Law Admin

Front 1

o Goldberg v. Kelly (sct 1970)

Back 1

due process requires an evidentiary hearing before welfare benefits are terminated, but does not need to be a judicial or quasi-judicial trial
 Balancing test – gov’t interest does not outweigh welfare recipient’s interest
 Written submissions are not sufficient – must have chance to be heard orally
 Required elements of hearing – right to present oral evidence, confront adverse witnesses, right to counsel
 Welfare benefits became property by virtue of a statute

Front 2

o Board of Regents v. Roth (SCt 1972)

Back 2

– no constitutional right to a statement of reasons as to why the University decided not to rehire Roth
 Only weigh interests involved to determine what form of hearing in required, not whether a hearing is required due to the interest involved
 Liberty not at stake – Roth’s name or reputation was not at stake, no severe disadvantage for finding other employment, no law giving Roth an interest in being rehired
 Stigma plus test – state imposition of a stigma is not an invasion of liberty w/o some other change or right or status (Roth is distinguished in Paul v. Davis citing the mere presence of stigma is not enough)

Front 3

• Stigma Plus Test

Back 3

o Wisconsin v. Constantineau (US 1971) – A state labeled plaintiff a public drunkard and prohibited him from buying alcohol (stigma of label plus legal inhibition triggers stigma plus)
o Paul v. Davis (US 1976) – Sheriff distributes describing plaintiff as a shoplifter, although damaging, there was no alteration of P’s legal rights
o Siegart v. Gilley (US 1991) – P resigns from hospital as a psychiatrist. Former employer sends damaging letter to potential future employer who refuses hire. Resign rather than discharge does not allow for stigma plus.

Front 4

• Liberty and Property

Back 4

o Existence of a property right depends on entitlement created by an independent source like a statute or regulation
o American Manufacturers v. Sullivan (SCt 1999) Supp. pg 1 – no due process rights available to an applicant for benefits b/c under applicable state law, entitlement to benefits is only established when the medical treatment sought is determined to be reasonable and necessary
o Town of Castle Rock v. Gonzales (SCt 2005) Supp. pg 2 – statute which said that police officers ‘shall’ arrest one who violates a restraining order did not create an entitlement to a property interest and to due process
o Cleveland Board of Education v. Loudermill (SCt 1985) pg 42 – state statutes can only create an entitlement to due process but cannot dictate what procedures will satisfy due process requirements under the federal constitution

Front 5

o Mathews v. Eldridge

Back 5

a full evidentiary trial-type hearing is not required by due process before Social Security benefits are terminated (not about whether there is a protected property interest, just whether existing procedures were adequate)
 3 factors for determining type of due process required: private interests that will be affected; risk of erroneous deprivation and value of additional safeguards; gov’t interest, including burden of additional procedures
 Distinguished from Goldberg: eligibility not based on financial need; medical assessment easier than welfare need assessment and less likely to depend on credibility of witnesses; ability to use written submissions more effectively than welfare recipients
 Used to determine timing and elements of constitutionally required hearing

Front 6

o Ingraham v. Wright (SCt 1977)

Back 6

– due process does not require prior notice and an opportunity to be heard before a student is paddled
 2 step analysis: whether asserted interests are encompassed by due process’s protections and what procedures constitute due process
• Liberty interests are at stake
• What process is due depends on Mathews v. Eldridge factors
 Strong private interest; value of additional safeguards is low b/c state is preserving common law; high gov’t interest b/c of cost

Front 7

o Goss v. Lopez (sct 1975)

Back 7

suspension of high school student for 10 days is a deprivation of property and liberty; there is an entitlement to a hearing, but not a full evidentiary hearing, really just a conversation w/teacher -

Front 8

o Parrat v. Taylor (sct 1981

Back 8

State tort law can be a remedy for a negligently lost prison hobby kit (and negligent deprivation of property does not require due process)

Front 9

Zinermon v. Burch (sct 1990)

Back 9

Where possible, a pre deprivation hearing is desirable when mental patient
his inability to protest is predictable

Front 10

o Lujan v. GG Fire Sprinklers (SCt 2001)

Back 10

when gov’t breaches a contract, due process is satisfied by reliance on state contract remedies

Front 11

o Board of Curators Univ. of Mo. v. Horowitz (sct 1978

Back 11

student dismissed for academic rather than disciplinary reasons are entitled to much less protection, sometimes none at all
 No due process if no disputed facts; if discretion is involved in decision though, there is an interest in how that discretion is used

Front 12

o Van Harken v. City of Chicago (7th 1997)

Back 12

decriminalizing parking ticket system so that officers do not have to show up in court is valid due process under Mathews v. Eldridge

Front 13

o Walters v. National Ass’n of Radiation Survivors (1985)

Back 13

statute limiting atty’s fees to $10 in VA cases provided adequate due process; want to honor Congress’s intent that veteran’s not have to divide award w/atty

Front 14

o CT Dep’t of Public Safety v. Doe (S.Ct 2003)

Back 14

convicted sex offender disputed inclusion on a website-published sex offender registration list b/c he said he was not dangerous
 ‘Dangerousness’ not relevant to statute, only fact required was conviction to be included
 Due process only requires a hearing when a relevant issue of fact is in dispute
 (Prof – he may have a substantive due process claim)

Front 15

• Rulemaking versus Adjudication

Back 15

o Adjudication- gov’t action that affects identifiable persons on the basis of facts particular to each of them; procedural due process applies
o Rulemaking – gov’t action directed in a uniform way against a class of people; procedural due process does not apply

Front 16

o Anaconda v. Ruckelshaus (10th 1973)

Back 16

no due process required when EPA imposed a rule that was general in form, but actually only affected one entity

Front 17

o Adjudicative Facts:

Back 17

As found in Londoner, are facts that must be resolved through trial procedure and relate to an individual

Front 18

o Legislative Facts

Back 18

General facts that help the tribunal decide questions of law and policy but are not jury type factual determinations, since an adversarial proceeding will bring little to bear on legislative facts, the dispute does not need a trial

Front 19

o Formal Adjudication

Back 19

Under APA ground rules

Front 20

o Informal Adjudication

Back 20

Where an agency is free to choose its own dispute resolution procedure

Front 21

signal that Congress intended a formal APA adjudication

Back 21

o If federal statute calls for an agency hearing that is ‘on the record’

Front 22

o §554

Back 22

– formal adjudication requirements

Front 23

o Dominion Energy v. Johnson (1st Cir. 2006)

Back 23

no evidentiary hearing required when agency determined whether to grant a CWA variance permit b/c CWA does not require hearing ‘on the record’

 Chevron – 2 step analysis
• Did Congress provide for their intention for how the statute should be interpreted
• If yes → congressional intent controls
• If no → whether the agency’s answer is based on a permissible construction of the statute
o Chevron analysis only applies when the agency is interpreting its own statute

Front 24

MSAPA §§ 102(6)

Back 24

"contested case" for adjudication

Front 25

United States v. Florida East Coast (S. Ct 1973)

Back 25

Congress must use the words “on the record” to initiate a formal hearing

Front 26

Pension Benefit v. LTV (S. Ct. 1990)

Back 26

Courts cannot mandate a rulemaking procedure beyond what is present in the APA so an agency, not the courts, decides what procedure to employ if due process or a statute does not so dictate

Front 27

o Metsch v. University of Florida (FL Dist. Ct. App. 1989)

Back 27

– hearing is not required when a law school applicant is denied admission b/c FL APA procedures for formal hearings only apply when a party’s substantial interests are at stake except when a student’s interests are determined by the State University System – Sincere desire to study law does not amount to a substantial interest

Front 28

o Heckler v. Campbell (SCt 1983)

Back 28

Secretary of HHS may rely on published medical-vocational guidelines to determine claimant’s right to Social Security benefits instead of holding a hearing on the issue
 Agency may rely on rulemaking authority to determine issues that do not require case-by-case consideration
 Claimant may present evidence specific to their ability or argue that guidelines do not apply to them
 This substantive issue is not personal to claimant – issue is just whether there are jobs in the country for people w/certain characteristics

Front 29

o Bowen v. Yuckert (SCt 1987)

Back 29

– Upholds the grid regulations even where there was no inherent right to present factual claims

Front 30

Levine v. Apker (2nd cir 2006)

Back 30

. The court ruled that all of the rules promulgated by the BOP violated the statutory provision that instructs them to take certain factors into account

Front 31

o Morgan v. US (SCt 1936)

Back 31

– agency officer who makes the ultimate decision must consider and appraise the evidence which justifies that decision
 Unrealistic if applied too broadly
 Ok if person hearing the case prepares an intermediate report for agency head to make a decision on

Front 32

o Ballard v. Commisioner of Internal Revenue (Sct 2005)

Back 32

. It would be impossible for a Tax Court judge to give deference to an opinion he himself collaborated in producing. Moreover, the Tax Court's refusal to disclose the trial judge's original report did not allow fully informed appellate review of the court's decision. (See Mazza v. Cavicchia)
o Record made at the hearing is the exclusive basis for the decision

Front 33

o Ex parte contact rule and separation of functions rule

Back 33

prohibit off-record communications relevant to the merits of the proceeding to agency decision-makers between interested parties and agency decision-makers, but allow off-record communication to decision-makers from staff advisers if they have not played an adversary role

Front 34

o PATCO v FLRA (DC Cir 1982)

Back 34

contact b/t agency head and Secretary of Transportation and dinner w/a union proponent who was also a friend were improper, but not severe enough to remand the hearing
 Status reports are not prohibited contact
 Court will consider whether
• The communication probably influenced the decision
• Whether the party who made the contact benefitted from it
• Whether the opponent had adequate opportunity to respond
• Whether vacating the decision would serve any useful purpose
 2 remedies for improper ex parte contact
• Disclosure of improper communication and its content
• Violating party must show cause why their claim or interest should not be dismissed, denied or otherwise adversely affected b/c of violation
o Prohibition extends to communications b/t interested parties and advisers to the agency decision-maker

Front 35

557 D(a) and 556 (a) and 554(a)

Back 35

ex parte rules

Front 36

Portland Audobon v. Endangered Species (9th 1993)

Back 36

President and staff are interested persons for the APA Ajudication

Front 37

o Pillsbury Co v. FTC (5th Cir 1966)

Back 37

Congressional inquiry into the FTC while case was pending indicating how Congressman thought the statute should be interpreted in such a case was improper – Commission was not disqualified due to passage in time and change in personnel
 Holding has been limited to decisions reached in formal adjudication
 In formal or informal adjudications, agency cannot rely solely on Congress’s wishes to make a determination (would be arbitrary and capricious)
 Only applies to cases that are in proceedings, does not apply to cases that only may reach proceedings
o Distinction b/t comment on law and policy issues and comment of facts that are being adjudicated

Front 38

o DCP Farms v. Yeutter (5th cir 1992)

Back 38

– APA prohibits ex parte contacts once a hearing is anticipated; this does not apply to Congress, more to how the private party responds

Front 39

o Withrow v. Larkin (SCt 1975)

Back 39

Plaintiff was not denied due process by the investigation and revocation conducted by agency heads.
 However, a combination of functions below the agency head level could violate due process because there is no need for prosecutors to serve as lower level agents (a court would probably apply a Mattthews type test)

Front 40

Cinderella Career v. FTC (DC 1970)

Back 40

if a disinterested observer may conclude that the decision-maker has in some measure adjudged the facts as well as the law of a particular case in advance of hearing it

Front 41

§408(e)?Model State

Back 41

Its approach to the issues of separation of
functions and internal agency communications is sharply different from that
of the federal APA and earlier model acts.

