administrative law - schwartz - fall 2003-2-4

8/20/2019 Administrative Law - Schwartz - Fall 2003-2-4

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SEPARATION OF POWERS: The Uneasy Constitutional Position of the Administrative Aen!y

- "eislative Control of Aen!ies

o Ena#lin Statutes:

All agency action begins with a statute, provided by Congress

But, the non-delegation doctrine says that Congress may not delegate all of its

powers away.

o The "eislative $eto

%efined:

• a power that is granted to Congress by themselves (in a statute) to nullify

and override agency action.

"eislative $eto is Un!onstitutional

• !s are not subject to bicameral passage (both houses) and presentment to

the president

o Bicameralism and presentment are necessary to preserve separationof powers b"c if Congress wants to repeal its own laws, it has to

ma#e new legislation doing so.

%ete!tin "$s ( INS v. Chadha)

• $here is a statute

• %t delegates veto power to the Congress outright, concurrent with the

delegation of power to the agency

• $he action must be leislative in nature.

o An action is legislative if:

$he veto changes the legal rights and duties of persons

outside the legislative branch

$he alternative way(s) to accomplish the same goal is to pass

legislation repealing the law %t is not listed in the Constitution as one of the times when

Congress may act on its own

• $he action does not go through presentment and bicameral passage

• Anything else is not a legislative veto, even if the actions of Congressional

members would suggest otherwise

o Permissi#le means #y &hi!h Conress !an override administrative a!tion

&ass 'report and wait statutes:

• Congress delegates authority to agency, but decision cant go into effect for

a certain amount of time (e.g. *+ days), so if Congress doesnt li#e the

agency decision, it can pass legislation to override it verride by ordinary legislation

rite more specific statutes

&ass appropriation rider statutes:

• specific statutes that say that no money can be spent on enforcing the

agencys position


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Consultation re/uirements:

• statutes say that before the agency can act, it has to tal# to the chairman of

the committee in Congress versight by Congress:

• hold hearings with the agencies to #eep tabs on what they are doing

- E'e!utive Control of Aen!ieso &resident is not usually considered an 'agency for purposes of the A&A- this is a

rebuttable presumption

o hen dealing with the validity of an employee or officer of a federal agency, as# 0

/uestions:

o Was the (erson (ro(erly a((ointed)

Offi!er or Em(loyee) 1irst, determine if the person is an officer, or 2ust an

employee. ( Buckley v. Valeo)

•$est: hether the person e3ercises significant authority on behalf of the 45w"out someone else telling them what to do.

o 5o, if the person e3ercises this significant authority, and doesnt

have someone telling him what to do, he is an officer

o 6mployees are persons who are subordinate to officers- they ta#e

orders and dont have much responsibility.

Prin!i(le or Inferior Offi!er) %f the person is an officer, determine if he is a

principle or inferior officer (7orrison v. lson)

• Inferior Offi!ers:

o Are sub2ect to removal by higher e3ecutive branch official other

than the &residento Can perform only certain, limited duties

o 8o not formulate policy

o ffice is limited in 2urisdiction- scope of power"authority is defined

o 9ave an office is limited in duration"tenure

i.e. 2ust until the investigation is complete-position will only

e3ist for only a certain purpose"amount of time $his does not mean a term limit. A term limit does not

necessarily ma#e someone an inferior officer- not same as

limited duration

o

A((ointment Pro!edures- Congress 7A vest the appointment power in

$he &resident

Courts of aw, ;

9eads of 8epartments

o Advise and Consent Unne!essary

1or these officers, advise and consent of the 5enate is

unnecessary

• Prin!i(le Offi!ers:


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o Are officers that are


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specific causes which must be enumerated in the

relevant statute.

o $his includes heads of agencies, such as the

1$C ( umphrey!s)

Common specific 'for cause reasons include

• malfeasance in office

o never been determined that declining to

follow an e3ecutive order (by &resident is

malfeasance)

• neglect of duty

• inefficiency

hether an officers refusal to obey the &resident constitutes

cause for removal has not been definitively answered.

• (see ne3t section)

o *o& mu!h !ontrol may #e e'erted over the (erson)

President has Po&er to Prevent Illeal A!ts:

• $he &resident AA5 has the power to prevent the officer from doing

illegal things, ,re/uire him to do things that the law compels, and prohibithim from doing things the law forbids.)

o $his is b"c the &resident has to 'faithfully e3ecute the laws

Pro#lems &ith Offi!er %is!retion:

• $he problem arises when the law gives discretion to the officer to pic# one

legal option over another- in this case, its not clear whether the &resident

may order the officer to pic# a certain option (tell him how to do his 2ob)

o hen courts are determining whether the &resident has the power to

review an agencys decision through 63ecutive rder, loo# atwhether: ("oungstown Sheet # $ube- @ac#sons concurrence)

statute authori-es Presidential a!tion

• more li#ely that &residential action will be upheld

statute is silent

• loo# at whether the &resident has been visibly

e3ercising the power publicly for a long time, and

Congress has silently let him do it. %f this is the case,

it is doubtful Congress will be able to prohibit

&residential action.• $he is a /uestion as to whether Congress tal#ing

about doing something but never doing it is stillletting him do it.

statute (rohi#its Presidential a!tion

• ;emember that Congress cant always prohibit

&residential action (i.e. if &resident gets his powerfrom the Constitution)

• 4nli#ely &residential action will be upheld here


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• $he following factors suggest that the statute

prohibits &residential power these agencies areconsidered 'independent

o 'for cause removal restrictions

o long terms

The follo&in do not raise .uestions a#out !ontrol issues

• %f the Constitution gives power directly to the &res he delegates that

power, he still can control the delegate

• %f Congress delegates power to the agency by statute, the &resident can still

remove the agency head if he does something illegal- this is b"c the&resident has the Constitutional duty to 'faithfully e3ecute the laws

- Providin For Aen!y Ad/udi!ation ,Arti!le III !laims0

o Congress can assign disputes to be ad2udicated by agenciesD but whether and what #ind of

review is necessary depends on whether the dispute is a public right or private rightsdispute and what #ind of review (if any) is provided for (Crowell v. Benson)

o Presum(tion of Revie&a#ility:

@udicial review of administrative actions is presumptively available, but the

presumption is rebuttable if the statute says otherwise or leaves the matter to

agency discretion (%verton &ark )

Pu#li! Rihts are disputes between an individual (citiEen or corporation) and the

govt

• Congress may assign public right disputes to be ad2udicated e'clusively by

admin tribunals.• %t is unclear whether or not 2udicial review needs to be specifically provided

in a statute for public rights claims, but if there is an opportunity for a

review, it goes against a persons claim that his Art. %%% rights were violated.

Private Rihts are the liabilities of one individual to another individual (disputes

between > private parties)

• Claims 1ust #e Reive&a#le:

o Congress may assign private rights disputes to be ad2udicated by

admin tribunals, but they 745$ be reviewable by an Art. %%% court.

therwise, the partys Art. %%% rights have been violated. $his is sub2ect to ripeness, finality, and e3haustion

• Authority 1ust #e for S(e!iali-ed Claims:

o 1or these to be valid, Congress must have delegated narrow,

specialiEed ad2udicative authority to the agency

o An invalid grant of administrative ad2udicative authority would be

one that is too broad, and encompasses too many topics or cases.

• Standards of Revie& %iffer:


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o $here are different standards of review, depending on whether the

dispute is over findings of fact or law. $hese satisfy 8ue &rocess

also

o Findins of la& vs2 Findins of Fa!t:

"a&3 %e Novo: must be reviewable by an Art. %%% court

under 8e


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A+ENC4 A%5U%ICATION

- Informal Ad/udi!ations

o $hese are not covered by the A&A (


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A rulema6in affects a lot of people is applied generically (across the board)

• %f its a rulema#ing, procedural due process does not need to be applied b"c

there is no constitutional right to a hearing. B4$ there may be some other

right to a hearing

o $he govt would not be able to function if everyone the rule affected

was allowed a hearing (efficiency)- ( Bimetallic)

An ad/udi!ation singles out an individual or a small number of individuals.

