of the fire protection program. The administrative record contained adequate support for the Commission’s determination that the adoption of a more stringent rule was urgently needed to protect public safety. The procedure employed by the NRC was less than exemplary-the notice of proposed rulemaking was cursory and gave the industry the minimal acceptable opportunity to respond. The final rules were strictly more stringent versions of the proposed rules. The rule was tempered by the exemption procedure allowing power plants to show that alternative fire protection systems protect public safety at the same high level as that chosen by the Commission. The failure of plants to make such a showing would prove the Commission was indeed correct that public safety urgently required a more stringent fire protection program for nuclear power plants.

Discussion. The court was not happy with the lax procedure employed by the NRC, but weighed out all of the factors, including public safety, in upholding the new rule.
American Radio Relay League, Inc. v. FCC.

• FCC adopted rules regulating the use of the radio spectrum. American Radio League (reps licensed amateur radio operators) objected that the rules didn’t provide adequate protection against spectrum interference. All but one of the substantive challenges were rejected.
Analysis
The Commission redacted parts of individual pages, otherwise relying on those pages. Commission reaffirmed that the redacted portions referred to internal communciations that weren’t relied upon in the decision making process. However, analysis of the portions, while stamped for internal use only, shows that they may reveal limits and weakness of certain data or the study as a while. Would bring tension with the Commission’s conclusion that interference risks are manageable. This information was never fulled disclosed for comment although it was a central source of data for its critical determinations.

Conclusion: League has met its burden to demonstrate prejudice by showing it has something useful to say regarding the unredacted students and may allow it to mount a credible challeng if given the opportunity to comment. It retraced parts of those studies that are inextricably bound to the studies as a while and the data upon which the Commission has stated it relied on.
Air Transport Association of America v. Department of Transportation.

F: B/c the prior method of handling disputed penalties resulted in few prosecutions, Congress sought to close the holes in the FAA (D) safety net by raising the max penalty and giving the FAA the power to prosecute penalty actions administratively. Of the amendment to the FAA pertaining to civil penalties, one raised the max penalty for a single violation of aviation safety standards to $10,000. Another established a "demonstration program" authorizing the FAA (D) to prosecute and adjudicate administrative penalty actions involving less than $50,000. Approx 9 months after Congress enacted the amendments, the FAA promulgated the Penalty Rules, establishing a schedule of civil penalties and a comprehensive adjudicatory scheme providing for formal notice, settlement procedures, discovery, an adversary hearing before an Administrative Law Judge, and an administrative appeal. The FAA argued that the Penalty Rules were exempt as "rules of organization, procedure, or practice" b/c they established "procedure" for adjudicating civil penalty actions.

Issue. Was the FAA required to give notice and an opportunity to comment before promulgating its civil penalty rules?
H: NO. The promulgation of regs governing the adjudication of admin civil penalty actions is not exempt from the reqs of notice and comment.

A: Where nominally procedural rules contain a substantial value judgment, or substantially alter the rights or interest of regulated parties, the rules must be preceded by notice and comment.

The Penalty Rules fall outside the scope of 553(b)(A) b/c they substantially affect a civil penalty - defendant's right to an administratie adjudication.
American Mining Congress v. Mine Safety & Heath Admin.

F: Under relevant rules adopted via notice and comment by the MSHA (D), mine operators are required to report within ten days all accidents, occupational injuries and occupational illnesses that occur at a mine. The MSHA in response to inquiries from mine operators about whether certain x-ray results had to be reported as diagnoses (P), issued three Program Policy Letters (PPLs) regarding when x-ray results constituted a "diagnosis" without following the notice and comment procedures of the Administrative Procedure Act 553. The AMC (P) petitioned for judicial review of the MSHA's decision to act w/o notice and comment in issuing the PPLs. The D claimed that the PPLs were interpretative, not substantive, rules and therefore were exempt from notice and comment reqs under 553(b)(3)(A).

I: Do substantive rules have the force of law if Congress delegated legislative power to the agency and the agency intended to exercise that power in promulgating the rules?
H: Yes.

R: In determining whether a purported interpretive rule has legal effect, the relevant inquiry is:

(1) whether in the absence of the rule there would not be an adequate legislative basis for enforcement action or other agency action (Without rule, would agency lack sufficient basis in existing statutes and regs for agency action?);
(2) whether the rule has been published in the Code of Fed. Regs;
(3) whether the agency expressly invoked its general legislative authority; or
(4) whether the rule amends a prior legislative rule.

If the answer to any of these inquiries is yes, the rule is legislative and not interpretive. Here the PPLs were interpretive rules, since the agency did not purport to act legislatively.
Syncor International Corp. v. Shalala.

Facts. PET drugs are manufactured by physicians and pharmacists in nuclear pharmacies very close to the place of administration to patients due to the drugs’ short half-life. The 1984 FDA Guidelines specifically stated that PET radiopharmaceuticals were not subject to the Act. However, the 1995 “Notice” issued by the FDA provided that the PET radiopharmaceuticals “should be regulated” under the drug provisions of the Food, Drug, and Cosmetic Act (Act). The FDA indicated that its 1995 publication was to supersede its prior 1984 publication. The FDA characterized its 1995 publication as merely “guidance” (a general statement of policy), and an interpretive rule. The Petitioner claimed that the publication was a substantive regulation, and that the FDA violated the APA’s notice and comment requirements. The district judge granted summary judgment in FDA’s favor.

Issue. Was the 1995 publication an interpretive rule?
Held. No. Reversed and remanded to the district court with instructions to vacate the FDA’s rule and enter summary judgment in Syncor’s favor. The 1995 regulation was as far removed from the typical policy statement or interpretive rule. It did not purport to interpret anything; but rather, was a fundamentally new regulation. The sort of changes the FDA made in issuing the new regulation and making the Act applicable to PET drugs were exactly the sort of changes in fact and circumstance for which notice and comment are intended.

Discussion. An agency policy statement does not seek to impose, elaborate on or interpret a legal norm-it merely represents an agency’s position with respect to how it will treat the governing legal norm. An interpretive rule typically reflects an agency’s construction of a statute that has been entrusted to the agency to administer. A substantive rule has characteristics of both a policy statement and an interpretive rule; and is in part an exercise of policy and a rule. The distinction is that a substantive rule modifies or adds to a legal norm based on the agency’s own authority.
Building Industry Ass'n of Superior California v. Norton

Claims re: failure to disclose relevant data

F: relying in new rule on newly acquired info on which no opportunity to comment.
R: No need to re-notice rulemaking where agency relied on new study that simply provided additional support for proposal
Int'l Union, United Mine Workers v. Mine Safety & Health Administration

Claims re: departure of final rule from initial proposals
H: Concrete illustration of problem of determining whether rule is a "logical outgrowth";showsthatcourts are usually generous in this determination

R: A final rule represents a logical outgrowth where the NPRM expressly asked for comments on a particular issue or otherwise made clear that the agency was contemplating a particular change. Here MSHA's proprosed rule identified the problem of low height mines and specifically solicited detained comments on it.
Prometheus Radio Project v. FCC

F: agency gives vague notice; Objection to final rule is that initial notice was too broad that it didn’t give entities sufficient notice to comment

Claims re: departure of final rule from initial proposals
H: agency must make views known to the public in a concrete and focused form; question is whether agency can satisfy this standard without actually proposing a rule
Louisiana Federal Land Bank Ass'n v. Farm Credit Administration: (Statement of basis and purpose)

Claims re: agency's failure to address arguments put forward
H: agency must respond in reasoned manner to those comments raising significant problems; here it failed to do so
Universal Camera Corp. v. NLRB.