Front 42

o Citizens to Preserve Overton Park

Back 42

courts can sometimes demand an explanation for an agency’s decision; concerned w/substantive review (whether decision was rational) not w/procedural review (whether decision maker was sufficiently familiar w/record)

Front 43

o OPM v. Richmondi (SCt 1990)

Back 43

no estoppel against gov’t when Navy officer gave incorrect advice about retiree’s ability to take an extra job w/o losing Navy benefits

Front 44

o Heckler v. Community Health Services (SCt 1984)

Back 44

- charitable clinic was advised by a private company which handed claims for gov’t that its use of funds would not reduce its Medicaire reimbursements – DHHS sought to recover excess reimbursements
 Reliance on oral vs. written advice
 Reliance on private intermediary company v. direct gov’t agency
 Insufficient detrimental reliance b/c clinic was only asked to repay funds it shouldn’t have recv’d

Front 45

o GE v. EPA (DC Cir 1995)

Back 45

agency must give fair notice to a regulated party of what conduct it prohibits or requires before it can invoke sanctions – another way to assert estoppel

Front 46

o Yesler Terrace v. Cisneros (9th circuit 1994)

Back 46

– HUD made a determination that the state of Washington’s eviction procedures against suspected drug dealers. The issue was whether the determination was rulemaking (which would require notice and comment according to the APA) or adjudication (with no requirements) by HUD. The court determined it was rulemaking because: determination includes broad class of people as opposed to adjudication’s limited to individuals and the determination was prospective (could be argued that the decision was adjudication because it impacted one party, the Washington state court system

Front 47

IED v. EPA (dc cir 2004)

Back 47

A letter sent to a trade agency reaffirming a long standing policy was not an agency action not reviewable

Front 48

o Bowen v. Georgetown University Hospital (SCt 1988)

Back 48

DHHS could not adopt a rule w/retroactive effect even when a prior version of the rule was invalidating due to improper procedure during rulemaking
 Power to adopt retroactive rules has to be expressly granted by Congress
 Concurring – if rule has unreasonable secondary retroactivity (future effect that affects past transactions), then it may be found to be arbitrary or capricious
 May be implicit authorization for retroactivity if statute contains a deadline that was missed
o Interpretive rules may have retroactive effect

Front 49

o Landgraf v. USI Film (SCt 1994)

Back 49

A statute does not operate "retrospectively" merely because it is applied in a case arising from conduct antedating the statute's enactment or upsets expectations based in prior law. The court must ask whether the new provision attaches new legal consequences to events completed before its enactment. The conclusion that a particular rule operates "retroactively" comes at the end of a process of judgment concerning the nature and extent of the change in the law and the degree of connection between the operation of the new rule and a relevant past event. Any test of retroactivity will leave room for disagreement in hard cases, and is unlikely to classify the enormous variety of legal changes with perfect philosophical clarity. Retroactivity is a matter on which judges tend to have sound instincts and familiar considerations of fair notice, reasonable reliance, and settled expectations offer sound guidance.

Front 50

o Chocolate Manufacturers Ass’n v. Block (4th Cir 1985)

Back 50

– notice of proposed rule is adequate if the changes to the originally proposed rule are in character w/original scheme, and the final rule is a logical outgrowth of the notice and comments already given
 If the final rule materially alters the issues involved in the rulemaking or substantially departs from the terms or substance of the proposed rule, notice is inadequate
o Period for notice and comment usually has to be 30 days or more

Front 51

- §553(b)(3)

Back 51

Terms or substance of proposed rule must be disclosed

Front 52

o Long Island Care at Home v. Coke (SCt 2007)

Back 52

– initial proposal that indicated that the agency was considering the matter was sufficient notice b/c it was reasonably foreseeable that it would be decided differently
 “The object, in short, is fair notice” – Logical Outgrowth Test

Front 53

o E.I.P v. EPA (D.C. Cir 2005)

Back 53

– “Whatever a ‘logical outgrowth’ of this proposal may include, it certainly does not include the agency’s decision to repudiate its proposed interpretation and adopt its inverse”

Front 54

o Portland Cement Ass’n v. Ruckelshauss (Dc 1973

Back 54

– notice should include data and methods for how the agency formulated the proposed rule

Front 55

o CT Light and Power v. NRC(DC 1982)

Back 55

agency must disclose technical studies and data used in decision to propose a particular rule

Front 56

o Rybachek v. EPA (D.C. Cir 1990)

Back 56

– In response to comments, the EPA added thousands of pages to its rulemaking record. There was no period for comment provided upon the addition. To require comment after every change to the record would destroy the process

Front 57

o Chamber of Commerce v. SEC (D.C. Cir 2006)

Back 57

The court overturned SEC rules about independent directors of mutual funds. The agency was ordered to consider costs after a previous appeal. The agency then used information not on the record and without comment period. This was an error. The plaintiff had identified several areas where it would have objected.

Front 58

o Shell Oil v. Epa (D.C. Cir 1991)

Back 58

– A challangers obligation to show prejudice does not apply to the “logical outgrowth” principal

Front 59

o Informal rulemaking

Back 59

 Usual notice and comment procedures
 Agencies can limit comment to written submissions only
 E-notice and comment procedures are being used more often

Front 60

o Formal rulemaking

Back 60

 No ex parte contacts
 Separation of functions provision is not applicable
 If rules are required by statute to be made on the record after an opportunity for an agency hearing, §§556 and 557 apply
 US v. FL East Coast Ry Co (SCt 1973) pg 247 – ‘after hearing’ in statute did not trigger formal rulemaking requirements; only required informal rulemaking procedures

Front 61

 Vermont Yankee Nuclear Power v. NRDC (SCt 1978)

Back 61

reviewing courts cannot impose more procedural requirements than are included in the APA
• APA sets out the maximum procedural requirements Congress intended to allow the courts to impose on agencies during rulemaking1

Front 62

 Overton Park v. volpe (sct 1971)

Back 62

– courts can require agency to provide an explanation of their decision to allow for judicial review of their rationale

Front 63

 PBGC v. LTC(sct 1990) –

Back 63

applies Vermont Yankee to informal adjudication
 Agencies still have to have a rulemaking record, but have full discretion is how that record is developed

Front 64

o HBO v. FCC (DC Cir 1977)

Back 64

In formal rule making, generally communications before final rule is issued does not have to be put in record unless that information is the basis of the agency’s action; once notice of proposed rulemaking is issued, agency officials who are reasonably expected to be involved in the decision should refuse any ex parte contacts

Front 65

o Ass’n of National Advertisers v. FTC (DC Cir 1979)

Back 65

an agency member may be disqualified when there is a clear and convincing showing that he was an unalterably closed mind on matters critical to the disposition of the rulemaking
 Agency heads are appointed to implement certain statutory programs w/the expectation that they have certain views

(Cinderella test for prejudgment in adjudication - – if a disinterested observer may conclude that the decision-maker has in some measure adjudged the facts as well as the law of a particular case in advance of hearing it

Front 66

o Sierra Club v. Costle (DC Cir 1981)

Back 66

HBO is not followed in informal rulemaking procedures; only requires summary of ex parte contacts if they were found to be central relevance to the decision
 Need to allow some ex parte contacts b/c of political process

Front 67

o APA §552(a)(1)

Back 67

rules are not affective until a certain period

Front 68

Corrosion proof fittings v. epa (5th 1991)

Back 68

EPA improperly made an overly broad determination by only relying on the negative impact of asbestos - needed to look at all aspects according to statute

Front 69

APA 553

Back 69

Exceptions to notice and comment

Front 70

 Jifry v. FAA (DC 2004)

Back 70

The FAA dismissed the revocation actions against Jifry. They then published, without notice and comment, rules that would strip his license. They cite the good cause exemption and it is upheld based on imminent danger of terrorism

Front 71

 Direct final rulemaking

Back 71

agency immediately adopts rule but if anyone objects to it after publication then the rule will be withdrawn and usual notice and comment procedures will commence

Front 72

 Interim final rule

Back 72

when agencies adopt a rule in reliance on the ‘impracticable’ or ‘public interest’ prongs of the good cause exemption – usually request comments on the rule after it becomes effective

Front 73

Independant gaurd v. o'leary (9th 1995)

Back 73

The exemption for military rules does not extend to private contractors

Front 74

Tunik v. MSPB (fed cir 2005)

Back 74

A rule requiring the reassignment of alj's was not limited to employees since others were affected - no exception to notice and comment

Front 75

 US Dept of Labor v. Kast Metals (5th Cir 1984)

Back 75

rule changing how businesses are selected for OSHA inspection was exempt because it was only substantive by derivative – rights and obligations of the employer haven’t changed
• Substantial impact test – exemption does not extend to those procedural rules which depart from existing practice and have a substantial impact on those regulated

Front 76

 Public Citizen v. Department of State (D.C. 2002)

Back 76

The “date-of-request cutoff” policy is challenged. The question is whether the agency action encodes a substantive value judgment. Because the rule was procedural, there is no notice and comment required.

Front 77

 Legislative rules

Back 77

issued by an agency pursuant to an express or implied grant of authority to issue rules w/the force of law

Front 78

 Non-legislative rules

Back 78

do not have the force of law b/c not based on delegated authority to issue such rules; exempt from notice and comment procedures and delayed effectiveness

Front 79

o Professionals and Patients for Customized Care v. Shalala (5th Cir 1995)

Back 79

A general statement of policy (falling outside the notice and comment requirement) is “a statement by an administrative agency announcing motivating factors the agency will consider, or tentative goals toward which it will aim, in determining the resolution of a substantive question of regulation.” The FDA treated the factors in CPG 7132.16 as guidelines to help identify whether a particular pharmacy might be engaged in unlawful compounding, not as binding norms. The language of CPG 7132.16 made it clear that it was not intended to foreclose the agency’s discretion in bringing an enforcement proceeding.

Front 80

CropLife v. EPA (DC Cir 2003)

Back 80

The court determines that a press release about acceptable research methodology was a binding regulation that because it was not issued with notice and comment, was now void. The court held the announcement was a "binding norm" that is "finally determinative of the issues or rights that it addresses"

Front 81

McLouth Steel v. Thomas (DC 1988)

Back 81

A mathematical model is adopted without notice and comment, the court views the manner of the annoucement as representing a final legislative rule. Also, they told P that they're decision was final and unreviewable creating the impression of invalid legislative rule.

