Administrative Law

Front 1

3 Powers of Agencies

Back 1

1) Promulgate Rules

2) Adjudicate Contested Cases

3) Other Agency Action (i.e. enforcement, permits, etc.)

Front 2

APA Limitations on Agencies

Back 2

1) Must give notice that it intends to act in a certain way

2) must ask for public comment from those affected

3) Must consider comments received

4) Can only exercise powers delegated to it

5) Must conduct business at open meetings (except certain situations)

Front 3

Grounds for Overturning Agency Decisions

Back 3

1) Acted unlawfullly, arbitrarily, or capriciously or it abused its discretion

2) Violated the Constitution

3) Exceeded statutory powers

4) Failed to follow its own procedures

5)Not supported by substantial evidence

6) Not supported by facts in record

Front 4

What is a Contested Case

Back 4

A case which the Constitution requires an evidentiary hearing

Front 5

5 Requirements of Due Process

Back 5

1) Notice

2) Opportunity to be heard

3) Right to cross examine witness

4) Opportunity to present evidence

5) Counsel may be retained (not required to be provided)

Front 6

When is hearing necessary?

Back 6

In situations of deprivation of liberty interest (bodily restraint, K, occupation, marriage, religion) and deprivation of property interest (welfare, SS/disability, Worker's Comp, Unemployment)

Front 7

Due Process Analysis

Back 7

1) Was the adjudication sufficient for the due process?
a) what is the gravity of the harm if they
make the wrong decision?
b) Was the procedure sufficient to make a
correct decision?

-don't need hearing if you can get it
right w/o one
- decisions not requiring indiv.
determination:
Disability (Matthews= med.
records ok)
Disability (Heckler= can rely
on charts)
Revoke License (Airline Pilots)
Overpayment of SS
(Califano= not based on
credibility)

-Must have a hearing if you can't get it
right w/o one:
Welfare (Goldberg= pre-
termination)
Property Interest in job
(Loudermill)
Recoupment of SS benefits
(Califano)
c) Is the Procedure sufficent under
statute
-Interpret statute & determine if
hearing is complied
-Evidence
+must have substantial ev. in
support of finding
+ written med. reports is
substantial (Richardson)
+Conflicting evidence does
not prevent "substantial"
+ Hearsay is admissible

Front 8

Goldberg v. Kelly

Back 8

State welfare authority didn't want to give pre-term. hearing regarding welfare benefits

Due process is required if any agency deprives someone of life, liberty, or property

Welfare, unlike disability, looks at the credibility of the beneficiary & therefore due process is requires pre-term hearing

Front 9

Matthews v. Eldridge

Back 9

Discontinued disability benefits

The process in place was sufficient- no pre-term hearing required

All relevant info came from Dr. reports & nothing substantial could be gained form pre-term hearing

Front 10

Board of Regents of State Colleges v. Roth

Back 10

Assistant prof. no rehired after 1 yr. appointment

No pre-term hearing required for an untenured public teacher to be fired w/o cause

No deprivation of liberty or prop interest= no pre-term hearing required

Front 11

Perry v. Sindermann

Back 11

Outspoken teacher w/de facto tenure

Gov. is employer= gov. action

Due process- due process rights were violated because the college did not give him an opportunity to be heard or to fight for his job when he had a justified implied expectation that he was entitled to his job

Front 12

Cleaveland Bd. of Ed. v. Loudermill

Back 12

Security guard (civil service) cannot be fired w/o cause

It is not the prerogative of the state to decide what due process is- it is a federal constitutional right (statute didn't require hearing)

Due process requires that a civil servant have a predetermination opportunity to be heard coupled by post-termination admin. procedures by state statute

Full evidentiary not needed, but chance to make case is necessary

Front 13

Califano v. Yamasaki

Back 13

The SSA needs to hold a hearing before they recoup overpayments of SS disability benefits

An opportunity for a pre-recoupment oral hearing is required when a recipient requests waiver under § 204(b) of the SSA

Front 14

Richardson v. Perales

Back 14

Agency decisions must be supported by substantial evidence= evidence a reasonable person would find supports the agency's decision= low threshold

Claimant had the statutory right to call witnesses on his behalf, testify himself, be represented by counsel, subpoena witnesses, and cross-examine witnesses against him

