ADMINISTRATIVE LAW OUTLINE
I. INTRODUCTION APA defns: Adjudication under the APA is defined as: adjudication is anything that results in an order Rulemaking: agency process for formulating or amending a rule Rule is either general or specific Included within rulemaking are some procedures that could be either general or specific In adjs, DPC prompts reqs of notice and op to comment In RM, APA itself is source of notice and op to comment Rules and adjudications can be distinguished by looking at (principally, not exclusively) Futurity of action Specificity of action As to subject matter As to parties Immedicacy of effect (possibility of future proceedings) Londoner v City and County of Denver – USSC 1908 – p.15 Ps chal assessmt of tax to pay for street paving DP reqs apply in admin RM posture Taxpayer must have notice and op to be heard Many DP reqs essential in jud procs aren‟t needed But rt to be heard and present case even in very inf manner is needed Bi-Metallic Investment Co – USSC 1915 – p. 20 Disting Londoner as situ involving small number of persons Gen stats may be passed w/o op to be heard Fuller proc prots reqd by specif actions – adjs DP rts in legis proc are protd thru rt to vote Yesler v Cisneros – 9th cir 1994 – p.23 Effect test to determ adj or RM – not form of the proc Rules affect broad classes of unspecified indivs and are prospective in application Req application before have definitive effec Adjs applies to specif parties Adjs have immed effect w/o further action II. CONSTITUTION AND THE ADMINISTRATIVE STATE
A. Concepts of Separated Powers Mistretta is key case for modern NDD Const: Art I: “all legis powers herein enum‟d are vested in the Cong” Legis power cabined thru bicamism, presentmt, appropriatn bills must start in HR Arts II and III don‟t have sim exclusivity Exec role: prez can initiate legislature, VP has tiebreaking vote in Senate
Vesting clauses in each Art limit each branch in signif ways Embedded is assump that Cong supposed to act to make laws that exec can directly enf Goodness and niceness commission (GANC) – necessarily unConst First Cong delegated its power to the Prez Veterans Pensions – regs as shall be directed by Prez Invalids – regs as shall be directed by Prez Stats from First Cong don‟t appear to tell very much Second Cong refused to delegate to Prez In normal course of things, cts interp the stat Landis – principal apologist for ND – trusts reg agencies Believes e.g. FCC broadcasting licenses are impractical for Cong to decide one-by-one General issues: Authority of administrative agency to act with the force of law; Particularly, those actions with a legislative (as opposed to adjudicatory) function; The definition of relative rights or obligations Principal doctrinal test – Broad delegations are OK, if cabined by the articulation of an “intelligible principle” Sources of intelligible principles Common law precedents (“unfair competition”) Statutory goals (Mistretta) General prohibitions History of enactments Problems sought to be solved Legislative history Analysis for broader delegs: 1. Is it broad? 2. Is there an intelligible principle? Narrower delegations may be OK if directed Mistretta Delegation OK, b/c cabined by goals, factors, mode, specific output (all dictated by legislation) Boundaries? Executive action conditional, non-specific, and non-directed (Panama Refining) (Clinton?) General directions without referents (Schecter Poultry) Other effects Statutory interpretation canon (avoid interpretations that create uncabined delegations) (Benzene case) See below FDA tobacco case Depth v. breadth trade off (expect more specific direction from Congress when regulatory authority is sweeping); but cf. broad industry delegations (FCC, etc.) Concern for democratic principles Accountability Transparency
Legitimacy Debate b/w functionalism and formalism FCC stat grant: “if public convenience, interest, or necessity will be served thereby…” Extremely broad deleg, but cabined by stat purp and legis history Admin law more often looks to LH cuz otherwise many problems with many stats, e.g. FCC Cong self-aggrandizement is part of any sep of powers analysis
B. Agencies and Article I Key question: has Cong given agency unConst authority to create law 1. Pre-New Deal Cargo of the Brig Aurora – USSC 1813 Stat allowed Prez to terminate trade restric thru proclamation that UK behaving properly Const for Cong to exercise discretion either express or conditionally as they deem approp If stat written w/o Prez element, would go to cts to determ when UK behaving J.W. Hampton – USSC 1928 If Cong lays down by legis act an intelligible princip for official to conform to, is not unConst deleg [No problems w/ this till ND] 2. New Deal Panama Refining and Schechter Poultry are only two cases striking down deleg to exec In both, no limit on Prez actions, no cabining factor, no req that Prez even act Panama Refining – USSC 1935 Stat lets Prez prohib petro products UnConst deleg cuz no criteria to govern Prez‟s course Trusting Prez to act in pub good insufic Schechter Poultry – USSC 1935 NIRA allows Prez to discret create codes of fair competition for any indus If Prez finds assocs/grps impose no inequit restrics on admission to membership and truly rep If prez finds codes not designed to promote monopolies or to elim/oppress small enterprises and will effectuate policy of NIRA NIRA unConst - doesn‟t prescribe rules of conduct – authorizes making of codes to prescribe them One step too removed to be Const deleg 3. Modern Doctrine Benzene Case – USSC 1980 A. Agency made policy choice to assume no safe level of carcinogens 1. Stat provs: a. Neces to provide health and safety prot for emplee b. Latest avail scientific data c. Feas of the stds d. Exp gained under this and other h/s laws
B. Risk from toxic subst must be quantified to meet stat req‟d “signif risk” to avoid NDD problem 1. If risk not sufic quantified, is sweeping delegation of legis power under Schechter Poultry 2. OSHA must show signif health risk a. Open issue what else OSHA must show C. Don‟t need cost/ben analysis D. Powell Conc/Dis: 1. Cost/ben analysis reqd above signif risk of harm and tech feas findings E. Rehn Conc: 1. Cong has unConst delegated cost/ben analysis – “to extent feasible” a. Is policy choice and Cong best equipped to make it 2. NDD provides agency officers w/ “intelligible principle” to guide exercise of deleg‟d discretion 3. NDD assures that cts reviewing agency have ascertainable stds Mistretta – USSC 1989 – p. 64 Fed sentencing comm stat provides 7 discret factors and comm bound by crim stats‟ sentencing mins/maxes Takes some of jud discretion away from judges and places in FSC made of judges and nonFSC apptd by Prez Applies only to sentencing of crimes – cf. NIRA applied to any industry Cong not bound to do minimal form of delegation Eval extent and charcter of deleg by common sense and necessities of the govt co-ordination Stat gave sufic goals, factors, criteria to think about Note Rehn thinks these factors sufic specif but in Benzene Case not sufic specific Cites Yakus: If absence of stds prevent assessmt of whether agency obeyed Cong‟s will then unConst Scalia Dissent: FSC is exercising neither jud nor exec func – it only has effect on judges, not anyone else FSC is exercising core legis func Deleg by Cong is only Const if involves valid exercise of jud or exec function FSC is not jud function – not case or controversy and these are not Art III judges FSC is not exec func – produces sth that has no legal effect itself Scalia would be fine w/ doing this under the Rules Enabling Act – letting USSC promulg rules Compare maj functionalist breadth/depth of deleg test vs Scalia formalist test Formalist test would allow very broad, almost uncabined discret as long as valid exec/jud func American Trucking Assns – DC Cir 1999 Very broad discretn ok – Cong doesn‟t have to provide “determinate criteria” Doesn‟t have to say how much is too much, how imminent is too imminent Clinton v NY – USSC 1998 Line Item Veto Act gave Prez power to cancel in whole spending/tax-ben provs of enacted stats Disting “contingent legislation” like Cargo of Brig Aurora Ct ducks NDD issue and held unConst on bicam/presentment grounds Less politically messy than NDD 4. What’s Left of the NDD? Not much, if Amer Trucking just cites Mistretta and sorta combines formalist and functionalist approach Modern NDD is non-justiciability doctrine
Possibly Schechter and Panama Refining still good as breadth/depth check on delegs C. Agencies and Article II – Appointments and Removals The Appts Clause: “[The Prez] shall nominate, and by and with the Advice and Consent of the Sen, shall appt Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the U.S., whose Appointments are not herein otherwise providd for, and which shall be established by Law; but the Congress may be Law vest the Appt of such inferior Officers, as they think proper, in the Prez alone, in the Courts of Law, or in the Heads of Depts.” AC is check on unfettered Prez auth to appt those around him Central to any appts/removals problem: 1. Who is an “officer of the United States”? AC could apply to everyone of the fed govt – but doesn‟t apply to mere emplees not officers 2. Which officers are principal officers and which are inferior officers? AC permits more methods of appt for inf officers not permitted for princips Default method is Prez nominatn and Sen advice/consent 3. Who is capable of exercising the (relevant) appt authority? For inf officers, who is a head of dept or ct of law? 4. Can Cong add duties to existing officers without viol AC? 1. Who is an Officer? Buckley v Valeo – USSC 1976 – p.126 8 Members of FEC apptd by various means 2 by Secy Senate and Clerk of HR (no voting powers) 2 by Speaker HR, 2 by Prez, 2 by Prez Pro Tempore of Senate Maj of both Senate and HR had to approve those apptd by Prez FEC charged with: administering the election, enf election-related guidelines If officers involved, AC applies, NPC can‟t overrule Appointees exercising signif auth under laws are officers FEC commissioners are officers Landry v FDIC – DC cir 2000 Are ALJs of FDIC unConst as apptd? Cites Freytag: Special Trial Judges are inf officers cuz have power to render final decision FDIC‟s ALJs are not officers cuz have no final decision powers Though, if no one does anything to ALJ‟s decision, it is final But no deference either – de novo review No force nor effect of law – not officers Info gathering, study creations, reporting are add‟l funcs that may not be officer funcs Randolph Conc/Dis: ALJs are inf officers All inf officers get reviewed by superiors – lack of finality irrelevant ALJs are like magistrate judges, who get de novo review If no contest to ALJ‟s determ, has force/effect of law
2. Who is an Inferior Officer? Who is a principal officer? Those whose exercise of authority is not subject of review by other officers other than the Pres are likely principal officers Subordinate position is an important test of inferior status – but subordinate in a functional manner, not just subject of some review Restriction on removal does not violate notion of “subordinate” if officer is actually subord Limited removability doesn‟t cancel an officer being a subord Other factors, such as jurisdiction, authority, and length of appointment are important Reconcile above w/ cases below Morrison v Olson – USSC 1988 – p.137 Indep counsel comes into being by AG finding some reason to believe that investig into wrongdoing is neces AG then applies to Special Division Spec Div – ct created by stat – 3 Art III judges – they appoint indep counsel Indep counsel is inf officer: Is removable by higher exec power, tho not neces “subordinate” to them – functionally subord Has no policymaking power Juris limited to that granted by Spec Division, tho Spec Div‟s discret not cabined Tenure limited to accomplishing single task, tho not limited by time Ppl only subj to review by Prez are principals Scalia Dis: Indep counsel not subord to anybody – is principal officer Everyone who‟s subord might not be inf officer, but those not subord are not inf officers Removal by higher exec power is meaningless provision Edmond v US – USSC 1997 – p.142 Coast Guard crim app ct judges – apptd by Secy Transp Inf officers are those directed/suprvised by someone apptd by Prez nom w/ Sen advice/consent Scalia‟s subord test gets maj 3. Who Can Exercise the Relevant Appointment Authority? Who may appoint (inferior officers) President alone Heads of departments Departments are estab‟d by Cong and are orgs directly accountable to the Prez Cf. Dissent‟s view that any separate division of gov‟t Courts of law Includes special courts (special division) Includes article I courts (tax court) Freytag v Commissioner – USSC 1991 – p.145 Chief judge of tax ct appoints Spec Trial Judges – is judge a head of dept or ct of law? Is Art I judge Tax ct is ct of law Ct of law: exercises jud power; incl legislative cts