Front 82

102(27)(F). MSAPA

Back 82

Guidance Docs

Front 83

o Hoctor v. US Dept of Agriculture (7th cir 1996)

Back 83

interpretive rules are distinct from those decisions which make a reasonable but arbitrary rule which although consistent w/the underlying statute or regulation still represents an arbitrary choice among methods of implementation

Front 84

 Rule is non-legislative or interpretive

Back 84

when the agency has no legislative rulemaking authority at all w/respect to the subject matter of the rule

Front 85

 Rule is legislative i

Back 85

if w/o a legislative rule by the agency, the legislative basis for the agency’s enforcement would be inadequate

Front 86

o NLRB v. Wyman Gordon (SCt 1969

Back 86

– NLRB could promulgate a new rule during adjudication when it was only to apply 30 days after the decision and was not applied to the parties to the case
 Agency is free to adopt new case law principles through adjudication but then it must entertain any arguments put forth that have not been considered before – if done through rulemaking then all arguments can be considered at once during notice and comment

Front 87

o NLRB v. Bell Aerospace (SCt 1974)

Back 87

agency can announce new principles in an adjudicatory proceeding although 3 situations when there might be a different result based on reliance interests
 When the adverse consequences of retroactive adjudication would be substantial to parties who had relied on past agency decisions
 When new liability is sought to be imposed retrospectively by adjudication on individuals for past actions which were taken in good faith reliance on agency pronouncements
 When fines or damages are involved

Front 88

Chenery (II)

Back 88

o he US Supreme Court found that there are two ways that an Administrative Agency can announce a new policy. They can either:
+ Promulgate a new rule and go through the standard rulemaking process, or
+ They can simply enforce the new policy in an adjudication.
* The basic take home message from this case is that an Agency might be encouraged to use the rulemaking process to promulgate a new policy, but they don't have to do that. They can come up with a policy and immediately and without warning start finding against people/companies in adjudications.
o That means that a company might get their permit denied, or even get fined for doing something that they didn't know was not allowed!
* The Chenery Principle says that a court may not affirm an Agency decision on grounds that are different from the grounds that the Agency made their decision.
o Basically, if the Agency says that a rule should be made because of Reason A, and a court decides that is not a good reason, they can't then affirm the decision because of Reason B. All they can do is send the case back to the Agency and have them rewrite their rule on a different set of grounds.
+ So, in this case, the Court said that the SEC couldn't reach their conclusion based on a misinterpretation of case law. But the Court just sent it back to the SEC to develop a different rationale, as opposed to just affirming the SEC's original conclusion because of the SEC Enabling Act.
+ If the court doesn't like the grounds, all it means for the Agency is that they get a do-over. The courts won't make the decision for the Agency.

Front 89

NLRB v. St Francis (9th 1979)

Back 89

Court finds a refusal to follow its own precedent by the NLRB to be arbitrary and capricious

Front 90

Retail Union v. NLRB (dc 1972)

Back 90

Test for unfairly retroactive case-law constitutes abuse when:

Among the considerations that enter into a resolution of the problem are (1) whether the particular case is one of first impression, (2) whether the new rule represents an abrupt departure from well established practice or merely attempts to fill a void in an unsettled area of law, (3) the extent to which the party against whom the new rule is applied relied on the former rule, (4) the degree of the burden which a retroactive order imposes on a party, and (5) the statutory interest in applying a new rule despite the reliance of a party on the old standard. Taking all of these considerations into account, we find that the inequity of applying the Laidlaw rule to the facts of this case far outweighs the interests that might be furthered if it were applied.

Front 91

o WWHT v. FCC (DC Cir 1981)

Back 91

an agency may be forced by a reviewing court to institute rulemaking proceedings if a significant factual predicate of a prior decision on the subject has been removed – court may not force a rulemaking procedure if denial was adequately supported by facts and policy concern and was not arbitrary or capricious

Front 92

o MA v. EPA (SCt 2007)

Back 92

EPA had to provide reasons for denying petition, even though such denial was w/in their discretion

Front 93

In re International Chem (DC 1992)

Back 93

o 4 factors to consider when determining whether the agency’s delay was unreasonable
 Length of time since agency came under a legal duty to act
 Reasonableness of delay judged in the context of the statute which authorizes the agency’s action
 Consequences of agency’s delay
 Existence of any administrative error or practical difficulty in carrying out the deadlines including need to prioritize limited resources

In this case, a six year delay compounded by the presence of poison made the court compel an answer

Front 94

o WAIT Radio v. FCC (DC Cir 1969)

Back 94

– denial of waiver must be accompanied by a statement of reasons – reason cannot be that w/o waiver action would violate the rule or regulation
o May be a requirement that every significant rule have a waiver provision
 Some agencies have never granted a waiver from certain rules – upheld by courts

Front 95

• Non-delegation Doctrine

Back 95

o Congress’s power to delegate its legislative authority is limited
 Separation of powers argument
 Checks and balances argument
o Currently – SCt respects that doctrine but has upheld every delegation brought to its attention

Front 96

 Legislative veto

Back 96

allowing legislators to invalidate or suspend an agency’s action by less that a statute - violates presentment clause and bicameral clause

Front 97

 INS v. Chadha (SCt 1983)

Back 97

– legislative vetoes are unconstitutional because such a veto is a legislative action requirement bicameral and Presidential approval or presentation

Front 98

 Buckley v. Valeo (SCt 1976

Back 98

– Congress may only delegate the appointment of inferior officers to the President, Courts of Law or to Heads of Departments (executive branch agencies)
 Principal officers must be chosen by the President on advice and consent of the Senate

Front 99

 Morrison v. Olson (SCt 1988)

Back 99

– upheld statute allowing a special court to appoint independent counsel to investigate possible federal violations by high ranking executive officials
• Appointments should not be made by incongruous branches (judicial branch should not appoint an executive official)
• Inferior officers are subordinate to some other official
• Question of whether this has been overruled

Front 100

Free Enterprise Fund v. Public
Company Accounting Oversight Board, 130 S.Ct. 3138 (2010)

Back 100

excerpted at
length in § 7.5.2c of this supplement, the Court held that the structure of the
Board, an entity established by the Sarbanes-Oxley Act of 2002, was
unconstitutional. The Securities and Exchange Commission, which had
appointed the Board, could remove its members only for good cause, and the
President, in turn, presumably could remove Commission members
themselves only for good cause. This dual level of tenure protection unduly
weakened presidential authority over the Board. Therefore, the Act’s
restriction on the grounds on which the SEC could remove Board members
should be treated as a nullity.
The Court then turned to the plaintiffs’ contention that, under the
Appointments Clause, the SEC should not have been empowered to appoint
the members of the Board in the first place. The Court noted that Freytag,
Casebook § 7.5.1 N.4, had left open the question of whether the SEC was a
“Department” for Appointments Clause purposes. Adopting the position of
Justice Scalia in that case, the Court answered that question affirmatively,
because the SEC is “a freestanding component of the Executive Branch, not
subordinate to or contained within any other such component.” In addition,
the SEC commissioners are collectively the “Heads” of that Department. As
to the question of whether the Board members were “principal officers” who
could only be appointed by the President with senatorial confirmation, the
Court said this:
We held in Edmond v. United States, 520 U.S. 651 (1997), that
“[w]hether one is an ‘inferior’ officer depends on whether he has a
superior,” and that “‘inferior officers’ are officers whose work is
directed and supervised at some level” by other officers appointed by
12
the President with the Senate’s consent. In particular, we noted that
“[t]he power to remove officers” at will and without cause “is a
powerful tool for control” of an inferior. As explained above, the
statutory restrictions on the Commission’s power to remove Board
members are unconstitutional and void. Given that the Commission
is properly viewed, under the Constitution, as possessing the power
to remove Board members at will, and given the Commission’s other
oversight authority, we have no hesitation in concluding that under
Edmond the Board members are inferior officers whose appointment
Congress may permissibly vest in a “Hea[d] of Departmen[t].”

Front 101

 Edmond v. US (SCt 1997)

Back 101

inferior officers are those whose work is directed and supervised at some level by others who were appointed by presidential nomination w/the advice and consent of the Senate
• Morrison appointment indicated the special prosecutor was to be independent of the supervision or control of any officer in the Department – has this been overruled by Edmond?
 Mere employees of agencies are not subject to the appointments clause (i.e. ALJs)
 Legislators can set qualifications that executive appointees must meet

Front 102

 Humphrey’s Executor v. US (SCt 1935)

Back 102

statute can constitutionally limit the President’s power to remove at will for officials not acting in a purely executive function
• Being able to be removed at will destroys such officials independence from the executive branch

Front 103

 Independent agencies

Back 103

created to lessen political influence of the agencies decisions
• Heads cannot be removed by the President except for good cause, usually have statutory requirements for staggered terms and party balance

Front 104

 Morrison v. Olson (SCt 1988)

Back 104

determination of whether it is constitutional to limit President’s removal power to only cases of good cause or whether it impermissibly interferes with the executive’s function is not entirely dependent on whether the official functions in a wholly executive way
• Separation of powers question can be looked at as whether there is any attempt by Congress to take another branch’s power
• Still look at whether the limitation will cause a disruption of the Executive’s function
 Congress cannot keep for itself the power to remove if this would usurp the power of another branch

Front 105

 Universal Camera v. NLRB (SCt 1951)

Back 105

– reviewing courts must take into account contradictory evidence and base decision on whether there was substantial evidence in the record to support the Board’s decision
• Must review the record as a whole, not just the evidence that the Board gave weight to
 If the agency head reverses an ALJ’s credibility findings, this determination is treated by the reviewing court as a minus factor under the substantial evidence test
 Substantial evidence has to be more than a mere scintilla – such relevant evidence as a reasonable mind might accept as adequate to support a conclusion (directed verdict standard)

Front 106

o Chevron v. NRDC (SCt 1984)

Back 106

reviewing court may not substitute its own construction of a statutory provision for a reasonable interpretation made by an agency administrator
 Has Congress spoken directly on the issue?
• Can look at the specific statute as well as inferences drawn from other statutes in the area, and the fit or structure of the entire statutory scheme
 If not, whether the agency’s answer was based on a permissible construction of the statute?
• Implicit delegation to allow agency to fill in gaps of statutes they are supposed to administer
 Example of strong deference approach to judicial review
 Only applies to statutes that the agency administers

Front 107

INS v. Cardoza-Fonseca (sct 1987)

Back 107

The words "well founded fear of persecution" were inappropriately interpreted to be based on likelyhood of persecution.

(Applies Chevron 1)

Front 108

MCI v. At and t (sct 1994)

Back 108

"modify" cannot be a dramatic departure from the statute


(Applies Chevron 1)

Front 109

NRDC v. Daley (DC 2000)

Back 109

A quota of fish is unreasonable since it has no chance of meeting the statutory requirements


(Applies Chevron 2)

Front 110

Chemical Manu v. EPA (DC 2000)

Back 110

The early cessation requirement of a pollution statute would be unreasonable because it would not advance the purpose of the act and be unjustifiably costly


(Applies Chevron 2)

Front 111

RNC v. FEC (dc 1996)

Back 111

"best efforts" is unreasonably interpreted to mean misleading donors

(Chevron 2)

Front 112

Food and Drug Administration v. Brown & Williamson Tobacco Corp., 529 U.S. 120 (2000),

Back 112

tobacco companies challenged the FDA's authority to regulate cigarettes. The statute authorized FDA to regulate "drug delivery devices," and FDA found that nicotine was a drug and, therefore, a cigarette was a drug delivery device. In deciding whether the term "drug delivery device" was ambiguous, the Court said that whether Congress had directly addressed the issue "must be guided to a degree by common sense as to the manner in which Congress is likely to delegate a policy decision of such economic and political magnitude to an administrative agency." Then, after a full analysis of the history and text of the Food, Drug and Cosmetic Act (FDCA), as well as the history of other statutes dealing with tobacco products, the Court concluded that Congress clearly intended to exclude tobacco products from regulation under the FDCA. That is, the Court applied Chevron but stopped at step one, because the Court found the statute was clear on the question.