Relaxed rules of evidence= hearsay admissible

medical records are inherently reliable and SSA is entitled to rely on them

Front 15

Nash v. Califano

Back 15

SSA enacted quota setting procedures for the ALJ's in the offices

ALJs are independent from their agencies so that their salary would not depend upon how many decisions are made against their agency- prevent bias

The judge does have standing to sue in this case of arbitrary quotas because they were not adjudicated on the merits

Front 16

Heckler v. Campbell

Back 16

HHS can rely on published medical-vocational guidelines to determine a claimant's right to SS disability benefits that they adopted. 4 factors: physical ability, age, education, work experience

Two factors in determining whether a claimant can perform less strenuous work:
1) asses each claimant's individual abilities

2) determine whether jobs exist that a person having the claimant's qualifications could perform

when rule-making occurs there is a notice and opportunity to respond that was the proper time to challenge the procedure

Front 17

Air Line Pilots Assoc. v. Quesada

Back 17

Rulemaking is NOT adjudication

people 60+ couldn't get a commercial license or have it renewed.

property interest involved

A validly crafted rule can trump a pilot's constitutional rights- the gov. can set requirements for occupational licensing in the interest of protecting the public

The rule itself was valid- reasonable and based in medical knowledge at the time

Front 18

Rulemaking In General

Back 18

Rulemaking is the adoption, amendment, or repeal of a requirement or regulation that has the force of law

Not done in political vacuum: Congress and Executive can influence

Front 19

Informal Rulemaking

Back 19

Agency publishes a notice at the federal level in the federal registry that they intend to adopt a particular rule, set out the rule and rationale, inviting comment from the public for a certain period of time (either 30, 60, or 90 days)

The Agency must respond to comments

This is the most common type

Front 20

Formal Rulemaking

Back 20

On the record rulemaking happens in very limited circumstances. Congress will require the agencies to conduct formal rulemakings in order to adopt a rule

Those circumstances include: at the State level: utilities board- hold a public hearing prior to adopting rates (this is considered rulemaking); at the Federal level: nuclear regulatory commission- uses hearing for high-stakes decisions

Front 21

Types of Rules: Procedural

Back 21

governs the functioning of the agency

Front 22

Types of Rules: Interpretive

Back 22

enacted to explain the relevant statute

Front 23

Types of Rules: Legislative

Back 23

imposes new substantive rules

Front 24

Procedural Requirements of Rulemaking

Back 24

APA § 553: Notice and Opportunity for Comment

Front 25

Analysis for Rulemaking

Back 25

1) What is the rule being challenged?

2) What agency adopted the rule and what does it require?

3) Why was it adopted?

4) What statute was it adopted pursuant to?

5) Who is challenging it and why?
6) Under what act was the agency given the authority to enact the rule?

7)What grounds is the rule being challenged on?

8) Has Congress imposed any additional procedural restraints on the agency?

Front 26

How to overturn a Rule

Back 26

Must find that the agency did not follow the correct procedure (possible to find the rule is arbitrary= no rational connection)

Front 27

National Petroleum Refiners Assoc v. Federal Trade Commission

Back 27

FTC adopted rules requiring gas stations to post octane levels at pump; Assoc. claimed FTC didn't have that authority

The agency was allowed to promulgate this type of rule under the enabling act

Front 28

Pacific States Box & Basket Co. v. White

Back 28

Agency requires all berries packed for sale in Oregon to be packed in certain boxes to protect public health

Due process challenge as arbitrary and capricious

A rule can be struck down as arbitrary only if there is no rational connection between rule and purpose

There was a rational connection= can

Admin. Rule entitled to same force and effect as statute

Front 29

Automotive Parts & Accessories Assoc. v. Boyd

Back 29

Nat. Highway Traffic Safety Admin is entrust to adopt rules regarding automobile seats. Rule: headrest must be installed at factory, not later

The key to rulemaking cases is the statutory authority to which the agency is acting pursuant to

Informal Rulemaking was allowed under the agency's statutory authority

Court's function on review is to see only that the result is reasobable and within the range of authority conveyed, that it has been formulated in the manner proscribed, and that the disappointed have had the opportunity provided by Congress to try to make their views prevail.

Front 30

National Tire Dealers & Retreaders Assoc. of U.S., Inc. v. State Farm Mutual Auto Ins. Co.