• &rocedural due process re/uirements must be met

• Jo to step >

o If its an ad/udi!ation8 is there a (rote!ted interest)

Constitutional Interests:

• $he Constitution guarantees each individual the right to life, liberty and

property

Common "a& Interests

• &roperty interests

o traditional interests: land, personal property, and certain #inds of

intellectual property

• iberty interests

o natural liberty: freedom from incarceration, custody of ones child,

se3ual privacy, abortion

Positive la& Interests

•

Applies mostly to property liberty interests• Statutes9Reulations that Constrain %is!retions:

o $hese interests are those created by statutes, regulations, etc. that

constrain agency discretion+ creating entitlements even withoutcreating an absolute entitlement

e.g. 5ocial 5ecurity 8isability Benefits- property interest

protected by due process b"c statute sets re/uirements ofeligibility. At the same time, the right is a conditional oneD

you only have the entitlement if you meet the eligibility rules

• Ways a Statute may Restrain %is!retion:

o A#solute entitlements- stating a set of rules that if a person meets3, y, E re/uirements, he is entitled to benefits ,oth+ )oldberg

$o have a property interest in a benefit , a person must have

more than a unilateral desire for it, or an e3pectation. A person cant 2ust thin# he has a right- the govt must have

done something to ma#e the person believe he has an interest

or entitlement. $he legit claim of entitlement comes from

rules: state statutory law, regulatory law, common law(anything that is authoritative on behalf of the state that will


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give person a legit claim of entitlement) Board of ,egents v.

,oth+ )oldberg

• But, this creates a disincentive for govt to create

rights at all.

o Conditional rihts- a set of rules that creates guidelines that the

agency must base its decision on. (i.e. govt constrains its own

discretion) Sinderman A persons interest in a benefit is a property interest for due

process purposes if there are such rules, or mutually e3plicit

understanding that support a persons claim of entitlement tothe benefit, and that he may invo#e at a hearing

• $here is a right to a hearing if there is something to

have a hearing about

o %f the substantive law sets a standard about

the discretion of the decision-ma#er, there issomething to have a hearing about

i.e. it limits the discretion of the

decision-ma#er $his is when the person can argue

about whether he met the regulations

or not. A property right CA


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o 8oes the & have other avenues available to himI %f he does, &s

interest in the relief sought is viewed as wea#.

o oo# at the $ypical Case

63amine the typical benefit recipient, not the specifically

e3treme situation

$he high water mar# here is the situation in )oldberg (full

evidentiary hearing pre-termination). $his is b"c Joldberg

was entitled to 55 benefits that she was not getting

o %f the interests of the individual is weighty, this favors more process

o %f the interests of individuals affected by the decision are less

compelling, this favors less process

• Ris6 of error in the e'istin (ro!edure < value of additional (ro!edure

< ho& it &ill redu!e the ris6 of error

o A!!ura!y of the Current Pro!edure:

how accurate is the current procedure, and how much more

accurate would it be if it was changed to the way the & wasarguing for

$his is the lynchpin of the due process analysis

o Suested Pro!edure must Redu!e Ris6 of Error

%f there is no ris# of error in the current procedure, or if

suggested other procedures dont reduce the ris# of error, you


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%f the cost of additional procedures is high, in terms of

money or in terms of accomplishment of program ob2ectives,this favors denying more process

o Court Shouldn>t S(e!ulate on +ov=t Interests

atch out for pro2ection here. ften courts will say that the

govt has an interest in doing it the way the court thin#s best,

for some reason or another. (e.g. protected interest b"c govt

has an interest in promoting the general public welfare, or

being accurate) %ts not the courts 2ob to speculate about thegovt interest.

• govt has an interest in getting it right"being accurate

%t would cost more to have additional procedures imposed,

b"c it would ta#e the money away from other programs of the

agency

"imits on the Amount of Pro!ess

•

$here are limits set on the amount of process allowed to any one individualo )oldberg is the high watermar#- the most process that will ever be

given is a full evidentiary hearing

o $he least process given is notice and opportunity to be heard, to

allow e3planation and protection against mista#e

o E'!e(tion: Prisoner>s rihts (Sandin v. Conner )

7athews test doesnt apply here

• A due process claim can only be brought if a prisoner can show

o a significant hardship,

o Beyond a typical to normal prison life.

• $he bar is raised here for what triggers due process rights for prisoners.

o 7itter With the S&eet Theory is an alternative to the (athews test.

$his is


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• ou cant define property by the procedures provided

for its deprivation $he framers intended to draw this line between substantive

and procedural rights- otherwise they would not have made a

due process clause 5o, the court meets ;ehn/uist halfway, deference is given to

the legislature that develops the process, when the balancing

test is determinative, but the argument about how much

process is due is something that can be ad2udicated by Art %%%courts, not states.

A%5U%ICATIONS UN%ER T*E APA ,Formal Ad/udi!ations0

- the A&A is an act that prescribes the procedures for all federal agencies engaged in ad2udications

and rulema#ings

o an 'aen!y is defined under the A&A as

each authority of the Jovernment of the 4nited 5tates, whether or not it is within

or sub2ect to review by another agency. An agency does not include

• CongressD

• the courts of the 4nited 5tatesD

• the governments of the territories or possession of the 4nited 5tatesD

• the government of the 8istrict of Columbia, or e3cept as to the re/uirements

of =++> of this titleD

• agencies composed of representatives of the parties or of representatives of

organiEations of the parties of the disputes determined by themD

• courts martial and military commissionsD

• military authority e3ercised in the field in time of war or in occupied

territories

o Ad2udication under the A&A

A&A defines an ad2udication as

• Any proceeding with a retrospective application of the substantive law, no

matter how many people it affects

APA definition is not identi!al to the due (ro!ess definition in the !onstitution

• 9owever, the definitions are usually consistent anyway, because when an

agency acts retrospectively, it really only affects a few people.

• hen an agency acts retrospectively, but it affects a large amount of people,

this is rare, but should go by the A&A definition.

o $his is b"c the 8ue &rocess clause would call this a rule ma#ing, and

re/uire nothing "i!ensin (ro!eedins are always ad2udications under the A&A. $hus, even

though its a prospective decision that only affects one person, both the A&A and

the 8ue &rocess clause allow it to be treated the same way.

• "i!ensin (ro!eedins involve

o $he whole or a part of an agency permit, certificate, approval,

registration, charter, membership, statutory e3emption, or other form

of permission. 5o applying to receive anything is a licensing proceeding


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- Formal Ad/udi!ations ,?@@8 (hrase &hi!h dire!ts to ?@@B8 @@0

o $echnically for a 1A, you should also use the 8ue &rocess" (athews test. 9owever, the

standards in ==++*, ++G, ++H is so high that 8& couldnt provide any more rights.

o Trier "anuae is re.uired: (=++*(a))

A formal ad2udicatory proceeding is only re/uired when

• the statue says that '++* applies ;

• the statute say that decisions re/uire a determination 'on the record after

opportunity for agency hearing

o 5tatutes that 2ust say that a 'hearing is re/uired are not good

enough to 'trigger a formal ad2udication $here are e3ceptions- see =++*

o Notifi!ation of hearin (=++*(b))

$he agency has to inform the person brought before the agency (as opposed to one

who invokes the agency process) of

• time, place, and nature of hearing• legal authority 2urisdiction, under which the hearing is to be held A


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o 9e may not personally be involved in prosecution or investigation of

the same matter or a related matter.