Incls Art I cts, but probly not state SCs Dept: part/division of exec govt given name of “dept” by Cong, directly acctable to Prez “Head of dept” doesn‟t incl inf commissioners and bureau officers Chief judge is not head of dept Scalia Conc/Dis: “Ct of law” in Const means Art III Const cts Tax ct performs exec funcs, not jud funcs Is “head of dept” – is a separate division 4. Can Cong Add Duties W/o Requiring Re-Appointment? Summary Congressional definition of duty Background rule: Congress may create offices, but may not designate officers (by name) Congr may only add duties to existing officers if new duties germane to the office as prev defn‟d Otherwise, new appointment needed Weiss – USSC 1994 Cong auth‟d JAG to make certain appt‟d milit officers milit judges w/o separate appointment Cong can increase the pwr and duties of an existing office w/o making it neces to re-nominate/re-appt See if Cong seems like is aggrandizing power to itself – functionalist test All milit officers participate in milit justice Possible req that add‟l duties be germane to existing ones – formalist backstop 5. Removals Limitations on the President‟s removal power are OK, with the following possible limits Congress cannot be aggrandizing the power to itself Probly some (undefined) very senior princip officers that Prez must be able remove on own No Const provision talks about removals by using that word If Cong can limit Prez removal power, maybe Prez veto power still plenary over exec branch Unitary Executive thy Can only be Const if believe it doesn‟t hurt and procs have been followed Or if don‟t trust admin agencies – “capture thy” Myers – USSC 1926 Suspicion of Cong aggrandizement At least all most impo exec officials subj to unlim‟d exec removal Humphrey’s Executor – USSC 1935 Fed Trade Comm is quasi-legis and quasi-exec Disting Myers – postmaster in Myers is wholly exec officer Ct refused to neatly and exclusively categorize FTC Cong can limit Prez removal power w/r/t quasi-legis positions Morrison v Olson – USSC 1998 AG can remove indep counsel only for good cause – does that interf w/ Prez Const functions Viol sep of power by reducing Prez‟s abil to ctrl prosec powers of the indep counsel? Disting Bowsher – Cong aggrandizing power to itself by requiring Cong approval of removal decisions
Indep counsel‟s job mostly exec functions Cong can‟t interf w/ Prez‟s exercise of exec power and const apptd duty to execute the laws Good cause limit doesn‟t unduly trammel on exec authority Myers, Humphrey limited by funcists Removal restrics to “for cause” ok as to inf officers Scalia Dis: This is sep of powers issue – not removal or AC issue Vesting clause gives all exec power to Prez – must incl power to fire exec officers Limit on removal deprives of core exec discretion Humphrey’s Exec FTC limits on removal are Const only cuz FTC also exercises legis func For cause is ok as to inf officers, as long as failure to follow directions is sufic cause
D. Agencies and Article III Vests jud power in SC and other inf cts as Cong shall create, the jud pwr Focus of agency adj is on claims arising out of fed stats that create new rts/liabilities Const has to permit vesting of adj funcs in non-Art III cts cuz that‟s what exec does when takes care to faith execute laws The counterclaim is a traditional breach of contract claim Majority: OK to have the claim adjudicated by the administrative agency Very functionalist approach Important that this is not an aggrandizement case Factors: Extent to which essential attributes are reserved to article III courts Extent to which non-article III court exercises article III jurisdiction Connection btw Art III claim and non-Art III claim is key A jury trial need not be given For adjudication of public rights, no constitutional jury trial right (Atlas Roofing) By implication, OK to dispose of jury trial right in properly incidental adjudication of common law claims (Schor) CFTC v Schor – USSC 1986 Is Commod Futures Trading Commsn taking juris over CL ctrclaims unConst Stat auths adj of claims for dmgs for viols of CFTC regs Look to purps of Art III to assess Const of delegation of adj power to non-Art III cts Practical attn to substance and not formalistic test Sensitivity to Cong aggrandizement of power it‟s taking away from jud Cong auth of juris over narrow class of CL claims as incident to prim juris isn‟t subst threat to sep of powers Arises out of same transaction 1. Prosecutorial Separation Does due process permit a single entity to both initiate a prosecution and adjudicate the proceeding? Very customary way of proceeding Withrow v. Larkin – USSC Must assume that agency officials have an open mind – so dual role is OK
III. STATUTORY CONSTRAINTS ON AGENCY PROCEDURE Designed to cover all agency action except where organic stat provides different But doesn‟t apply to cts, milit, Prez, Cong - §551 Formal RM and adj: §556, 557 – trial-type proceedings (oral test, x-exam, etc.) Informal adj: §555 Informal RM (notice and comment (n/c) RM): §553(c) §553(c) defines when you‟re in 553(c) Trial type procs outlined: §556(d) Escape clause even w/in 556-557: But all cases and commentary say if in formal procs, presump entitled to full proc guars Deciding whether are in formal/informal, adj or RM overlap somewhat w/ Londoner and Bi-Metallic For any given issue, look to org stat first, then APA for backup – APA is the default for admin agencies
A. Formal Rulemaking (RM) Key question: what procs do APA req when agencies making decisions w/ force/effect of law? §553(c) says §556-557 formal procs apply when org stat calls for “on the record aftr opp for agency hrg” FECR nws, “on the record after opp for agency hrg” are magic words triggering formal procs Formal rulemaking triggers Specific congressional intent Revealed by magic words “hearing on the record” Florida East Coast Railway – USSC 1973 Did ICC have to use formal procs in setting rates for railroad carriers – is RM Stat says ICC “may, after hearing… [set rates]” Stat lang doesn‟t req formal procs Written proc is sufic for “hearing” DP reqs lower in RM than in adj Functionalist efficient holding No magic words to trigger formal procs – use interp tools
B. Formal Adjudication and Variations §554(a) – applies in every case of adj reqd by stat to be dtrmd “on the record after opp for agency hrg” Triggering lang same as §553(c) Nws Seacoast, gen 1st cir satis w/ something intermed btw inf and formal adjud Come back later: is 1st cir consistent w/ Vermont Yankee? Seacoast Anti-Pollution League v Costle – 1st cir 1978 Presume formal proc necessary unless clear evid that waived by Cong “After hrg” sufic to trigger formal procs Distrusts agencies
City of West Chicago v NRC – 7th cir 1983 Can‟t presume Cong wanted formal procs unless they said it Same as FECR Chem Waste Mgmt v EPA – DC cir 1989 – p.235 Where stat has ambiguity, cts reqd to deer to agency interp of the stat Whole point of Cong setting up agency to imp stat is to employ agency expertise in executing stat C. Informal Rulemaking – aka Hybrid Rulemaking Gov‟d by §553(c) – essentially 3 reqs: Notice, opp to comment, concise statement of basis and purp §553(b) and (d) et seq talk about how to give notice, how long have to give open for comment, how adv notice for imp of new reg Notice must contain: Pub in FR, time and place of hearing, state the legal auth for adopting the rule, give terms and subst of rule to be adopted or desc of subjs/issues involved Agencies can deal w/ issues in adj by commencing RM procs – uncontested authority VT Yankee only applies to op to comment stage DC cir in VT Yankee thinks op to comment stage puts ck on agency USSC view is very Landissian – trusting of agency More think of 553c as designed to either satis DP interests of public or as op to put ck on agency, more sttrictly you read doctrines about when agency has to re-notice and op to cmt etc More you think it‟s just for agency to get info and exercise expertise, less you think agency has to issue new NPRM in order to promulg rule Agency can moot suit by agreeing to new n/c proc Three types of challenges to notice: 1. Notice didn‟t disclose all of relevant data and thus didn‟t give adeq op to address proposals a. Agency had impo info that failed to disclose at NPRM time – CT Power and Light b. Agency had impo info that failed to disclose at final ruling 2. Final rule concerns issues not adeq flagged by notice 3. Final rule differs substantially from proposed rule – CT Power and Light “Notice of inquiry” – used by agencies to gather data from indus Comes before NPRM and doesn‟t substitute for it Proc reqs seems divorcd from substance of rules agencies making But when get to subst evid test, arbit/capric, hard look tests for subst review, proc reqs will link up w/ subst review of partic rule at issue Summary of Reqs of N/c Rulemaking Notice Published in Federal Register (or actual service) Disclosure of agency proposal Disclosure of agency data “Adequate to allow interested parties to participate” Opportunity to be heard Vermont Yankee (written hearing adequate)
Statement of basis Adequate for judicial review Respond to comments – cmts that would make diff in decision if true State reasons, based on evidence, that option is chosen Vermont Yankee – USSC 1978 Agency commenced RM to decide issue underlying adj N/c proc used: Gave notice of proposed RM – NPRM or NOPR Goes into signif detail abt two alt proposed rules Held pub hearing where allowed written and oral testimy No x-exam, but witnesses subj to questioning by comms‟rs Transcript of hearing issued, then held in pub record for further written comments Final decision by commission DC cir was dissat w/ that level of proc Info not explained in way accessible to layperson what the results of the proc were DC cir in partic says more procs reqd to more fully ventilate the issues before it cuz it‟s not entirely clear why the agency made some partic choices it made USSC rejects forcefully – n/c means “op to participate meaningfully” Efficiency holding – functionalist Notice doesn‟t have to be in layperson terms – is directed to parties regulated Dicta says if there is agency practice of giving proc, may have to continue to do so or explain why it won‟t 1. Notice Didn’t Disclose All Info Known to Agency at NPRM Time, Final Rule Differs Subst Typical final rule decision out of agencies go on for at least dozens of pages Often 100+ pages Connecticut Light and Power v NRC – DC cir 1982 Chals to adoptn of strict fire prot pgm for nuke power plants: 1. NPRM failed to indic/explain technical basis relied on in selecting the proposed rules 2. Signif changes btw proposed and final rule – agency should re-notice 3. Statemt of basis/purp insufic “Agency commits proc error when fails to reveal portions of technical basis for a proposed rule in time to allow for meaningful commentary” RM proc against bkrnd of 5 yrs of pub discussion/cmt lets tech bkrnd of rules be sufic ID‟d for meaningful cmt Fact-specif holding – otherwise little ref to technical material insufic for meaningful cmt If rule emerged is “logical outgrowth” of rule proposed – don‟t have to re-notice If orig notice didn‟t adeq frame subjs for discussion must re-notice Final rules were just more stringent version but logical outgrowth Exemption provision key – practical impact of rules very sim as if proposed rules adopted Statemt b/p must indic agency‟s reas for rules selected – technical basis, data on which decision based Reviewing ct shouldn‟t have to rummage thru record for rationale Statemt should incl: New rules Technical basis of why those are the new rules
Response to any meaningful cmt produced by step 2 “Meaningful” – if the cmt true, would point in different direction What alts considered Exemptions to rule save statemt b/p cuz agency not imposing method that it doesn‟t sufic justify 2. Final Rule Concerns Issues Not Adeq Flagged by Notice Agency gave notice about one thing and you did sth about sth else After MCI, FCC just re-noticed and issued same final rule But MCI safeguards proc rts, if not subst rts MCI Telecomm v FCC – DC cir 1995 MCI saw rule that wouldn‟t get Feature Grp D anymore – petitioned to reconsid rule Notice was about Bell op company But then made rule about local co access to long dist providers FCC relented to extent that it allowed local companies to offer FGD MCI wanted local companies reqd to offer FGD Notice must be adeq to afford interested pties reas op to particip in the RM proc Rule was outside scope of notice Fn mentioning Feature Group D insufic notice That other parties responded re: Feature Group D also insufic 3. Exemptions from Informal RM Procedures Two exemptions: 1. Subject matter exemptions a. 553a – military or foreign affairs not covered by 553 b. Public land or grants not covered by 553 – unless specif org stat incorps APA by ref 2. Type of “rule” adopted Interpretative Rule (IR) Policy Statement (PS) Procedural rule (PR) Good cause for not having n/c – esp in econ sphere (setting of interest rates, etc.) (GC) Don‟t need advance publication 30 days adv notice - §553d: Interpretative rules Policy statements Good cause (No exception for proc rules) Summary of RM Exempt “Rules” Substantive rules Those with force of law – Williams maj in AMC – is dominant test That provide basis for defining illegal conduct or category of benefits awarded That are published in the CFR That the agency calls upon its law making authority to promulgate Those that amend prior substantive rules Reg prim conduct – Silberman dis in Air Transport – dominant too – almost same as above test Procedural rules