Back 30

Rules adopted by the agency to effectuate the act must be practicable and meet hte need for motor vehicle safety. Rule: markin gon the inside of tires stating lot info. Claim: violates agency specific statute & provisions of the APA

Going beyond statutory authority- being too zealous that the aency is willing to skip the process to go through a rulemaking

Agency did not respond to criticism & had no data to support rule

There was no rational connection between the rule and its purpose. There was an absence of evidence supporting the rule

Front 31

Motor Vehicle Mfg. Assoc. v. State Farm Mutual

Back 31

Rule REVOCATION case: Agency wanted to revoke rule requiring automatic seatbelts regardless of what ppl said in the comments opposing the revocation.

Arbitrary and capricious is the standard of review with regard to revocation of rules and rulemaking

Agency failed to create record showing that they looked at alternatives

An agency's view of what is in the public interest may change, either w/ or w/o a change in circumstances, but an agency must supply reasoned analysis

An arbitrary and capricious revocation of a rule is invalid

Front 32

U.S. v. Nova Scotia Food Products Corp

Back 32

Nova Scotia objected to rule over the time-temp-salinity of smoked fish, but FDA went forward and adopted the rule disregarding the comments (arbitrary)

What is an adequate "record" in informal rulemaking? it doesn't take much to sustain an agency decision on judicial review. The agency has to make a mistake, typically a procedural mistake in order for a decision to be overturned

"to suppress meaningful comment by failure to disclose the basic data relied up is akin to rejecting comment altogether"

Front 33

Vermont Yankee Nuclear Power Corp v. Natural Resources Defense Council, Inc.

Back 33

Nuclear regulatory commission granted Vermont Yankee a permit. Agency decided rather than continue to look at every permit app, they adopted rule w/respect to storage and disposal of spent nuclear waste. had hearing plus comment period.

§ 553 of APA rulemaking: notice and comment

Just like in airline pilots- the agency tried to deal w/something they faced in individual licensing cases by making a rule so they didn't need to re-litigate each time

The agency was allowed to use informal rulemaking (APA 5653)

Judge cannot require more of the agency than the statutes enacted by Congress required.

Front 34

Sierra Club v. Costle

Back 34

EPA emission regs for coal steam generators. required reduction in emmissions

The court said there was no rule against the EPA taking late comments into consideration (didn't violate procedural requirements).

Front 35

Assoc of Nat Advertisers, Inc. v. FTC

Back 35

Advertising the kids: chairman was very opinionated, asked to recuse himself, did not.

To force someone to recuse themselves from a rulemaking there must be clear and convincing evidence that the person has an unchangeable closed mind

person must articulate that they will vote for/against no matter what; opinions, no matter how vehement, are not enough

The mere expression of an opinon will not preclude involvement.

This applies to rulemaking NOT adjudication

Front 36

American Mining Congress v. Mine Safety & Health Administration

Back 36

An agency can pass interpretive rules without following APA procedures

APA procedure required:
1) in absence of the rule there is no adequate legislative basis? (if so- it is not substantive rule)

2) was the rule published in the CFR? (if it is-it is intended to be legislative and then APA must be followed)

3) Does this amend a prior rule? (if it is= legislative and APA must be followed

4) Whether it has the effect of law? (i.e.: substantive rule)

Front 37

Substantive Rule

Back 37

rules other than organizational and procedural passed pursuant to the statutory authority

must follow APA procedures

Front 38

Interpretive Rule

Back 38

rules or statements issued by an agency to advice the public of the agency's construction of the statutes and rules which it administers

APA procedures not required

Front 39

General Statements of policy

Back 39

statements issued to advise the public prospectively of the manner in which the agency proposes to exercise a discretionary power

Front 40

SEC v. Chenery Corp.