• 63ception for the head(s) of an agency:

o $he head of the agency can be involved in investigative and"or

prosecutorial matters ('case selection) and still be the ad2udicatorof the case. 9e may supervise both functions and play both roles

(ithrow v. -arkin)

o hy does the agency care about this e3ceptionI

Agency doesnt want charges brought that cant be won b"c

the agency head thin#s the charges are invalid

Agency wants to be able to bring cases that establish certain

rules the agency wants established. (bureaucratic rationality point of view)

o Rules +overnin Initial %e!ision31a6er in a Formal Ad/udi!ation hearin

Who may (reside over a hearin:

•4nless the specific statute designates the initial decision-ma#er in a formalhearing, an agency may decide to leave the ta#ing of evidence to (=++G(b))

o agency head

o 5ome or all members of the agency

o Administrative aw @udge, who is

an ad2udicatory specialist (see =++*) and

who is insulated from agency supervision and control on

personnel matters

Po&ers of the Presidin Offi!er

• $he presiding officer at a formal hearing has several powers to assure the

smooth conduct of the proceedings. $hese include: (=++G(c))

o $he power to administer oaths

o $he power to issue subpoenas (if the agency has subpoena power)

and

o $he power to ma#e evidentiary and procedural rulings

The Role of the Presidin Offi!er9A"5

• $he presiding officer compiles a formal record and then 7A ma#e one of

two decisions: (=++H(b))

o "et the Aen!y 1a6e the %e!ision

o an initial de!ision ; the agency adopts this decision as final, and doesnt review it

unless the adverse party appeals it $he parties to the proceeding can (=++H(c))

• submit proposed findings and conclusions at the

initial stage of the proceedings

• ob2ect to or support the initial decision when it is

being reviewed by the agency itself

o a re!ommended de!ision


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this goes to the agency for a final determination must be

certified as such.

• Agency 9ead

o 9e may act as the presiding officer in a formal ad2udication, ; he

may delegate that responsibility to someone else (e.g. another

employee or an A@)

o 1oran %o!trine: @ust b"c the agency head doesnt hear the case

doesnt mean he cant still be the ultimate decision-ma#erK 9e may have someone else compile the record give it to

him for a final decision.


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• Any member of the agency, an A@, or other

employee who is, or may reasonably be e3pected to be, involved in the decisional process of the

proceeding (=++H(d)(L)(A),(B)) %f the ad2udication is NOT for determinin an initial

li!ensin a((li!ation, the presiding officer may


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o But, this is only to the e3tent that it is consistent w2 the interests of

justice


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recommendation is part of the record, and may undermine

the agencys decisions, which may prevent substantialevidence from supporting the agencys decision. (1niversal

Camera)

• Any de!ision (initial, tentative, recommended, or final) must in!lude

(=++H(c)):

o A statement of findings and conclusions on all material issues of

fact, law and discretion, A


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7UREAUCRATIC RATIONA"IT4 $S2 5U%ICIA"IDATION

- 7ureau!rati! Rationality Em#ra!es the Follo&in $alues

o Accuracy

o 6fficiency

o 6/uity

o horiEontal consistency (treating everyone similarly situated in the same way)

o results that are not too costly to achieve.

o Cases Su((ortin the 7ureau!rati! Rationale 1odel:

,ichardson v. &erales: statements made by doctors entered into evidence to prove

that & was entitled to benefits were admitted as substantive evidence, though they

were pure hearsay. $he court said that the medical evidence in writing is inherently

reliable b"c all were consistent w"one another, all doctors were e3tremely well

/ualified, and were based more on an ob2ective analysis than sub2ective. %f thedoctors were re/uired to be cross e3amined, the doctors would have to ta#e more

time off wor#, which would lead to fewer doctors willing to write these evaluativereports. Also, the use of a medical advisor who had not e3amined the patient butread the report is o#ay b"c it ma#es everything more efficient. $he admission of the

evidence was o#ay b"c otherwise there would have been an enormous

administrative burden- this is in favor of efficiency. Also, the person presiding over the hearing was sort of an advocate.

• A #ey point in this case is that the hearsay is sufficiently reliable. %f it had

not been, then the decision would not have been allowed to rely on it. (organ 3octrine: agency head may retain hierarchical control over his agency

w"out conducting every hearing himself. 9e also doesnt have to show that he

actually read the record made, when he ma#es the final decision (discovery into this

fact is barred). %t is not realistic in a large agency for the head to conduct everyhearing himself.

1niversal Camera: when and A@ decision and the head of the agency decision

conflict, the head of the agencys decision will stand. 9owever, the A@ decision

becomes part of the record. %f the person appeals the decision to an Art %%% court,then the heads decision must stand up against the substantial evidence test.

eckler v. Campell : an agency can rely on published rules"standards in an

ad2udication to determine rights if the standards follow the bureaucratic rationale

• $he agency has rulemaking authority to decide reoccurring issues of fact to

save time+ money+ etc.

o $his is not a violation of 3& or the *&* to use rulemaking in this

way• $here is a possibility that one person is uni/ue- in this case, the

chart"standards wouldnt ade/uately describe this person. %n this case, the

standards must allow for consideration.

• $hus, the facts may be presumed, but this is a rebuttable presumptionMif

one can show that he has an unusual pattern that is not captured in theregulations, he can be considered individually have a hearing to decide

how his facts should be evaluated.


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o B6 CA;614 when deciding if it is an issue of fact or policy, b"c

recurring issues of policy dont have to have a rebuttable

presumption attached (escape hatch).

- 5udi!iali-ation Em#ra!es the Follo&in $alues

o The System of 1oral9Inde(endent 5udment

&urpose of civil courts is to see# the 'moral"independent 2udgment. Civil courts

do not value consistency (b"c can have > e/ual defendants, > e/ual but different

2uries, and > opposite outcomesD this is accepted). Civil courts also dont value

hierarchical control- 2udges dont really answer to anyone, and the standard ofreview is clearly erroneous.

o Cases which support this view

Nash v. Califano: A@ has standing to bring suit when he feels li#e his

independence is being encroached upon by standard set to ma#e the system more

consistent. (i.e. /uotas, peer review- this is how you do a hearing- if A@ doeshearing the same way, results will be similar no matter what 2udge you go to),

delegate opinion writing to staff of law cler#s). &ractically, this case is important

b"c individual litigants could never bring a claim based on a supposition of /uotas.%t would be too hard to prove that their case was decided based on a /uota.


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RU"E1AIN+S UN%ER T*E APA

- Rulema6in under the APA

o A&A defines rulema#ing as a process for ma#ing a rule- its future oriented.

Again, when a govt acts prospectively, it usually affects a large number of people,

so the definitions are consistent.

o hen an agency acts prospectively generic, but it only affects a small amount of people,

this is rare.

%n this case, follo& #oth the %ue Pro!ess re.uirements8 and then the APA.

8ue &rocess calls this an ad2udication, A&A call it a rulema#ing

8o both because otherwise it would be unconstitutional to only use the A&A.

o A&A distinguishes between formal and informal rulema#ings, but there is no re/uirement

that an agency has to use one over the other. $he agency can use whichever one it li#es

( *utomotive &arts # *ccessories *ssn) 6ven if the statute refers to a 'record, this can be construed to mean either type of

rulema#ing, since both re/uire some type of record. ( *uto &arts)

An agency 7A


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o Noti!e Re.uirements (=++0(b))

$he agency must publish a general notice of proposed rulemaking in the 1ederal

;egister (unless the particular parties sub2ect to the rulema#ing have been

personally served) $his notice must include

• 5tatement of the time, place, and nature of the rulema#ing

• ;eference to the legal authority under which the rule is proposed A


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Internally In!onsistent %e!isions:

• hen an agency head ma#es a decision which is

inconsistent with the presiding officersrecommended decision, a reviewing court reviews the

agencys decision under the substantial evidence test.