Narrower view: agency internal operation – Edwards Broader view (more current): those that do not affect primary conduct or determine class of those entitled to benefits – Silberman Not consistent w/ USTA – pen sched is subst rule even tho doesn‟t define who‟s liable Interpretative rules Those rules which do not themselves provide a basis for illegality or benefits award Merely interpret provs that do provide that basis (such as statute or other, substantive rules) Policy statements Statement of agency exercise of enforcement discretion, without interpretation of the substantive law Doesn‟t delimit subst law in same way IR or subst rule does a. Procedural Rules DC cir largely follows Silberman test rather than Edwards more restrictive test Edwards is more in line w/ capture thy, Silberman w/ VT Yankee Air Transport Association of America v Dept of Transportation – DC cir 1990 Rules at issue: FAA passed rules on adj of admin civil penalty actions – are they proc rules? Stat said when adj, had to give formal proc for adj incl hearing on the record - §554-557 because fines very high Edwards maj: Rule is subst when encodes subst value judgmt or when alters rts/interests of regd pties Functional analysis – just cuz rule can be called “procedural” insufic Penalty rules here subst affect D‟s rt to an admin adj – subst These rules encode value judgmt over whose interest trumps Even though rules don‟t say in what circs ppl will be fined Don‟t define partic folks who will be fined, don‟t spec illegal behavior Proc rules are those governing agency internal matters Rules to determ which ALJs hear cases, deadline for them to issue opinion, etc. Things that don‟t directly affect the rt of participant to proc rts [Signif that Cong reqd formal procs for all adjs – maybe inspired Edwards to interp exemption narrowly] Silberman Dissent: Maj is circular – to say rules subst affect rt to admin hrg predeterms that subst rt is involved Subst rules are agency intending to reg primary conduct Prim conduct test – rule which defines whether behavior in real world is legal or illegal Or subst rules decide who gets benefits Changing amt of the bens would also be subst – cf. USSC is DP cases below These rules don‟t do that – they talk abt proc of how agency determs whether you done sth that is illegal b. Interpretative Rules and Policy Statements USTA doesn‟t involve delineation of illegal conduct (prim conduct not affected) P2C2 is not really about agency discretion is constricted – is about agency can‟t go to court and invoke the rule Pacific Gase & Electric v FPC – DC cir 1974 FPC issued order specifying who gets priority in a gas shortage – agency claimed IR exemption Legal effects test: If rule creates binding norm on reg‟d parties is substantive – otherwise is interpretative Violation of interpretative rule not sufic grounds for prosec – must find viol of subst rule
Almost same as primary conduct test US Telephone Assn v FCC – DC cir 1994 FCC issued sched of base penalties/fines for viols of Communicatns Act w/o n/c – claimed PS exemption Are sentencing guidelines, also make subst determ abt how end up in each partic categ Subst rules – agency shows intent to bind self Constricts agency discretion – agency followed penalty sched exactly on own volition Not a PS cuz agency intended to bind itself – based of actions of agency But can look at the rule and know the agency intended to bind self – by nature of rule – specificity Wouldn‟t make sense to do that unless intend to bind self Factors made clear which one you fall into Falling outside legal effects test doesn‟t mean is not subst rule But if legal effects test shows subst rule, is conclusive P2C2 v Shalala – 5th cir 1995 FDA passed claimed PS to fight illegal drug compounding Agency said those factors weren‟t inclusive, they could look at other things Catchall saves the agency from being bound Agency enforcement discretion not constricted – PS Language is imprecise and discretionary Agency can‟t go to ct and invoke PS in prosecution i. Interpretative Rules versus Policy Statements AMC is Silberman test: Basis is intent of agency to use legis auth then must use n/c proc Like P2C2 – is viol proven by the rule AMC tried to make diff tests for PS vs IR, but didn‟t take hold American Mining Congress – DC cir 1993 Are program policy letters stating agency interp of “diagnoses” interpretative rules? Williams maj: Four factors to determ subst rule – if yes to any, is subst rule and not IR: 1. Is it neces to the enf action Legis gap makes agency action neces to an enforcement action Even interp of stat lang such as “just and reasonable” 2. If it‟s in the CFR 3. Whether agency intends to make law and has invoked gen legislative auth 4. Rule amends another subst rule – must also be a subst rule Stat held to be IR Three “cheats” for when agency intends to exercise legis power – i.e. when acting w/ force/effect of law: 1. In absence of rule by agency, stat basis for enforcemt inadeq 2. Rule is published in Code of Fed Regulations 3. Rule repudiates or is irreconcilable with a prior legislative rule If amends prior legislative rule, is a legislative rule itself Syncor v Shalala – DC cir 1997 FDA announces “notice” that radioactive PET drugs would be regulated under FDCA – subst rule, PS, or IR? Agency claimed first PS, then IR PS: agency pos w/r/t how it will treat esp enforce governing legal norm
Doesn‟t try to impose, elaborate, interp legal notm Binding on neither public nor agency Inconsistent PS can be justified on changing times IR: Reflects agency‟s construction of a stat that‟s entrusted to the agency to admin Not purporting to modify the norm – i.e. engage in lawmaking Changing an IR reflects badly on the agency Doesn‟t have force/effect of law, but 4. Rulemaking Analysis Summary First, determine the type of proceeding at issue (A) Formal rulemaking (B) Informal rulemaking (i) Substantive rules (ii) Something else Procedural rules Interpretative rules Policy statements (None of the above) – informal expressions of law Next, determine what procedures are necessary Formal rules: §556, §557 Trial type procedures with limited agency discretion Informal rulemaking Substantive rules Notice Opportunity to comment Statement of basis and decision Advance publication Procedural rules Advance publication Other (interpretative, policy statements) Nothing Skipped Tennessee Gas Pipeline v FERC?? D. Informal Adjudication
In APA box for informal adj, very few reqs – almost nothing Only proc prot are in §555 – “ancillary matters” But 555b: if agency compels you to appear, you are entitled to bring lawyer Or other rep if agency so permits – but doesn‟t req agency to let you bring non-lawyer rep 555b also says agency must give you op to appear but only if consistent w/ effic and expeditious disposition of the claims Also advisory provision – agency shld endeavor to make decisns quickly Org stats might sometimes tell us what to do, but many times no Overton Park is notice to agencies that even when proceeding informally and in absence of APA req, still need to have basis for decisoin on the record
Nothing in APA says in inf adj needs issuing written decision – but ct imposes it for jud review LTV just asks isn‟t this inconsistent w/ VT Yank? LTV draws the line btw VT Yank and Overton Pk – compromises thru policy line-drawing a. Agency has to have record of decision, has to show support for that decision – Overton Pk b. In abs of specif stat reqs, cts may not dictate the “record building” proc – VT Yank Ult Overton Pk is still consistent w/ this c. §553c interpd to give more ocntent to “notice” and “reasons” reqs – If in RM, have add‟l procs LTV‟s claim would be proper in RM chal Diff std justified by APA diff provs for inf RM and inf adj Inf RM reqs notice, op to comment, etc. Inf adj reqs nothing – so std lower DP provides for most of min proc reqs for inf adj Citizens to Preserve Overton Park – USSC 1971 – p.329 Subst stat said Secy Transp can‟t release fed funds if projct went thru pub prk Unless no “feas and prudent alt routes” Org stat provided no add‟l proc reqs above APA Subst evid review only applies when in RM or have pub adj hrg (formal adj) - §706(2)(E) §706(2)(E) doesn‟t apply in inf RM – ct wrong in dicta De novo factual review only in two situ - §706(2)(F): 1. Action is adj and factfinding procs inadeq 2. Issues that were not before the agency are raised in a proc to enf nonadj agency action E.g. bribery, agency capture Fall back onto APA‟s default SoR of arbit/capricious - §706 Ct says “subst inquiry” – puts teeth on arbit/capric review Three steps to arbit/capric review: 1. Delineate scope of agency authrty and discretion Can agency decision be reas said to be within that range 2. Was decision based on consid of relevant factors – was there clear error of judgment Searching and careful, but subst inquiry – like jury std of JNOV / AML 3. Did Secy‟s action follow neces proc reqs Post-hoc rationalization insufic Ct needs sufic record to conduct jud review – post-hoc is not sufic for whole record review - §706 PBGC v LTV – USSC 1990 – p. 335 PBGC becomes trustee of pension plans when corp goes bankrupt When solvent again, PBGC “restores” plan to corp Chal to decision to restore plan – claimed didn‟t know of basis for PBGC restoration Overton Pk just reqs sufic record for jud review – doesn‟t req written decision Agency gave sufic admin record to enable ct to conduct a/c review Agency explained what it did and basis for decision– sufic App ct in requiring more proc than APA or org stat ran afoul of VT Yankee
E. Choosing Between Rulemaking and Adjudication Chenery II versus Londoner and Bi-Mettalic
Londoner: DPC reqs higher proc prots when class of ppl affected by action is narrower SEC is not saying this is a rule – says this decision only applies to Chenery Is it a DP thy? Takings thy? Think abt what DP means in this context Chenery got tons of proc – how is this DP viol? Can look at Chenery facts as NDD problem – would pass both funcist and formalist Combined with Chenery II permitting adj, is extremely broad agency discret w/o prior notice Chenery I – USSC 1943 Stat mandates simplification/reorg of holding companies for transparency in ownership of utilities Chenery 1st propsed plan: 3 classes of shares – preferred, class A, class B – Bs have mo‟ of co Only insiders have access to class B – SEC rejects immediately Stat std for SEC to determ whether to approve reorg: If after notice and op for hearing, Commn finds plan is consistent w/ §b and is fair and equitable to all persons concerned, thaen shall be approved SEC cited equity prec in holding reorg plan invalid Can‟t uphold admin order unless grounds for decision are sustainable Contra harmless error rule Can‟t apply harmless error rule if decision depends on a finding of fact Agency judgmts provide facts as well as policy – and can‟t guess at what they would do Won‟t accept post-hoc rationalizations for agency action – in RM or adj If alt grounds permit agency to find as did, case supposed to be remanded for further procs [Sorta] General stds of conduct must be prescribed before can outlaw conduct otherwise legal I.e. must do RM to make subtle policy decisions If applying equity, determ reqs specif findings of abuse Chenery II – USSC 1947 Admin decision must also be clear enough in agency record to test its validity Slightly extends Chenery I Reject reading of Chenery I requiring RM before can apply rules to reg‟d parties Not having gen rule is ok, tho is preferred to proceed by gen RM and specif adj Decision to proceed by RM or adj is w/in discretion of agency To test adj retroactive app: Balance ill effect of retro application w/ mischief of not applying rules retroactively “Retroactivity” of proceeding by adj w/o gen rule is not fatal Very deferential test Dissent: This is a taking – RM reqd to prevent this from being unConst taking
F. Substantive DP Constraints on Agencies These cases attempt to impose rule of law limits on agency imposing stds w/o notice PSC limits Chenery II to extent that agency has settled understanding of law SBC just like Chenery – agency announces its interp by specif application to an adj SBC contrasts w/ DP later – is future prop, SBC doesn‟t have prop interest yet in the ben In practice, in DP cases, there is sliding scale btw how much notice reqd and how signif is the penalty
Less the penalty looks like a fine rather than loss of expectancy or proc rt (not money or prop in hand), less notice is neces An agency IR or PS would take away reg‟d party‟s DP dfns – IR/PS provided notice of agency interp of the stat DC cir can be disting‟d from Chenery cuz Chenery shows BF, SBC and Chrysler showed GF Also stat in Chenery intended to deprive monopolists of some of prop But DC cir in danger of going too far if pulls too far away from LLP SBC in more danger Chenery and SBC/Chrysler reflect Landis vs capture thy views of agency PSC v FERC – DC cir 1996 When old rule reas clear and agency changes it, can only apply new interp prospectively Prots settled expectations of those who relied Retroactive effect is approp for new applications of existing law, clarifications, and additions Upholds Chenery II SBC v FCC – DC cir 1987 SBC misfiled for ben to FCC – filed to wrong place, by time redirected, missed deadline Holds on Const DP basis instead of admin law def to agency If agency wants to use reas interp of stat/rule to cut off pty‟s rt, must give full notice Ben is sufic depriv of property SBC had prop interest by virtue of winning the lottery – at least had proc rt to have app reviewed Notion of penalty is much broader – incl loss of proc rt, reasonable expectancy Chrysler – DC cir 1998 Recall is sufic grave penalty to trigger DP notice reqs Is subst DP – confirmed by notes during LLP discussion, but how is this subst DP??