Universal fired an employee for filing a grievance against the company and testifying in a National Labor Relations Act (NLRA) proceeding.
Universal argued that the employee was fired for punching his boss, and it had nothing to do with the grievance.
After an Administrative Proceeding, the National Labor Relations Board (NLRB) ordered Universal to rehire the employee and pay him lost wages. Universal appealed.
NLRB made this ruling even though their own Administrative Law Judge agreed with Universal and recommended that the charges be dismissed.
The Appellate Court affirmed. Universal appealed.
The Appellate Court found that NLRB's findings of fact were "supported by substantial evidence on the record considered as a whole" within the meaning of NLRA §10(e).
The Appellate Court only looked at evidence that supported the Agency's position, and did not consider the report of the NLRB's examiner when making their decision.
The Appellate Court found that they could only reverse the NLRB's decision if it was clearly erroneous.
The US Supreme Court reversed.
The US Supreme Court found that courts should defer to a Federal Agency's findings of fact if supported by "substantial evidence on the record considered as a whole."
Administrative Procedures Act §706(2)(e) says that substantial evidence is the standard of review for adjudicative proceedings.
Substantial evidence is not necessarily a preponderance of evidence. It is evidence that would "appeal to a reasonable mind."
Substantial evidence does not mean that a court would reach the same decision. The Agency is permitted to go with a minority view, as long as it is reasonable to someone who has heard both sides.
Basically, it is a decision that is not 'off the wall', but something that someone could believe in.
The Agency should keep a good record of their decision-making process.
The Court found that courts have the ability to set aside an Administrative Agency's decision if they do not find that the evidence supporting the decision is substantial, when viewed in light of all the evidence in the record.
That means you have to look at the evidence that supports the Agency as well as evidence that goes against the Agency.
In this case, the Court found that when they looked at the evidence as a whole, the NLRB's decision did not support the evidence. Therefore they overturned NLRB's ruling.
The Court analogized the job of the court in reviewing an Agency decision to that of an Appellate Court reviewing the decision of a special master.

Standard: Something close to Abuse of Discretion and a little more deferential than Clearly Erroneous, but less than Jury Standard.

R: ALJ should get reasonable amount of deference. This is the test that Reviewing Court applies to the agency's findings.

Class: make sure you understand the 3 prongs: 1) what test you look at?, (2) the standard used, and (3) how much weight you give the court below
Association of Data Processing Service v. Board of Governors of Federal Reserve (1984).


Claim: Buy two members of ADAPSO (national trade association) petition for review of two orders of Board of Governors of the Federal Reserve System.
1. Approving Citicorp’s application to establish a subsidiary and Citishare to engage in certain data processing and transmission services
2. Review of order after notice and comment rulemaking by ALJ recommending amending Regulation Y dealing w/performance of data processing activities, which was approved by the Board


Rules
• Bank Holding Act: all bank companies to seek prior regulatory approval before engagigng in nonbancking activities except after due notice and opporting for hearing, the Board has determined by order or reg to be so closely related to banking to be an incident of that activity. -→ whether its performance by an affiliation fo a holding company can reasonably be expected to produce benefits to the public outweighing possible adverse effects
• 12 USC 1843©(8) findings of the Board as to facts if supported by substantial evidence shall be conclusive
Analysis: The scope of review provisions of the APA are culumative. So when an action is supported by the required substantial evidence, in another regard it may be arbitrary, caprivicious, abuse of discretion bc it has for ex departed from its precedent w/o explanation. So in 554 when 556 is not triggered, can still strike down an arbitrary action that is devoid of needed factual support. How could an order that is not arbitrary not be supported by substantial evidence? Its all like a convergence of reasonableness.

Conclusion: Upheld on the mertis. Substantial evidence demand a quanitum of factual support no different form that demanded by sustntial evidence provison of the APA which is not different from that demanded by arbitrary or capricious standard.

Class: Informal proceedings use the "substantial evidence" test , just like formal proceedings.

Opinion was interpreting 1848, but analogizing to the APA.
Good Cause Exemption
Agency must point to some palpable harm for avoiding Notice and Comment.
NLRB v. Hearst Publication.

Facts. The proceedings began when the Los Angeles Newsboys Local Industrial Union No. 75 (Union) filed petitions with the NLRB, which held hearings and found the newsboys to be employees within the Act. However, Respondents refused to bargain with it, and proceedings were instituted. The NLRB ordered Respondents to cease and desist from its violations and to bargain collectively with the Union. The Respondents petitioned for review, and the Circuit Court of Appeals set aside the Board’s orders, finding that the newsboys were not employees of the newspaper within the Act.

I: Must a reviewing court accept an agency's application of a broad statutory term if such application is supported in the record and has a reasonable basis in law?
R: Yes. A review court must accept an agency's application of a broad statutory term "if such application is supported in the record and has a reasonable basis in the law."

Standard Used for what sources of law to look to.
For mixed questions (are newsboys employees), the court defers.

A: Congress has vested the duty of administering the NLRA in the NLRB. The NLRB's (P) experience in dealing with labor matters makes it a logical choice to determine the application of broad statutory terms w/i the context of national labor policy. Therefore, the NLRB's application of the term "employee" w/i the present context must be upheld if supported in the record and if reasonably based in law.
Allentown Mack Sales & Service, Inc. v. NLRB.

Facts. Allentown Mack Sales and Service, Inc. (Allentown Mack) bought a branch in Allentown, PA. The employees were represented by the AFL-CIO. Allentown Mack was led to believe by certain members that the Local Lodge of the AFL-CIO no longer supported it. Under NLRB rules, “an employer who believes that an incumbent union no longer enjoys the support of a majority of its employees has three options: to request a formal, Board supervised election, to withdraw recognition from the union and refuse to bargain, or to conduct an internal poll of employee support for the union.” In the present case, Allentown Mack rejected to recognize the Local Lodge. The union, after losing a poll, brought a claim of unfair-labor practice to the NLRB. The ALJ held that Allentown Mack was a successor entity, and so bound by previous obligations to recognize and bargain.