$he presiding officers recommendation is part of therecord, and may undermine the agencys decisions,

which may prevent substantial evidence from

supporting the agencys decision. (1niversalCamera)

• Agency 9ead

o 9e may act as the presiding officer in a formal rulema#ing, ; he

may delegate that responsibility to someone else (e.g. another

employee or an A@)

%is.ualifyin the %e!ision31a6er

• $he 87 is appointed and will always have a political view this is why the

&resident chooses him but he will only have to recuse himself under thefollowing circumstances:

o 1nalterably Closed (ind test :

%t is o#ay that the decision-ma#er has firm views about

issues that come up before the agency. All he has to show isthat he doesnt have an unalterably closed mind about a

topic. $his is very easy. $o say it another way, a decision-ma#er is dis/ualified only

when there has been a !lear and !onvin!in sho&in of an

unaltera#ly !losed mind on matters !riti!al to the

dis(osition of the (ro!eedin. ( *ssn of Nat!l *dvertisers)

$his is hard to show until a rule is final. And even then,there is a record, which, if it supports the decision, will go in

favor of the agency.

E' Parte Conta!ts

• 'e3 parte contacts are defined as

o hen one party contacts the decision-ma#er w" out the other side

#nowing or having record of it

• 63 &arte Contacts &rohibited:

o $he transcript of the testimony, the e3hibits, and all other formally

filed papers constitute the e'clusive record for the decision in a

formal rulema#ing (=++G(e))

o $his e3clusivity of the record is protected by prohibiting e3 parte

contacts nce notice of a rulema#ing has been given, there may be no

e3 parte communication 'relevant to the merits of the

proceeding between

• Any interested person outside the agency and

• Any member of the agency, an A@, or other

employee who is, or may reasonably be e3pected to


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be, involved in the decisional process of the

proceeding (=++H(d)(L)(A),(B))

• 63 &arte Contacts ))

o 63 &arte Contacts between any person, other than the presiding

officer, to Congress about the merits of a rulema#ing (=++H(d)(L)

(8))

• hen %mpermissible Contacts 8o ccurF

o %f an impermissible contact occurs, it must, once it is discovered

Be made part of the public record, (=++G(d)(L)(C)D A


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• But, in &erales, the court allowed a record to be

made entirely on hearsayD to re/uire otherwise would be a huge administrative burden the hearsay

statements (medical reports) were inherently reliable

consistent w"one another

o 9ad they not been so reliable, the agency

would not have been able to ma#e its decision

solely on hearsay

o $his was a big win for the B; model

But+ remember+ the decision must be based on reliable+

probative+ and substantive evidence &arty entitlements: (=++G(d))

• A party is entitled to

o present his case or defense by oral or documentary evidence

o submit rebuttal evidence

o to conduct cross e3amination

• %f an agency ta#es official notice of some material fact that doesnt appear

on record, a party is entitled (upon timely re/uest) to an opportunity torebut. (=++G(e))

o The End Result of the Initial Rulema6in

%f the agency head delegated the authority to preside over the rulema#ing, he has

two options regarding the form of the ultimate decision to result from the

rulema#ing

• %nitial 8ecision: $he agency may adopt the outcome of the rulema#ing as

the final decision of the agency, unless the party see#s to have the agency

change it

o $he parties to the proceeding can (=++H(c))

submit proposed findings and conclusions at the initial stage

of the proceedings ob2ect to or support the initial decision when it is being

reviewed by the agency itself

• ;ecommended 8ecision: $he agency may treat the outcome as tentative,

until formally adopted

o Internally In!onsistent %e!isions:

hen an agency head ma#es a decision which is inconsistent

with the presiding officers recommended decision, a

reviewing court reviews the agencys decision under the

substantial evidence test. $he presiding officersrecommendation is part of the record, and may undermine

the agencys decisions, which may prevent substantial

evidence from supporting the agencys decision. (1niversal

Camera)

• Any decision (initial, tentative, recommended, or final) must include

(=++H(c)):

o A statement of findings and conclusions on all material issues of

fact, law and discretion, A


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o $he rule, order, sanction, relief, or denial thereof that is the

conse/uence of the hearing.

o Administrative A((eals

hen the agency permits other officials to preside over a rulema#ing and ma#e the

initial decision, the agency may still provide for administrative review $his appeal must be an appeal of right ; at the agency!s discretion. (=++H(b)).

%n reviewing a subordinate decision, the agency 'has all the power which it would

have in ma#ing the initial decision, e3cept as it may limit the issues on notice or by

rule. (=++H(b))

- Informal Rulema6ins ,?@@;0

o An analysis9road ma( for informal rulema6in (ro!edure

hat was the agency supposed to doI

• 5hould the agency have made formal rulema#ingI ( /lorida 4ast Coast )

o ere the 'on the record with an opportunity for an agency hearing

words usedIo %f not, there is a presumption that its an informal rulema#ing only

re/uires notice comment. 9owever, this is rebuttable through the

following factors: as anything more than notice comment re/uiredI

• $his is based on the language of the statute

• A small number of people are affected by the

rulema#ing

• An un2ustified departure from the settled practice has

occurred 8id the agency do the re/uired procedure correctlyI hat did they doI

• 6ven if they 2ust did notice comment this was all that was re/uired, did

the agency do this correctlyI (under =++0, (or more if the statute re/uires))

o 8id they provide a meaningful opportunity for the community to

comment and respondI

o 8id they provide a concise general statement of their basis

purpose for the decision that outlined the agencys decision, reasons

for the decision, and addressed the important points raised by thecommentsI

o 8id they do anything else that the statute might have re/uiredI

o

?@@; re.uires ste(s an aen!y must ta6e in order to ma6e a rule throuh aninformal rulema6in (ro!eedin

o +eneral Noti!e of Pro(osed Rulema6in (=++0(b))

$he agency must give a general notice of proposed rulema#ing, including:

• (L) a statement of the time, place, and nature, of public rulema#ing

proceedings

• (>) reference to the legal authority under which the rule is proposed, A


27/56

• (0) 6ither the terms ; substance of the proposed rule ; a description of

the sub2ects and issues involved.

In +eneral8 Nothin Else Re.uired Pro!edurally:

• Jenerally courts cant re/uire any more procedural re/uirements for

rulema#ing (other than those above). (Vermont "ankee)

• this is bolstered by the holding in /lorida 4ast Coast railway:

o there used to be a gray area between formal and informal

rulema#ing (hybrid rulema#ing- named informal, but procedures

tended to be those for formal rulema#ings). /lorida case says that

there is a rebuttable presumption that statutes wont re/uire hybridrulema#ing. $his implies two distinct categories: formal and

informal. $hus, if there is an informal rulema#ing, it cant have

more than =++0 re/uires.

• ;eason:

o $he threat of being reversed will ma#e agencies adopt a full

ad2udicatory process in every case, and this is not efficient.

o $he choice of procedure cannot be determined in hindsight. %tdepends on info available at the time the structure of the procedure

was chosen.

o $he record only has to show that the agency followed the mandate

of the A&A, or other relevant statutes. $he record doesnt have to

address every point, 2ust points placed in controversy.

• %rony:

o the courts dont say how much process would be re/uired under a

hard loo# doctrine"ac standard, but they do say when its not

enough.

E'!e(tions: When a !ourt !an re.uire more (ro!edure in informal rulema6in• hen a rulema#ing affects a small number of people

o 9ere, the court might re/uire the due process analysis

• hen there is an unjustified departure from a settled course of practice

o %f an agency 2ustifies itself, no more process is needed. $his is only

when the agency doesnt recogniEe that it has made a departure, or

does recogniEe it but doesnt give a rational reason for it

• Statutory e3ceptions

o A court may not add procedure to the A&A on its own. But, some

statutes clearly re/uire more process ( /lorida 4ast Coast )

Noti!e of the Su#stantive Information the Aen!y 7ases its %e!ision On is

Cru!ial

• An agency has to provide notice of the substantive info that the agency is

basing its decision on, so that the public #nows what to comment on. ( Nova

Scotia)

o $his is b"c if the agency fails to notify interested person of the

research upon which they relied and this actually prevented the


28/56

presentation of relevant comments, the agency may be held not to

have considered all the relevant factors. ( Nova Scotia)

Only Sinifi!ant9Criti!al Comments 1ust #e Addressed #y the Aen!y:

• $he agency doesnt have to consider or address every alternative suggested

or comment made, but if it is a very significant comment and the agencydidnt deal with it, a reviewing court will li#ely find that the agency didnt

meet the A C standard. (State /arm) ( Nova Scotia)

o $his is b"c the opportunity for comment is only meaningful if people

are informed of all the relevant data.

o And issues that are too important to ignore must be addressed.