Front 113

o Christensen v. Harris County (SCt 2000)

Back 113

interpretations in opinion letters do not carry the force of law and do not warrant Chevron type deference

Front 114

o US v. Mead (SCt 2001)

Back 114

agency actions, such as tariff classifications, were not intended by Congress to carry the force of law and therefore Chevron does not apply; instead the Skidmore deference of granting the level of respect to the extent that the document has the power to persuade
 Although just b/c a statement does not carry the force of law, it doesn’t mandate the exclusion of Chevron deference
o A court’s prior judicial interpretation of a statute would trump an agency’s construction that would otherwise have Chevron deference

Front 115

INS v. Aguirre (sct 1999)

Back 115

In adjudicative situations that are not exactly APA formal proceedings but are highly structed evidentiary proceedings, the court has applied chevron

Front 116

o Long Island Care at Home v. Coke (SCt 2007)

Back 116

Where an agency rule sets forth important individual rights and duties, where the agency focuses fully and directly upon the issue, where the agency uses full notice-and-comment procedures to promulgate a rule, where the resulting rule falls within the statutory grant of authority, and where the rule itself is reasonable, [**2351] then a court ordinarily [*174] assumes that Congress intended it to defer to the agency's determination.

Front 117

National Cable & Telecommunications Assn. v. Brand X Internet Services, 545 U.S. 967 (2005).

Back 117

if the Supreme Court, as opposed to a lower court, interpreted a federal statute, the Supreme Court's interpretation would remove any pre-existing ambiguity and preclude an agency from adopting a different interpretation.

Front 118

National Wildlife v. Browner (dc 1997)

Back 118

A litigation position taken by an agency is not binding in any analysis

Front 119

Auer v. Robbins (sct 1997)

Back 119

On the other hand, if the agency's interpretation occurs in an amicus brief, where the agency is acting not in its own self-interest, then its interpretation may qualify for Chevron deference. See, e.g.,

Front 120

o Citizens to Preserve Overton Park v. volpe (SCt 1971)

Back 120

– first decide whether administrator acted w/in scope of his authority; then decide whether the actual choice made was not arbitrary, capricious, or an abuse of discretion
 Look to what factors the relevant statute requires the agency to consider when making a discretionary decision

Front 121

o Salameda v. INS (7th Cir 1995)

Back 121

review of deportation suspension request that was denied – agency should have considered other information when determining ‘extreme harship’ (arb and cap)

Front 122

o Butz v. Glover Livestock (SCt 1973)

Back 122

agency’s choice of sanction should not be overturned unless it is unwarranted in law or w/o justification in fact

Front 123

o Other abuses of discretion

Back 123

arbitrary policy decision underlying discretion, illogical reasoning, insufficient factual basis, inconsistent w/prior agency policies, failure to adopt an alternative solution

Front 124

o Chenery rule

Back 124

court cannot affirm an agency decision on some ground other than the one relied on by the agency in the decision under review
o When agency is departing from precedent, there must be a reasonable explanation for that departure

Front 125

• Judicial Review of Discretionary Determinations in Adjudication

Back 125

o Arbitrary and capricious test to review discretionary elements of administrative rules, informal and formal adjudications, fact-finding in informal adjudications

Front 126

• Judicial Review of Discretionary Decisions in Rulemaking

Back 126

o Arbitrary and capricious test to review policy choices in rulemaking

Front 127

o Motor Vehicle Manufacturers v. State Farm (SCt 1983)

Back 127

rescission or changing of a rule was arbitrary and capricious b/c the agency did not provide a reasoned explanation of the rescission
 Reviewing court cannot set aside an agency rule that is rationally based on consideration of the relevant factors and w/in the scope of the delegated authority of the agency
 Rescission or changing of a rule is subject to arbitrary and capricious standard of review

Hard Look:

 Court looks to whether the agency carefully deliberated about the issues raised by their decision
 Agencies must offer detailed explanations for their actions, including all relevant factors
 Court can reverse if agency failed to consider a plausible alternative and explain why it rejected those alternatives
 Agency must explain any change from precedent

Front 128

FCC v. Fox Television Stations (sct 2009)

Back 128

s the FCC's order imposing liability on Fox Television Stations for fleeting expletives spoken during two nationally broadcast awards ceremonies is "arbitrary and capricious" under the Administrative Procedure Act, based on the FCC's previous acceptance of similar expletives?

No. The Supreme Court held that the FCC's order was neither "arbitrary" nor "capricious." Justice Antonin G. Scalia announced the judgment of the court in which Chief Justice John G. Roberts and Justices Anthony M. Kennedy, Clarence Thomas, and Samuel A. Alito joined in part, reasoning that the FCC need not prove that its change in policy is "better" than its prior stance. Rather, the FCC need merely prove that its new policy is "permissible" and that there are good reasons for it, as in this case.

Justice Thomas wrote separately, concurring. Justice Kennedy also wrote separately, concurring in part and concurring in the judgment. He argued that when the FCC changes policy, such that it reverses its own precedent, it should explain why. Justice John Paul Stevens dissented. He argued that the FCC need explain why it changed its policy and disagreed that the word "indecent" allowed the FCC to punish the broadcast of "any" expletive that has a "sexual or excretory origin." Justice Ruth Bader Ginsburg also dissented. She noted, that while the First Amendment issues surrounding the case were not addressed, they "cast a shadow", and the Court should be mindful that words "unpalatable to some may be commonplace for others." Lastly, Justice Stephen G. Breyer dissented and was joined by Justices Stevens, Souter, and Ginsburg. He argued that the FCC failed to adequately explain why it changed its policy and thus its order with respect to the Fox Television Stations was "arbitrary" and "capricious."

Front 129

• Judicial Jurisdiction

Back 129

o If a statute is explicit as to the review procedures, that that is the exclusive procedure to be followed for that statute
o If no explicit statute, then ordinary rules of jurisdiction apply

Front 130

o Statutory Preclusion of Judicial Review

Back 130

 Rebuttable presumption that administrative actions are subject to judicial review

Front 131

 Bowen v. MI Academy of Family Physicians

Back 131

when the statute only expressly precluded judicial review of the amount determination, there was still room for judicial review of the method of the determination
• Failure to provide for judicial review is not equivalent to congressional intent to preclude such review

Front 132

 Yakus v. US (SCt 1944)

Back 132

upheld regulation which stated that challenges to it could only be brought w/in 60 days after it was promulgated

Front 133

o Actions ‘Committed to Agency Discretion’

Back 133

 2 types of agency discretion
• Discretion that is reviewable under §706(2)(A) – arbitrary and capricious, abuse of discretion
• Discretion that is committed to agency discretion by law and is not reviewable at all

Front 134

 Heckler v. Chaney (SCt 1985)

Back 134

when the statute which the decision’s authority is premised on provides no meaningful standard by which to judge the decision, there can be no judicial review
• Presumption that agency refusals to take enforcement steps are generally not judicially reviewable
 Presumption of unreviewability of discretionary decisions on whether or not to prosecute can be overcome by statutory standards appropriate for judicial review
 SCt – agency’s refusal to engage in rulemaking is reviewable

Front 135

 §706

Back 135

Reviewability

Front 136

 Norton v. Southern Utah Wilderness Alliance (SCt 2004)

Back 136

– federal courts can only compel agency actions that are discrete and legally required; can direct an agency to take action but cannot direct how it shall act
• A general categorical mandate does not allow a court to decide whether a particular non-action by the agency fails under that mandate
 If P had filed a rulemaking petition to try to prompt agency to take action and they refused, then it would be reviewable under §706(1)

Front 137

 Ass’n of Data Processing Service Orgs. v. CAMP CAMP (SCt 1970)

Back 137

3 step inquiry for determining standing
• Whether P alleges that the challenged action has caused him injury in fact, economic or otherwise
• Whether the interest sought to be protected by the complainant is arguably w/in the zone of interests to be protected or regulated by the statute or constitutional guarantee in question
o Focus should be on the specific provision rather than the entire statute on whom it was designed to protect
• Whether judicial review of this particular action has been precluded

Front 138

 Air Couriers v. American Postal Workers (US 1991)

Back 138

since the statute granting a monopoly to USPS for carrying mail was not passed to protect the postal workers, they were not w/in the zone of interests that the statute intended to protect

Front 139

– Bennett v. Spear (sct 1997)

Back 139

 Zone of interest prong is prudential – Bennett v. Spear, Congress provided that under ESA any citizen could sue for certain violations which dispensed w/the zone of interests requirement

Front 140

 Lujan v. Defenders of Wildlife (SCt 1992)

Back 140

– 3 elements of constitutional minimum of standing
• Injury in fact which is concrete and particularized and actual or imminent and not hypothetical
• Must be a causal connection b/t the injury and the conduct complained of
• Must be likely (vs. speculative) that the injury will be redressed by a favorable decision
 Associations have standing when: (1) one or more of their members would have standing to sue; (2) the interests the ass’n seeks to protect are germane to the organization’s purposes; (3) neither the claim nor the relief requested requires the participation of individual members in the lawsuit

Front 141

 Sierra Club v. Morton (SCt 1972)

Back 141

historic commitment to conservation is not sufficient to establish standing
 P who can establish injury in fact can have sufficient standing to challenge an agency’s failure to prepare as EIS even though it would not require the agency to cease the project regardless of environmental damage

Front 142

 Vermont Agency of Natural Resources v. US (SCt 2000)

Back 142

an interest unrelated to the injury in fact is insufficient to give standing – interest that is only a byproduct (i.e. a bounty for bringing suit) itself cannot give rise to a cognizable injury in fact

Front 143

 FEC v. Akins (SCt 1998)

Back 143

if P’s injury is shared by millions, still sufficient to provide standing

Front 144

 MA v. EPA (SCt 2007)

Back 144

– a State can have standing to sue

Front 145

Nut: courts examine the statutory scheme of agencies to determine whether they are allowed under non-delegation by...

Back 145

looking for an intelligible principal and whether there are substantive and procedural rules that limit the agency's power and assure adequate control and accountability in the exercise of official power.

Front 146

Nut: Meat Cutters (1971)

Back 146

A statutory standard of a previous delegation could be read into the legislation. The court determined that any price needs to be fair and equitable and the Presidents determinations were subject to this standard. (The broad message of meat cutters remains valid: that delegation can rest on the overall system of control)

+the presumed availability of judicial review under the APA supported the delegations validity because it ensured that standards could be tested for rationality, compliance with congressional mandate, and consistency.

Front 147

Nut: Kent v. Dulles (1958)

Back 147

Court would not presume that an agency had been delegated unconstitutional powers without a clear statement of intent by the congress.

Front 148

Nut: American Trucking (1991)

Back 148

Last time the non-delegation clause was brought up; generally, the statutes will be forcefully construed so as not to cause constitutional conflicts

Front 149

Difference between judicial review and political oversight

Back 149

Judicial oversight is based on constitutional concerns and statutes. Political oversight involves balancing, bargaining, and making policy choices. Courts cannot review policy decisions and generally grant a reasonable decision making process to an agency's rule or judgement.

Front 150

Nut: Legislative oversight by formal action

Back 150

-Congress can revoke or narrow granted authority
-They can also mandate methods
-No legislative veto (Chadha)
-Budgets

Front 151

Nut: Chadha (1983)

Back 151

-Cited as formalistic
-the procedure, however, was purely negative
-subjected regulations to small unrepresentative oversight committees.

Front 152

Nut: CRA (1996)

Back 152

Prevents "major rules" from going into affect until 60 days after they leave the agency so congress can vote on them if needed, only used once

Front 153

Nut: Robertson v. Audubon (1992)

Back 153

Congress used appropriations to change logging regulations during a litigation. Shows that congress can "intercept" active agency litigation. (Cannot enact or change law after after final decision)

Front 154

Nut: Metro Wash Airports v. Citizens for abatement of noise (1991)

Back 154

An oversight board composed of congressman was unconstitutional because it was an agent of the congress and whether it was acting in legislative capacity or as an executive, it was in violation of bicameralism, presentment, etc.