Issue. “[W]hether the [NLRB's] standard for employer polling is rational and consistent with the National Labor Relations Act, and whether the Board’s factual determinations in this case are supported by substantial evidence in the record.”
Rule of Law. “Courts must defer to the requirements imposed by the Board if they are ‘rational and consistent with the Act,’ and if the Board’s ‘explication is not inadequate, irrational or arbitrary.’”

Takeaway: If you want to use these kinds of policy toolds (i.e. presumption) you have to be clear why. (1) Factual Determination if a given standard is met, and (2) legal or policy decision must be made(uses a more deferential test than the substantial evidence test)

Discussion. “The Board’s ‘good-faith reasonable doubt’ test for employer polling is facially rational and consistent with the Act, but its factual finding that Allentown lacked such a doubt is not supported by substantial evidence on the record as a whole.” Association of Data Processing Service Organizations, Inc. v. Board of Governors of the Federal Reserve System
Things to Consider when giving deference to agencies making pure legal determinations or mixed questions
1) Comparative Expertise
2) Political Accountability
3) Leg. Intent
4) Need for Clarity, Consistency, Uniformity
5) Nature of Procedures or Competence in Process
Skidmore v. Swift.

F: Skidmore et. al. worked for Swift. They worked a normal 40-hour work week during the day, but sometimes stayed overnight to respond to fire alarms.

They were given sleeping quarters and a lounge, and they had no other duties besides responding to alarms, which was infrequent.
Skidmore et. al. were paid a set amount per alarm they responded to, in addition to their weekly salaries.

Skidmore et. al. sued Swift for violating the Fair Labor Standards Act (29 U.S. C. §207).

Skidmore argued that they were entitled to time-and-a-half overtime pay for the extra hours worked, as opposed to the per-response rate they'd agreed to.

The Trial Court found for Swift. Skidmore appealed.

The Trial Court found that as a conclusion of law, waiting time can never count as 'work'.
"The time plaintiffs spent in the fire hall subject to call to answer fire alarms does not constitute hours worked, for which overtime compensation is due them under the Fair Labor Standards Act, as interpreted by the Administrator and the Courts."
"Of course we know pursuing such pleasurable occupations or performing such personal chores does not constitute work."

The Appellate Court affirmed. Skidmore appealed.
The US Supreme Court reversed.

The US Supreme Court found that "no principle of law found either in the Statute or in Court decisions precludes waiting time from also being working time."
Whether the time counted as work was a question of fact, not a question of law.
The Court looked to an Amicus Brief filed by the Administrator from the Department of Labor, which said that the determination of whether waiting time counted at work should be based on a case-by-case basis, and it was not a question of law, but instead a question of fact.
The Dept of Labor had never issued any regulations on this topic.
The Court found that the Administrator was much more knowledgeable of labor law and the Fair Labor Standards Act than the Court was, and therefore the Court should take his comments seriously.
The case was remanded and the Trial Court was ordered to decide if Skidmore's time counted as work as a question of fact.

Basically, this case said that although the rulings, interpretations, and opinions of the Administrator under the Fair Labor Standards Act do not control judicial decision, they do constitute a body of experience and informed judgment to which courts and litigants may properly resort for guidance.
Chevron U.S.A. Inc. v. Natural Resources Defense Council.

F: Under the Clean Air Act, nonattainment States were required to permit "new or modified major stationary sources."

Prior to 1981, EPA defined the word 'source' as any device in a plan that produced pollution.
In 1981, EPA changed this definition to allow an existing plant to modify or install equipment that did not meet standards, as long as the total pollution of the entire plant did not increase.
aka the 'bubble concept.'

The National Resources Defense Council (NRDC) sued EPA.

NRDC argued that the EPA Administrator did not have the authority to change the standard.
As an affected party, Chevron impleaded into the case on EPA's side.

The Appellate Court found for NRDC and set aside the ruling. EPA appealed.

The Appellate Court found that both the plain language of the Clean Air Act and its legislative history were ambiguous.
The Court found that the purpose of the Clean Air Act was to improve air quality. Therefore the Administrator's decision to change the definition of 'source' contradicted the purpose of the Act, and was therefore contrary to law.
R:
Is the Congressional intent clear?
If yes, what is the right answer?
If Congress' intent is ambiguous, then....
Is the Agency's interpretation permissible?
If the Statute gives the Agency express delegation, is the interpretation non-arbitrary?
If the Statute only implicit delegation interpretation to the Agency, is the interpretation reasonable?

The US Supreme Court reversed.

The US Supreme Court found that the courts must defer to the opinion of an Executive Agency (like EPA) in certain cases.
In order to determine how much deference the courts are to give to an Agency decision, the court must review:
Whether the Statute is ambiguous or there is a gap that Congress intended the Agency to fill.
Specifically, "has Congress directly spoken, and is the intent clear?"
If so, then the Courts must defer to Congressional intent.
If Congress' intent is not clear, is the Agency's interpretation of a Statute is reasonable or permissible?
If an Agency's interpretation is reasonable, then the Court will defer to the agency's reading of the Statute.
"Reasonable" doesn't mean the way that the court would decide the issue. Even if the court disagrees with the decision, as long as the Agency can point to a reasonable reason why they made the decision, even if it isn't completely persuasive, the court has to affirm the Agency's judgment.
This process is now known as the "Chevron two-step".
INS v. Cardoza-Fonseca.

Facts. The Act provided two ways that otherwise deportable aliens who claimed they would be persecuted if deported could seek relief: 1] Section:243(h) required the Attorney General to withhold deportation if an alien could demonstrate that his “life or freedom would be threatened” on account of one of the listed factors, if deported; and 2] Section:208(a) authorized the Attorney General, in his discretion, to grant asylum to an alien who was unable or unwilling to return to his home country “because of persecution or a well- founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.” In Stevic, a prior case, the Court rejected an alien’s contention that the “well founded fear” standard under Section:208(a) applied to Section:243(h). This case involved a 38-year-old Nicaraguan citizen (Respondent) who entered the United States as a visitor but remained longer than permitted. INS commenced deportation proceedings against her, and she requested withholding of deportation pursuant to Section:243(h) and asylum as a refugee under Section:208(a). Respondent’s brother was tortured and imprisoned due to political activities, and she claimed that she, too, would be tortured if she returned to Nicaragua. The Immigration Judge applied the same standard to both requests, and found that Respondent had not established a “clear probability of persecution” and was not entitled to relief. The Board of Immigration Appeals (BIA) agreed. In the Court of Appeals for the Ninth Circuit, Respondent argued that she was entitled to asylum under Section:208(a), claiming that INS erred in applying the “more likely than not” standard of proof from Section:243(h) to her Section:208(a) asylum claim. Respondent asserted that INS should have applied the more generous “well founded fear” standard instead. The Court of Appeals agreed.