But, an agency can do a cost"benefit analysis to determine

which factors are best for them to implement.

ECEPTIONS: There is no noti!e9!omment re.uired ,unless #y statute0 for

the follo&in ty(es of rules:

• Inter(retive rules, general statements of policy, or rules of agency

organi6ation+ procedure+ or practice are not re/uired to be preceded by anotice"comment procedure (=++0(b)(A)) A


29/56

;emember, the agency cant rely on an interpretive rule for a

legally sufficient basis for its action. %t has to 2ustify itsaction with the overlying regulation. $he interpretation cant

2ustify the action by itself. $his is a common mista#e made

by agencies to avoid n"c, but really they outsmartthemselves. By adding details and clarification to an already

e3isting rule, they cannot rely on those details to enforce the

rule alone.• 1or @udicial ;eview of %nterpretive ;ules: (ead says

that interpretive rules dont get Chevron deference,

but they may get Skidmore deference.

• +ood Cause: hen the agency, for good cause, finds (and incorporates the

finding and a brief statement of the reasons therefore in the rules issued)

that notice and public procedure thereon are impracticable, unnecessary, or

contrary to the public interested. (=++0(b)(B)

o +ood Cause 1ust #e Invo6ed Contem(oraneously:

hen the agency publishes the regulation, the only way they

dont have to use notice"comment is if they invo#e their goodcause contemporaneously- in the publication, they must say

that they #now they s#ipped the n"c, and e3plain the reason.

$hey man


30/56

GPa(er *earin %o!trineH:

• although there is no re/uirement for a hearing, the case law has established

that almost all the elements of a hearing are still re/uired, but that they may

ta#e place in writing. But an oral hearing is optional.

• Congruity with the 9ard oo# 8octrine

o $he 98s practical effect is to ma#e sure that agencies ta#e a close

loo# at the issues, b"c if the agency doesnt respond to critical

comments, the rule will be set aside as A C. $hough this is a

standard of 2udicial review, it forces the agencies to be morediligent, procedurally.

Unforeseen %e!isions Re.uire a Se!ond N9C (eriod:

• %f an agency goes off in an unforeseeable direction with its final regulation-

i.e. it gets notice comment, but it does not base its decision on anything it

solicited notice and comment for, it must give another opportunity for

comment on what it based its regulation on before it promulgates the

regulation. (agner 4lectric)

o Con!ise +eneral Statement: (=++0(c))

After considering the relevant matter presented, incorporate in the rule a concise

general statement of their basis and purpose

• this is also called a 'preamble but practically, it is a !om(lete o(inion for

the decision of the agency.

• Statement must in!lude: $his statement must include reasons why the

agency decided the way they did, and it must address the comments provided by interested parties

A court determines whether the agencys decision is 'reasonable based on this

statement.• $his allows for a procedurali6ation of substantive review. ne who wishes

to challenge a rulema#ing decision may do so under the guise of an

incomplete preamble- if the agency didnt respond to every issue raised by

interested parties, the court will find this to be wrong- the court doesnt domuch to review how compelling the agencys response is, 2ust that they did

respond.

o Early Pu#li!ation: (=++0(d))

$he agency must publish the te3t of the rule w"in 0N days of its effective date,

6?C6&$

• (L) a substantive rule which grants or recogniEes an e3emption, or relieves a

restriction

• (>) interpretive rules and statements of policy, ;

• (0) as otherwise provided by the agency for good cause found and published

with this rule.

o Cateori!al9Su#/e!t 1atter e'em(tions: $he re/uirements of =++0 8


31/56

• courts construe this /uite narrowly

(a)(>): a matter relating to agency management or personnel or to public property,

loans, grants, benefits, or contracts

• this means govt Os, govt employee benefits (anything referring to govt in

its business capacity)

o Chanin the Rules is O if reasoned on the re!ord:

An agency is allowed to change its rules- they are not permanent.

Changed circumstances may cause an agency to have to change its rules.

But, if an agency decides to rescind a rule, it must provide a reasoned analysis for

the change on the record. (State /arm)

• Politi!ally fueled reasons (e.g. a change in the white house administration)

for changing a policy"rule are appropriate as long as the agency ma#es a

proper record.

o E' Parte Conta!ts: Controversial in %nformal ;ulema#ings: 1or informal rulema#ings, controversy

arises because there is no 'opposing party. $hus, the rules for e3 parte

communications are different.

Statutes 1ay 7an E' Parte Communi!ations in IR :

• this is true where communications would normally be allowed

E' Parte Conta!ts are Only Restri!ted in Certain Cir!umstan!es:

• $here are competing claims for a valuable privilege (Sangamon Valley)

o $his occurs when a proceeding is technically a rulema#ing, because

the agency is deciding something general. 9owever, whatever the

agency is deciding really only affects two competing companies.hat is really going on is a license where one party will get

something valuable. $hus, its really an ad2udication b"c its a

licensing issue (covert ad2udication)

• $he contact supplies critical info for the agency decision (Sierra Club)

E' Parte Conta!ts are +enerally Permissi#le in the follo&in situations:

(Sierra Club)

• &rivate e3 parte contacts

o e.g. comments received after the notice comment period, whenagency supposedly was not ta#ing any more comments

o $hese are normally permissible

o 63ception

8ocuments of critical relevance are re/uired to be put in the

record.

• therwise, the record doesnt support the record, and

the record will be arbitrary and capricious

• hite house e3 parte contacts


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o As long as the decision has support in the record, it doesnt matter if

the agency changed its mind b"c of some secret &residential

communications.

o Communications dont have to put in the record b"c the &resident

has the right to supervise the agencies, and this right would bechilled if he had to put his communications in the record.

o 63ception:

%f the &resident"7B communicated critical info that the

agency needs uni/uely, then the rule will appear to be A C,and will be set aside.

• $his communication is not illegal, it will 2ust be set

aside on A C grounds.

• Congressional e3 parte contacts

o Contacts from Congress are permissible

o 63ception

$he contacts cause the agency to ma#e a decision on an

impermissible basis

• 6.g. cant say 'if you want my vote on this otherthing, you will do this now

• $his decision would be set aside as A C

o But, there is nothing wrong with Congress attempting to get the

agency to decide on an impermissible basis (non-statutory).

Poli!y reasons for #annin e' (arte !onta!ts:

• 1airness re/uires that you have an opportunity to respond to the other side

• Corruption is possible otherwise

• %ntegrity of 2udicial review is 2eopardiEed. $he 2udge needs to see the entire

record to #now if the decision was the right one.


33/56

STAN%AR%S OF 5U%ICIA" RE$IEW FOR A+ENC4 ACTION

Preliminary Considerations

- A reviewing court should always first ma#e sure that Congress delegation of authority to the

agency was proper.

o


34/56

o 5tate law: hen the statute is phrased in broad language, agency has

the responsibility to establish standards by which that power is to beapplied (Sun7,ay 3rive in)

ritten public standards are necessary b"c it:

• 9elps courts in 2udicial review- cant do it w"out

standards

• egislature is entitled to #now if the agency is

performing the tas# consistent w"legislative policy

upon which the delegation of power to the agency is based

• 6nsures e/ual treatment to all applicants

• 6nables public scrutiny inform the public, by

assuring public confidence that the agency acts byrules and not by whim or corruption

• democratic accountability (this has an effect if the

agency was appointed by someone who was elected)

$his is not federal law•


35/56

denied the right to present evidence on the factual issue, and are

instead made sub2ect to the conclusive presumption on the 'factualmatter.