Back 40

Agency rule overturned b/c failing to explain how decision was made & factors looked at

Agencies must justify decisions and develop record or court will overturn

In terms of judicial review, the court is limited to the grounds the agency relies on for that decision

Front 41

Morton v. Ruiz

Back 41

Assistance for Indians under poverty level. Denied benefits b/c he lived off reservation

You have to catch an agency in a mistake to overturn any decision

Here they didn't publish the eligibility requirements in the Fed. Reg. as required by APA= overturned

Front 42

Government Information Acquisition

Back 42

Agencies are typically delegated powers to inspect, subpoena information, demad records, and require record-keeping

Front 43

Four Sources Agencies can Obtain Information From:

Back 43

1)Subpoena: must be conferred on agency by Congress in statute

2) Voluntary Compliance

3) Physical Inspections/ Administrative Searches

4) Require the filing of periodic reports

Front 44

Freedom of Information Act requests: § 522 of APA

Back 44

Upon proper request, an agency must disclose information not falling within one of the nine exceptions

when determining whether request for info lies w/in scope of a FOIA exception, a court must balance the public interest in disclosure against the interest Congress intended to protect

This is called practitioner's sword for dealing w/agencies- can open the agency up.

Front 45

Nine Exceptions to FOIA

Back 45

1) Material related to Nat. Defense or Classified material

2) Internal personnel rules and practices of the agency

3) Specifically exempted from disclosure by statute

4) Trade secrets acquired from business in the course of receiving records

5) Inter-agency or intra-agency memos (protected as exec or attorney client priv)

6) Personnel and medical files

7) Law enforcement investigatory records which could interfere with enforcement proceedings or the fair administration of justice

8) Bank reports (info on the regulation or supervision of banks)

9) Geological or geophysical information and data concerning maps and wells (similar to trade secrets, provides competitors w/too much info)

Front 46

University of PA v. Equal Employment Opportunity Commission

Back 46

Denial of tenure; filed EEOC claim- subpoenaed employer/tenure file & university refused to turn it over.

subpoena was enforced & university had to turn over all materials relevant to claim

Front 47

Marshall v. Barlows

Back 47

Statute permitting OSHA to inspect businesses w/o warrant was unconstitutional.

Plumbing is not an industry that is pervasively regulated

EXCEPTION is where the public interest outweighs the expectation of privacy

heavily/pervasively regulated businesses (e.g. restaurants, liquor, firearms) are exceptions and do not require warrants to search

Front 48

NLRB v. Sears

Back 48

Exception #5 interagency memos

Final opinions not protected (including decision not to file complaint)

pre-decisional communication and investigation w/no final opinion are protected

Anything dealing w/past cases or agency policy is subject to disclosure under FOIA b/c the cases are done and it won't compromise the agency's position in court

Front 49

NLRB v. Robbins Tire & Rubber

Back 49

Exception #: Law enforcement investigatory reports

FOIA is not a discovery tool, but a tool for general oversight

Witness statements do not have to be disclosed under FOIA prior to an NLRB hearing

Agency can make general determination that disclosure would cause interference across the board and don't have to make individualized showing in each case

Front 50

Chrysler Corp v. Brown

Back 50

Exception #4: trade secrets

Chrysler had to file reports w/ gov b/c of federal K

"reverse-FOIA" Suits: private party attempt to enjoin the gov from giving info to competitors (THESE DON'T WORK)

Any disclosure violating another law is not in accordance with FOIA

Front 51

Department of Defense v. Federal Labor Relations Authority

Back 51

Exception #6: Personnel Files

Confidential info concerning employees of fed. agencies (a union requested disclosure of home addresses)

Privacy Act prevents this disclosure

Privacy interests of employees substantially outweighs the negligible FOIA related public interest in disclosure

Front 52

Doctrine of Judicial Deference

Back 52

Chapter 706 of APA

Court is not being permitted to substitute judgment for the judgment of administrative agencies

If the agency decision does not meet on of the 6 basis for overturning an agency decision a judge must uphold the agency's decision on rulemaking, adjudication, or other determination.

Front 53

General Rule of Judicial Review of Agencies

Back 53

All Decisions of Administrative agencies are subject to judicial review

Front 54

Exceptions to general rule of judicial review

Back 54

1) Statutes that preclude judicial review
Exception to exception: if the challenge
goes to the Constitutionality of the
statute,then there is judicial review
available.