Issue. Did the “more likely than not” standard of proof from Section:243(h) apply to a Section:208(a) asylum claim?
A: The legislative history of the Act and the text of the Act itself made it clear that Congress intended for two separate standards to apply to Section:243 and Section:208

H: Discussion. The question of whether Congress intended for the two standards to be identical was purely one of statutory construction for the courts to decide. The Court cited Chevron: “The judiciary is the final authority on issues of statutory construction and must reject administrative constructions which are contrary to clear congressional intent.”
Zuni Public School Dist. No. 89 v. Department of Education.

F: New Mexico received certification from the Department of Education that it "equalized" its educational expenditures between school districts.
That gave them the ability to lower funding to schools on Indian Reservations because those schools were getting Federal Aid.
Zuni was one of the schools that lost funding. They sued.
Zuni argued that the Department of Education had improperly determined that there had been "equalization."
When calculating the average funding the schools received, Dept. Ed. had a policy of ignoring all schools in the top and bottom 5%.
(5% based on number of students, not based on number of schools, which makes a big difference if you have one big well-funded school and lots of little poorly-funded schools.)
Dept. Ed. argued that they had properly calculated the average, but Zuni argued that the policy was inconsistent with 20 U.S.C. §7709, which they claimed mandated that the top and bottom 5% of schools be ignored, not the top and bottom 5% of students.
7709(b)(2)(B)(i) says to "disregard local educational agencies with per-pupil expenditures or revenues above the 95th percentile or below the 5th percentile of such expenditures"
So, if there are 100 schools, and the top school has 5% of the students, do you disregard the top 5 schools (no matter how many students they have) or just the single top school (5% of the students)?
The Administrative Law judge dismissed the complaint. Zuni appealed.
The Secretary of Education affirmed the ruling. Zuni appealed.
The Secretary of Education found that §7709 was ambiguous and so the Dept. Ed. was free to interpret it.
The Federal Appellate Court affirmed. Zuni appealed.
The Federal Appellate Court found that §7709 was ambiguous and that Dept. Ed.'s interpretation was reasonable.
H: The US Supreme Court affirmed. Basically, the plain language of the Statute seemed to be pretty unambiguous, but was at odds with how the Dept. Ed. was interpreting the Statute. The Court found that since this nitpicky methodology was the sort of thing that Congress normally leaves to the Administrative Agencies, and since the Secretary of Education was the guy who wrote the draft Statute in the first place, Congress probably intended to allow the Dept. Ed. room to interpret the Statute. Therefore, the Court weaseled their way out of the plain language with a shady argument about statistics in order to allow them to find the Statute ambiguous which allowed them to defer to the Agency under the Chevron Doctrine.

A: The US Supreme Court noted that §7709 is ambiguous and doesn't specify whether it means the top and bottom 5% of schools or the top and bottom 5% of students.
The plain language of the Statute seems pretty clear and should be in Zuni's favor. However, the Court found that the Statute only mandates that the Dept. Ed. use a method that involves "per-pupil expenditures." But it doesn't say which of several different possible methods the Dept. Ed. must use.
The Court noted several methods of calculation that could be said to be "per-pupil" by a statistician.
The Court noted that the legislative history was silent on how to calculate the statistics.
Based on the standard established in Chevron U.S.A. Inc. v. Natural Resources Defense Council (467 U.S. 837 (1984)) once a Statute has been determined to be ambiguous, the courts are to defer to the Agency's interpretation, as long as that interpretation is reasonable.
In this case, the Court found that the Dept. Ed.'s interpretation was reasonable.
The Court looked to the testimony of statisticians who said that the Dept. Ed.'s interpretation was reasonable.
The Court noted that in this case, it was apparent that Congress specifically wanted the Secretary of Education to develop the policy.
"The matter at issue is the kind of highly technical, specialized interstitial matter that Congress does not decide itself, but delegates to specialized agencies to decide."
The Court noted that Congress actually had the Secretary of Education write the draft language Statute for them, so Congress must have obviously wanted the Secretary to come up with the proper method.
The Court noted that the Statute has been in force for over 20 years, and the Secretary had been interpreting it the same way all that time and Congress never complained.
That's ratification by silence.
Chevron Step 1: Ways of Interpreting Congress' intention
1) Look at text
2) Look at one interpretation of text
3) Look at everything
4) Look at everything and if there's a correct answer, then you don't go to step 2
Dole v. United Steelworkers of America

Facts. The DOL promulgated a hazard communication standard that imposed various requirements on manufacturers aimed at ensuring their employees were informed of hazards in their workplace; and then subsequently issued a revised standard that applied to work sites in all sectors of the community. OMB disapproved of three provisions, claiming that the exemptions were too narrow and the standard, therefore, applied to situations in which disclosure did not benefit employees. United Steelworkers of America (the Respondent Union) filed suit, and the Third Circuit ordered DOL to reinstate the OMB-disapproved provisions. The Third Circuit held that OMB lacked authority under the Paperwork Reduction Act (Act) to disapprove the provisions, and Petitioners sought review. The Act authorized OMB to develop uniform policies for efficient information processing, storage, and transmittal systems within and among agencies.

Issue. Did the Act authorize OMB review and countermand agency regulations mandating disclosure by regulated entities directly to third parties?
R: The Court construed this case as being purely an issue of statutory construction. The Act stated that it applied to “information collection requests;” no part expressly declared whether Congress intended it to apply to disclosure rules, as well. However, the Court found that the language, structure and purpose of the Act revealed that Congress did not intend for it to encompass third-party disclosure rules.

Held. No, the Act did not grant OMB that authority. Affirmed. All information requests to OMB shared one common characteristic: The requested information was being provided to a federal agency, either directly or indirectly. In contrast, DOL’s disclosure rules do not result in information being made available for agency personnel use.
Pauley v. Bethenergy Mines, Inc.

Facts. The Black Lung Benefits Reform Act (BLBRA) expanded methods by which miners could establish eligibility for benefits for disabilities resulting from pneumoconiosis (black lung disease). The BLBRA authorized DOL to promulgate regulations for processing claims, but they could not be more restrictive than those of the prior agency, HEW. The Secretary of Labor for the DOL established regulations which made it easier for miners to invoke a presumption of the disease, but it also established two rebuttable presumptions for the SSA which arguably made it easier to challenge the claims. The challenged rebuttable presumptions were if the “evidence established that total disability or death of the miner did not arise in whole or in part out of coal mine employment,” or if “the evidence established that the miner does not, or did not, have pneumoconiosis.”

Issue. Were the Secretary of Labor’s rebuttable presumptions reasonable?
R: The BLBRA was a highly complex and technical regulatory program, under which Congress specifically constrained the Secretary of Labor from making criteria more restrictive than HEW’s. Since Congress expressly delegated authority to the agencies, the extent of judicial review was limited, and deference was owed to the DOL.

H: The Court upheld DOL’s presumptions based on its finding that they were “reasonable.”
FDA v. Brown & Williamson Tobacco Corp.