-

Standards of Revie& for Aen!y A!tion

- Formal or Informal)o in order to determine what standard of review a court should use in reviewing an agency

decision, =HNG says you must first as# whether the proceeding is formal or informal A formal proceeding is one that is 'on the record after an opportunity for agency

hearing

- Fa!t8 Poli!y8 or "a&)

o =HNG then re/uires you to as# whether the issue is one of fact, policy or law

o when a court is reviewing an agencys decision interpreting the statute the agency

administers, the agency 7A be entitled to certain deference from the reviewing court

(Chevron) if the statute applies to A agencies, then you dont use Chevron- deference

7%J9$ be based on Skidmore

o the agency interpreting the statute has to be the same agency that administers the statue

o %eterminin the Standard of Revie& (Chevron)- 8 $9%5 96


36/56

$his is b"c the agency has figured out an interpretation, b"c

the agency has been given a delegation by Congress toadminister the statute, their interpretation should be given a

little more weight. 5ee below. %nstead, the court must as# the second /uestion

If Conress did not address the (re!ise .uestions at issue8 did the aen!y have

the authority to inter(ret the statute in the &ay that they did) (i.e. did Congressdelegate the authority to spea# with the force and effect of law to the agencyI)

• 9ere, the issue is a &%C one, and the standard of review is deferential

(Arbitrary Capricious)

• ;emember, even if Congress did in fact give the agency the authority to

ma#e the decision that it did, the agency still has to ma6e a (ro(er re!ord

supporting its reasoning for the policy it chose. (State /arm)

o %f the proceeding is one of the following, assume that Congress did

delegate that authority to the agency and the agency deserves

deference ( (ead ) 1ormal Ad2udications

1ormal ;ulema#ings

%nformal ;ulema#ings (n"c procedures)MPPP2ust in case this

is on the test, still go through the reasonableness test below

from State /arm to be surePPP

o %f the proceeding is not one of those listed above (e.g. an interpretive

ruling or informal ad2udication) loo# at Congress delegation of

power to the agency to determine if the agency deserves deference.

hat did Congress intend the agency to doI 8id they intend the

agency to act authoritativelyI 8id the agency have the power to dowhat they didI ( (ead )

$he agency is entitled to Chevron deference if

• Congress delegation of power gave the agency the

authority to do what it did A


37/56

$he agency entirely failed to consider

an important aspect of the problem, or

o as this an irrational decisionI

$he agency offered an e3planation of

its decision that runs counter to the

evidence before the agency, or $he agencys decision is so

implausible that it cant 2ust be that the

agency had a different view, or thedecision was a product of the agencys

e3perience.

• @ust because an agency had ta#en an inconsistent

position on the same issue in the past doesnt meanthat their final determination should be given no

deference.

o $his is b"c the agency is ma#ing a

determination of policy

o $he agency is


38/56

o consistency of the agency on the issue in /uestion

o longstanding of agency interpretationD is it contemporaneous w"t eh initial appearance of

the issue

o the procedural conte3t: rulema#ing or ad2udication

o practical"political importance of the issue

o indicia of congressional intent to delegate the decision to the agency

- Standards of 5udi!ial Revie& for Formal Pro!eedins

o Issues of Fa!t: Su#stantial eviden!e test =HNG(>)(e)

%n earst , this was called 'warranted in the record

5ubstantial evidence must e3ist on the basis of the entire record. $his means that

you cant loo# at one argument and say there is substantial evidence of that oneargument. ou must loo# at both arguments to determine if there is substantial

evidence to uphold one of them.

• %f a reasonable fact finder can draw either conclusion, then the court can

uphold the conclusion that the agency adopted.

o 6ven if the preponderance of the evidence is against the agencysfinding, if there is a reasonable amount of evidence to give someone

reason to find for the agency, the court should give deference to theagency.

o Issues of Poli!y: Ar#itrary < Ca(ri!ious

An agency has decided an issue of policy if there is a broad statutory term that it

has applied to a specific instance, where the agency is administering the statute has more e3pertise with the statute than the courts do.

• %n this instance, Congress has not defined the term, and instead the agency

should decide what it means. But when it does this, it is ma#ing law

through policy should be treated as such.o 6.g. hat the word 'employee means in the conte3t of an


39/56

• %t re/uires the agency to articulate with reasonable clarity its reasons for

decision, and identify the significance of crucial facts so that a reviewingcourt can tell if the agency too# a 'hard loo# at the salient problems has

genuinely engaged in reasoned decision-ma#ing. ( Nat!l ,etreaders)

• Agency needs to show that they really did loo# at the important issues if

there was a comment that was opposite to the way they were leaning, theylegitimately 2ustified the reasons they didnt follow that comment

o Issues of "a&: 8e )(a)

o Issues of Fa!t: Ar#itrary < Ca(ri!ious


40/56

T*E C*OICE 7ETWEEN RU"E1AIN+ AN% A%5U%ICATION 3 %id the Aen!y !hoose the

&ron (ro!edure)

- Agencies have broad discretion in choosing whether to use a rulema#ing or an ad2udication if it

has authority to do both (Chenery)

o $here is one e3ception to this: $he *ccardi doctrine (=HNG(>)(d))

Agencies are re/uired to abide by their own regulations, even if the agency was not

re/uired to impose the regulation on itself in the first place.- %f one doesnt li#e the result of an agency action, he may always challenge it substantively.

9owever, he may also challenge it procedurally, claiming that the agency used the wrong method.

o


41/56

Re!urrent Issue of Fa!t:

• $he agency has used rulema#ing to decide a purported /uestion of fact that

arises on a recurring basis in ad2udication, but has

o failed to allow an 'escape hatch which may be re/uired

o misused this practice by applying it to a /uestion of fact that really

isnt generic in nature and needs to be decided case-by-case

( eckler )

• Poli!ies behind having a rulema#ing that settles recurring issues arising in

ad2udication

o Fair ,advan!e0 &arnin

Ad2udications happen after the fact- how is one supposed to

#now that what they are doing is wrong if the agency hasntmade it wrong yetI

Jood for parties

o 7roader o((ortunity to !omment

$his opens the decision up to parties outside of those in an

ad2udicatory proceeding. Although in ad2udications others may file amicus briefs, its

not the same as a n"c rulema#ing Jood for both parties agency

o 1ore effi!ient for the aen!y

$he agency only has to decide the issue once, and then can

apply it to all occurrences Jood for the agency

o *ori-ontal e.uity (no one is singled out as the first target)

%ndustry prefers rulema#ings because each individual

company can come together and help to decide the issue. %n

this way, no one company is singled out to have the precedent be made at its e3pense.

Jood for the parties

o Possi#ility of Pre3Enfor!ement Revie&

%f this occurs w"in a relatively short period of time, parties

will #now how the rule will wor#

$his is good for both the agency and the parties

Flarant A#uses of %is!retion: $he Agencys choice of procedure is in some other

respect a flagrant abuse of discretion

• /ord motor v. /$C : in a situation where someone is singled out unfairly for

ad2udication, while the rules are being made in a rulema#ing at the sametime, this is unfair and ad2udications cant be used this way.