2) Actions committed solely to the agency's discretion
Exception to exception: if the challenge
goes to the constitutionality of the
action then there is judicial review
available

Look at these to determine in every case whether the decision is subj to judicial review

Front 55

Chevron Doctrine

Back 55

1) Look to see if Congressional intent is clear- if Congress has spoken- the focus on judicial revew is whether the agency obeyed legislative intent

2)If Congress has not interpreted or defined, the statute is silent and left to the interpretation of the agency

The agency determination is then entitled to judicial deference know as "Chevron Deference"- reviewing court cannot substitute its own discrimination for the Agency's

Front 56

Requirements to be afforded judicial review

Back 56

1) Standing (challenger suffered immediate & direct personal harm PLUS traceable causal nexus)

2) Final Agency Action (direct consequence of agency action

3) Zone of Interest (interest protected by the statue must be discerned PLUS based on the complainant's interest, was this actually what the statute intended to protect

4) Exhaustion of Administrative Remedies (must be required by statute)

5)Redressability of the injury (it must be a decision that can be redressed by a decision in the challenger's favor in the case)

Front 57

Citizens to Preserve Overton Park, Inc. v. Volpe

Back 57

City council approved the plan to cut through the middle of a park to build a roadway- U.S. Sec. of Transport approved. This is the appeal of that decision

All three types of agency decisions are subject to judicial review

Front 58

Chevron U.S.A. v. Natural Resource Defense Council

Back 58

Governs a court's review of agency interpretation of a statute

Congress--> EPA = power to ensure state meet min. fed. air pollution standards.

Group challenged EPA interpretation

Congressional intent clear?

If yes, is agency decision contrary?

If no, left to interpretation of agency.

Agency determination is entitled to judicial deference known as "Chevron deference"- reviewing court cannot substitute its own determination for the agency's

Front 59

United States v. Mead Corp.

Back 59

Customs ruling on day planner classifications; tariff addressed w/o rulemaking or adjudication

Chevron Rule applies- when an agency is making interpretations of rules that have force of law (precedential effect)

Courts do not have to give deference to agency decisions not having the force of law

Not entitled to Chevron deference because procedure was not followed closely enough.

Front 60

NLRB v. Hearst Publications

Back 60

Adjudication

When an agency makes factual findings, courts must defer to it if there is substantial evidence in the record.

Substantial evidence is meant in the admin law sense, more than a scintilla; any evidence a reasonable person could find to support the agency's decision

Doesn't have to preponderate, be clear and convincing

VERY low standard

Front 61

Industrial Union Dept. v American Petroleum Institute

Back 61

Rulemaking: rule prohibiting exposure to Benzene at levels above a threshold is challenged on judicial review

substantial evidence that the prior level was approriate, not new lower level

OSHA must make rules that were reasonable necessary and appropriate; had authority to make "safe" work places, not "risk-free" work places

Agency exceeded the scope of its statutory authority

Front 62

Johnson v. Robinson

Back 62

Fed Statute conferring ed. benefits to those who serve on active duty in military

Conscientious objector was denied benefits by the VA b/c had not completed active duty

Congress precluded judicial review of decision of the VA, HHS and Medicare

HOWEVER this is an exception to the exception: if the challenge goes to the consitutionality of the statute, there is judicial review available.

was a constitutional challenge

Front 63

Webster v. Doe

Back 63

CIA homosexual fired- wanted to challenge on basis of discrimination

Exception to general rule: leaving determinations to agency's discretion

here, discretion expressly given to agency

HOWEVER, constitutional claims regarding the statute are reviewable.

Front 64

Dunlop v. Bachowski

Back 64

agency decision is not to do something (agency investigation did not find grounds to overturn a union election)

Statement of reasons for decision was required for judicial review

Agency did NOT act outside statutory authority; grounds that apply are arbitrary and capricious

If there is a rational basis for the agency decision not to act, then the agency has not acted arbitrarily or capriciously. Agency can provide that basis with a mere statement of reasons relied on in the decision.

Front 65

Heckler v. Chaney

Back 65

claim that drugs for capital punishment violate the Fed. Food, Drug, & Cosmetic Act; Agency refused to commence proceedings to prohibit the use by states of the drugs used which prompted the judicial action here.

Decision not to take any action is committed to the discretion of the agency and not judicially reviewable.