F: FDA decided that they had the authority to regulate tobacco.
R: The Court looked to the entirety of Congress' actions and statements about tobacco, and found that there was no Congressional intent to ban tobacco.
Therefore, under the Chevron Doctrine (See Chevron U.S.A. Inc. v. Natural Resources Defense Council (467 U.S. 837 (1984))), since Congressional intent is clear on the issue, there is no room for Agency interpretation.

H: The US Supreme Court found that if you look at the facts, there is no way that tobacco could possibly be considered safe under FDA's guidelines. Therefore if FDA were to regulate tobacco, they would have no choice but to ban it. But, Congressional intent suggests Congress in no way wanted to ban tobacco.
United States v. Mead.

F: The US Customs Service has the authority to set import duties and tariffs based on regulations set by the Secretary of the Treasury.
The Secretary issued a regulation that said that any port-of-entry Customs' office can issue a "ruling letter" to set the tariff for a particular category of imports.
Mead was a company that made calendars and day-planners. These were initially considered to be duty-free items until Customs Headquarters issued a "ruling letter" that reclassified them as diaries, which made them subject to a 4% tariff. Mead sued in the Court of International Trade.

Mead argued that Customs should not be allowed to change their tariff classifications without public notice and input, like they would have to for changing a regulation.
"Ruling letters" are very informal. There was no notice and comment period. This was a decision that Customs made directly to Mead. Other companies might get their day-planners categorized differently. It depended on the whim of the specific customs' examiner that day.
There was no due process, and no explanation or reasoning given in the ruling letter.

The Court of International Trade found for Customs in summary judgment. Mead appealed.

The Court found that based on Chevron U.S.A. Inc. v. Natural Resources Defense Council (467 U.S. 837 (1984)), they were to give deference to Agency actions, as long as the actions were reasonable. In this case, Custom's decision was reasonable, so the Court had no authority to overturn it, even if they disagreed with it.

The Appellate Court reversed. Customs appealed.

The Appellate Court found that "ruling letters" should not be treated like regulations because they are not preceded by notice and comment as under the Administrative Procedure Act, do not carry the force of law, and are not intended to clarify importers' rights and obligations beyond the specific case. Therefore, the Court is not required to give them Chevron deference, like they are required to give to regulations.
H: The US Supreme Court affirmed.

The US Supreme Court found that the courts do not have to give judicial deference to Customs tariff classification rulings.
The Court looked to Chevron, and found that the courts are to give deference to Administrative Agencies, "when it appears that Congress delegated authority to the agency generally to make rules carrying the force of law, and that the agency interpretation claiming deference was promulgated in the exercise of that authority."
"Chevron should apply only where Congress would want Chevron to apply."
The Agency wasn't doing anything that would appear to be a rulemaking, therefore they aren't entitled to the deference that a normal rulemaking decision would have.
The Court found that in this case there was no indication that Congress intended Custom's tariff classification decision to carry the rule of law, therefore deference is not required.
However, the Court noted that based on Skidmore v. Swift (323 U.S. 134 (1944)), "the ruling is eligible to claim respect according to its persuasiveness."
Basically, the courts should consider the Agency's position as the advice of an expert. Not controlling, but helpful.

R: Basically, this case said that only things that go through the rulemaking process or are signed by the head of the Agency are entitled to full (Chevron) deference, while lower decisions are only entitled to partial (Skidmore) deference.

But, it doesn't matter if it is a legislative rule or just an interpretive rule. The important thing is whether the ruling was meant to have 'the force of law'.

Skidmore Test: the degree of deference depends on the degree of the agency’s care, consistency, formality, relative expertiseness, persuasiveness of the agency’s position, consistency with earlier and later pronouncements, thoroughness

Inherent delegation: would Congress expect the agency to be able to speak with the force of law when it addresses ambiguity in the statute or fills a space in the enacted law even one which Congress didn’t actually have an intent as to a particular result, obligation to accept agency position

Express delegation: provides for a formal admin proceduring tending to foster the fairness/deliveration underlying a pronouncement.


Dissent: it was argued that the regulation game from the head of the US Customs Service when he issues the regulation saying that individual Customs Offices could issue "ruling letters." The majority would have the Agencies issued official rulemakings for everything, and that's a waste of time and paper. It would be impossible for an Agency to have defined everything in a formal rulemaking process.

In addition, the dissent suggested that Chevron deference should be a simple yes-no question. The majority blurs the line into a 'totality of the circumstances' approach which makes it a much more complicated legal question.
Gonzales v. Oregon.

F: The statute regulating schedule II controlled substances required that physicians register with the federal government, and that the substances be used for legitimate medical purposes. The Attorney General  interpreted regulation that was merely a copy of the statute finding that assisted suicide was not a legitimate medical purpose, making it a federal crime to use these drugs for that purpose. Oregon had passed a statute legalizing physician-assisted suicide in a limited way, challenged the rule. • Auer Deference: underlying regs gave specificity to a statutory scheme the Sect was charged w/enforcing and reflected the considerable experience and expertise DOL acquiried over time regarding the FLSA.

Government Claims that the Interpretive Rule is an elaboration of the AG’s own regulation requiring all prescriptions to be made for a legit medical purpose and is enttied to Auer deference.


I: whether Seminole Rock/Auer deference applied.
Stndrd: The interpretation should not receive deference b/c the regulation is merely parroting the statute. If the government could get away with this, it could get around Chevron – all the real work would happen through procedures other than N+C rulemaking.

Analysis: No Auer deference Auer was based on a reg that refected considerable experience and expertise while here the underlying reg does little more than restate the terms of the statute itself. The lang the IR addresses comes from Congress, not the AG’s. By parroting the statute it gives little or no instruction on a central issue which is what is a legit medical purpose.The § doesn’t say who gets to decide this issue and the AG cant make it now. We are not interpreting his reg but the statute and he can’t acquire authority when all he does is paraphrase the statute.
No Chevron deference. Before we get to Chevron, we must reach Mead first and determine whether the rule was promulgated pursuant to authority Congress has delegated to the official. The AG is not authorized to make a rule declaring illegit a medical standard for care and treatment of patients that is specifically authorized under state law.

Conclusion: The structure of CSA conveys an unwillingness to cede medical judgmenets to an Exec official who lacks medical expertise. The Ag’s claimed authority is beyond his expertise and incongruous w/the statutory purposes and design. Our interpretation ends with Mead since he has no authority and will not begin a Chevron analysis. Now if the IR is only used for guandance in deciding when the prosecution, then his susbtatnive interpretation could be correct under Skidmore. However there will be no deference since the AG lacks expertise and has not consulted w/anyone outside of the DOJ who could aid in reasonable judgment. Under Skidmore, we could follow IR if it were persusuassive but it is not.
Citizens to Preserve Overton Park v. Volpe.