Front 155

Nut: Clinton v. New York (1998)

Back 155

Line Item Veto allowed president to "cancel" certain provisions unless congress passed a disapproval bill, the bill would take affect as "canceled"
-Court saw it as giving the president to unilateral amend legislation

Front 156

Nut: Informal Oversight

Back 156

-Political Pressure
-Investigations
-Threats of legislation
-GAO (government accountability office)
-Casework (assisting constituents with the bureaucracy)

Front 157

Nut: Bowsher v. Synar (1986)

Back 157

GAO has limits

Front 158

Nut: Pillsbury v. FTC (1966)

Back 158

A congressional oversight committee subjected an FTC chairman to prolonged and hostile questions

Front 159

Nut: DC Federation v. Volpe (1971)

Back 159

House appropriations chairman brought pressure to build "three sisters" which the court determined was improperly considered since the legislation mandates consideration "on the merits"

Front 160

Nut: Sierra Club v. Costle (DC 1981)

Back 160

-Coal mining state senator made his constituents feelings known at a rule making proceeding
-Since there was no hard evidence of improper considerations (a rulemaking proceeding is political in nature) the court did not disrupt

Front 161

Nut: Executive Control

Back 161

-Appointment
-President appoints principal officers with advice and consent of the senate

Front 162

Nut: Buckley v. Valeo (1976)

Back 162

-Officers requiring appointment are those exercising significant authority pursuant to the laws of the us such as rulemaking, adjudication, or enforcement

Front 163

Nut: Morrison v. Olson (1988)

Back 163

Act authorized the court of appeals to appoint a special prosecutor or independant council to investigate crimes in executive branch. Court found the appointment proper since she was an inferior officer based on her limited appointment to a single case and because she was removable by the attorney general.

Front 164

Nut: "Fatal Incongruity"

Back 164

Wherein the appointment of an inferior officer is an inappropriate cross branch maneuver. In Morrison, there was precedent for judges appointing prosecutors.

Front 165

Nut: Edmond v. US (1997)

Back 165

Inferior officer is an officer whose work is directed and supervised at some level by a presidential appointee.

Front 166

Nut: Freytag v. Commissioner (1991)

Back 166

When the appointment does not have significant authority, they are employees. In the case of adjunct tax judges, they are inferior officers and thus had to be appointed pursuant to Article 2. In this case, the chief judges appointment power is acceptable under the "courts of law" mentioned in the appointments clause. However, the judge is not head of a department since that title can only be bestowed on executive divisions like cabinet level departments. (text: court shows concern about the appointment power being too diffused)

Front 167

Nut: Independent Agencies

Back 167

Tend to be multi member boards and commissions like the SEC, FCC, and NLRB. The comissioners often have staggered appointments and provisions against arbitrary removal. They are often described as a headless fourth branch

Front 168

Nut: Humphreys Executor v. US (1935)

Back 168

Where the agency occupies no place in the executive department, and acts quasi judicially or quasi legislatively, removal for cause provisions are acceptable limitations on the executive branch.

Front 169

Nut: Wiener v. United States (1958)

Back 169

Where congress mandated comissioners, to "adjudicate according to law" the court infers a congressional desire to shield them from arbitrary removal

Front 170

Nut: Conflict between Humphrey's and Morrison?

Back 170

The court recognized that the independant council was clearly executive in nature, however, it upheld a provision limiting the removal power to good cause. The test was whether the president was impeded in his constitutional duty. (this seems to reconcile Humphrey's in that the independant agencies were not under the executive branch)

Front 171

Nut: Congressional Role in appointments

Back 171

Congress cannot make appointments
It can set qualifications (like a provision that the committee be politically balanced)
-They also have the advise and consent
-Congress must rely on impeachment

Front 172

Nut: Bowsher v. Synar (1986) facts

Back 172

The Gramm-Rudman-Hollings Act provided that if the congress and president failed to agree on fiscal policies that would limit deficits, across the board reductions in program funding would go into effect. Calculations of these reductions would be by the comptroller (who is removable by joint resolution of congress). The court ruled his responsibilities would be executive thus, congress cannot have the ability to terminate the comptroller and the act was struck down on seperation of powers concerns. The court felt he could not do his job with the threat of congressional oversight. (text: the comptrollers role in the act was an improper attempt by congress to influence the budget reduction process without taking political risks)

Front 173

Nut: Functionalist v. Formalist

Back 173

Chadha, Bowsher, and Clinton v. New York - formalist (liberty is best preserved by strictly observing the tripartite structure of Constitution


Functionalist: Morrison suggests that case by case is best method for determining whether there is a tripartite problem. The court saw no significant enhancement of the congress' power or the courts at the expense of the presidency nor did it unduly weaken the president. Also, Mistretta (1989) the court considered constitutionality of the U.S. Sentencing Commission did not strengthen the judicial branch or undermine the other branches since sentencing guidelines were in the traditional realm of the judiciary.

Front 174

Nut: Basic series of Agency determinations

Back 174

1) Interpret the law it is to implement
2) Find facts about the situation it will address
3) Use discretion in applying the law to the factual situation that has found to exist

Front 175

Nut: Agency determinations - degree of deference by court

Back 175

Generally, the courts are more deferential to findings of facts than legal conclusions

Front 176

Nut: Basic order of review

Back 176

1) through a relatively vigorous examination of the agency's legal conclusions, that the agency did not exceed the outer bounds of the delegation (the most intensive scrutiny is directed at questions of whether the agency acted with its authority, considered proper factors in reaching its decision, and complied with all required procedures).

2) Second, to ensure through a more deferential examination of the agency's factual and discretionary determinations, that the delegated power was exercised in a rational fashion

Front 177

Nut: Chevron v. NRDC (1984)

Back 177

Two inquiries that a court must undertake when reviewing an agency's construction of the statute that it administers: "whether congress has addressed the precise question at issue" (if so, the court must give deference to the congressional intent). However, if the agency's statute were "silent or ambiguous with respect to the specific issue" the question becomes whether the agency's answer is permissible (ie a "reasonable interpretation"). (text: court presumes that were statute is ambiguous congress intended agency to fill in the gap in a reasonable way)

Front 178

Nut: Addison v. Holly Hill (1994)

Back 178

An instance where the court determined the "precise question" under Chevron to have been "directly addressed" so that a wage hour determination was deemed to have been decided based on improper factors size instead of geography as the statute ordered.

Front 179

Nut: INS v. Cardoza-Fonseca (1987)

Back 179

Court finds that the imputation of the clear probability standard from other parts of a statute was innappropriately applied to the "well founded fear of persecution" standard since congress clearly wanted a more lenient standard for the descretionary application of deportation leniency. (Thus, it seems that congress was clearly enunciating an answer to a different question that the court applied to the question of "well founded fear")

Front 180

Nut: Challenger's burden in "precise question"

Back 180

The challanger has a free choice in asserting statutory theories but has the burden of showing that the statute "clearly" supports the theory (ambiguity is not enough)

Front 181

Nut: MCI v. At and t (1994)

Back 181

Court finds congress has "directly addressed" in a statute wherein the agency used an improper definition of "modify".
(text: In Chevron terms, the court makes a determination of "clear" when a challenger's theory is very convincing, not when clarity is beyond debate)

Front 182

Nut: FDA v. Brown and Williamson (2000)

Back 182

Court uses traditional tools of statutory construction to determine congressional intent such as: the overall structure of the statute, related provisions, legislative history, and the underlying purposes of the statute. In FDA, the court rules that the statutory context militated against jurisdiction.

Front 183

Nut: Babbit v. Sweet Home (1995)

Back 183

Court found the word "take" to be ambiguous and ruled in favor of deference to the expert opinion of the agency.

Front 184

Nut: At and t v. Iowa Utility (1999)

Back 184

"Reasonable" means in a reasoned fashion.

This case: By failing to take into account the factors mandated by the statute, the FCC's interpretation was not reasonable (ie "not rationally related to the goals of the act")

(text: second step if chevron more accurately seen as an application of the criteria the court found sustainable in step one rather than an interpretation in the "arbitrary and capricious" sense)

Front 185

Nut: Christensen v. Harris County (2000)

Back 185

"interpretations contained in policy statements, agency manuals, and enforcement guidelines - which lack the force of law - are not entitled to Chevron deference" At most they are entitled to respect based on their power to persuade.

Front 186

Nut: US v. Mead (2001)

Back 186

Critical determination on whether to apply chevron or skidmore was whether the congress "would expect the agency to be able to speak with the force of law"

"Congress would most likely to have made that determination where the [application] is rendered through a relatively formal administrative procedure tending to foster the fairness and deliberation that should underlie a pronouncement of such force"

Front 187

Nut: Barnhart v. Walton (2002)

Back 187

Court desires flexibility in Chevron - Skidmore determinations noting that a definition of "disability" expressed in an informal pronouncement by the Social Security Administration could qualify for Chevron in light of "the interstitial nature of the legal question, the related expertise of the agency, the importance of the question to administration of the statute, the complexity of the adminsistration, and the careful consideration the Agency has given the question over a long period of time".
(Text: Formal adjudication and notice and comment entitle the agency to Chevron, interpretive rules, policy statements, and opinion letters will not.)

Front 188

Nut: Bowen v. Georgetown U Hosp (1988)

Back 188

The court will not accord Chevron deference to a position advanced for the first time in a litigation brief (descretion should be afforded to the agency's decision makers not appelet council).

Front 189

Nut: Collins v. NTSB (DC 2003)

Back 189

No Chevron deference to agency interpretations of APA, FOIA, or other statutes since congress would not have left agencies to interpret these statutes.

Also applies to other agency determinations not proper for them to decide like judicial issues.

Front 190

Nut: NC and T v. Brand X (2005)

Back 190

"a courts prior judicial construction of a statute trumps an agency's otherwise entitled to chevron where its construction follows from the unambiguous terms of the statute and thus leaves no room for agency descretion"

Front 191

Nut: Auer v. Robbins (1997)

Back 191

When reviewing an agencies interpretations of their own regulations, courts have traditionally accepted in in a test similar to Chevron. It is accepted unless "plainly erroneous or inconsistent with the regulation".

Front 192

Nut: Gonzalez v. Oregon (2006)

Back 192

If a regulation merely quotes statutory language, Auer is not applicable. Instead, Chevron more like it.

Front 193

Nut: "substantial evidence test"

Back 193

Standard for reviewing facts. Triggered if agency has conducted "formal ajudication" or "rulemaking on a record"

Court is to assess the reasonableness of the agency's fact finding - not whether those facts are right or true. "such relevant evidence that a reasonable mind might accept as adequate to support a conclusion"

-Also referred to as a "hard look"

Front 194

Nut: "arbitrary and capricious"

Back 194

Standard for reviewing facts in cases where facts were not determined in "formal ajudication" or "rulemaking on a record"

Front 195

Nut: Universal Camera v. NLRB (1951)

Back 195

In reviewing under the substantial evidence test, the court is to consider "the whole record" (text: they are to look at all relevant evidence good or bad and determine whether they are in the zone of reasonableness)

In addition, the substantial evidence test applies to the agency's decision, not an ALJ who may have made a contrary decision that was overturned by the agency. However, the court must review the ALJ's decision since it is part of the whole record to help make their determination.

-In this context, the ALJ's determinations are given more weight when they are based on trial observations and less so when the issue is more technical.