IV. SCOPE OF REVIEW OF AGENCY ACTION Analysis steps: 1. Is it question of law or fact 2. Is it informal or formal procs 3. Is it RM or adj – same std for both
A. Review of Findings of Fact Spectrum of deference: [Most deferential to court/agency of review] No review whatsoever – harmless error, TROs (10 days only) (mandamus only) Abuse of discretion – prelim injs, admissibility of evidence – sometimes questions of law Jury std – no reas jury/person could so conclude Clearly erroneous – dist judge as opposed to jury De novo – questions of law [Least deferential to court/agency of review] AoD is something like A/C – very wide range Sources of SoR in admin law are org stats and APA as default if none in org stat
Agency findings of fact can happen in formal/inf RM or adj 1. Formal Proceedings §706(2)(E) – Subst evid rule for both formal adj and RM Univ Camera has flavor of much more searching the record than jury std Universal Camera Corp v NLRB – USSC 1951 – p.385 Chairman fired, claims retaliatn for union organizing Subst evid SoR reqs consid all evid on whole – weigh evid for and against to determ subst evid Cts had been applying jury std – could a reas person conclude as agency did Subst evid also means have to match up evid in record w/ what agency looked at in the record Judge what agency said about the evid in the record [Goes bak to stiffer req of agency responding to comment in n/c RM] ALJ‟s init findings/report are also part of the record even if reviewed w/in the agency When witness cred impo, esp defer to ALJ or initial examiner Allentown Mack v NLRB – USSC 1998 Scalia announces subst evid as being jury std – could a reas jury come to agency‟s conclusion But then Scalia applies much stricter review than jury std Kimm v Dept of the Treasury – Fed cir 1995 Kimm used company car to drive kid to school Questions involved: Fact ques: whether he acted w/ knowl or reck disregard Law ques: whether use of vehicle was willful unauth‟d use Eval all the evid favorable and not If left w/ def and firm conviction of a mistake, then overrule agency‟s finding of fact Is language from motion for a new trial ALJ found no reck disregard based on cred etc determs – upheld 2. Informal Proceedings ADAPSO v Bd of Govrs of the Fed Reserve Sys – DC cir 1984 SoR for findings of fact in inf RM or adj is A/C - §706(2)(A) A/C means subst evid
B. Review of Conclusions of Law APA says reviewing court shall decide all relevant questions of law… - §706 APA implies no deference to agency on law questions - §706(2)(C) APA 706 – reviewing ct decides all relevant ques of law Also §706(2)(F): unwarr by facts to extent facts subj to trial de novo by reviewing ct Cong can call for de novo review where really wants it Stat interp questn (Skidmore) is related but not exactly same as Cong speaking directly to the question at issue 1. Pre-Chevron APA implication of no deference on legal conclusions only true pre-Chevron if ever
Not even sure if APA speaks on deference on legal conclusions though Skidmore is like rule of evid – cuz agency‟s not a party Reconciling Packard Motor and Skidmore: Skidmore was more like a ques of fact – consistently more def Packard Motor was “naked” ques of law – consistently zero def Is like a spectrum – closer to pure ques of law, less defer Pre-Chev posture: generally defer to agency, unless pure ques of law – but no consistent thy Packard Motor pure law ques isn‟t same as Chevron step one Skidmore uses Chev step one of has Cong spoken directly to issue in question Packard Motor Co v NLRB – USSC 1947 – p.430 Does an emplee classified as foreman make them emplee or employer – emplees get bargaining rts per NLRA Naked ques of law – no deference to agency Foremen are entitled to organize Quickly overturned by statute Skidmore v Swift and Co – USSC 1944 – p.435 Do firemen get paid overtime for having to sleep in house and be on call? Administrator makes nonbinding rules/interps under FLSA Administrator has specialized experience and broader investigs and info than judge does Administrator‟s rulings, interps, opinions have power to persuade Weight of persuasion depends on: Thoroughness of its consid Validity of reasoning Consistency w/ earlier interps Care abt consistency cuz is indication of policy judgment expertise Think interp in first case reqs policy decision Think that agency interp will be better in policy decision If inconsistent, doesn‟t look like exericse of expertise Anything that has power to persuade Deference impo even when agency doesn‟t have formal responsibility for admining a stat Do we talk about this later? Reasons for def: Expertise of the administrator Expertise that Cong charged administrator to develop Good idea to have pub and pvt cases handled in same way But cts could just not def in either instance to the administrator 2. Chevron If explicit deleg found in stat, immed go to NDD analysis If implicit deleg turns into agency taking ctrl of the issue, no NDD analysis?? Implicit deleg justified by fact that Cong did create agency to admin the stat Cardoza-Fonseca is like Packard Motors – pure ques of law Reconciling Cardoza-Fonseca w/ Chevron: Only if think that Cong implicit delegs to agencies only on ques requiring special expertise Once you buy into a Chevron framework as opposed to Skidmore def, C-F just can‟t work
Thus Cardoza-Fonseca doesn‟t take hold Legal deference – sth you give to someone cuz of their status in a particular realm (Chev) Epistemological def – def based on quality of their reasoning and decisionmaking (Skid, C-F) Summary Chevron position based on policies of: (1) Agency expertise? (2) Agency responsiveness to democratic influences? (3) Presumption concerning the intent of Congress! When Congress uses an agency to administer a statute, that implies that it wants the agency to interpret the statute in the first instance The presumption can be rebutted of course, but it would require a clear statement in the statute Scalia likes these presumptions – wants them to apply everywhere Chevron v. Natural Resources Dfns Council – USSC 1984 – p.441 Agency changed interp of clean air act w/r/t whether “bubble” concept applies even to nonattainmt areas Reagonomics comes to lift regulations from industries Agency change in interp came w/ explanation If is ques of stat defn of stationary source, is pure law-ish – like Packard Motor Chev two steps: 1. Has Cong directly spoken to the precise question at issue 2. If Cong is silent or ambig, is the agency construc of stat permissible or reas Treats implicit delegations (silence/ambig) same as explicit delegs Infers Cong intent to delegate from silence Silence may have meant political hot potato – so punt it to agency to deal Agency inconsistency is not a bad thing Illustrates need for flexibility and deference to agency expertise Agency can change mind as long as explains why and that explanation is reas INS v Cardoza-Fonseca – USSC 1987 What SoR for discretionary asylum grants? WoD stat says more likely than not to be persecuted BIA said more likely than not applies for asylum too on stat text of “well-founded fear” No Chev def on plain language of the stat – WoD is obj prepond std, asylum is subj std LH supports this differential reading Limits Chev def to situ where ambig leaves special expertise, policy discretn open – then agency def In pure stat interp question, no Chev def Used traditional tools of stat construc to decide matter – no def warranted Pure stat interp is Chev step one – Cong has spoken clearly Scalia Conc: This is inconsistent w/ Chevron – should be Chev def here Chev def applies to all ques of interp in which agency reqd to apply legal std to some facts a. Chevron Step Zero Test we have from Chev: when agency is interping stat it has been charged w/ admining Different questionable situations: 1. All agencies interp the stat – no def
But DC cir says deference if org stat actually triggers formal or inf procs E.g. Agency decisions of when formal or inf adj procs 2. No agencies interp the stat – no def But Wagner Seed?? 3. Several agencies interp a stat – no def Christiensen invokes 553(c) exceptns to inf RM reqs – if agency can go into ct w/ it, it has force/effect of law Can use legal effects, agency discretion constraints, etc. to determ whether force/effect of law Scalia in Christiensen and Mead are a little different Mead maj wants spectrum of deference for spectrum of types of decisions Cf. Scalia wants to consolidate/simplify levels of review Summary (1) Maximal (Chevron) deference applies where: (a) Congress has affirmatively delegated to the agency the power to act with the force and effect of law (Mead) (b) The agency acts in a manner which has the force and effect of law (Christensen) (2) If the agency administers the statute, but either (a) or (b) does not apply, then the agency‟s interpretation receives less deference, but still some (Skidmore) Importance of Christiensen/Mead: (1) It changes the rules concerning Congress‟s intent (a) Chevron presumes that the use of an agency alone is Congress‟s signal of intent that the agency interpretation leads (b) Mead says you need something more, an affirmative indication of delegation (i) Explicit delegation (ii) Some other indication (Question: what?) Maybe implicit delegs by Cong included, but Mead narrowed implict delegs Mead provides tools for looking whether Cong intended legis tools to be somewhere else than with Cong – so Speta loves it (2) It changes the burden on the agency with respect to procedures (a) Chevron itself involved an interpretative rule (b) Mead/Christensen say that more formality is needed (i) Logical implication is that, for RM, informal (substantive) RM is necessary (ii) Adjudication issue is open, but there must be affirmative indication that agency is acting in the way that Congress intended would have a legal effect (I) E.g. stats that attach penalty to viol rule, or ben can get inj, or order is selfexec, those are stats that indic adj is to have force/effedt of law Open questions – i.e. fight between Scalia and maj: (1) Does Mead/Christensen create uncertainty? (2) Does Mead/Christensen get Congressional intent right? (3) What does it mean to say that Congress has delegated to the agency the power to act with the force and effect of law? More importantly, how do we tell? (a) Self-executing orders, orders that become final and immed enfable have force/effect of law Flowchart Mead is the “right” way – but SC doesn‟t always follow Two situ for Scalia broader Chev:
1. Amicus brief – non-dfns posture, defer to agency cuz just showing up to offer its opinion 2. Dfns posture – agency is defending its opinion in ct of law – should be max def Real diff btw Skidmore and Chevron is step two – whether def is legal or epistem Wagner Seed Co v Bush – DC cir 1991 EPA just decides when to pay someone, doesn‟t admin the stat EPA given auth to pay someone by Prez, not Cong Chev def Williams Dissent: Cts are charged to administer the stat, not the EPA Shouldn‟t give Chev def w/o more specif responsibility for admining the stat Rapaport v US Dept of Treasury – DC cir 1995 Several agencies admin a stat No def when several agencies responsible for admin of a stat Rogers Conc: As applied to a regulated entity, that entity knows which agency governs that part of the stat Different agencies can interp same subst parts of stat differently as applied to different entities Christiansen v Harris County – USSC 2000 DOL issued opinion letter interping FLSA Interps in formats that don‟t carry force/effect of law get Skidmore deference – power to persuade E.g. PS, IR, enf guidelines Scalia Dissent: Should be Chev def, and legal def Defers to amicus brief of DOL – agency isn‟t in dfns posture, not as suspicious of their args US v Mead – USSC 2001 – p.473 Customs svc issued ruling letter that has no prec value for any other parties/transactions Cong didn‟t intend agency to act w/ force/effect of law – Christiensen controls, Skidmore def applies No Chev def even though these look like inf adjs Agency doesn‟t intend to bind self, don‟t attempt to build uniformity thru prec Reviewing special ct doesn‟t give def to ruling letter – doesn‟t seem like Cong intent to defer Implicit delegs get Skidmore def Scalia Dissent: Agency interpretation must be “authoritative,” but this includes agency litigating positions As long as interp reps judgmt of agency mgmt, is sufic force/effect of law Most upset that maj says implicit delegs covered by Chev step 2 go to Skidmore def b. Chevron Step One Cts more willing to look to LH than in avg stat interp case for Chev step 1 – as in Dole Some textualists still only look at text of stat in Chevron step 1 tho What does it mean for Cong to speak “clearly” Easy cases: explicit deleg cases: “Agency shall define the term” Harder: implicit deleg cases or cases where sth allegedly cabins the interp that agency is permitted Dole and Pauley rep two diff approaches to “clear interpretating” by Cong:
1. Per Pauley: clarity reqs uncomplicated Easily resolved on face (stat lang, express statement in LH, etc.) Most deferential – most likely to find ambig 2. Per Scalia: look at stat lang only: if it‟s discernable, even if complicated, it‟s clear Specificity of the answer is key, no matter how hard have to search for answer If there‟s only one answer, then the stat is clear Clarity isn‟t simplicity, it‟s just clear Med def 3. Per Dole: Not same as Scalia – never says “this is only way to answer the question” Must be best way to answer the stat ambig – conflates Chev step two After full analysis, ct is convinced that the agency is wrong Ct is sure of its stat interp Cong has spoken on issue Least def – will go thru all possible stat interp to find clarity [4. Per White in Dole: White‟s not same as Scalia, but is more likely to say ambig than Dole maj] Brown & Williams signif as Chev def case: Unstated: thy of what it means to say Cong clearly addressed question Maj uses Stated: extraord to think Cong gave agency power to ban tobacco Ct reqd clear affirmative statement of the deleg – like Mead Like a delegation doctrine More you believe in Mead aff showing of deleg, then more will approach step one like Dole Sim to Mead, Dole wants to be sure of its stat interp – like aff showing from Cong Dole v United Steelworkers of America – USSC 1990 Stat doesn‟t provide explicitly one way or the other Where to go for evid of Cong speaking to an issue: 1. Org stat: lang of stat – always start w/ the stat lang Stat is at least diretly defining – room to arg both ways Maj only goes so far to say “is not most natural reading” – doesn‟t say absurd, unreas From methodological perspective, maj goes past stat lang 2. Words surrounding 3. Canons of construction – judge made rules abt how to read stat lang 4. Obj and structure of the act 5. Cong purp of the act 6. Legis history – for confirmation of the purps, partly for clue as to what term means Reasonable means most natural reading of the stat language I.e. in deciding whether ambig, ct looks at stat w/ all trad tools Decides how convinced/assured it is in its stat interp If ct is sure of its stat interp, then decides Cong was clear on the question White Dissent: It took maj 10 pages to prove it‟s clear Maj doesn‟t go further than “natural reading” Moves to step two, says stat is ambig
Pauley v Bethenergy Mines – USSC 1991 Stat lang reqs new regs not more restrictive than predecessor agency regs Maj and Scalia argue about how to deal w/ express lang in the stat – Cong has spoken, is it clear tho Ambig incl byzantine and complicated Reqs expertise to properly classify eligibility – defer to agency Scalia Dissent: this is complicated but not ambig at all FDA v Brown & Williamson – USSC 2000 FDA decides to re-interp FDCA to say can reg tobacco To determ whether Cong clearly spoke: 1. Context – at time FDCA passed, no lang leading to idea that tobacco would be reg‟d Could be Stevens in Chev – silent cuz too controversial to talk about in Cong 2. Other stats – Cong passed other stats in view that FDA doesn‟t have auth Dis says stats passed just cuz FDA wasn‟t reging tobacco, not cuz thought didn‟t have auth to reg 3. Common sense/monetary concerns (cynical interp) But optimistic view: common sense approach is reinvigoration of NDD Not that tobacco is so large and big part that not gonna reg it But if Cong were giving agency power to reg this indus, would expect to see more in stat abt it Specially high threshold to delegate tobacco regulation Polit economy is high stakes Have to take seriously whether there is deleg, and whether matter of tobacco placed w/in juris of FDA If FDA had juris, would be forced to ban it – absurd result So even tho ambig on face of stat, isn‟t enough to satis clear statement rule Legis power to reg tobacco not deleg‟d to FDA Dissent: FDA doesn‟t have to use most draconian remedy just cuz has juris c. Chevron Step Two AT&T is abt what maj thinks makes sense (step two) – not what Cong intended (step one) But reasoning circular – reasness step two goes back to Cong intent step one Most DC cir Chev cases: 1. Stat is ambig 2. So agency action has to be reas Reas means not A/C AT&T v IUB – USSC 1999 – p.517 FCC interps when phone companies must lease network services as unbundled elements FCC rules always have to lease out as unbundled elements FCC interp unreas broad – would always find neces/impairment under the stat Stat must have meant not all situ are neces and have impairmt Souter Conc/Dis: Not unreas reading of stat to say that all situ may meet neces/impair std C. Review of Discretion and Policymaking – Hard Look Review A/C is catch-all SoR
Policy disting‟d from review of findings of fact cuz no facts to find How to reconcile this line w/ Benzene case? – ct there seemed to want policy judgmt or pointed to evid? In State Farm ct is using own common sense to reject agency‟s factfinding Relevant that agency had made policy decision before and was changing mind Should see increasing parallels btw HL under a/c and n/c RM and proc/process reqs from Overton Pk HL here is under inf RM, adj, and other procs – all APA boxes?? Sun Oil is proc review – not subst review of the decision Like Overton Pk, agency has to say sth about why it decided that way If agency pointed at a study w/ empir evid, is subst review Otherwise, in realm of policy making – as Auto Safety – agency just picking 5 years – no evid for it Doesn‟t such a move have to be ok? If not, then agency reqd to collect all empirical evid before making call Auto Safety ct is driving agency to artic costs and bens If agency does it openly and honestly, ct has to stop subst review and defer Is HL subst or just proc? Nova Scotia is subst problem cabined in lang of process violation Wants disting Chev subst review from a/c HL review Ct not comfortable talking in terms of balancing policy consids In gen, cts reverse agency on proc whenever possible – otherwise agency subst bound Bureau of Engraving is more subst Could have been Chev holding – that stat speaks clearly on issue Summary Three stds of jud review: “Policy” decisions Ult balancing btw costs and bens, other policy consids If no evid available, fact ques may become policy – Center for Auto Safety Use A/C review with teeth, aka hard look review Process dimension (considering arguments, disclosing data, explaining choices, etc.) Beyond express reqs imposed by APA Substantive dimension (quality of reasoning) Cts reluctant to say “this seems like bad decision” though – Nova Scotia Fact-finding Factfinding is studies, evid relied upon by agency Use subst evid review Not legal interpretation E.g. does stat permit consid of X factor Use Mead/Chevron/Skidmore Hard look review is principally a process approach Very similar to the “glosses” placed on the requirements of section 553(c) In the context of informal rulemaking Agency must make known any data it intends to rely on Requirement of a proposal only applies in RM context – distinct from notice of data Don‟t need notice of partic outcome in adj (Adjudications will be covered by DP) Agency must consider relevant factors after gives notice of its data Must consider factors that Congress told it to consider
Must not use factors that Congress forbade Overlap btw Chev determinatn and a/c determ – stat interp-ish Must discuss other relevant factors As presented to the agency during the decision-making process – whether RM or adj As “common sense” requires Agency must explain its decision Must discuss factors Must make a rational connection between any facts found and the decision make Must discuss alternatives considered and rejected Must not be a clear error of judgment – subst-ish test How much “substantive” review Sliding scale depending on procedural violation But substantive review is permitted Interaction with Chevron step 2 Previously, step 2 looked like “minimal rationality” review Agency interp as reasonable (Chev step 2) is matter of stat construc Today, Chevron step 2 is a hard look at the agency‟s process of interpretation Considers match between statutory goals and agency articulation of match Considers basis of policy decision Even if agency had power to do sth, is it a good idea – Sun Oil Lawson on Chev step 2 vs hard look: Chev step 2 is stricter reas test in light of stat interp tools A/C review is when stat really has nothing to say abt sth – is truly pure policy ques When trad stat interp tools don‟t even yield best answer to stat‟s meaning Industrial Union Dept, AFL-CIO v Hodgson – DC cir 1974 – p.546 Secy Labor adopts two-fiber std for asbestos Agency didn‟t say had evid that two fiber std safer – cf. subst evid review for factfinding Where policy judgmts involved, agency must carefully ID the consids it found persuasive Policy judgmts can happen where no factual certainties exist or facts insufic to provide answer Record in light of concerns in the stat can‟t leave nagging ques on agency reason/rationale Policy consids inconsistent btw several agency decisions causes remand too Motor Vehicle Manufs v State Farm – USSC 1983 – p.552 NHTSA revoked req of new cars needing passive restraints Agency rescisn of rule must give reason for change beyond that reqd if agency didn‟t act at all Agency failed to consid an alt and explain why its choice was better than that alt - reasons 1 and 3 A/C review narrow but: Agency must examine relevant data and articulate satisfac explanatn for its actn Incl rational connection btw facts found and the choice made Agency must explain why rejects any impo info that it does in making decision Rehn Dissent: Yes agency has to articulate rational connectn btw facts found and choice made It has met this test Sun Oil Co v EPA – 1st cir 1993 – p.563
Sun Oil apps for renewal of EPA cert – EQB didn‟t allow mixing zone stds consid cuz in midst of revisn Sun Oil and Puert Rico EQB say to EPA wait till we fix this – EPA refused wait Anti-backsliding prov in EPA wouldn‟t let mixing zone back in later on Even in technical areas agency decision must be rational A/C (or AoD) review reqs agency to explain why it did sth even tho had discretion to do it Just cuz EPA didn‟t have to wait longer don‟t mean they don‟t have to explain why refuse to wait longer Is proc review very sim to Overton Pk – agency must give reasoning for decision Is there a line to this?? Seems to allow very searching ct review US v Nova Scotia Food Products Corp (Whitefish case) – 2nd cir 1977 Co failed to follow FDA regs on smoking whitefish – intentional, repeated Cuz repeated, no issue of lack of notice to reg‟d indus Co dfns in enf proc is that rules are A/C Failure to notify interested parties of scientific rsrch preventing relevant cmt is nonconsid of relevnt factors Is proc holding – agency didn‟t respond to a suggestion Center for Auto Safety v Federal Highway Admin – DC cir 1992 – p.582 FHWA came up w/ new rules on bridge maint inspectns Experts cut same way as agency Agency explains all factors in consid Stat reqing agency to “estab max time pd btw inspections” viold Agency didn‟t set max number of inspection waivers Agency doesn‟t have to adopt most stringent regulation available in absence of supporting data US Dept of Treasury, Bureau of Engraving/Printing v FLRA – DC cir 1003 – p.580 Agency has to disting or reject prec that the ct thinks ctrls even tho is on different stat “Clear error of judgmt” in §706(2) Agency decision doesn‟t make sense to ct 1. Hard Look versus Chevron Step Two Chev step two initially looked like min RB review – was largely outcome-determinative Can ct imagine any set of reasons Not true by USTA, Verizon, or AT&T v IUB Chev step two more constraining on agency than a/c writ large If a/c writ large, and is one of those domains involving c/b analysis, etc., judges will defer I.e. where judges don‟t think they‟re smarter than the agencies Under Chev step two, is abt what the act envisioned – stat interp more impo And does the act‟s purp/vision of competition match what the agency did USTA v FCC – DC cir 2000 – p.590 ??????????????? A/C cuz agency never explained reasons for adopting rule, didn‟t take into acct other factors These factors come from the stat expressly – not just generalized concerns So ct applies HL to agency‟s interp of the stat using those factors the stat interp proc would use If factor is not in the stat, might be part of a/c;if in the stat, then Chev 2
Verizon Communications v FCC – USSC 2002 – p.599 How much does incumbent phone co get to charge new co for uses of these pieces of the network Stat view not inconsistent w/ agency TELRIC plan TELRIC plan doesn‟t exceed reas interp cuz stat “just and reas rates” open to discretn
V.