F: The Department of Transportation wanted to build a highway through Overton Park.
Since the park was Federal land, they didn't need to use eminent domain, or take private lands. However, Department of Transportation Act § 4(f) required that DOT show that there were no "feasible or prudent alternatives" to building through a Federal land.
Local citizens banded together to try to preserve the park. They participated in the DOT adjudication process.
See Administrative Procedure Act (APA) §555.
The Secretary of Transportation (Volpe) announced that the project had been approved.
Volpe provided no factual findings about how DOT came to its decision.
The Citizens sued for an injunction.
The Citizens argued that Volpe's decision was not supportable, based on the no "feasible or prudent alternatives" standard.
The Citizens sought to take the deposition of some DOT officials who were involved in the decision.
The Trial Court found for DOT. The Citizens appealed.
The Trial Court found that formal factual findings were not required by the APA.
The Court found that Volpe had not exceeded his authority.
The Appellate Court affirmed. The Citizens appealed.
H: The US Supreme Court found that Volpe's actions were judicially reviewable based on APA §701.
The Court found that when conducting judicial reviews, courts must conduct a substantial inquiry and determine whether:
The Secretary acted within the scope of his authority.
His decision was within the small range of available choices.
He could have reasonably believed that there were no feasible alternatives.
The actual choice was not "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law."
He followed the necessary procedural requirements.
See APA §706 for guidance on what the courts can and cannot review.
This is known as the Hard Look Doctrine.
See Motor Vehicle Manufacturer's Ass'n v. State Farm Ins. (463 U.S. 29 (1983)).
It's not the Court that takes the hard look, it just makes sure that the Agency has taken a hard look at the issues.
Since there is a "substantive legal standard" set out in the Statute, the decision is judicially reviewable. If there were no standards, then the decision would be committed to Agency discretion, and therefore not judicially reviewable at all.
Basically, in order to be judicially reviewable, there must be a question of law, and not just questions of fact.
The Court found that the proper standard of review was arbitrary, capricious, or an abuse of discretion, as opposed to substantial evidence, or de novo review.
APA §706 says that de novo review is only available if the Agency's fact-finding procedures are inadequate, and
Substantial evidence is only for formal rulemaking and individual trial-type proceedings (see APA §§556-557).
The Court remanded the case back to the Trial Court to determine if Volpe acted within his authority, and gave the Trial Court the authority to require depositions of DOT officials and a presentation of formal findings by DOT.
Basically, there was not enough in the record to make a determination as to whether the decision was arbitrary or capricious, so they told DOT to go back and add more information to the record.
That means not just data, but also an explanation of why they made their decision.
The basic point of this case is that decisions made by Administrative Agencies are judicially reviewable, but that review is limited to ensuring that the Agency was acting within the scope of their authority and that their decisions are not arbitrary, capricious, or an abuse of discretion.
The courts will not reverse an Agency decision. If they find that the Agency cannot support their decision with the record, they simply tell the Agency to go back, do some research, and come to a more supportable position.
So even if you win a case like this, there is a good chance that the Agency will come back with the same final decision, with just a different reasoning.
Motor Vehicle Manufacturers Ass'n of the United States v. State Farm Mutual Automobile Ins. Co.

F: In the case of Motor Vehicles Manufacturer's Ass'n v. State Farm Mutual Automobile Insurance Co. (463 U.S. 29 (1983)), the Department of Transportation had issued a rule (DOT Standard 208) saying that all cars must have airbags or passive restraints. Later, under the Reagan administration, the new Secretary of Transportation decided that the rule was unnecessary and rescinded it.
Standard: Hard Look Doctrine.

R: An agency rule would be arbitrary and capricious if (1) the agency has relied on factors which Congress has not intended it to consider, (2) entirely failed to consider an important aspect of the problem, (3) offered an explanation for its decision that runs counter to the evidence before the agency, (4) or is so implausible that it could not be ascribed to a difference in view or the product of agency expertise.
Block v. Community Nutrition Inst.

Facts. In the early 1900s dairy farmers engaged in an intense competition in the production of milk, and the Agricultural Marketing Act of 1937 (Act) was passed to bring the competition under control. The Act authorized the Secretary to issue milk marketing orders setting the minimum prices that handlers (processors of dairy products) had to pay producers. The purpose of the Act was to raise producer prices to ensure that the benefits and burdens were fairly and proportionately shared by all dairy farmers. The District Court concluded the consumers and nonprofit organizations lacked standing, and that Congress by the Act intended to preclude them from obtaining judicial review. The Court of Appeals agreed the milk handler and nonprofit lacked standing, but concluded the consumers had standing, and that the Act did not reveal “the type of clear and convincing evidence of congressional intent needed to overcome the presumption in favor of judicial review.”

Issue. Could the ultimate consumers of dairy products obtain judicial review of milk market orders issues of the Secretary under the authority of the Act?
R: Whether and to what extent a particular statute precludes judicial review is determined not only from its express language, but from the structure of its statutory scheme, its legislative history, and the nature of the administrative action involved.

Held. No. Consumers could not obtain judicial review of such orders. It was clear from the Act that Congress did not intend to strip the judiciary of all of its authority to review the Secretary’s orders; but it was equally clear that Congress did intend to limit the classes entitled to participate in the development of market orders to only handlers and producers.
Bowen v. Michigan Academy of Family Physicians.

Facts. The Secretary contended that Section:1395ff(b), which authorized “appeal by
individuals” impliedly foreclosed administrative or judicial review of Part B by failing to
authorize such review while simultaneously authorizing administrative or judicial review
of any determination under Part A. Second, the Secretary asserted that Section:1395ii, which
made Section:405(h) of the Social Security Act (SSA) applicable to the Medicare program,
expressly precluded review not otherwise provided in the statute.
Both the District Court and the Court of Appeals rejected the Secretary’s contention of
judicial preclusion.
Issue. Did Congress, in either Code Section:1395ff or Section:1395ii, bar judicial review of
regulations promulgated under Part B of the Medicare program?
Stndrd: The Court begins with the strong presumption that Congress
intends judicial review of administrative action. This presumption will not be overcome
without “persuasive reason to believe that such was the purpose of Congress.”

R: Courts will be hesitant to find implied preclusion for legal/statutory or const. challenges.

H: No.
A careful analysis of the statutory provisions and legislative history of
Section:1395ff revealed that Congress intended to bar judicial review only of
determinations of the amount of benefits to be awarded under Part B.
A review of the legislative history of SSA Section:405(h) and Code Section:1395ii revealed
that Congress intended to foreclose review only of “amount determinations.”
Webster v. Doe.

Facts. Respondent was an exemplary employee of the CIA for several years, and was promoted from a clerk-typist to a covert electronics technician. He voluntarily told the CIA that he was homosexual, and was almost immediately placed on paid administrative leave. The Director later terminated his employment, finding him to be a security threat. Respondent filed an action in District Court, and Petitioner moved to dismiss on the ground that Section:102(c) precluded judicial review of the Director’s determination. Section:102(c) of the Act provided: “The Director of Central Intelligence may, in his discretion, terminate the employment of any officer or employee of the Agency whenever he shall deem such termination necessary or advisable in the interests of the United States.” The District Court concluded that the APA provided judicial review under the Act, and that Respondent was unlawfully discharged because the CIA had not followed its own procedures described in its own regulations. A divided panel of the Court of Appeals determined that judicial review was not precluded.