- Poli!y 5usitifi!ations for Rulema6in

o Saves Aen!y Resour!es

;ulema#ing avoids re-litigation of recurring generic issues

o Fair Warnin to Reulated Entities

;ulema#ing avoids unfair surprise that may result from retrospective application of

a policy enunciated through ad2udication


42/56

o Avoids Gtest !asesH

;ulema#ing avoids ine/uity that may result when one party from a larger class is

'singled out to be the test case used in establishing a new doctrine by thead2udicatory process

o Chan!e to 7e *eard

All those who will be sub2ect to the new policy have a chance to be heard, at least

theoretically

o Commentin Pro!ess is Informative

Agency will be provided with info on a greater range of factual variations on the

problem under study

o Poli!ies are 1ore Pre!ise

Agencies can state their policies with greater precision, ma#ing clear their true

basis, scope and reach

o Earlier Con!lusive Indi!ation of $alidity of an Aen!y Position

&arties will #now if the rule is immediately 2udicially reviewable (i.e. prior toenforcement), especially if 2udicial review of the rule is limited to a short time

period after its promulgation

o 1ore Potential to Foster Politi!al A!!ounta#ility

7a#es it harder for the agency to disguise its policy 2udgments or immuniEe them

from political scrutiny by burying them within the facts of the case

o 5udi!ial Revie& &ill #e Underta6en &ith an A((re!iation of the "arer Politi!al

Conte't

$his minimiEes 2udicial interference with attainment of bureaucratic rationality

values

- Pro!edural Challenes to Use of Ad/udi!ation8 &hen the aen!y should have usedRulema6in

o No Statutory Authority:

$he agency lac#ed statutory authority to ma#e regulations

• Am#iuous rants of leislative authority O :

o &etroleum ,efineries: an agency may do a rulema#ing to ma#e rules

and regulations for the purpose of carrying out the provisions of thestatute. $his is true even when the agency has an ambiguous grant

of legislative authority from Congress- it should be understood to

grant substantive regulations.

o Ad/udi!ation Overrules Prior Ad/udi!ation < 1oney %amaes are Im(osed:

$he agency has used ad2udication to overrule a prior ad2udicatory precedent on

which a private party has relied , A


43/56

•


44/56

%f an agency can only act by rulema#ing no legal sanctions at all can be brought to

bear at all when situations arise

o Fle'i#ility of Res(onse

5ome variations on previously recogniEed problems are li#ewise unforeseeable and

accordingly may be best addressed through ad2udication after they occur

o Effi!ient Fine Tunin of "eal Res(onse

o Advantae of 1a6in In!remental %e!isions

$he art of 'muddling through: by ma#ing incremental decisions case by case, the

agency reduces the ris# of ma#ing a big mista#e

o Insulation aainst Politi!al Atta!6

8ecisions of policy made through an ad2udication can be insulated from political

attac# by disguising them w"in the fact of a particular case

o Advantaes of Rulema6in 1ay #e Illusory #9! of Es!a(e Clauses

$o the e3tent that the use of generic rules to address variable factual situations

re/uires or is accompanied by the inclusion of escape clauses"e3ceptions provisions

in rule the efficiency advantages of rulema#ing may turn out to be at least partly

illusoryo Some Parties 1ay "a!6 In!entive8 Foresiht8 Orani-ation8 and Resour!es Needed

for Ad/udi!ation

hile ;ulema#ing provides a theoretical opportunity for all interested parties to

participate, some parties may lac# the combination of incentive, foresight,organiEation, and resources needed to participate in rulema#ingD by contrast, when

an agency ma#es it policy by ad2udication, the party against whom the agency is

threatening to act will almost always participate vigorously


45/56

A+ENC4 RE$ERSA"S OF POSITION

- An agency may change its position on an issue

o It may overrule a rulema6in8 &ith another rulema6in

as long as the agency accounts of its prior position and rationally justifies the

change, this is o#ay. $he old position is treated as one of the alternatives to the present position (State

/arm)

o It may overrule a de!ision in an ad/udi!ation in a su#se.uent ad/udi!ation

as long as the agency rationally justifies the change from an established agency

position, this is o#ay. therwise, this would be a c action if the agency ignores

the old decision.

• 63ception

o Agency cant use ad2udication directly to overrule ad2udicatory

precedent on which the private party has detrimentally relied if aretrospective monetary sanction is imposed ( Bell *erospace)

o It may overrule an ad/udi!ation de!ision &ith a su#se.uent rulema6in

this is the safest way

$he fact that an agency too# a previously contrary position in an ad2udication

doesn!t affect the validity of the rulema#ing

o It 1A4 NOT use an ad/udi!ation to res!ind a reulation.

But be careful here. $he agencys ad2udicatory action is %

regulation has been repealed by regulatory action. $his is the *ccardi doctrine. 5ometimes this occurs when an agency realiEes that they want to ma#e an

e3ception (via an ad2udication) to a prior rulema#ing

• $hey can do this, but they have to e3plain why they are deviating from therulema#ing

• And, they cant rescind the rulema#ing through the new ad2udication, 2ust

modify it for the current position

- Note: The aen!y>s se!ond (osition may set aside under the APA on su#stantive roundso 6.g. if the position is outside the agencys statutory authority, or its unconstitutional, or a

c.

o $he above instances add an additional vulnerability of the second position in a proceeding

for 2udicial review, when it results from the fact that the agency has changed its position,and has employed a particular se/uence of procedures in doing so.


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PU7"IC "AW RE1E%IES IN COURT3 +ov=t %efenses to 5udi!ial Revie& Re.uests

- hen private parties bring suit against an agency, there are a number of defenses the agency

brings to try to get the case thrown out, before either party argues the merits of the case

- $he term 'non-statutory review refers to the review provided for by the A&A- $he term 'statutory review refers to the review provided for by a specific statute

o "a!6 of ,su#/e!t matter0 5urisdi!tion $his is an invalid defense. 1ederal courts always have sub2ect matter 2urisdiction,

b"c suits against agencies satisfy federal /uestion 2urisdictional re/uirement and >Q

45C =L00L removed the amount in /uestion re/uirement. $he Court in Bowen says that you can almost always go to the district ct

• $his is true even when the relief sought isnt monetary

o Soverein Immunity

Jenerally, under the Constitution, if the govt doesnt consent to being sued, it

cannot be sued. $he Jovt can assert sovereign immunity as a defense.

•

9owever, some acts provide a waiver of sovereign immunity in some cases, particularly in tort and O actions ($uc#er Act)

Waiver of Soverein Immunity

• =HN> of the A&A waives sovereign immunity for cases that

o do not see# monetary relief ;

o allege failure to act under color of legal authority

• 9owever, monetary damages are


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Congress can also prohibit the 2udicial review of action by

committing the matter to agency discretion. $his happens when a statute is drawn in such broad terms

that in a given case, there is )(a))

• Agencys 8ecisions are of imited 8iscretion

o $hese are decisions where the statute grants

some discretion

o $hese decisions are still reviewable, under the

A C standard (abuse of discretion) (=HNG(>)

(a))

• &s Claim is Based on a Constitutional ;ight

o 6.g. 8ue &rocess, Lst Amendmento %n this case, the court will use the *shwander

3octrine to allow the statute to be upheld, but b"c it is read not to preclude review of

Constitutional claims

• &ossibly: hen the Agency 9as &rocedures or

;egulations in &lace

o $his is from the *ccardi 8octrine

o ebster doesnt decide this /uestion

When is there NOT G"a& to A((ly) ,and thus notrevie&a#le0

• Agency 8ecisions 'Committed to Agency

8iscretion

o $hese are decisions are e3tremely

discretionary

o $hese decisions are not reviewable (=HNL(a)

(>)) i.e.


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• holly 8iscretionary 8ecisions

o $hese are decisions where Congress tells the

agency to 'do whatever they want.

o $hese decisions are unconstitutional (they

violate the non-delegation doctrine)

Conress !an ma6e 5udi!ial Revie& Conditional

• Channeling 5tatutes allow Congress to give the opportunity for 2udicial

review only if the party meets certain conditions

o 6.g. particular time, place, or manner

Revie&a#ility of Aen!y Ina!tion

• ;emember, refusing to give someone an entitlement is not an agency

inaction (this would more li#ely be a due process claim)

• %e!ision not to Prose!ute9Enfor!e:

o An agencys decision not to prosecute"enforce is presumptively

unreviewable ( eckler v. Cheney) Re#utta#le Presum(tion:

• $his presumption is rebuttable if & can show some

body of law constrains or governs the agencys

discretion to review, the failure to enforce will bereviewable.