CONSTITUTIONAL CONSTRAINTS ON AGENCY PROCEDURE
A. Due Process Overview Five steps at issue in a DP analysis: 1. State action – ID what is the state action Is only depriv of DP if state action is involved Here all actors are state actors so this is a given But outsourcing, privatization are big areas of debate 2. Have to have person whose life, liberty or prop has been taken by the state actor All legal entities are persons – incl corps, partnerships, etc. Interesting questions here too but we don‟t reach 3. That “deprives” that person Almost all subsumed into other two If take sth away from you but it‟s not really prop, there isn‟t depriv 4. of life, liberty, or property (LLP) 5. W/o due proc of law Doesn‟t forbid govt from taking things from you, but reqs process Takings clause simply reqs compensation but doesn‟t prevent taking Fed const reqs that hrgs occur before the depriv and not just after Fed DP prots pre-depriv interest in DP Summary Predeprivation process Required unless Emergency (health & safety, Cold Storage) Impossibility Rapid post-termination process combined with relatively little benefit to pre-deprivation process ??? (Homar)
B. Original Understanding Two holdings in Cold Storage have very different implics Costs of enf of DP rts always ignored by cts If Cold Storage and Phillips stand for no pre-depriv hrg in emergencies Terrorism detainees get no pre-depriv hrg If Cold Storage and Phillips stand for no pre-depriv hrg where prop interest only: Terrorism detainees get pre-depriv hrg North American Cold Storage v City of Chicago – USSC 1908 – p.634
P entitled to pre-depriv DP? No problem w/ state action, person, deprives, or LLP Emergency situ get less DP prots Can‟t let putrid poultry go out There‟s risk that corp will sneak out the ckn if don‟t take it right away Implicatn: get pre-depriv when its not an emergency If depriv illegal, Ps have post-depriv pvt CoA in tort Cold Storage would sue officials in personal capacities – trespass and conversion Ds would defend under “rt of law” If inspectors actions beyond power given by stat, would lose, have to pay dmgs Possib ct is telling Ps won‟t give them inj when dmgs will suffice Implicatn: if only prop at issue, post-depriv hrg always enough Phillips v Commisnr of Internal Revenue – USSC 1931 – p.639 If only prop rts at stake, can postpone DP hrg till after C. “Life, Liberty, or Property” Life lib prop consumes today and tomorrow Life, lib seem straightforward One way to understand: fed body of law defines these terms Const law in its own right Will see that fed law describes a “core” of LLP that states can‟t take away Other way: all depends upon state law – only things understood under state law to be LLP are actually LLP In some other areas, e.g. takings, defined by state law States can create LLP beyond fed core but once created can only be revoked w/ DP Not clear that Bailey and JAFRC have clear idea on what triggers DPC Focus here is entirely on proc DP – takings clause is subst provision Summary Life (means life) Original view may have been broader – to include things like bodily integrity and reputation (i.e., interests protected by common law) Liberty There exists a constitutional core – shrinking as GL obsolete Imprisonment Reputation / badge of infamy (Constantineau) Entitlement theory State creates reasonable expectation of entitlement (partial one-way option) Sth you have reas expectatn of continuing unless some condition fulfilled “Criteria and consequences” in a closed loop State provisions provide relevant decision makers substantive direction State makes adherence to these directions mandatory Negative inferences from enumeration of substantive factors alone probably not enough Must be “important” enough issue (Sandin)
Property Entitlement theory What of the constitutional core? I.e., due process limits on the alteration of common law property rights? Largely a matter for the takings clause SC long held no pre-depriv proc for TC – i.e. govt can take prop and pay you later Bailey v Richardson – DC cir 1950 – p.643 Govt emplee fired for supposed disloyalty – red scare case She got hrg, allowed to bring affids, etc. but she never presented w/ evid against her She didn‟t get chance to challenge, tho she even got appeal on her side Govt emplmt is not prop She has no reas expectation of job continuing – is classic EAW Disqual‟d for lack of LLP JAFRC v McGrath – USSC 1951 – p.646 DP viol in listing an org on commie list? Frankfurter Conc: Agrees that no direct depriv of LLP literally But LLP really means “grievous loss” LLP is not exclusive list – is meant to be examples of grievous losses DP should apply to those things that are impo enough for DP to apply to Reed Dissent: No LLP at issue – literal reading of LLP 1. A New Understanding After Goldberg, is the triggering of the DPC now a balancing test? Asking how much harm there is from this denial vs harm from applying for more proc? Is ambig on whether bal test triggers or is a step two – seems to say both Goldberg expands bal test from consid of how much proc, but also to triggering stage AFL-CIO v McElroy – USSC 1961 – p.652 Emplee got no proc before security badge revoked Nonexistence of Const rt doesn‟t mean govt can deprive w/o DP Reason advanced for exclusion entirely rational – in these circs, no need DP hrg No badge of infamy involved For this reason ct basically says DPC not triggered Brennan Dissent: This is sufic LLP – and is badge of infamy case Goldberg v Kelly – USSC Written but not oral hrg pre-depriv of welfare bens, full trial hrg post-depriv Rts to welfare bens are entitlemts – P has reas exepctation of them continuing Expectation is given by govt – not just unilateral Losing the entitlement causes grievous loss Esp in welfare – welfare is means to life – more like depriv of life than prop
Building up to subst rt to welfare bens Extent to which proc DP must be afforded is infl‟d by the extent to which P is condemnd to suffer griev loss Consids of what procs DP may req under ny given set of circs begins w/ determ of govt func involvd as well as pvt interest affected by govt action Applies bal test to triggering DP stage – bal test trad only for determ of how much process reqd Oral hrg, atty, x-exam, on the record, neut decisionmaker reqd for DP Also sufic notice of ground for termination needed Is building regime sim to n/c RM – more formal, but very sim – despite adj arena Wisconsin v Constantineau – USSC 1971 – p.664 Can‟t sell liquor to person certified as unsellable – determ‟d w/o proc Badge of infamy case, DPC triggered Where person‟s good name, rep, etc. are at stake, both notice and opp for hrg pre-action are essential Bell v Burson – USSC 1971 – p.666 Ga revokes DL from priest for acciden‟t w/ 5 y/o bicycler No determ of at-fault or not Pre-depriv hrg reqd – once DL issued, is impo interest tho is not a “rt” States limited from terminating entitlements whether they are “rts” or “privileges” This is not an emergency situation 2. Re-Definition – Nature of the Interest / Entitlemt Thy If take GL thy seriously, and play it out, then are doing same thing that ct does in Lochner Get to pt where judges are making econ determinations Cts decding what is justifiable econ regulation by the exec or legis GL cases are abt taking away of certain degree of econ security Downgrading pay, taking away welfare bens, taking away license to drive to ministries Jud deciding justifiable econ regulation is consensus crit of Lochner Cts‟ new approach emphs that DP restricts procs reqd for taking away sth prev granted to the person Endowmt thy Ct has never attached DP to denial of entitlement (only to deprivs) If stat provides entitlement subj to condition, then ct would say DP attaches only to the factual determ underlying the stat triggering (e.g. are you disabled and eligible for SSDI) By Roth, SC def says bal test not to trigger DPC, but to determ how much proc is reqd Revolution in Roth abt triggers for DPC has to do w/ difficulties that begin to arise when defining what is a grievous loss Reconcile Goldberg w/ Roth: nature of loss is another way of saying is loss grievous enough Roth overruled grievous loss test, but didn‟t overrule Goldberg on facts So DPC still reqs fairly robust hrg before term of welfare bens Roth also didn‟t overrule Constantineau – badge of infamy (as part of liberty) still valid test Analysis that applies in all proc DP cases: Find trigger in core Const interest Look at entitlements under state law (and under Const – for which interests of LLP?) Look to state statutes first, regs, admin guidance, etc. Looking for estab of reas entitlement – look for constraint of discretion
Ques: is the gross consequence of this DP doctrine that we have, to essentiall use DPC of fed Const to bring into fed ct things that should essentially be actions in state ct for admin review of state agency? Bd of Regents of State Colleges v Roth – USSC 1972 – p.668 State college prof not re-hired after one yr emp, no hrg Range of triggers for DP is not infinite – is not merely quality of loss, but is nature inquiry Trigger for DP comes not from weight of the interest but from its nature Emp as prof at college insufic as type of interest – prof can still get another job in same line Cf. denial of bar license renewal It‟s not liberty cuz it‟s not reputational, not badge of infamy Not prop cuz prop is linked to “legit claim of entitlement” Legit claim means there‟s sth in the struc of the stat that creates reas expectatn of renewal Govt must have given it to them, and they must reas rely on the grant Fed determ of wheether DP is triggered under the Roth approach looks to how state law defines the partic entitlemt involved Look to state law that creates the pgm Overrules grievous loss as key test – so overrules most of Goldberg Perry v Sinderman – USSC 1972 – p.675 College sys has no tenure sys, but circs imply that will keep job unless GC to fire P was working there for 10 yrs, then emp K not renewed, no hrg Legit claim of entitlement can be proved by circs of agreem – like implied K Interest in a ben is prop interest if there are rules, mutually explicit understandings, etc. To support claim of entitlemt to the ben and that he may invoke at a hrg Ct drops fn that can‟t have failure to renew a K – but shaky as in K law Course of dealing can‟t bind course of future dealing Marshall Dissent: wants Goldberg, Bell, Constantineau another step: entitlemt to govt job Govt has to give rationale why can‟t get govt job Not only applies to deprivs of bens, but to denials in the first instance Meachum v Fano – USSC 1976 – p.688 Prisoner didn‟t get hrg before transfer to another prison where conditions much harsher No state law provides for pre-incarceration hrg Ct reaffs end of grievous loss test even w/r/t liberty interests Determ depriv by looking to nature of loss and two possib sources of entitlemts: DPC itself, and state law Ct looks for liberty interest first Convictn sufic extinguished liberty interest to permit state to confine in any of prisons No reas expectation that won‟t be transferred under existing transfer review board proc Cuz prisoners can be transferred even if not found to be involvd in mischief Stevens Dissent: Should be GL test Ky Dept of Corrections v Thompson – USSC 1989 – p.695 Liberty interest of prisoner to visitatn privileges suspended w/o hrg
Protd liberty interests created by placing subst limitations on official discretion 1. Reqs estab subst predicated to govern official decisionmaking 2. Regs must have explicitly mandatory language Means no discretion can be used by the prison officials To find entitlement, ct says have to find state law creates criteria and creates consequences And that this is closed loop Loop here is not closed Marshall Dissent: Educating, informing discretion w/o mand language sufic to create prot‟d liberty interest Sandin v Conner – USSC 1995 – p.702 Prisoner got disciplinary segreg Subst limits on official discretion [in closed loop] – same as Thompson Entitlemt must be to sth impo enough to trigger DPC Is this simply harking back to Roth?? Ct concerned that if DP attaches to all entitlements, states will simply make no more entitlements
D. How Much Process? DP is triggered in these cases, but ques of how much proc is sufic Mathews tries clarify what cts and parties need to think abt when making DP determs Mathews: P loses but hrg reqs Goss hrg Goldberg: DP reqs evidentiary hrg – oral Loudermill: P wins cuz didn‟t get Goss hrg and it was reqd Lower cts gen don‟t treat Homar as saying post-depriv proc is adeq as long as fast enough Homar best understood as emergency case – thus was ok to suspend w/o pre-depriv hrg Generally need pre-depriv hrg In practice, pvt interest and risk of error are the most impo factors If these two high, then ct doesn‟t talk much abt cost to govt At least, in these situ admin cost, cost to govt aren‟t taken too seriously The kind of costs that matter are health/safety cost In those situ you may have emergency case anyway Summary Substance of pre-deprivation process Constitutional minimum: notice and an opportunity to respond, except …. (Homar) More than that? Private interest (severity of deprivation, on average) Increased accuracy likely to be gained from additional procedures Public interest, i.e. costs of additional predeprivation procedures Relevance of post-deprivation hearing Availability may affect scale of neces predepriv hearing, because of effect on private interest Mathews v Eldridge – USSC 1976 – p.714 Evid hrg reqd before depriv of SS disab bens? Proc in place at time of case:
Agency would monitor condition of person receiving disab No evid hrg before depriv/termination Only after, in front of ALJ Before term: only gets notice of reasons and opp to submit in writing to contest “Goss hrg”: notice and some opp either in writing/oral to contest Gen framework for making DP determ w/r/t how much process is due: 1. Private interest affected by official govt action SS disab bens not linked to financial need – less of a prop depriv Welfare is last means of subsistence 2. Risk of error/benefit of add‟l procs What is accuracy value of having more process Not (as Lawson says) interested in DP of its own rt – i.e. citizs and govts treated fairly are more amenable to what happens to them Here, potential value of evid hrg in SS disab bens is less than welfare (Goldberg) Med experts diagnosis here, vs welfare oral cred determs involved 3. Govt‟s interest Mainly talking abt administrative costs, can also be talking about delay Under this factor can talk abt emergency, health/safety risks, etc. Here, govt interest in getting it right, in not paying bens to ineligible ppl, Proc less than evid hrg is sufic pre-term Cleveland Bd of Ed v Loudermill – USSC 1985 – p.724 How much proc reqs for pub emplee terminable only for-cause? If stat entitlement provides for procs for ending entitlemt, does DP demand more indep of the stat? “Bitter with the sweet thy” Bitter w/ the sweet thy no good State forced to choose full DP reqs or no entitlement Once determ DP applies, can‟t continue to look to stat for reqd proc Pre-term hrg reqd, but not full evid hrg Goss hrg w/ written testimy sufic Pvt interest: keeping job Govt interest: quick removal of unsatisfactory emplees, avoiding admin burdens Avoiding error Ct comments that at some pt, delay in post-term hrg would become Const viol But not here Gilbert v Homar – USSC 1997 – p.734 Suspensn w/o pay w/o notice Pvt interest subst less than Loudermill Sufic prompt post-suspension hrg will satisfy DP Pub interest great – emergency situ of felons in pos of great pub trust and visibility Added ben of add‟l proc: truth of crim charges
VI. TIMING AND AVAILABILITY OF JUDICIAL REVIEW Ct‟s source of auth to strike down rules adopted in failure of 553(c):
All kinds of stats directed to agencies, but often no standing to challenge the actual rule Auth comes from §701-706 of APA – if aggrieved by rule in viol of APA, have rt to go to ct §706 provides circumstances for when to reverse rules §7062d – ct has auth to enf APA §553c A. “What” and “Where” – Intro to Judicial Review APA default is review in dist ct - §701-702 Default rules rarely apply Elements of Getting Jud Review A. Availability vel non of JR – need three things Juris of the ct An applicable CoA Look in org stat first Most spec partic proc or JR, incl timing and venue Most say go straight to app ct Exceptions, such as SSA claims, placed in dist ct where: Lots of claims, admin procedure is much more informal APA §704 backup “Agency action made reviewable by stat and final agency action for which there is no other adeq remedy (ref to ripeness/equity??) in a ct are subj to JR” Waiver of sovn imty Fed govt is now accepted as having sovn imty §702 waives sovn imty for decl and inj relief, but not for dmgs Backpay, etc. claims not money dmgs – but kinda messy, are marginal issues anyway B. Who may sue Standing doctrine §702: “A person suffering legal wrong because of agency action Or adv affected or aggrieved by agency action w/in the meaning of the rel stat is entitled to JR thereof” C. Venue of JR If blow this issue, not the biggest issue Mostly is issue of whether have to file in app ct, or dist ct Usu apparent on face of stat, if not, is issue of whether you‟re alleging action that‟s not subj of JR prov D. When is JR available When is too soon (exhaustion of admin remedies, ripeness) When is too late (SoL – may be 30 or 60 days) If agency has made rule, you haven‟t challenged, and there‟s enf action, in what circs can you chal the enf action as dfns to the rule E. Potential CoAs: Tort actions, orig (Cold Storage) now largely unavailable Pvt CoA in tort against govt official Sovn, official imty largely cuts this off now Tucker Act Takings and breach of K (and quasi K) claims and a few other stat claims
Gen, only the takings claims “challenge” regulations Other claims don‟t challenge govt action Takings claim only challenges govt to pay for doing something Creates CoA against govt Some CoA can come from CL, tho cuz of sovn imty, all CL CoA cut off Also Tucker creates promise to pay if successful on CoA Mostly in fed app cts FTCA Some tort liability against emplees, but not a vehicle to challenge regulations Typical tort claim against the govt or govt agent/officer Based on what would be tort out there in real world Many things might be torts but not covered under discret function If official acting in offic cap etc. Not much relevance to us cuz can‟t chal regs w/it Bivens actions – tort actions against a fed officer for that officer‟s viol of your Const rts Subj to imty docs that limit its scope Govt officials perfing discretn funcs gen are shielded from liability for civil dmgs Insofar as their conduct does not violate viol “clearly estab‟d” stat or Const rt Or which a reas person should have known Official imty comes first before analysis of “clearly estab‟d” Many ways have been cut back so can‟t use in adlaw Very sim to §1983 cases Can‟t use for chal stat or reg which has never been used before Declaratory judgmt actions - §2201 Meld into APA actions APA gives you backup CoA against admin agencies So no issue of whether decl judgmt provides sep CoA B. “Whether” – Preclusion Even where CoA, juris, and waiver of sovn imty exist, ct may decline review under preclus princips Is essentialy same as finding there is no CoA §701(a) – “this chap applies, accord to the provs thereof, except to the extent that – 1. stats preclude JR or 2. agency action is committed to agency discret by law” Summary May be express or implied preclusion either by stat or agency discretion Implied: gen found when stat provides for some review And other factors in the stat suggest that that mode of review is the exclusive form of JR Preclusion may happen at several levels The indiv adj at issue The agency‟s regulations – increasing levels of significance – increasingly implicate sep of powers A/C – exec‟s own following of rule of law Consistency w/ stat – deleg of legis power from Cong to exec Constlty
Constlty of stat Cts have presump in favor of JR of all of above Further down the list, more cts will be reluctant to find preclusion in the stat or by agency discretion So under 701 preclus doctrine, have seen: Inference of exclusion from stat (Block and Bowen) No law to apply – only seen in negative cabin (Overton Pk, Webster v Doe) Expressly By implication – because Cong did not provide substantive standards to guide discretion Very narrow Hard look review is consistent with judicial review in these circumstances Lump sum approps Decisions not to enf are unreviewable (Heckler v Cheney in notes) Incl decision of US Atty not to sue Also applies in admin context – to agency enf of their own rules, prosec of crimes they govern Despite stat lang that suggests otherwise (incl “duty to prosecute…”) Exercise of prosec discretn seems to be about as purely exec as you can get [Implies if purely exec func, cts step back from jud review??] And policy-based Where cts don‟t have much to say Could also say cts have no competence to spk cuz there‟s no law to apply 1. Preclusion by Statutes Reconcile Block and Bowen: Maybe default rule comes from APA and presump in favor of JR And applies when Cong hasn‟t spoken on JR of type at issue together Point out factor that allows us to make the inf that Cong intended to preclude this kind of review Expression of limited kind of review for chal in question allows overcoming the presump Block v Community Nutrition Inst – USSC 1984 – p.777 Consumers claim CoA from APA to chal milk mkt orders – precluded? Milk mkt orders re-bal mkt for various milk products Stat provides JR CoA for certain parties, not for consumers Whether/to what exten stat precludes JR determ‟d from express lang Also struc of stat scheme, objs, LH, and nature of admin action involved Look for indics in the stat that Cong created a struc that is impliedly exclusive Expressio unius – milk handlers express allowed CoA, whole stat struc doesn‟t mention consumers Struc of the stat designed to keep consumers out – doesn‟t make sense to include them for JR Bowen v Michigan Academy of Family Physicians – USSC 1986 – p.782 Grp of Drs sue Med pt B carriers claiming reg that computer reimbs is bad – preclus? Stat doesn‟t say anything about chals to regs – so dunno if Cong thought about it Strong presump of JR Cong provided pvt carriers would have some review proc for indiv claims Carrier can‟t just say “too bad” Has to estab review proc w/ certain levelrs of indep, etc. to it So you do have some stat provided rt to review as to indiv claim
Ct says if Cong provided some review of calcs, then Cong couldn‟t have meant no JR of underlying reg Underlying review would be w/ the agency 2. Committed to Agency Discretion by Law Overton Pk often quoted: committed to agency discret means “there is no law to apply” Can make an NDD arg against this kind of extreme delegation esp in Lincoln But sufic intel princip or exec func present to survive NDD chal Webster v Doe – USSC 1988 – p.788 Dir CIA can fire any emplee whenever “deems neces or advisable in interests of US” Emplee dismissed for homosexuality and natl security interests NonConst claims precluded cuz stat is permissive, not mandatory Stat explicitly commits to agency discretion Const claims not precluded – JR preclusion std is higher Agency admits it has to deal w/ Title VII claims all the time anyway OConnor Conc/Dis: Const claims should be precluded as part of Exec‟s plenary power Scalia Dissent: Const claims should be precluded Const gives power to Cong to create fed cts and decide their juris Lincoln v Vigil – USSC 1993 – p.800 Indian health svc pgm running for several yrs on lump-sum alloc from Cong Cong decides move money elsewhere, kills the pgm – JR? Allocation of funds from lump-sum approp is a decision trad regarded as committed to agency discret Pt of lump-sum approp is to give agency wide discretion in adapting to needs Ct says in lump sum approp, will not look behind lump sum approp Even when Cong clearly added up 9 specif pgms and allocated that exact amt of money Lump sum gives exec branch unreviewable discretion – won‟t even apply A/C review C. “Whom” – Standing Standing arg preventing consumers from chalenging MMOs in Block: no injury Could say injury is paying higher prices, but that can‟t be injury cuz the stat designed to push prices up Is a tough standing question – cuz is tough to say can‟t rise prices “too much” this will be dealt w/ in tomorrow‟s case Summary In addition to constitutional standing, one must find standing within the meaning of the JR prov Similar to “cause of action” analysis, the issue is who may sue to challenge agency action Note: Cong may provide that anyone who has Const standing has a cause of action But that isn‟t the typical approach and isn‟t the default approach under §702 how so?? Section 702 recognizes standing for two classes of people A person suffering a legal wrong because of agency action Anyone adversely affected or aggrieved by agency action within the meaning of a relevant statute Original meaning
Legal wrong – harm to a common law interest Not mere competitive harm Adv affectd/aggrieved: Reqd resort to special review provs of org stats to determ class of people to whom Cong had accorded the CoA Today, statutory standing under the second prong is determined by the „zone of interests‟ test Look to the substantive statute that the plaintiff alleges was violated Ask whether the P is among the class of persons whose interests are protd by the subst statute Look to statutory language, etc., but also consider purposes on the face of the statute The overall statutory goals may be relevant, if reflected in the particular provision, but don‟t stretch Use all tools of stat interp – goals (if reflected in particc subst prov), lang, struc This test applies under §702 and under similarly worded organic statutes No longer reqs express JR standing in org stat Note interplay between implied preclusion analysis and zone of interests analysis Can reach same result in Block thru implied preclusn or ZoI 1. Constitutional Standing Fed cts are of limited juris, and can only have juris over “cases and controversies” Standing gen has two branches Constitutional min reqs Injury in fact Concrete and particularized No general grievs No taxpayer standing Reduced business ok Actual and imminent, not hypothetical or speculative Causation The inj is caused by the allegedly wrongful action of the D Almost exactly same as in tort law Redressabilty Injury will be redressed if the P prevails on the merits – proc error alone insufic Less than cured, but approx the same thing Prudential No 3d pty standing, etc. Cts will apply unless Cong says don‟t a. How Const law docs play out in admin law
Injury in fact: Competitive injury counts as injury in fact – (?????) May not be enough for review under the APA, but sufic for const purps Aesthetic injs and other non-econ injs Impo for all environ cases – e.g. Morton v Sierra Club “Contingent injury” thy allows review of proc viols But a “bare” procedural injury probly doesn‟t sufice I.e. if not linked up w/ partic subst injury in fact to you It is probly a generalized grievance