Issue. Were decisions of the Director under Section:102(c) reviewable, and if so, to what extent?
R: Under APA Section:701(a)(2), even when Congress has not affirmatively precluded judicial oversight, “review is not to be had if the statute is drawn so that a court would have no meaningful standard against which to judge the agency’s exercise of discretion.” However, there is a heightened standard for congressional intent with respect to precluding constitutional claims: clear congressional intent must be demonstrated.
Heckler v. Chaney.

F: Respondents had been convicted in Oklahoma and Texas criminal courts and sentenced to death. The procedure to be used was lethal injection. They applied first to the FDA, stating that while the drugs to be involved in the lethal injection had been approved, the manner in which they were going to be used had not, in violation of the Food, Drug, and Cosmetic Act's prohibition against "misbranding". They also argued that the Act's procedures for "new drugs" should be applicable, given that these drugs were being utilized for a new and un-tested purpose. More simply, they were arguing that the FDA had not certified that the drugs were "safe and effective" for human executions, and thus should be barred for being distributed via interstate commerce.

I: extent to which a decision of an administrative agency, here the Food and Drug Administration, to exercise its discretion not to undertake certain enforcement actions is subject to judicial review under the Administrative Procedure Act.
H: The Court's opinion skirted the jurisdictional issue, ruling that an agency's decision not to pursue an enforcement action is presumptively unreviewable, as such actions are "committed to agency discretion by law" under § 701(a)(2) of the Administrative Procedure Act. Such decisions were presumptively unreviewable under the common law.

A: The Court further supported its holding by pointing to three reasons why reviewing an agency's decision not to act is unsuitable to judicial review. First, agency decisions whether to initiate enforcement actions are usually based on a complicated balancing of multiple factors, such as efficient allocation of limited resources, likelihood of success, and the relationship of the potential action to the overall enforcement strategy of the agency. The courts are ill-suited to performing such an analysis. Secondly, the court noted when an agency chooses not to act, they are not exercising any coercive power over others that might be worthy of heightened judicial protection. Third, the Court found an agency’s discretion not to seek enforcement as being analogous to exercises of prosecutorial discretion that courts have traditionally been unwilling to review.

The Court though emphasized that the presumption of unreviewability is rebuttable where the substantive statute has provided guidelines for the agency to follow in exercising its enforcement powers.

The Court emphasized that the presumption of unreviewability is also rebuttable where (1) an agency declines to act based "solely" on its belief that it lacks jurisdiction, or (2) where an agency "consciously and expressly" adopts a policy that is so extreme that it represents an abdication of its statutory responsibilities.
Massachusetts v. EPA.

F: The Clean Air Act requires the EPA Commissioner to regulate pollutants "which in his judgment cause, or contribute to, air pollution which may reasonably be anticipated to endanger public health or welfare."
A number of States and environmental organizations petitioned EPA to begin regulating CO2 and other greenhouse gases because climate change (aka global warming) was problem likely to endanger the public health.
EPA further argued that even if they did have the authority to regulate greenhouse gasses, it was within EPA's discretion to choose which pollutants to regulate, and they chose not to.
EPA felt that other laws designed to improve fuel economy were good enough.
The States (led by Massachusetts) sued the EPA to force them to begin regulating greenhouse gases.
Specifically, Massachusetts argued that:
EPA does have authority over global warming and greenhouse gases because of the broad wording of the Statute.
EPA's decision not to regulate greenhouse gases exceeded the scope of its discretion under the law.
EPA violated the Clean Air Act by not giving it effect.
H: The Appellate Court affirmed EPA's decision to not regulate greenhouse gas emissions. Massachusetts appealed.
The US Supreme Court reversed and found that EPA must regulate greenhouse gas emissions.
The Court found that the Clean Air Act does indeed give the EPA the authority to regulate greenhouse gases.
"Greenhouse gases fit well within the Clean Air Act’s capacious definition of air pollutant."
The Court also found that EPA's rationale for not regulating greenhouse gases was inadequate.

R: If they did a scientific study and found a scientific basis for not regulating, then that would be ok, but they can't decide not to regulate solely on the opinion of the EPA Commissioner.
The Court remanded the case back to EPA to make a scientific study and make a factual determination.
Despite the fact that the regulation says, "In the Administrator's judgment..."
American Horse Protection Association v. Lyng.

F: Challenge by American Horse Protection Association of Secretary of Agriculture's failure to modify regulations American Horse Protection Act after study shows regulations are insufficient to protect horses as intended by regulations.
Heckler v. Chaney did not involve rulemaking, Court expressly did not decide that issue.
Some common factors between enforcement and rulemaking
Both involve expertise
Both involve agency declining to use its power against private interests
Differences
Analogy to prosecution doesn't apply; here plaintiff is asking agency to set broad policy, not make specific decision. Here decision turns on law rather than facts.
Judicial economy: rulemaking is less frequent.
§553(e): Each agency shall give an interested person the right to petition for the issuance, amendment, or repeal of a rule.
§555(e): Prompt notice shall be given of the denial in whole or in part of a written application, petition, or other request of an interested persno... shall be accompanied by brief statement of the grounds for denial.
R: If Congress wanted agency to explain action, must have been for judicial review.
Court remands to agency for reasonable explanation for decision not to make rule.

H: the Secretary has not presented a reasonable explanation of his failure to grant the rulemaking petition of the Association, particularly in light of the apparent message of the Auburn study. Moreover, what he has said strongly suggests that he has been blind to the nature of his mandate from Congress.
McCarthy v. Madigan.

Facts. The general “Administrative Remedy Procedures for Inmates,” promulgated by the Federal Bureau of Prisons allows prisoners to “seek formal review of a complaint which relates to any aspect of imprisonment.” The review process does not provide for any kind of hearing. Petitioner did not go through the prison administrative remedy, but filed suit in District Court, alleging respondents violated his Eighth Amendment constitutional rights by their deliberate indifference to his needs relating to a back injury and psychiatric problems. The District Court dismissed, and Petitioner filed a motion for reconsideration, arguing that he was not required to exhaust administrative remedies because he was seeking money damages, which the Bureau could not provide. The Court denied the motion, and the Court of Appeals affirmed. The Court of Appeals held that since Bivens actions are a creation of the judiciary, the courts can impose reasonable conditions on their filing to determine whether there is a possible Bivens cause of action. Requiring prisoners to exhaust the administrative remedy first, even absent the ability to award money damages, was permissible because it would create a record to aid the court in determining liability.

Issue. Was Petitioner required to exhaust the prison system’s administrative remedies prior to bringing suit in a federal court, solely for money damages?
R: The general rule is that parties must exhaust administrative remedies before seeking relief from federal courts. However, administrative remedies need not be pursued if Congress did not intend to require them and the litigant’s interests in immediate judicial review outweigh the government’s interests in the efficiency or administrative autonomy that the exhaustion doctrine is designed to further.