• 5imilar to (=HNL(a)(>))- if there is A $ A&&,

there is ;eviewability.

o Possible E'!e(tions to Presum(tion of Unrevie&a#ility

5C (in Cheney)has not decided whether inaction would be

reviewable in the following situations

• Agency inaction in rulema#ing

• Agency failure to enforce, based on a belief that it

lac#ed 2urisdiction to do so in a particular conte3t

o 'legal issues e3ception

• An outright refusal to enforce a particular statute

• %naction challenged on constitutional grounds

• %naction challenged as corruptly motivated

• Agency inaction in the face of agency regulations

alleged to supply standards that govern the decision

whether to act

• Refusal to Reulate:

o An agencys decision not to ma#e regulations is more reviewable

than agency decision not to prosecute. ( *merican orse &rotection) $his is different from when & wants an agency to act (when

ma#ing an entitlement claim). $his is when & wants a

regulation to be made.

o %eferential Revie&3 Soft +lan!e %o!trine:


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$he review of agency inaction is e3tremely deferential to the

agency. (deferential version of A C test) $he agency doesnt have to ma#e the regulation, they 2ust

have to supply a good reason for not doing it.

• After determining if the action"inaction was reviewable, ;6767B6; to

chec# finality, e3haustion, ripeness doctrines to see 96< it is reviewable

- W*EN is the de!ision revie&a#le)

o Finality of the %e!ision ,?0

Any (ro!eedin:

• $his doctrine pertains to any one proceeding

Pro!eedin must rea!h its natural !on!lusion:

• @udicial review is only available if the decision in the proceeding is final

o i.e. it must have reached its natural conclusion

• %n a rulemaking , the natural conclusion of the proceeding is the ma#ing ofthe rule

o $hus, & cant challenge the agencys advanced notice of proposed

rulema#ing by saying that the agency has no 2urisdiction to ma#e the

rule. 9e must wait until the agency finally decided to ma#e a rule,

or finally decided not to ma#e a rule.

• %n an adjudication, the natural conclusion of the proceeding is the ma#ing

of the final order

o hen an agency files a complaint, this is not final.


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• &resumption that you can challenge a regulation as soon as it is made

( *bbott -aboratories)

E'!e(tion: Test to %e!ide Ri(eness Issues

• Conressional Intent:

o oo# to the language of the statute to see if Congress intended to

ma#e the statute unreviewable at the pre-enforcement stage.o %f the statute e'plicitly says otherwise, you cant get review until the

second proceeding rolls around

5ilence doesnt bar"rebut pre-enforcement review

7alan!in Test &hen the statute is Silent

• Fitness of the Issue For Revie&

o egal vs. 1actual"8iscretion:

%f the issue is purely legal, its fit for review

%f the decision is factual, or involves application of agency

discretion, this is less fit for review

o $he decision 745$ B6 1%


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Cases under the APA3 +enerally8 e'haustion not re.uired( 3arby)

•


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o "a!6 of Standin: Who is entitled to #rin an a!tion in an Art2 III !ourt)

ho has standingI

• A person who was actually regulated by the agency

• An intended beneficiary of agency action

• Both individuals and organiEations may have standing, but the tests are

slightly different

Individual Standin ( *3*&S%)

• In/ury in Fa!t

o $he & must be able to show he has suffered an in2ury in fact

9e cannot sue only to claim that the law is wrong.

%f he wants to do this, he should file an amicus brief.

o $his comes from Art. %%% of the Constitution: there is no case or

controversy unless & has an in2ury in fact

o $he in2ury must be ( -aidlaw)

Concrete and particulariEed

Actual or imminent, not con2ectural or hypothetical

4


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• Causation (orth v. Seldon)

o & must show that the in2ury he asserts is happening to him is b"c of

what the agency has done- there must be a causal ne3us betweenagencys conduct and &s harm

• Redressa#ility

o & must show that the relief he see#s, if he were to get it, would

redress (undo) the in2ury he has suffered

• Arua#ly &9in the Done of Interest Prote!ted #y the Statute

o This is an o#/e!tive test- ob2ective foreseeability

%f the statue would logically have the conse9uence of

affecting a group of people, those people have standing to

bring the case No %ire!t 7enefi!iary Re.uirement:

• Congress does


54/56

rganiEation must show

• %n2ury in fact

o $his is ob2ective- its not how much & cares

about the agency decision or action, its anob2ectively demonstrable in2ury

• %t was arguably w"in the Eone of interest

o The orani-ation is #rinin the suit on #ehalf of its mem#ers

and the mem#ers themselves &ould have standin to sue

0 part test: (1* v. Brock ):

• the members would have otherwise have standing to

sue (individual standing)

o this means that a member has

in2ury in fact

causation

redressability

w"in the Eone of interests

• $he sub2ect matter of the lawsuit is germane to therelative organiEations purposes

o ould the members #now that this is the #ind

of lawsuit the organiEation would bringI

o %f members would argue that they dont pay

dues so that the agency will do what it isdoing now, then its probably non-germane

• $he relief sought doesnt demand individualiEed

participation

o $here would be a need for individualiEed

participation if there is an action for damages, because everyone would be as#ing for

damages in a different way and for a differentamount.

o Standin for Aen!y Ina!tion

hen a & wants to bring suit against an agency for inaction, the rules above must

still be met. Additional Re.uirements

• Intended Proram of Ina!tion Re.uired: ( -ujan v. Nat!l ildlife)

o & must show that there is an agency program of inaction, rather than

2ust an assortment of inactions that are not relatedo 9owever, & can challenge any one particular instance of inaction

that in2ured him (if he meets the standing re/uirements)

• Affidavits are Re.uired:

o & must provide affidavits for the specific in2uries sustained

o %f & is a member organiEation, & has to get particulariEed affidavits

from its members

o +enerali-ed +rievan!es


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Jenerally, its not an appropriate 2ob for the courts to deal with political disputes

between branches of the govt

• $here is a difference between claims where a lot of people share the

grievance, and where everyone shares the grievance

o if everyone has the same issue, the 5upreme Ct says ta#e it to the

political branches (unli#ely there will be standing)

o if only a small group of people share the grievance, the court is more

li#ely to e3tend standing

- @ustice 5calias big picture

o 5calia had a distinctive vision of where the law of standing should go, and how it should

be different from today.

o 5calias view of the unitary theory of the presidency- strong believer in this

o 5calia has a vision of how the law should be in standing as well- as in the unitary theory,

he has been able to nudge the court in his way, but hasnt gotten a ma2ority vote.

o Big picture for standing:

5tanding is really for people who are regulated by agency- the 'victims of the

regulation. 5tanding should be designed to address e3cessive regulation by thosewho are regulated

$he notion of beneficiairies of regulation should have standing is seen as a mista#e.

$his is viewed by him as an issue of separation of powers. %f let beneficiaries havestanding, then the courts are infringing on the Art %% powers of the 63ec Branch.

%ts the presidents 2ob to ma#e sure that the laws are faithfully e3ecuted. %f

beneficiary goes to court, then court is ma#ing sure that the laws are being used

right. (II) 6.g. areas in which 5calia might have a hand in

• $ightening up on re/uirements of chilling causation and redressablility

o 5ome success, but its inconsistent. $he courts cases on C ; are

hard to reconcile. 7any commentators see many of the C ;

cases as result-oriented. %f a ma2ority of the court would li#e toreach the merits, they will downplay the obstacles standing in the

way.o %n cases where court will rule in a manner that is conservative on the

merits, more li#ely to reduce standing re/uirements. (Creightoncase is a good e3ample- court ta#es a rela3ed, e3pansive view of

who had merits)

• Sone of interest

o 9ow much evidence do we need that Congress intended to benefit

youI


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o Clar#e case said you didnt need any evidence, but in the Courier

case the court seemed to say the reverse

• 9ow strictly do we re/uire &s to submit affidavits to show that a particular

& will be affected by a govt decision want to challengeI

o 5calia has perceived tightening up these re/uirements that & claims

in2ury in fact actually show that real individuals were actually

affected by an agencys decision that is challenged

• Challenge to agency inaction

o 5calia has been the most successful here. 5tanding is hard to claim

here.

• Agenda also to restrict Congress role in manufacturing standing. (can

congress rela3 or eliminate one of the elements for standingI)

• $ried to push court on issue of generaliEed grievances

o 5calia has partial success here

administrative law - schwartz - fall 2003-2-4

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