Front 196

Nut: NLRB v. Transportation Management Company (1983)

Back 196

Board was allowed to put burden on employer to disprove causation in a termination proceeding. This was consistent with their statute and passed muster under Chevron.

Importantly, this ability to interpret their own statute materially affects the evidenciary record available for substantial evidence review.

Front 197

Nut: Abuse of discretion review

Back 197

Follows a finding that the agency correctly understood the law and adopted a rational view of the facts.

Sometimes called "arbitrariness"
Sometimes called "abuse of discretion"
Sometimes called "Rational Basis Review"

Front 198

Nut: Citizens to Preserve Overton Park v. Volpe (1971) - describing arbitrariness

Back 198

Describes as an inquiry "whether the decision was based on a consideration of the relevant factors and whether there has been a clear error of judgement"

(text: Modern practice has shifted towards the quality of an agency's reasoning which generally requires them to look to whether the exercise of discretion rests on an analysis that is at least plausible in light of the record, the parties' contentions, and the constraints of the underlying statute)

Front 199

Nut: Pension Benefit v. LTV (1990) - limitations on relevant factors

Back 199

(text: agency's duty to consider relevant factors does not include statutes for which it has no responsibility for administering)

Front 200

Nut: Specific situations where courts can hold an abuse of discretion

Back 200

1) Inconsistency with the agency's own rules
2) Departure from agency precedents (without adequate explanation - generally remands)
3) Breach of judge made law
4) A remedy is too severe if the agency has not adequately explained it

Front 201

Nut: Chenery Principles

Back 201

(posture: The court remanded an sec decision with the suggestion that they would uphold the decision if justified on a lawful basis)

Principles:

1) Courts may not accept appellate council's post hoc rationalizations for agency action

2) If the court finds that the agency's announced rationale was impermissable, it cannot uphold the decision on a different unannouced decision

3) If an agency takes an action that it believes, uncorrectly, to be required by law, the court must remand because the decision may have come out differently under a proper understanding

Front 202

Nut: Morgan Principles

Back 202

"it is not the function of the court to second guess the mental process of agency opinions"

"the integrity of the adminstrative process must be equally respected [as that of a judicial branch decision]"

Front 203

Nut: When an agency provides no reasoning for its decision

Back 203

Overton Park and PBGC v. LTV require the court to make a factual inquiry with affidavits and subpeonas or remand the case for explantion (respectively)

(text: the net result is that even where not required agencies have a strong incentive to issue opinions and where they do so, they are given Morgan deference absent a strong showing of bad faith or improper behavior"

Front 204

Nut: General result of Overton Park on the review

Back 204

Under both the adjudicative situation and informal rule situation, the review takes place on the "administrative record"

Front 205

Nut: "administrative record" in informal rulemaking

Back 205

1) Notice of proposed rulemaking
2) Final Rule and accompanying statement of basis and purpose
3) Comments filed by the public
4) Any unprivileged working papers prepared by the agency

Front 206

Nut: Arbitrary and Capricious test for informal rulemaking

Back 206

(text: the rule will pass muster under the arbitrary and capricious test if the rulemaking administrative record contains evidence that could lead a reasonable person to accept the factual premises of the regulation (taking into account the submissions of the rules opponents - although some scientific justifications can be excluded as can explanations when the proposition is unprovable - official notice doctrine can also excuse proof)

Front 207

Nut: Generally: the scope of review of rules

Back 207

1) Must be consistent with the agency's statutory mandate

2) Consistent with the Constitution

3) Must not be arbitrary and capricious (a standard that is breached if there is not adequate support in the record for the agency's factual assumptions or there is a misuse of discretion)

Front 208

Nut: MVMA v. State Farm (1983)

Back 208

Agency rescinds a rule requiring "passive restraints" stating that the industries preferred method of "passive restraints" automatic seatbelts were detachable and would not necessarily promote safety.

Court states two flaws in the explanation:

1) Doubts about effectiveness of the automatic seatbelt do not address the inertia of a person who would chose not to attach seatbelt but might allow the self attaching seat belt to remain

2) Even if the detachable belts were ineffective, there was no explanation as to way they simply did not make the standard more restrictive (ie automatic, nondetachable seatbelts)

(text (the court places emphasis on): 1) the alternatives to rescission were ignored by the agency despite the fact that these alternatives had been previously endorsed by the same agency. 2) A rule is not arbitrary simply because there is no evidence in support of the conclusion - the agency must analyze the evidence that is available and "provide a rational connection between the facts found and the choice made"

Generalizing the court stated "Normally, an agency rule would be arbitrary and capricious if the agency has relied on factors which congress has not intended it to consider, entirely failed to consider an important aspect of the problem, offered an explanation for its decision that runs counter to the evidence before the agency, or is so implausible that it could not be ascribed to a difference in view or the product of agency expertise"

Front 209

Nut: Convergence between "substantial evidence" and "arbitrariness" in rulemaking review

Back 209

(text: Under either test, ultimately, the court is likely to be influenced by a variety of subtle factors, such as the nature and complexity of the issues involved, the consequences of an erroneous determination, the agency's reputation for competence and fairness, and the judge's philosophy of judicial review)

Front 210

Nut: Heckler v. Chaney (1985) holding

Back 210

Agency's inaction is presumptively unreviewable (except in the rarest most compelling circumstance)

Front 211

Nut: Moog v. FTC (1958) holding

Back 211

An agency can bring an enforcement action against one suspected violator without immediately pursuing others similarly situated unless there is a "patent abuse of discretion"

Front 212

Nut: Norton v. Southern Utah Wilderness Alliance (SUWA) (2004)

Back 212

Court identifies two limitations to the scope APA 706(1) (which compels that a court shall "compel agency action unlawfully upheld or unreasonably delayed")

1) 706(1) can only be used to order discrete or particularized action (ie cannot order the agency to fulfill its obligations

2) A court may not use 706(1) unless that action is legally required. (so even where a statute says an agency "will conduct" an intensive monitering program of an area, the court cannot force the agency to comply with that order since the agency is intended to have a broad delegation of authority to meet its requirements)

(footnote on delay: a delay cannot be unreasonable with respect to an action that is not required)

Front 213

Nut: In re American Rivers and Idaho Rivers (DC 2004)

Back 213

Courts will look to unreasonable delays as a balance of hardships to the agency and to the complaining party

Front 214

Nut: starting point for due process inquiry

Back 214

Denial of "life, liberty, or property"

Front 215

Nut: Goldberg v. Kelly (1970)

Back 215

Demise of the rights-privileges distinction. Because the wellfare statute created "entitlements" all applicants who met the statutory standards were entitled to receive assistance. Therefore, the state has to hold due process hearings before stripping these property rights created by entitlement

Front 216

Nut: Board of Regents v. Roth (1972)

Back 216

A fired untenured professor was found not to have been deprived of liberty or property since he was not entitled to his position by statute, contract or anything else that would have given him more than a unilateral expectation.


Entitlement must come from "existing rules or understandings that stem from an independent source such as state law"
Also, Roth was not denied liberty since he was free to find another job

Front 217

Nut: Gilbert v. Frazier (7th 1991)

Back 217

For a claim of entitlement plaintiff must demonstrate that some authoritative source of law "establishes a definite standard to guide the decision.... rather than confiding the decision to the discretion of administering authority"

Front 218

Nut: Perry v. Sindermann (1972)

Back 218

The court concludes that an unwritten de facto tenure system can create an entitlement and pass the Frazier requirements since it acts as an implied contract condition

Front 219

Nut: Goss v. Lopez (1975)

Back 219

The right to attend public school is an entitlement so a suspension requires at least a limited prior hearing

Front 220

Nut: Barry v. Barchi (1979)

Back 220

A horse trainer is entitled to a prompt post suspension hearing because a statute entitles him to keep his license unless it were shown that his horse had been drugged and that he was negligent in preventing the drugging.

Front 221

Nut: Logan v. Zimmerman (1982)

Back 221

An Illinois Commission was required by statute to redress all meritorious claims of employment discrimination. When the agency denied relief through an unfair procedural rule, it denied Plaintiff's due process rights.

Front 222

Nut: Castle Rock v. Gonzalez (2005)

Back 222

A statute that gaurantees the strict enforcement of domestic violence restraining orders does not create a property interest.

Front 223

Nut: Cleveland Board of Education v. Laudermill (1985)

Back 223

A security guard is discharged when under Ohio statutes he could only be discharged for cause. The court emphasized that substance and procedure are distinct in due process analysis. Once a state creates entitlements through substantive law or standards, the adequacy of the procedures used to deprive someone of those entitlements depends on federal constitutional law, and state procedures cannot foreclose the due process inquiry. On the other hand, state statutes cannot expand federal due process rights either. Thus, the procedural guarantee in a state statute or regulation does not create create a property interest.

Front 224

Nut: Board of Curators v. Horowitz (1978)

Back 224

The breach of a state statute's procedural guarantee does not create a property interest.

(Text: a federal agency's breach of a federal statute can be redressed under the APA)

Front 225

Nut: American Mfrs. v Sullivan (1999)

Back 225

Involving workers compensation medical benefits

(text: where a state has never decided that an applicant is entitled to benefits in the first place, it can defer making payments while it makes the decision and the deferall does not require due process treatment. However, assuming that the scheme creates an entitlement, the state can probably not make a final determination without due process fair hearing)

Front 226

Nut: O'Bannon v. Town Court Nursing Center (1980)

Back 226

Holding: only a person to whom a challenged order is directed is entitled to due process; someone who is harmed by an action directed at a third party has no standing for a due process claim

(facts involve patients at a nursing home seeking to participate in a medicaid proceeding to terminate the home's federal subsidy)

Front 227

Nut: Londoner v. Denver (1908)

Back 227

Where a property tax assessment was to be made based on each owners particular benefit, evidentiary hearings were required

Front 228

Nut: Bi-Metallic v. State Board of Equalization (1915)

Back 228

An agency regulation increasing the valuation of all taxable property in Denver that was done without notice or hearing to affected property owners is fine.

Holmes:

"Where a rule of conduct applies to more than a few people, it is impracticable that every one should have a direct voice in its adoption"

Front 229

Nut: Legislative and adjudicative facts

Back 229

Respectively: general propositions that a tribunal uses in formulating a law or policy; and facts relating to two parties in a dispute

Front 230

Nut: Matthews v. Eldridge (1976) test

Back 230

What due process is due after it has been decided that it is due: "First, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used; and the probable value, if any, of additional or substitute safeguards; and finally, the Government's interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail"

Facts: Applying the test, the court held that terminating a person's social security disability benefits need not be preceded by an evidentiary hearing

Front 231

Nut: Patco v. FLRA (1982)

Back 231

Evidence showed that a prominent labor leader had met privately with a member of the FLRA and urged him not to revoke the unions certification

Although the court concluded that the contact was illegal, it did not overturn the FLRA's order because the contact had been brief, the labor leader had made no promises or threats, and the conversation had not affected the outcome of the case

Front 232

Nut: Pillsbury v. FTC (1966)

Back 232

The berating by a congressman after a decision was remanded for reconsideration was considered to have so interfered with the hearing process that it denied the respondent fairness. The court remanded again since the passage of time had brought a new staff that would be unimpeded by the previous questioning

Pillsbury does not apply to the early stages of administrative investigation, when formal adjudication is on the horizon but not imminent (DCP farms v. Yeutter)

It also does not apply to informal adjudications which have their own constraints on ex parte derived from substantive law, not due process (DC Federation v. Volpe)

Front 233

Nut: Heckler v. Campbell (1983)

Back 233

Grid regulation are upheld; law judges would make findings about the pre-determined factors and apply them to the grid

(text: Campbell endorsed rulemaking only to the extent that it applied to situations that did not require case by case determinations")

Front 234

Nut: Bowen v. Yuckert (1987)

Back 234

An HHS rule provided that a claimant would automatically be deemed ineligible for benefits if her impairments were not severe enough to significantly limit her ability to do most jobs

The court upheld the rule but warned that its application could deny entitlements

Front 235

Nut: Sullivan v. Zebley (1990)

Back 235

HHS used a grid determination designed that required comparable severity between a childs malady and an adults.