Someone who has been to the park probly has standing if case is abt a park So can chal proc viol cuz might have changed subst decision Causation and redressability: Again, proc injury is sufficient, in the sense that and to extent that may result in cure of a potential injury All have to do is show injury by present deicision – some thy of inj An assoc has standing to bring a CoA on behalf of its members, if: Issue is germane to the purp of the org and at least one of its members has standing E.g. labor unions, indus trade assocs, env grps, etc. 2. Statutory Standing Ad law provides addl step: who may chal agency deicison – is this stat step or under Const standing Intimately intertwined w/ ques of who has CoA Probly can think of all of standing law as proper scope of CoA – but esp who may chal admin decision Under the APA, two types can bring CoA for JR of agency‟s action - §702: 1. Person who is suffering a legal wrong 2. Or who is adversely affected or aggrieved within the meaning of a relevant stat §702 “legal wrong” is trad CL legal effects test Injuries traditionally cognizable by cts at CL Freedom of mvmt, bod integry, trespass to business/prop Generalized assertions of distress cuz of govt lawbreaking insufic Excludes Ps whose sole injury is competitive harm Tho if govt completely destroys your business, maybe sufic legal wrong With ZoI, two key questions: 1. Where to look for ZoI Clarke expands “where to look” a lot Postal Workers cuts back a lot from Clarke, but still not much on what looking for 2. What are we looking for NCUA – can infer purps of the stat from the effects of the stat Clarke stat provs very sim to ADAPSO stat provs Clarke tries to conflate ZoI and injury in fact – wants APA standing to be as broad as Const standing Reconcile NCUA with Postal Workers: Postal Workers stats had evid that purp of stat was not what you‟d think from looking at effects NCUA stat had no evid of purp, so inference from effect of stat was as good as anything Injury in fact vs ZoI: When find party is w/in ZoI of the stat, two analyses very sim IIF – just looking for injury ZoI – must try and figure stat purps Postal Workers is rare case – Ps injured in fact but not w/in ZoI Cuz of ct presump of JR ADAPSO v Camp – USSC 1970 – p.837 Data processors chal comptroller passing reg allowing banks to do data processing §702 legal wrong is trad CL legal effects test Adversely affected or aggrieved means zone of interests test Ques is whether the interest is w/in the ZoI protd or regulated by the stat/Const guarantee in question
Aesthetic, conservational, recreational values may be w/in ZoI Is pty w/in class of persons that the stat prov was designed to prot W/in meaning of relevant stat means look to subst terms of the org stat Previously, meant look to whether special review provs exist in org stat Cites Hardin: no explicit stat prov neces to give standing, as long as P is w/in ZoI Not looking for Cong enumeration – looking for stat purps into which these Ps might fall Clarke v Securities Indus Assn – USSC 1987 – p.842 Brokers chal comptroller passing reg letting banks do discount brokeraging svcs Standing doesn‟t come from partic stat at issue, but that stat is exception to more gen stat that is restic on kind of business that banks can engage in – same stat as ADAPSO Look to stat struc as a whole to see purp of stat struc as a whole If Ps have interest in that struc as whole, then have standing – “Double bootstrap” Don‟t just look at subst stat at issue in merits If P shows plausible relationship to policies underlying stat as eval‟d above then standing No need for any Cong purp to ben the would-be Ps Just looking for reas inf that Cong intended to permit the suit Here, standing found Which prov gave sdtanding, the gen prov or the exception?? Air Courier Conference of America v Postal Workers Union, AFL-CIO – USSC 1991 – p.847 Postal union chals regs allowing pvt competitors to do intl remailing PES allowed Post Svc to grant exceptns to monopoly if in pub interest Ps claim standing from PRA – stat that has provs to prot postal jobs Disting Clarke – ct there was looking at one stat prov that was exceptn to gen stat prov This case involves two non-interlinked stats – purps are completely diff Can look to whole stat for purps, but those purps must be reflected in specif prov at issue PES purp not to prot postal jobs – no standing Bennett v Spear – USSC 1997 ZoI looks to partic prov on which P relies for complaint Natl Credit Union Admin v First National Bank & Trust Co – USSC 1998 – p.853 FNB chals NCUA saying credit unions can consist of mult units of ppl ununited by any common bond Interst on which claimed standing is based only needs “arguably” be w/in ZoI No need evid that Cong actually consid this class of Ps Ct will infer that purp of any mkt restric is to prot competitors Can infer purp of stat from effects of stat OConnor Dissent: Can‟t infer purp to prot competition just cuz mkt is reg‟d Disting ADAPSO, Clarke cuz those stats clearly had purp in mind to prot competitors Here, no evid at all D. “When” – Timing of Judicial Review When you get JR is tied up at intersection of finality, exhaustion, and ripeness
Take the issues in this order Costs are irrel to finality, exhaustn, and ripeness 1. Exhaustion Gen want exhaustion: To prot admin agency authority which is given by Cong (cts defer to Cong) At least is quasi sep of powers issue, is also delegation issue And promotes jud efficiency – agency might fix a problem, then you have a moot suit See this problem in standing issues too Ensures that agency once sued doesn‟t just say “Ok we fix” – wastes time McCarthy is summary of CL exhaustion, Darby is APA exhaus In exhaus, Cong needs to affirmatively lay out when/whether exhaus req is met Cf. standing – Ps only have to be arguably w/in ZoI Exhaus std is stiffer cuz cts not suspicious – these Ps will get JR, just question of when §704 – Agency action otherwise final is final for JR purps even if no app for reconsid/appeal to higher auth Unless agency reqs appeal by rule and stays the action pending appeal Org stat can overrule this entire prov – agency can always req appeal even if action not stayed Once have final agency action, can go to ct if APA controls Or can go thru CL exhaus reqs from McCarthy Unclear whether CL exceptns apply to stats/regs mandating exhaustn Summary General CL Administrative remedies are favored, unless hardship or resort is futile Under APA - §704: Administrative decision must be suspended during course of further review Otherwise judicial review is appropriate Under the APA versus not is where your CoA comes from If unde the org stat, then apply CL exhaus or under the org stat If not under the org stat, then APA 704 McCarthy v Madigan – USSC 1992 – p.865 Prisoner seeks dmgs in ct as result of Const viol by prison guards, Drs – didn‟t complain thru admin proc Admin CoA didn‟t provide for dmgs, only inj relief CL doc of exhaustion Futility exceptions to exhaustion: Exhaustion is prejudicial to interests E.g. delay is so much that compromise btw judicial efficiency and..? p. 868 Agency not empowered to give relief sought – here, entire ct said agency can‟t give dmgs by stat Sometimes agencies say can‟t resolve Const issues When say those sorts of things, don‟t have exhaustn problem I.e. there is no admin remedy Agency is biased Bal test btw indiv‟s interest in prompt JR vs institutional interest in exhaus Complex regs w/ easy-to-miss deadlines make indiv interest in JR high Institutional interests low – no formal factfinding, so jud efficiency concerns low
I.e. not gonna get more complete factual record to help the ct Cong can change relief struc to req exhaustion (can admin agency too??) Agency could provide for money dmgs too Or if BOP provided for conseqs to attach to factfinding, e.g. liability of the BOP, def more likely When conseqs exist to factfinding, ct will trust it more Rehn Conc: Complexity or admin proc doesn‟t affect exhaus inquiry Prej to indiv interest should be in terms of delay, not complexity Darby v Cisneros – USSC 1993 – p.872 P disbarred for 18 mo., chal sanctions imposed for admin viols – exhaus? P has admin remedy – so is exhaus case HUD regs said determ final unless rcvs request to review grantable in discret §704 doesn‟t req exhaustn of optional appeals 2. Finality §704 creates CoA for final agency action Summary Cause of action exists for review of final agency action Agency action final if Reflects definitive agency view Has immediate legal effect on primary conduct Litigation expense/defense not enough Probable cause is insufic – actual punishmt reqd RMs harder But where agency adopts subst rule that has prim legal effect, compliance costs today change in day-to-day ops, that‟s legal effect FTC v Standard Oil Co of California (Socal) – USSC 1980 – p.878 Socal chal FTC filing of compl w/ itself against Socal Cites Abbott Laboratories for finality test: 1. Definitive statements of the agency‟s position Here, no definitive statement 2. Direct and immediate effect on the day-to-day business of the parties I.e. status of law – force/effect of law - very sim to IR/PS/subst rule test Ult determ of violation or not has direct/immed effect Here, no legal force – only initiates the proceedings, doesn‟t change pties‟ business Litigation expense is not irreparable harm 3. Ripeness Hardest of the three docs – bleeds over w/ finality a lot Applies when agency‟s action is final in sense that has legal effect and no further avenue of relief from agency I.e. ripeness when finality and no opp for exhaus Fund question: should ct review now or later? Ct can in discretion turn away someone despite valid CoA and standing – abstention cases
Ct doesn‟t have to hear it cuz the relief being sought is inj relief or declaratory relief Both always discretionary Ripeness only comes up in claims for equitable relief?? Ripeness is narrow doctrine – broad presump is that if all other reqs met, case is ripe for review Two lessons from Abbott Laboratories and Toilet Goods: If pure legal ques, will have JR right away What looking for to decide whether sth is pure legal ques: How helpful facts developed in enf proc will be to ct in deciding agency‟s auth or other chal Is stretch to even call Ohio Forestry agency action final Only has legal conseqs cuz it sets out reqs for further movement – affects what pties must show Summary General ripeness construct: When court reviews an agency‟s decision – and there are no agency remedies What is the Const basis for a ripeness doctrine? Actions are equitable or discretionary – ct will stay hand if in best interests Note: in ripeness cases the person challenging the agency action will have standing and CoA Cuz the agency action is final Court will also have SMJ Court says that injunctive and declaratory remedies are discretionary Does this apply to an APA cause of action? Does this relieve the federal courts‟ “virtually unflagging” obligation to exercise the jurisdiction conferred upon it? Yes, because relief is equitable Presumption of judicial review Basic balancing approach: The fitness of the issue of judicial review Is the question a “legal one”? Will consideration of the question be advanced by development of additional facts which could be expected to be developed in an anticipated further proceeding I.e. pre-enf actions vs enf actions Versus the hardship to the parties of withholding judicial review What is the burden on the parties Is that burden one that requires a change in “primary behavior” Compare the “finality” analysis here; quite similar Abbott Laboratories v Gardner – USSC 1967 – p.885 Drug manufs chal FDA for reqing printing of generic name on drugs – seek inj relief under APA backup CoA Two part test for ripeness: 1. Fitness of the issues for jud decision Here, purely legal consid is fit for jud review 2. Hardship to the parties Here, great hardship – parties must change labelling of drugs immediately Toilet Goods Assn v Gardner – USSC 1967 – p.889 Drug manufs assoc sues HEW for issuing reg that permits FDA to immed suspend cert of drug manufs
Two part ripeness test from Abbott Labs 1. Fitness of the issues for jud decision Here, the reg gives discret and doesn‟t say when it will be used Would help a lot to know when FDA will order inspecs, etc. – fact questions Will be in better pos to eval the reg when specif application occurs So it‟s not a pure legal question 2. Hardship to the parties Here, not a lot of hdshp cuz no compliance costs and can get quick JR Ohio Forestry Assn v Sierra Club – USSC 1998 – p.895 Sierra Club chals Forest Svc plan to permit foresting Stat makes plan neces but not sufic to actual logging – Forest Svc must take much more steps to actually log Same test as above: Here, issues not fit for jud review now Facts may be dvlpd further and agency‟s plan may be changed Like Toilet Goods 4. Overripeness §703: “except to the extent that prior, adequate, and exclusive opportunity for judicial review is provided by law, agency action is subject to judicial review in civil or criminal proceedings for enforcement.” Statutes often put a time-limit on judicial review Overripe problem when party does not seek review within that time limit but later seeks to challenge reg Issue 1: What challenges to a rule are available after the statutory limitations period expires? Issue 2: What chals can be presented as dfns to enf action (or indiv adj)? NLRB v. FLRA Union brought petition to amend/rescind rule Procedural challenges to prior rule cannot be revived after SoL If not challenged in initial period, procedural challenges are lost Substantive challenges not based on statutory authorization for rule are not lost But judicial review is limited by agency‟s opinion denying petition I.e. A/C challenges Chal can‟t extend to agency‟ orig action in promulging disputed rule Challenges to statutory authorization of rule are never lost – Chevron challenges Can chal subst app of rule past SoL as dfns in enf proc JEM Broadcasting Procedural challenges to a rule also may not be revived in an adjudicatory proceeding [Question: what were the prospects of initial review of the rule? Is the court entirely honest about finality, standing, and ripeness?] 5. Primary Jurisdiction In a private right of action (i.e., not involving the agency as D), otherwise proper in district court, primary jurisdiction may apply
Primary jurisdiction: If a matter central to the case is disputed, and resolution of the matter is better given to the agency (for reasons of uniformity or expertise), the court will stay the case until the disputed matter is submitted to and decided by the agency in via advisory opinion Reqs : 1. Matter central to the case in dispute 2. Resolution of the matter is better left for agency for reasons of uniformity or expertise