An imperfect statutory fit is a proper reason for an agency to decline enforcement action

Cases where the agency decides not to take action more than others are likely to fall within the 'committed to agency discretion' category

Front 66

American Horse Protection v. Lyng

Back 66

Formal petition for rulemaking- agency must respond to request & espouse ts reasons for denying the petition (here reg re: horse-shoeing)

One purpose of judicial review is preventing an agency from this kind of refusal to do what Congress had required and what evidence confirmed was necessary.

regulation desired b/c self regulation was failing.

declining to initiate a rulemaking is subject to judicial review (w/defence to the agency; close to an arbitrary/capicious standard)

here, no factual/policy reasons to deny the rulemaking

Front 67

Dalton v. Specter

Back 67

Closing of shipyard has devastating effect on local econ. New elaborate procedure for closing military bases. Agency suggested, president approved. when several bases closed, procedure was challenged.

judicial review is not available b/c it was not a final agency action- the president approves/disapproves

final agency actions are what are subject to review

agency actions must have direct consequences.

Front 68

Abbott Laboratories v. Gardner

Back 68

Statue requires drug labels to have established name half the size of proprietary name

Pre-enforcement judicial review:

Standaing: they suffered immediate and direct personal harm to the challenger

Concrete, direct, personal injury, rather than speculation that they would be harmed in the future

could challenge pre-enforcement

Front 69

Toilet Goods Assoc. v. Gardner

Back 69

Threatening decertification for dyes unless companies allow FDA inspectors access to their plants

two part inquiry

1) are the issues appropriate for judicial resolution

2) what is the hardship if judicial relief is not imposed

if no one has been directly affected by the resolution yet, there cannot be judicial review (no personal direct immediate harm to the petitioners)

Front 70

Darvy v. Cisneros

Back 70

Plaintiff challenged HUD regs that debarred it from transactions w/agencies

Federal courts have the authority to require a plaintiff exhaust available admin remedies before seeking judicial review under the APA

General Rule: you cannot keep judicial review of any admin decision until you have exhausted you admin remedies

EXCEPTION: Statute does not require exhaustion, but MOST of the time they do.

In absence of statutory provision requiring exhaustion of all available admin remedies, decision is final

Front 71

Association of Data Processing Service Organizations, Inc v. Camp

Back 71

Competitor Suit- complaining re: agency giving them economic disadvantage & benefiting other businesses.

Standing: does plaintiff allege that the challenged action has caused him injury in fact? Is the injury suffered w/in the zone of interest protected by the statutes relevant to the case?

direct, immediate, personal concrete adverseness (harm) to the petitioner

Person seeking judicial review must be within the zone of interest of the statute.

Front 72

National Credit Union Admin v. First Nat'l Bank

Back 72

Statute: there must be a finite common bond b/t members of the credit union. Bank suffered injury in fact

Two part Zone of Interest Test:

1) interest protected by statute must be discerned

2) based on the complainant's interest, was this actually what the statue intended to protect?

Loosening of the restriction was not permissible under Chevron

This was BEYOND STATUTORY AUTHORITY OF THE AGENCY

Front 73

Sierra Club v. Morton

Back 73

An organization can have standing to challenge an agency decision

The injury (for injury in fact) can be aesthetic and recreational in addition to economic

organizational standing: need to show their members would be injured by the agency decision

Front 74

Federal Election Commission v. Atkins

Back 74

Fed. Elect. Campaign Act. required disclosure of political committees who spent $100+ influencing elections. Agency decided an issue-related group did not have to make the reports b/c they weren't candidate oriented, but rather issue oriented

Plaintiffs can suffer injury in fact when the plaintiff fails to obtain information which must be publicly disclosed pursuant to a statute

Injury in fact: there must be a traceable causal nexus that is fairly traceable to the agency decision being challenged

Front 75

Lujan v. Defenders of Wildlife

Back 75

Endangered Species- Sec. of Interior determines which animals are on the list

Redressability of the injury: it must be a decision that can be redressed by a decision in the challenger's favor in the case

here, the dam that may cause the harm would not be taken down, therefore, not redressable

Front 76

Friends of the Earth v. Laidlaw

Back 76

DNR has the power to issue permits & prosecute polluters who exceed the level of their permits

In terms of a citizen's standing to bring suit to stop this kind of pollution, and seek redress for it, such a citizen must give notice to all these parties (state, polluter) 60 days in advance & within that window, the state can prosecute the polluter, and if the state is prosecuting the polluter diligently, any citizen's hands are stayed

If the gov is prosecuting for the violation, citizen cannot

If the state action has been diligenctly prosecuted, the citizen's suit is not maintainable.