The court found that this would invariably deny some children who, under the statute qualified for aid.


(text: Thus, agencies are have the courts backing to engage in rulemaking but only to the extent allowed by their statute)

Front 236

Nut: Bowen v. Georgetown (1988) holding

Back 236

A statute will not be construed to authorize an agency to issue retroactive rules unless that power is conveyed in express terms

Front 237

Nut: In practice, the primary factor distinguishing a rule from an order

Back 237

The general applicability of the former

(Text: the distinction made by administrative lawyers is "named parties" v. "category" of persons or situations)

Front 238

Nut: A general statement of policy

Back 238

States how the agency intends to use its lawmaking power in the future but does not intend to bind anyone

(exempt from notice and comment)

Front 239

Nut: Community Nutrition v. Young (1987)

Back 239

The FDA issued action levels wherein if you did not exceed these levels, you would be exempt from prosecution. The agency acted as though they were binding however, by allowing for exemptions and treating them as such.

The court held that they were not, in fact, policy statements, and could not, therefore be applied without APA notice and comment

Front 240

Nut: Interpretive Rule

Back 240

Differs from a legislative rule in that it is not intended to alter legal rights, but to state the agency's view of what existing law already requires

Front 241

Nut: Shalala v. Guernsey Memorial (1995)

Back 241

(text: analyzing changes over time in an agency's definitions can be determinative as to whether the rule is interpretative - a pronoucement that effectively amends a legislative rule must itself be legislative)

Front 242

Nut: Types of rulemaking proceedings

Back 242

Formal
Informal
Exempted completely from the APA
(hybrids)

Front 243

Nut: Exempted Rulemaking

Back 243

-military
-Foreign Affairs
-Internal Management
-Grants and Benefits
-Procedural Rules
-Interpretive Rules
-Policy Statements
-Impracticable

Front 244

Nut: US Dept Labor v. Kast Metals (5th 1984)

Back 244

on procedural rules "the congressional judgement they do not directly guide public conduct, do not merit the administrative burden of public imput meetings"

Front 245

Nut: American Hospital Association v. Bowen (DC 1987)

Back 245

An agency's decision on where to concentrate its resources does not alter anyone's substantive rights and is therefore exempt

Front 246

Nut: Service v. Dulles (1957)

Back 246

(text: Unlike the interpretive rule and policy statement exemptions, the procedural rules exemption does not rest on an implied contrast with legislative rules because procedural rules are often legislative in character and if they are written in a way that draws upon the delegated power of the agency they are binding on the agency and the public.``

Front 247

Nut: Jiffry v. FAA (DC 2004)

Back 247

Drawing on the APA exemption where the rule can be issued without comment where the rule is urgent or where delay would frustrate the purpose of the rule, the court held that the FAA's summary adoption of post 9-11 procedures authorizing the revocation of alien's pilot licenses where the TSA deemed them to be security threats)

(text: when an agency adopts this method, it encounters fairly intense judicial scrutiny)

Front 248

Nut: ACUS recommendations on the exempt rules

Back 248

1) Provide a notice and comment period when an exempt interpretive rule or policy statement is "likely to have a substantial impact on the public"

2) Provide an opportunity post promulgation for comment after they have issued rules under the "good cause" (impracticable or contrary to public interest branch) exemption (rules issued on this basis are referred to as interim final rules because they will be reconsidered based on comments but final since they have immediate effect)

3) For rules issued under the other good cause branch (the unnecessary branch) the recommendation is that the agency announces that it will withdraw the rule if anyone files an adverse comment within a short period of time (this is called direct final rulemaking)

Front 249

Nut: Requirements of informal rulemaking (notice and comment rulemaking)

Back 249

(text: in the absence of directives to the contrary in an agency's enabling legislation, the APA's informal rulemaking procedures will apply whenever the agency issues substantive rules. Thus, if the statute merely authorizes the agency to issue regulations and those regulations affect the legal rights of private parties, the agency will be required to follow the notice and comment procedure of 553)

First Requirement
1) Notice (usually this is done by publishing in the federal register. The notice must contain either the terms or the substance of the proposed rule or a description of the subjects and issues involved as well as a reference to the legal authority for issuing the rule and information about the opportunities for public participation.

2) "Interested Persons an Opportunity to Participate" (through submission of written comments containing data, views, or arguments. The agency is not required to hold any oral hearings under this section; it has discretion to decide whether interested persons will be allowed to submit testimony or to present oral arguments to decisionmakers.)

3) A concise general statement of basis and purpose (text: reviewing courts expect the agency to spell out in detail its reasons for issuing a rule; thus, statements of basis and purpose have become increasingly lengthly) See Automotive Parts v. Boyd (DC 1968) (statement must be complete enough to enable the reviewing court "to see what major issues of policy were ventilated by the informal proceedings and why the agency reacted to them as it did)

(text: However, APA informal rulemaking does not expressly require the agency to expose its factual, legal, and policy support to public criticism - this is frowned upon by regulated industries since they cannot sometimes discover the agency's underlying evidence and analysis of the rule until a court challenge or a foia submission)

Front 250

Nut: Requirements of Formal Rulemaking (Rulemaking on the record)

Back 250

US v. Florida East Coast Ry (1973)
(text: although a statute did not have to track verbatim the APA phrase "on the record after opportunity for an agency hearing" in order to trigger formal rulemaking requirements, a clear expression of congressional intent was necessary)

Front 251

Nut: Separation of Functions in formal rulemaking

Back 251

(text: even when a statute requires the procedures of formal rulemaking to be followed, the separation of functions requirement of the APA is not applicable; decision makers in formal rulemaking are free to consult with staff experts throughout the agency, including those who were responsible for presenting the agency's position at the hearing. Rulemaking procedures are not generally accusatory or adversarial so there is less of a need to isolate the decisionmakers from their staff, also, the agency can substitute written submissions for oral direct testimony and may forgo the ALJ's initial determination. The ban on ex parte contact with outsiders remains.)

Front 252

Nut: Vermont Yankee v. NRDC (1978)

Back 252

The atomic regulatory commission sought to determine the weight that it should assign to the environmental effects of radioactive waste when it conducted individual licensing proceedings. The agency was authorized to use informal rulemaking but voluntarily held an oral hearing at which witnesses were questioned by agency representatives.

The District Court said that the procedure did not allow for sufficient exploration of key testimony and ordered on remand that the environmentalist intervenors should be entitled to fuller procedural opportunities, such as discovery or cross-examination.

SCOTUS says that reviewing courts can no longer order additional procedures beyond those prescribed by the APA or other statutory or Constitutional provisions.

Front 253

Nut: Chocolate Mfrs. v. Block (4th 1985)

Back 253

(text: After Vermont Yankee, judicial supervision could be still be aggressive even if the courts were not able to demand additional procedural requirements)

This case involves regulations on Chocolate Milk that were not considered by the court to be logical outgrowth of the notice

Front 254

Nut: Chamber of Commerce v. SEC (DC 2006)

Back 254

(text: Courts continue, after Vermont Yankee, to insist on the principle that a proposed rule must be made available for notice and comment accompanied by the basic factual assumptions of the rule)

Front 255

Nut: Substance Review after Vermont Yankee

Back 255

(text: Vermont Yankee has not been read as detracting from the court's ability to engage in rigorous review of the substance of agency rulemaking and it even expressly affirms that the rationality of the rule must be judged based on the record even though the record is a judicially created requirement and not in the APA. So, the agency still has a duty to build a record that demonstrates it has exercised its discretion seriously and responsibly, but it has a wide latitude to determine the best way to assemble the record)

Front 256

Nut: Association of National Advertisers v. FTC (DC 1979)

Back 256

(text: the HBO and Sierra Club rulings found problems with ex parte contacts but in National Advertisers, the test became not whether a decision maker appears to have prejudged any fact issue which the adjudicative test, but whether the "clear and convincing evidence" shows that he has an "unalterably closed mind" on pending matters.)

In the case, the FTC chairman could not be disqualified for hearing a case on advertising to children even though he had spoken to the matter and written about it extensively.

(text: A further complication in National Advertisers was that congress had directed the FTC to exercise its rulemaking authority through relatively formal procedures that resembled adjudication; nonetheless the proceeding was clearly designed to produce a rule, not an order so the rulemaker test was applied)

Front 257

Nut: Chenery II (1947)

Back 257

"the choice between proceeding by general rule or by individual, ad hoc litigation is one that lies primarily in the informed discretion of the administrative agency"

Front 258

Nut: NLRB v. Wyman-Gordon (1969)

Back 258

Facts: the NLRB ordered Wyman-Gordon to provide Union organizers with a list of the names and addresses of employees eligible to vote in an election to select a collective bargaining representative.

(text: The Board's directive was based on Excelsior Underwear, an earlier agency adjudication in which the board had established the list requirement, but had made it applicable only in future cases. Wyman-Gordon challanged the Excelsior requirement on the grounds that it was a rule and therefore, since it was not adopted in compliance with the APA, should be invalid. The plurality strongly criticized the boards failure to adopt the Excelsior requirements in a rule making proceeding but upheld the application of those requirements since the board applied them in an adjudicative proceeding where they were free to cite the list as precedent even though they were not free to use Excelsior as conclusively setting the propriety of the list requirement. In effect, therefore, the Court held that an agency may develop new policies through adjudication, so long as each person to whom those policies are later applied is given an individual right to be heard on the question of whether the board should modify or abandon it's "case law rule")

Front 259

Nut: NLRB v. Bell Aerospace (1974)

Back 259

(text: the agency certified a bargaining unit of Bell's buyers, who under previous Board policy would have been considered as "managerial employees" who would not have been eligible for certification. The supreme court held that the Chenery principle was still valid and that the board's preference for adjudication in this case deserved "great weight". The court did indicate that a different result may have been required if the company had relied to its detriment on prior board policy. However, this different result, would probably not have been a demand for rulemaking but would instead be void as an abuse of discretion since it would be unfairly retroactive.)

Front 260

Nut: Morton v. Ruiz (1974)

Back 260

Somewhat of an outlier to the Chenery principle wherein the Bureau of Indian Affairs had developed an internal policy of denying assistance to claimants that lived outside of reservations. The court felt that this might be a reasonable policy choice but that it could not be done in ad hoc fashion. It instead required notice in the Federal Register before it could cut off the claimants eligibility in this fashion. A relatively systematic approach to dispensing public assistance was needed so as to assure that the agency policy is being applied consistently and so as to avoid both the reality and appearance of the arbitrary denial of benefits.