A: P's Interests: 1) Unreasonable time frame for admin action request in undue prejudice, (2) Agency cannot grant effective relief, (3) Admin body is biased or predisposed.

Agency's interests: (1) Internal Resolution, (2) Expertise, and (3) Judicial Economy

H: Petitioner’s interests outweighed the countervailing institution’s interests favoring exhaustion. Petitioner did not have to exhaust his constitutional claim for money damages. Turning to congressional intent, Congress neither enacted nor mandated the general grievance procedure promulgated by the Bureau. Further, the grievance procedure did not include any monetary relief. Nor did the interests of the Bureau weigh heavily in favor of exhaustion in terms of the remedial scheme.
Darby v. Cisneros.

F: As a sanction resulting from a possibly shady mortgage deal, Darby (a real estate developer) et.al were banned by an Administrative Law Judge (ALJ) from participating in programs for the Dept. of Housing and Urban Development (HUD) for 18 months.

Under HUD regulations, an ALJ's determination "shall be final unless the Secretary (Cisneros)...within 30 days of receipt of a request decides as a matter of discretion to review the ALJ's finding..."

Instead of going to Cisneros and requesting a review, or taking any further administrative review within HUD, Darby sued for an injunction in Federal Court.
The Trial Court found for Darby. HUD appealed.
The Appellate Court reversed.

The Appellate Court found that Darby had not exhausted his options at HUD, and could not bring suit in Federal Court.
The Doctrine of Exhaustion says that if the primary jurisdiction of a dispute is the Agency, then all possible Agency procedures and decision-making must be exhausted before the dispute can be appealed to a court.
The idea is that the courts don't want to get involved if there is a chance that the Administrative Agency can work it out internally. They only step in once there are no more options available within the Agency.
H: The US Supreme Court reversed the Appellate Court and found for Darby.

The US Supreme Court found that Federal Courts cannot require that a plaintiff exhaust his administrative remedies before seeking judicial review when exhaustion of remedies is not required by either administrative rules or statute.
A close reading of the Administrative Procedures Act (APA §704) (also referred to as §10(c)) said that unless an appeal to "superior agency authority" is "expressly required by statute" or when the agency requires an appeal "by rule and provides that the administrative action is...inoperative" pending that review, then the courts do not have to wait until a case has been exhausted.
The Court noted that the Doctrine of Exhaustion still applies in all cases not governed by the APA.

R: Basically, before this case it was considered common knowledge that a person had to do everything they possibly could within the Administrative Agency before being able to take the case to a court. However, in this case, someone bothered to look and see what the APA actually said about exhaustion, and it was found that you only have to follow the rule if the Agency Statute explicitly says that you must exhaust all options before proceeding to court.

If there is nothing in the Statute saying that you have to file every possible appeal within an Agency before proceeding to court, you are free to proceed to court whenever you like.
But, you still must have finality. So if an Agency makes a decision, but then says that decision is not final until all possible appeals within the Agency have taken place (aka exhaustion), then you cannot go directly to court. On the plus side, until the decision is final it is inoperative.
Abbott Laboratories v. Gardner.

F: Drug companies (like Abbott) were worried about generic drugs taking their market share. They made a point of only advertising drugs by their brand name, and not mentioning the generic name in order to establish brand loyalty.
Even doctors tended not to know the generic name of a drug, so always wrote prescriptions for the brand name.
Congress amended the Food and Drug Cosmetic Act (FDCA) (21 U.S.C. §301) to require all products to contain the name of the generic drug on their labels. The Food and Drug Agency (FDA) issued a regulation interpreting the FDCA to require that manufacturers put the generic name of the drug in parentheses every time they mention their brand name on the label.
Abbott (and 36 other drug companies) sued, claiming that there was nothing in the FDCA to require an 'every time' format. Therefore, FDA was operating ultra vires (aka in excess of statutory authority).
Abbott took this action as soon as the regulation was announced. They hadn't even started changing their labels, and the FDA had not taken any enforcement actions against any companies yet.
Abbott argued that they preferred to not get sued, and that if they had to change all their labels it would be expensive, so let's just get the lawsuit out of the way now.
The Trial Court found for Abbott and granted an injunction. FDA appealed.
The Trial Court found that the scope of the Statute was not broad enough to encompass FDA's regulation.
The Appellate Court reversed. Abbott appealed.
The Appellate Court found that the suit was not ripe because there was no actual case or controversy. It was too early to sue because no one had suffered any harm yet.
R: The US Supreme Court found that the case was indeed ripe. The Court came up with a two-part balancing test for ripeness:
(1) Whether the issue presented to the court is 'fit' for review.
Aka the legal fitness test, which asks whether the court has the information and skills necessary to adjudicate the case.
(2) Whether withholding review would impose a substantial hardship on the party seeking review.
Will the party have to comply with a rule it believes invalid?
Is there a risk of enforcement action and the inherent penalties for failure to comply?

A: In this case, the Court found that the issue was 'fit' because it was only about the law and did not require any subject matter expertise. In addition, Abbott could suffer a hardship if the issue was not adjudicated promptly.
Exactly what would count as a 'hardship' was left pretty vague.
Toilet Goods Ass'n v. Gardner.

Facts. The Petitioners, an organization of cosmetics manufacturers and 39 individual cosmetics manufacturers and distributors, brought this action in the United States District Court for the Southern District of New York seeking declaratory relief and an injunction against the Commissioner and the Secretary of Health, Education and Welfare (Secretary). The challenged regulation permitted the Commissioner to temporarily suspend certification service if it appeared that anyone involved in the manufacture of color additives refused to grant entry to an FDA employee. The District Court held that the Act did not prohibit pre-enforcement review, that a case and controversy existed, that the issues were justiciable, and no reasons were presented by the Government to warrant declining jurisdiction on discretionary grounds. The Court of Appeals affirmed as to three of the challenges to the regulations, but sustained the Government’s contention that review was improper as to the fourth.

Issue. Was pre-enforcement review permissible?
H: Held. Nothing in the Food, Drug and Cosmetic Act bars a pre-enforcement suit under the APA and the Declaratory Judgment Act. However, the Supreme Court agreed with the Court of Appeals that judicial review of that particular regulation in that particular context was not ripe for adjudication. It was not clear whether or when an inspection would be ordered and what reasons the Commissioner would give to justify his order, no primary conduct was affected, and no irremediable adverse consequences flowed from requiring a later challenge to the regulation by a Manufacturer who refused to allow inspection.

R: A claim that raises purely legal questions is presumptively fit for judicial review so long as the challenged policy is sufficiently fleshed out to allow the court to see the concrete effects and implications of its decisions.

Thus a controversy is ripe if further administrative process will not aid in the development of facts needed by the court to decide the question it is asked to consider.