(text: There is inconsistency here with the Chenery line, it has partially to do with the plaintiffs interest in obtaining fair consideration for the benefits congress intended to bestow. Also, because the BIA is a large national program, the only protection for applicants for aid would be clear and systematic guidelines that could be applied by low level bureaucrats around the country)

Front 261

Nut: Abbot Labs v. Gardner (1967)

Back 261

(text: The court formally acknowledged the presumption of reviewability)

It held that judicial review of agency action "will not be cut off unless there is persuasive reason to believe that this was the intention of congress... [Congressional intent to preclude review had to be demonstrated by] clear and convincing evidence"

Front 262

Nut: Block v. Community Nutrition (1984)

Back 262

A group of consumers challenged a marketing order in which the secretary of agriculture had established minimum prices that farmers could charge to "handlers". Congress, in the underlying statute, had designed a complex framework by which handlers could participate in the adoption of milk marketing orders at the administrative level but it had not done so for consumers, therefore, the court felt that congress had meant to exclude consumers from the regulatory process including judicial review.

(text: the court expanded on Abbott Labs clear and convincing evidence standard by stating that it should not be applied in a strict evidentiary sense. Instead, the intent to preclude review should only be "fairly discernible".

Front 263

Nut: United States v. Erika (1982)

Back 263

The court held that provisions in Medicare part B were impliedly precluded by congress from review since the legislative history indicated that congress wanted to keep "quite minor matters" out of the courts. Importantly, this ruling was concerning amounts distributed under the plan

Front 264

Nut: Bowen v. Michigan Academy (1986)

Back 264

The court again looks at Medicare Part B (as it did in Erika) and concludes that in fact where, in this case, regulations were being challenged that governed the method of reimbursements, the presumption should be that they are reviewable.

Front 265

Nut: Committed to Agency Discretion

Back 265

(text: the question of whether an administrative decision is committed to agency discretion is largely based on the presence or absence of "law to apply") (see Overton Park "[exemption] comes into play when there is no law to apply) and (see Heckler v. Chaney (1985) "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")

(text: in addition to "law to apply" considerations are practical considerations)

Front 266

Nut: Heckler v. Chaney (1984)

Back 266

8 Death Row inmates wrote to the FDA contending that state's use of lethal drug injections in human executions violated the Food, Drug, and Cosmetic Act.

(text: Scotus declined to intervene declaring broadly that an agency's refusal to initiate an enforcement proceeding is "presumptively unreviewable" and while the holding rested in part on the no law to apply test, practical concerns were given weight about the difficulties in pursuing nonenforcement decisions)

Front 267

Nut: Dunlap v. Bachowski (1975)

Back 267

The Secretary of Labor's refusal to challenge a union election under the Labor-Management Reporting act was reviewable because Congress had laid down specific guidelines restricting discretion. Because of these guidelines, the court can require an agency to respect its mandate.

Front 268

Nut: Montana Air v. FLRA (1990)

Back 268

Holding: When a plaintiff alleges that an agency's nonenforcement decision resulted from a misunderstanding of the substantive law rather than from a managerial act of descretion, the courts have been usually willing to reach the legal issues.

(text: however, this tendency has been restricted sometimes to where the agency's legal interpretation is expressed in a written policy, not just ad hoc decision making) (see Crowley Carribean v. Pena (DC 1994))

Front 269

Nut: Association of Data Processing v. Camp (1970)

Back 269

The court reduced the law of standing to whether the case involved a case and controversy under article III (which the court equated with asking "whether the plaintiff alleges that the challanged action has caused him injury in fact, economic or otherwise) and whether the plaintiff's interest was "arguably within the zone of interests to be protected or regulated by the statute or constitutional guarantee in question"

In the case, the court found that sellers of data processing services could sue to prevent the Comptroller of the Currency from authorizing banks to compete with them, because (a) the comptroller's decision would cause them economic harm and (b) federal banking legislation suggested, at least "arguably" that Congress desired to protect companies from having to compete with banks for nonbanking business.

Front 270

Nut: Lujan v. Defenders of Wildlife (1992)

Back 270

Plaintiffs could not establish standing by citing their general interest in having the secretary "observe the procedures required by law" since they had only vague definitions of the injury they suffered by being unable to see animals in Sri Lanka.

(text: the holding is particularly striking because the Endangered Species Act had a provision that allowed for "any person" to bring suit to enforce the act. The court considered the suit irrelevant in this case, because implementation of the laws is primarily the province of the executive branch and congress could not empower the courts to take over an executive function. Kennedy's opinion suggests that the case would have been different if congress had conferred on the plaintiffs a new legal interest, not just the right to sue.)

Front 271

Nut: FEC v. Akins (1998)

Back 271

Voters brought suit against the Federal Election Commission for failing to require AIPAC to file reports about its members and finances. The court found that the act conferred on plaintiffs (and everyone else) a right to obtain information from "political committees". Being deprived of that right would support standing even though the right was generalized since the injury was a concrete deprivation of information.

Front 272

Nut: Traceability and Redressability

Back 272

(text: usually the traceability element of he standing test (whether the agency's action caused or will cause the plaintiff's injury) and the redressability element (whether a judicial remedy would ameliorate the injury) are practically equivalent. The only issue is when the defendant has ceased the conduct.)

Front 273

Nut: Clarke v. Securities Industry Ass'n (1987)

Back 273

The facts were similar to Data Processing and the court notes that the zone of interests test is "not meant to be especially demanding" and prevents standing only when "the plaintiffs interests are so marginally related to or inconsistent with the purposes implicit in the statute that it cannot reasonably be assumed that congress intended to permit the suit"

Front 274

Nut: Air Courier Conf. v. American Postal Workers Union (1991)

Back 274

The postal service issued a regulation partially waiving its statutory monopoly on mail service, so that private carriers would be free to engage in overnight delivery of letters to foreign postal systems. Concerned that this new regulation would affect the employment opportunities of its members, two postal unions sued. The court held that the unions were not within the relevant zone of interests because the statute establishing the postal monopoly "exists to ensure the postal services will be provided to the citizenry at large, not to secure the employment of postal workers"

(text: although congress had passed laws governing the labor-management relations in the Postal Service, those laws had no significant relationship to the postal monopoly legislation and thus did not suffice for standing. Thus far, this is the only case where standing has been denied by the zone of interests)

Front 275

Nut: Bennett v. Spear (1997)

Back 275

Ranchers and irrigation districts sued to overturn a biological opinion issued by the Fish and Wildlife Service under the Endangered Species Act. The opinion directed modifications in a water project in order to protect two species of fish. The plaintiffs claimed that the FWS had not complied with the statutory directive to take into account the best available scientific data.

The court found zone of interests satisfied because although the Endangered Species Act may not have supported standing (its overall purpose is species protection) the specific provision in the act cited by the plaintiff was intended to prevent overly zealous actions in the name of the ESA.

Also, congress can dispense with or modify the zone test because it is a prudential concern and not a constitutional matter. So when the ESA authorized "any person" to sue to redress certain violations, the zone test did not apply at all to those specific claims.

Front 276

Nut: Finality

Back 276

(text: The finality doctrine is primarily concerned with ensuring that the agency has reached a definitive, rather than preliminary or tentative disposition of a particular case or issue)

Front 277

Nut: Exhaustion

Back 277

(text: the exhaustion doctrine emphasizes the conduct of the party seeking review and asks whether the appeal is an attempt to short circuit the process or whether the challenger has been reasonably diligent in pursuing relief through that process.)

Front 278

Nut: Ripeness

Back 278

(text: Calls for a pragmatic judgment: it weighs the urgency of the challenger's need for guidance against the court's ability to resolve the dispute without waiting to see how the issues may develop over time)

Front 279

Bennett v. Spear (1997) on finality

Back 279

"The agency action must mark the consummation of the decision making process and not be of a merely tentative or interlocutory character and the action must be one by which rights or obligations have been determined or from which legal consequences will flow"

Front 280

Nut: FTC v. Standard Oil of California (1980)

Back 280

Several oil companies charged that the FTC had issued a complaint for political purposes without determining that it had "reason to believe" that they had violated anti-trust laws.

The court held that the agency's averment of "reason to believe" was not a definitive agency position and imposed no burden other than the burden of litigation.

Front 281

Nut: Franklin v. Mass (1992)

Back 281

The methods used by the secretary of commerce to calculate the census were not final actions sense she was a subordinate official whose decisions will not affect the public (the president had the final say on census calculations).

Front 282

Nut: IEDA v. EPA (DC 2004)

Back 282

Court holds there can be no judicial review of a letter that restated the position that the agency had been following for some time

(text: the determination of finality in the case of informal statements like advice letters can be tricky and courts have been on both sides - it seems to rest on the practical effect on the parties)

Front 283

Nut: NLRB v. Bethlehem Shipbuilding (1938)

Back 283

(text: if review is sought while an agency proceeding is still under way, a court will usually dismiss the action because of the plaintiff's failure to exhaust administrative remedies)

The company receives a complaint from the NLRB and claims that they are not subject to its jurisdiction and that they would suffer irreparable harm if they were forced to participate in the statutory evidentiary hearing.

The court denied review for failure to exhaust the administrative remedies.

(text: although the finality requirements and exhaustion have similarities, exhaustion goes further when a private party is trying to induce government action)

Front 284

Nut: Darby v. Cisneros (1993)

Back 284

(text: If a party has taken every available step at the agency level except for reconsideration or internal appeal, exhaustion and finality cease to be barriers to judicial review)

Front 285

Nut: Abbott Labs v. Gardner (1967)

Back 285

To determine ripeness "the court must evaluate both the fitness of the issue for judicial decision and the hardship to the parties of withholding court consideration"

In the case, drug manufacturers argued that the FDA had exceeded its authority in issuing a rule that regulated the labeling that they placed on their products. The parties agreed that the dispute turned entirely on congressional intent. Therefore, further factual development by the agency was not needed and the issue was appropriate for resolution. Moreover, withholding review would have been unduly burdensome for the companies because they were threatened with fines and penalties if they did not comply.

As a result, they were free to challenge the rule in court directly rather than waiting for the FDA to bring an enforcement proceeding against them.

Front 286

Nut: Toilet Goods v. Gardner (1967)

Back 286

A rule requiring companies using color additives in cosmetics to give FDA inspectors "free access" was considered unripe for review.

The court believed that further development of the facts in the context of specific enforcement proceedings might aid judicial review so they could review the actual consequences of enforcement with the help of an evidentiary record.

Also, a refusal to comply by the companies did not force them to alter their behavior since the worst that would happen is a suspension of certification which was itself challangeable.

(text: Today, judicial review of rules occurs at least as frequently in direct or "preenforcement" challenges as during enforcement actions. Agencies routinely build extensive records during rulemaking proceedings so that legal, policy, and even factual issues can be considered fit for review under Abbott as soon as the rule is promulgated. Moreover, many rules today impose such a heavy cost that entities often have a strong interest in obtaining a court's view on validity)

Front 287

Nut: National Park Hospitality v. Department of the Interior (2003)

Back 287

Operators of concession stands in national parks brought suit to overturn a National Park Service rule that asserted their contracts were not subject to the Contract Disputes Act.

The court declined under the Abbott test to review the rule since the applicability of the act depended on characteristics of individual contracts. Also, the hardship to plaintiffs was minimal because their rights were not affected. All that was expressed was a litigation position which may or may not be followed by the administrators of the Contract Disputes Act.

Front 288

Nut: Ohio Forestry v. Sierra Club (1998)

Back 288

Environmentalists argued that a "forest plan" developed by the forest service would permit too much logging. The court dismissed since the plan would have no impact until it was tailored for a specific site. The plaintiffs could then bring their challenge after the specific plan was developed so they suffered no hardship in waiting. In addition, the delay would allow the service to adopt its plan and give the court a more definitive look at the merits.